Tygrett v. Washington

• Citation: 177 U.S.App.D.C. 355,543 F.2d 840
• Decision Date: 08 April 1976
• Docket Number: No. 72-1876,72-1876
• Parties: James R. TYGRETT, Appellant, v. Walter E. WASHINGTON, Commissioner, District of Columbia, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 840

543 F.2d 840

177 U.S.App.D.C. 355

James R. TYGRETT, Appellant, v. Walter E. WASHINGTON, Commissioner, District of Columbia, et al.

No. 72-1876.

United States Court of Appeals, District of Columbia Circuit.

Argued July 12, 1973.

Decided Oct. 23, 1974.

Rehearing Denied April 8, 1976.

Glenn R. Graves, Washington, D.C., with whom John W. Karr, Washington, D.C., was on the brief, for appellant.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D.C., for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellees.

Before BAZELON, Chief Judge, BASTIAN, Senior Circuit Judge, and ROBINSON, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal brings on for review a judgment of the District Court sustaining the discharge of a District of Columbia police officer by his superiors. We find, upon analysis of the record, that the dismissal was directly attributable to statements by the officer of his views on a matter of public as well as individual concern. We find, too, that the judgment lacks the support of evidence and a judicial determination that the statements detrimentally affected the efficiency of the officer or the employing agency in the rendition of service to the community. On these bases, we reverse and remand the case to the District Court for further proceedings.

I

The relevant events are not in serious dispute. Appellant was a first-year patrolman-officer in the Metropolitan Police Department. For a newcomer at that rank, service of a one-year probationary period is prerequisite to eligibility for a permanent appointment to the force. ¹ Near the end of his probationary period, appellant participated actively in a meeting of the District of Columbia Policemen's Association regarding, and in a congressional lobby for, a bill proposing a pay raise for policemen and firemen. ² The present controversy arose when Washington newspapers reported statements he made in favor of a "sick-in" ³ of police officers if the pending bill did not pass.

The Department deemed some of the statements objectionable ⁴ and appellant was promptly questioned about them. In an interview conducted by Captain Robert E. Ellis and Inspector Robert W. Klotz, appellant admitted that, with minor exceptions, the press had quoted him accurately. During the interview, appellant also declared that if a "sick-out" ⁵ was the "general consensus" of his fellow officers, he would report himself ill and join in the effort. ⁶ After the interview, ⁷ Inspector Klotz submitted to the Chief of Police a report citing appellant's "poor attitude and lack of loyalty," ⁸ and recommending his dismissal "for conduct unbecoming and prejudicial to the Department." ⁹

A few days later, appellant was notified that he would be separated from the police force. The letter of notification informed appellant that "[t]his action is being taken because you have been quoted by news media as advocating that members of this Department take part in a 'Blue Flu' or 'Sick Out' as a means of protesting the lack of action by Congress regarding the proposed pay bill for the Police and Fire Departments." By the Police Department's interpretation, the letter said, "[t]his action would involve large numbers of officers falsely reporting themselves too ill to perform their assigned duties." "Such conduct," the letter continued, "indicates your intention to violate the criminal prohibitions contained in" an anti-strike statute ¹⁰ and "is also clearly in violation of" an anti-strike departmental regulation. ¹¹

The letter of notification also referred to the interview. "Subsequent to the publication of the statements attributed to you by the news media," it read, "you had an opportunity to reflect on these statements," but in the interview "you verbally reinforced these statements as to their accuracy." The letter concluded that "[s]uch conduct clearly indicates that you do not intend to pursue your career as a Police Officer in such a manner as would enhance the image of the Police Department or aid in carrying out its obligation to the community which it serves."

Prior to the effective date of separation, appellant filed suit in the District Court. His complaint alleged that his imminent discharge was occasioned by an exercise of his First Amendment right of free speech, and by an asserted violation of the anti-strike statute ¹² and its counterpart in departmental regulations. ¹³ The complaint asked the District Court to declare the dismissal unlawful, to enjoin it, and to declare the statute and the regulation unconstitutional. Appellees ¹⁴ responded to the complaint and later moved for summary judgment. ¹⁵ Appellant opposed the motion on the ground that the case posed genuine issues of material fact properly resolvable only at a trial.

The District Court granted the motion. In a written opinion ¹⁶ incorporating "findings of fact," ¹⁷ the court articulated its views. The court rejected appellant's contention that the only reason for his separation from service was that he made the statements in question:

[Appellant's] statements alerted his supervisors to an attitude incompatible with the obligations of the department to the community. His supervisors would have been remiss in their duty not to have examined further probationary officer. They did so and into such an attitude on the part of a found that he was unfit for permanent appointment to the force, despite the loss to the department of its considerable investment in an otherwise promising candidate. ¹⁸

On this basis, the court deemed resolution of appellant's free-speech claim unnecessary, ¹⁹ but nonetheless undertook to consider it "for the record." ²⁰ The court held that "[i]n the circumstances of this case, [appellant's] interest as a citizen in making such statements whether in public or in an interview with his superiors is outweighed by the interests of the police department where the department is judging the conduct and capacity of a probationary officer." ²¹ In so concluding, the court laid aside judicial opinions ²² underlying appellant's argument, in the court's words, that "the burden [was] on the police department to make a factual showing that the employee's statements resulted in: (1) reduced efficiency or usefulness of the employee as a police officer; or (2) reduced efficiency, discipline or harmony in the operation of the police department." ²³ The court felt that "such a burden would be placed on the police department only if [appellant] first made a sufficient showing that his dismissal resulted solely in reprisal for his exercise of First Amendment rights" ²⁴ Said the court:

In the instant case, [appellant] has not shown that his dismissal resulted from the exercise of his First Amendment right of free speech. He was dismissed pursuant to D.C.Code Sec. 4-105 ²⁵ ... after his supervisors determined that his conduct or capacity for permanent appointment was unsatisfactory. In making such determinations, the officials of the department need not be deaf to avowed statements of a probationary officer which evidence an attitude inimical to the discipline and efficiency of the department and its obligations to the community. ²⁶

The appeal to this court followed.

II

We find ourselves unable to avoid a confrontation with appellant's First Amendment claim. ²⁷ The District Court acknowledged that the factor precipitating the sequence of events leading to appellant's discharge was newspaper publicity of his statements. ²⁸ The court felt, however, that the discharge resulted, not from the utterances themselves, but from an unsatisfactory attitude reflected by them. ²⁹ The letter notifying appellant of his separation makes clear that the Police Department similarly viewed the matter as one involving attitude rather than speech. ³⁰

We think this analysis does not bear scrutiny. The words appellant spoke were the only indicia of his attitude, and the attitude was inseparably intertwined with the content of the statements. ³¹ It was solely because of what appellant said that the Department perceived the attitude which it deemed inimical to appellant's continuance as a police officer. And it is clear beyond peradventure that but for the remarks--allegedly protected exercises of the right of free speech--appellant would not have been dismissed from the police force. The First Amendment's Free Speech Clause ³² cannot be laid aside simply on the basis that the speaker was penalized not for his speech but for a state of mind manifested thereby.

Nor does the fact that appellant was a probationary police officer at the time of his ouster relieve us of the duty to consider his constitutional argument. We are mindful of the statutory provision, upon which the District Court relied, ³³ that an officer in that status may be dismissed "after advance written notification of the reasons for and the effective date of the separation" if "during the period of probation [ ] the conduct or capacity of the probationer is determined ... to be unsatisfactory." ³⁴ It does not follow, however, that an exercise of free speech could occasion appellant's removal simply because he lacked more permanent tenure. ³⁵ In Perry v. Sinderman, ³⁶ the Supreme Court held flatly that lack of a contractual or tenure right to continued employment does not alone defeat the claim that termination of the employment violated the Constitution. ³⁷ On the contrary, the Court admonished, "even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely." ³⁸ More specifically, "[i]t may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech." ³⁹ It thus becomes necessary, for purposes...