Zook v. Brown, 83-2908

• Decision Date: 14 November 1984
• Docket Number: No. 83-2908,83-2908
• Citation: 748 F.2d 1161
• Parties: Stephen D. ZOOK, Plaintiff-Appellant, v. Joseph T. BROWN, William V. Mosher & Champaign County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1161

748 F.2d 1161

Stephen D. ZOOK, Plaintiff-Appellant, v. Joseph T. BROWN, William V. Mosher & Champaign County,

Defendants-Appellees.

No. 83-2908.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 1984.

Decided Nov. 14, 1984.

Edward H. Rawles, Reno, O'Byrne & Kepley, Champaign, Ill., for plaintiff-appellant.

Steven M. Helm, Dukes, O'Rouke, Stewart, Martin & Helm, Danville, Ill., for defendants-appellees.

Before BAUER and ESCHBACH, Circuit Judges, and JAMESON, Senior District Judge. ^*

ESCHBACH, Circuit Judge.

Stephen Zook, a deputy sheriff employed by the Sheriff's Department in Champaign County, Illinois, brought this action under 42 U.S.C. Sec. 1983 alleging that he was disciplined in retaliation for the exercise of his rights under the First and Fourteenth Amendments. Zook sought damages from Sheriff Joseph Brown, Chief Deputy William Mosher, and Champaign County. In addition, Zook sought injunctive and declaratory relief. Specifically, he wanted a declaration that the Sheriff's Department rules under which he was disciplined were unconstitutional on their face and as applied to him, an injunction against their further enforcement, and the removal of a written reprimand from his record. The district court granted summary judgment for defendants, holding that the rules were constitutional both on their face and as applied, and that the individual defendants were in any event entitled to qualified immunity from damages. 575 F.Supp. 72.

We agree that the individual defendants are entitled to qualified immunity, and we also agree that one of the rules, which prohibits officers from making public statements when acting as representatives of the Sheriff's Department, is facially valid. We hold, however, that material questions of fact remain that preclude judgment for the defendants as a matter of law on the question of the constitutionality of the rules as applied to Zook and that the record is insufficiently developed to allow a determination that the remaining rule is constitutional on its face. We therefore remand the case to the district court for further consideration.

I.

In October 1981, there was a public debate in Champaign County over the provision of emergency medical services. On November 9, 1981, a local newspaper published a letter from Stephen Zook, a deputy sheriff employed by the Champaign County Sheriff's Department. In the letter, Zook stated that in his ten years of service as a deputy sheriff, he had had the opportunity to observe the owner of Arrow Ambulance Service and many of the attendants at work and that he was impressed with their professionalism and equipment as well as their dedication in working with patients. Zook ended the letter by commending the owner and employees of Arrow Ambulance Service for their service to the community.

Sheriff Joseph Brown read the letter when it appeared, and immediately noted his belief that the letter conflicted with departmental policy as well as with his own campaign to reduce Arrow's rates. ¹ Brown discussed the letter with Chief Deputy William Mosher, who agreed that the letter violated departmental policy. On November 16, Zook received an Official Letter of Reprimand composed by Mosher and signed by Brown. The reprimand stated that Zook's letter placed the Sheriff's Department in an "uncomfortable position" and that it was necessary for the members of the Department to remain neutral and impartial in relation to the provision of emergency services because the services are generally competitive and because people tend to suspect collusion between the police and emergency service providers. The reprimand stated that Zook was in violation of Standards 2.19 and 4.4 of the Champaign County Sheriff's Department Operating Procedures Manual. Standard 2.19, entitled "Abuse of Position," states in relevant part:

B. Use of Name, Photograph or Title: Officers shall not authorize the use of their names, photographs, or official titles which identify them as officers, in connection with testimonials or advertisements of any commodity or commercial enterprise, without the written approval of the sheriff.

Standard 4.4, entitled "Public Statements and Appearances," states in relevant part:

B. When acting as representatives of the department, officers shall receive approval from the sheriff before they address public gatherings, appear on radio or television, prepare any articles for publication, act as correspondents to a newspaper or periodical release, or divulge investigative information or any other matters of the department.

Upon receipt of the reprimand, Zook wrote Brown and expressed his belief that his letter was not a testimonial or advertisement in violation of Standard 2.19, and that he was not acting as a representative of the Department in violation of Standard 4.4. Zook also stated his belief that his letter was constitutionally-protected speech and that the Sheriff's action violated his constitutional rights. Zook asked that the reprimand be expunged from his record. Brown consulted Trisha Crowley, an Assistant State's Attorney for Champaign County, in regard to Zook's claim that the reprimand violated his constitutional rights. After researching the matter, Ms. Crowley told Brown and Mosher that she could not predict with any certainty how a federal court would rule on the question of whether the reprimand was impermissible and told them that their chances of winning a lawsuit challenging their conduct were "fifty-fifty." Brown and Mosher decided not to expunge the reprimand.

Thereafter, Zook filed the instant action under 42 U.S.C. Sec. 1983, naming Brown, Mosher, and Champaign County as defendants and alleging that Standards 2.19 and 4.4 were overbroad, vague, and unconstitutional as applied to Zook. ² Zook sought compensatory and punitive damages, as well as injunctive and declaratory relief. The individual defendants interposed the defense of qualified immunity and moved for partial summary judgment; the plaintiff also moved for summary judgment.

The district court held that the defendants had not violated Zook's rights under the First and Fourteenth Amendments. The court found that the Standards furthered the Sheriff's Department's legitimate goal of avoiding the appearance of partiality in its relations with emergency service providers, and that "an otherwise innocent act, such as praising a particular service's actions, could be perceived by the public as an endorsement." It thus found that the Department's interest in "limiting deputies' opportunities to contribute to the public debate on ambulance services" justified the regulations and that the regulations were constitutionally applied to Zook. Having found that the regulations were constitutional as applied, the court held that Zook lacked standing to challenge the regulations as overbroad or vague. Finally, although it recognized that it need not reach the issue, the court held that the defendants were entitled to qualified immunity for their actions. In doing so, the court relied primarily on the fact that the defendants had sought a legal evaluation of their conduct from the Assistant State's Attorney and had been informed that the law was unclear. The court therefore found that the defendants had met the burden of demonstrating that they neither knew nor should have known that their conduct was in violation of clearly established constitutional rights. Summary judgment was then entered for the defendants. ³

II.

The Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), held that a government official is entitled to immunity from liability for damages if the official's actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." The test is an objective one that focuses on the state of the law at the time of the alleged violation. In the context of this case, then, we must ask whether the defendants could reasonably have been expected to know at the time they disciplined Zook that the Constitution forbade their actions. See Egger v. Phillips, 710 F.2d 292, 315 (7th Cir.1983).

Zook argues that the right of a public employee to comment on matters of public concern was clearly established as early as 1968 in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). We agree that such a right exists, but the existence of that right does not end our analysis under Harlow, for a public employee's right to comment on matters of public concern must be weighed against the public employer's legitimate interest in "promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. The process of balancing the competing interests of public employers and their employees under Pickering necessitates an assessment of the relative weight of a wide range of factors. As this court noted in Egger, supra,

[I]n view of the enormous variety of circumstances in which statements by public employees may be thought by their superiors to furnish the grounds for personnel action, the Supreme Court has deemed it inappropriate and infeasible "to attempt to lay down a general standard against which all such statements may be judged."

710 F.2d at 315 (quoting Pickering, 391 U.S. at 569, 88 S.Ct. at 1735).

Although analysis of competing interests under Pickering involves a balancing process, it does not follow that the outcome that a court would reach would always be difficult to predict. We know, for example, that a public employer cannot entirely deny its employees the right to criticize their employer. See Pickering, 391 U.S. at 568, 570, 88 S.Ct. at 1735 (teachers); Muller v. Conlisk, 429 F.2d 901, 914 (7th Cir.1970) (same; policemen). We can also imagine a situation where the employer's asserted interest in limiting the speech of its employee is so frivolous that it...