Wilson v. Taylor, 79-2892

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation658 F.2d 1021
Docket NumberNo. 79-2892,79-2892
PartiesRobert Lee WILSON, Plaintiff-Appellant, v. Irvin T. TAYLOR, as acting Chairman and Examiner, Civil Service Board, et al., Defendants-Appellees. . Unit B *
Decision Date13 October 1981

Stephen A. Weinstein, Robert F. Evans, Jr., Orlando, Fla., for plaintiff-appellant.

Frederic O'Neal, Orlando, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE, HATCHETT and ANDERSON, Circuit Judges.


Appellant, Robert Lee Wilson, is a former officer with the police department of Winter Park, Florida. He filed this suit pursuant to § 1 of the Civil Rights Act of 1871, 42 U.S.C.A. § 1983 (West 1974), against various officials of Winter Park (hereinafter referred to collectively as "officials") in their individual and official capacities, alleging he was discharged from the police department without procedural due process, in contravention of his First Amendment right of association, and pursuant to regulations impermissibly vague and facially overbroad. The district court, in an order granting Wilson partial summary judgment, found his procedural due process

rights had been violated and ordered the officials to hold a remedial hearing. After the court-ordered hearing, the City of Winter Park reaffirmed the discharge of Wilson. Subsequently, the district court granted the officials' motion for summary judgment, holding that Wilson was discharged because of his association with a known felon, rejecting Wilson's claim that his First Amendment right of association had been infringed, and rejecting his claim that the regulation under which he was discharged was impermissibly vague and facially overbroad. The district court held that Wilson had been deprived of procedural due process, but that the remedial hearing had cured that violation. Rejecting Wilson's claims for compensatory and punitive damages for the procedural due process violation, the court awarded only nominal damages of $1

We vacate the judgment of the district court. We conclude that there is a genuine issue of fact as to why Wilson was discharged. Depending on the resolution of that issue on remand, it may also be necessary for the court below to address Wilson's substantive constitutional claims. In any event, Wilson is entitled to an opportunity to present evidence on his claims that he has incurred actual compensatory damages as a result of the admitted violation of procedural due process. He is also entitled to present evidence on his claim for punitive damages resulting from the procedural due process violation. 1


Although most of the facts are undisputed, there is some disagreement as to the content of conversations Wilson had with various officers of the Winter Park Police Department relevant to the issue of why Wilson was discharged. Since this case was decided on summary judgment, we resolve all factual discrepancies in favor of Wilson.

Wilson was hired by the Winter Park Police Department on June 3, 1971, as a probationary police officer and was assigned to the Uniformed Patrol Division. A year later, pursuant to the City's Civil Service Regulations, Wilson's probationary status ceased and he became a permanent employee.

Late in 1971, Wilson became acquainted with Susan Blackburn, the adopted daughter of Harlan Blackburn, a convicted felon who was reputed to be a key figure in organized crime in Central Florida. At that time, Wilson knew of Harlan Blackburn's reputation as a member of organized crime. In early 1974, Wilson asked Officer Jerry King, a member of the Vice Squad, whether Susan Blackburn had a clean record. When advised that she did, Wilson began dating Susan. Detective Hugh H. Dearing, Commander of the Investigation Unit, shortly thereafter learned that Wilson was dating Susan. He informed Police Chief Raymond E. Beary who indicated that Wilson's association with Susan was proper so long as he did not associate with Harlan. There is no indication in the record that this restriction on Wilson's seeing Harlan Blackburn was communicated to Wilson. For approximately the next year and a half, there was no objection to Wilson's seeing Susan Blackburn, even though they continued dating.

In May, 1975, Wilson's association with Susan brought him into contact with Harlan Blackburn for the first time. About May 9, 1975, at the request of Susan, and while Wilson was not on duty, Wilson accompanied her on an automobile drive to Avon Park Correctional Institution where they picked up Harlan, who had been temporarily released from confinement on an appeal bond. 2 They took a friend's car and Susan was the driver. That night, at the

invitation of Susan and her mother, Wilson dined at the family home 3 with the Blackburn family, including Harlan. The next evening Wilson again dined at the family home with the Blackburn family, again including Harlan and a friend of the family, Father Farley. The contacts during these two days were the only contacts Wilson had with Harlan before his dismissal. There is no dispute that before his association with Harlan Blackburn, Wilson had no blemish on his record and was a good officer

Later that month, Wilson told Detective Dearing he had picked up Harlan Blackburn at the Avon Park Correctional Institution and had eaten dinner with him twice. About May 16, 1975, at Dearing's request, Wilson had a meeting with Dearing who stated that Chief Beary had asked Wilson to terminate his association with Susan. (Record on Appeal, p. 309). Although Dearing indicated his meeting with Wilson was in strict confidence, immediately after the meeting Wilson was approached by fellow officers who questioned his ability to continue as chairman of the Collective Bargaining Committee of the Local Fraternal Order of Police in light of the department's concern over his activities. 4 Concerned about the spreading rumors among his fellow officers, Wilson promptly sought out Chief Beary to discuss the matter. A meeting among Wilson, the Chief, Deputy Chief Paul Aurbeck, and Detective Dearing ensued that same day, May 16.

Wilson's sworn testimony concerning this meeting is that most of the discussion was about his association with Susan. His impression was that Chief Beary understood the only reason he had any contact with Harlan was because of his dating Susan. Wilson testified that he had already determined on his own not to see Harlan again. (Record on Appeal, pp. 638-639). At this meeting, Wilson promised not to see Susan again, but denies being asked to promise not to see Harlan again. (Record on Appeal, p. 145 and pp. 638-9, and Supp. Record on Appeal, pp. 63-64). Wilson states that it was understood among the participants that he would not associate with Harlan again. 5 At Wilson's own suggestion, a ten-day suspension with pay was imposed to run, to be followed by a previously scheduled three-week vacation with pay, in order to give the police department time to clear Wilson or to take disciplinary action.

Shortly thereafter, Wilson called Deputy Chief Aurbeck and reneged on his promise not to see Susan Blackburn again. (Record on Appeal, pp. 143-145; 738-740). Deputy Chief Aurbeck states under oath that Wilson indicated he could not keep his promise not to see "the Blackburn family" again. 6 (Record on Appeal, p. 129). In the summary judgment posture of this case, we cannot credit this testimony in light of Wilson's conflicting testimony. Accordingly, we assume for summary judgment purposes that Wilson in no way indicated he could not refrain from seeing Harlan.

During the suspension period, at the request of Chief Beary, Wilson and Dearing met for further discussion of Wilson's relationship with the Blackburns. The meeting was recorded and its purpose, though apparently not communicated to Wilson, was for Dearing to formulate a recommendation on whether or not Wilson should be disciplined. The transcript reveals that Dearing began the interview eliciting a history of Wilson's association with Susan. Dearing

then asked Wilson questions to determine the subject matter and extent of Wilson's conversation with Harlan while riding with him from the prison and while dining with him. 7 The interview ended with Dearing indicating for the first time that Susan was under investigation for an unspecified reason by both a state and municipal agency. Wilson reiterated his intention to continue to see Susan and Dearing elicited an acknowledgement that Wilson had already seen Susan after reneging on his promise to Deputy Chief Aurbeck. At no time during this interview did Wilson indicate he could not refrain from seeing Harlan Blackburn again

Dearing conveyed the substance of this meeting to Deputy Chief Aurbeck, who recommended to Chief Beary that some disciplinary action be taken against Wilson. On June 13, 1975, Deputy Chief Aurbeck requested Wilson's resignation. Wilson refused to resign. Aurbeck then brought Wilson before Chief Beary, who informed Wilson that he was fired, effective immediately. 8 At that time, Chief Beary gave Wilson a memorandum setting forth the department's charges of misconduct and formally notifying him of his immediate dismissal. 9 There is no dispute that Wilson was given no prior notice and no opportunity to offer reasons why his discharge was improper.

Wilson timely invoked his right to appeal his dismissal to the City's Civil Service Board. The Board granted him an informal hearing on August 5, and at its conclusion voted to rescind the termination notice effective upon the completion of a six-month disciplinary suspension. Dissatisfied with the Board's decision, Chief Beary instituted, without formal notice to Wilson, an appeal to the Winter Park City Commission. After a public hearing, also held without formal notice to Wilson, the Commission members present voted to overrule the Civil


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