Horstkoetter v. Department of Public Safety

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

OCT 28 1998

UNITED STATES COURT OF APPEALS

PATRICK FISHER

Clerk

TENTH CIRCUIT

PAULA HORSTKOETTER; L.D.

HORSTKOETTER; KIM DEAN; JEFF

DEAN,

Plaintiffs - Appellants,

v. No. 97-6367

DEPARTMENT OF PUBLIC

SAFETY, State of Oklahoma, ex rel.;

MIKE GRIMES; JERRY CASON;

LARRY WARLICK,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. 97-CV-529)

David B. Christian, Woodward, Oklahoma, for Appellants.

Cara Epps Clifton, Department of Public Safety, Oklahoma City, Oklahoma, for

Appellees.

Before ANDERSON, HOLLOWAY , and BALDOCK , Circuit Judges.

ANDERSON , Circuit Judge.

In this case, we must determine whether the State of Oklahoma, through its

Department of Public Safety (“the Department”), may, consistent with the First

Amendment, prohibit members of the Oklahoma Highway Patrol from displaying

political signs at their private residences, even if the signs were placed there by

members’ spouses. L.D. Horstkoetter and Jeff Dean, members of the Oklahoma

Highway Patrol, and their wives, Paula Horstkoetter and Kimberly Dean

(collectively, “Plaintiffs”), brought this action, pursuant to 42 U.S.C. § 1983,

against the Department and three of the troopers’ supervisors (collectively,

“Defendants”), contending that they violated the Plaintiffs’ First Amendment

rights to freedom of speech and expression by ordering them to remove political

signs from their private yards. The district court entered summary judgment as

to all claims in favor of the Defendants. For the reasons discussed below, we

affirm.

BACKGROUND

During the 1996 election season, Paula Horstkoetter and Kimberly Dean

asked Les Morton, a challenger candidate for Woodward County Sheriff, to place

campaign signs in their yards. The Horstkoetter property is owned by L.D. and

Paula Horstkoetter in joint tenancy; the Dean property is titled in the name of

Jeff Dean only.

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Several days after the wives placed the signs in the yards, the troopers’

supervisor, Mike Grimes, instructed several Oklahoma Highway Patrol troopers,

including Larry Warlick, to check the homes of other troopers to see whether any

campaign signs were visible in members’ yards. Grimes ordered this

reconnaissance pursuant to a departmental policy which prohibits members of the

Oklahoma Highway Patrol from displaying partisan political signs at their

residences. The policy states, in relevant part, that

[m]embers [of the Oklahoma Highway Patrol] shall not wear a political

badge, button, or similar partisan emblem. Members shall not display any

partisan political sticker or sign on motor vehicles operated by them or

under their control and shall not publicly display any partisan political

stickers or signs at their residences .

Oklahoma Highway Patrol General Policy Order 78-52-2.16(d) (emphasis added).

After Grimes learned that there were signs at the Horstkoetter and Dean

residences, Oklahoma Highway Patrol supervisors, including Jerry Cason,

approached L.D. Horstkoetter and Jeff Dean separately and told them to remove

the signs. Both Horstkoetter and Dean objected to the demand, stating that the

signs belonged to their wives. The supervisors responded that it did not matter

that the signs belonged to their wives, and that if the troopers did not remove the

signs quickly, they could be suspended or even terminated. Horstkoetter and

Dean called their wives and explained that their jobs would be put in jeopardy if

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the signs were not removed. When the wives heard of this possible threat to

their husbands’ livelihood, they removed the signs.

Ms. Horstkoetter then sent a letter to the Commissioner of Oklahoma’s

Department of Public Safety, explaining the situation and expressing her

dissatisfaction with its resolution. In response, Colonel Gene Lockwood, Chief

of the Oklahoma Highway Patrol, sent a letter to Ms. Horstkoetter, informing her

of the departmental policy, and explaining to her that the Department would

continue to enforce the policy in the future. Lockwood endorsed the

interpretation the supervisory officers had given to the policy, and stated that

because Ms. Horstkoetter was married to a patrolman, certain restrictions were

therefore placed on the residential property. In the letter, Lockwood also hinted

that Mr. Horstkoetter could potentially face criminal liability under a state

statute, in addition to adverse employment action, if he took any active role in

politics. The state statute reads, in relevant part, as follows:

No member . . . of the Oklahoma Highway Patrol Division shall,

while in such position, be a candidate for any political office or take

part in or contribute any money or other thing of value, directly or

indirectly, to any political campaign or to any candidate for public

office. Anyone convicted of violating the provisions of this section

shall be guilty of a misdemeanor and shall be punished as provided

by law.

Okla. Stat. Ann. tit. 47, § 2-105(a) (West 1998).

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After receiving the Department’s response, the Horstkoetters and Deans

filed this suit, alleging that the Department 1

and the individual defendants had,

under color of state law, infringed upon their First Amendment rights to free

expression, made applicable to the states by the Fourteenth Amendment. The

Complaint sought damages, as well as a declaration stating that the policy of the

Oklahoma Highway Patrol is unconstitutional, both on its face and as applied to

Plaintiffs, and an injunction barring Defendants from enforcing the departmental

policy. In May 1997, approximately two months after the complaint was filed,

L.D. Horstkoetter retired from the Oklahoma Highway Patrol.

At the close of discovery, the Department and the individual defendants

moved for summary judgment, and Ms. Horstkoetter and Ms. Dean moved for

partial summary judgment. The district court resolved these cross motions on

October 2, 1997. First, the district court held that Defendants were entitled to

summary judgment as to the claims of Mr. Horstkoetter and Mr. Dean, because,

in view of the undisputed fact that the signs belonged to the wives, the patrolmen

had engaged in no protected speech or expression. Next, the district court held

1

Plaintiffs’ claims against the State of Oklahoma’s Department of Public

Safety, as well as their claims against the individual defendants in their official

capacities, were dismissed by the district court pursuant to Will v. Michigan Dept.

of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Plaintiffs

do not appeal the district court’s dismissal of these claims. Thus, the only claims

that remain on appeal are the plaintiffs’ claims against the individual defendants

in their personal capacities.

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that the wives had engaged in protected political speech, and that the wives had

standing to challenge the Department’s requirement that they remove the signs.

Finally, however, the court held that the individual defendants were entitled to

qualified immunity from suit, because it found that the law in this area was not

sufficiently clear to make the unlawfulness of their conduct apparent. Therefore,

the court entered summary judgment in favor of Defendants as to the wives’

claims as well, and denied the wives’ motion for partial summary judgment. The

district court’s order contained no discussion of the plaintiffs’ claims for

injunctive or declaratory relief.

On appeal, Mr. Horstkoetter and Mr. Dean claim that they, along with their

wives, engaged in protected political speech. Also, all Plaintiffs claim that the

individual defendants are not entitled to qualified immunity in this case because

the law in the First Amendment area is sufficiently clear. Finally, all Plaintiffs

claim that the district court erred by refusing to dispose of their claims for

injunctive and declaratory relief. In response, the Department and the individual

defendants argue in favor of affirmance, but additionally argue that the wives do

not have standing to bring this suit.

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STANDARD OF REVIEW

We review a decision granting summary judgment de novo, using the same

legal standard applicable in the district court. See Miles v. Denver Pub. Sch. ,

944 F.2d 773, 775 (10th Cir. 1991). In cases involving the First Amendment, the

de novo standard is “appropriate . . . for the further reason that . . . ‘[i]n cases

raising First Amendment issues . . . an appellate court has an obligation to make

an independent examination of the whole record in order to make sure that the

judgment does not constitute a forbidden intrusion on the field of free

expression.’” Lytle v. City of Haysville , 138 F.3d 857, 862 (10th Cir. 1998)

(quoting Rankin v. McPherson , 483 U.S. 378, 386 n.9, 107 S. Ct. 2891, 2898 n.9,

97 L. Ed. 2d 315 (1987)). Summary judgment is proper only in cases where

“there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Romero v.

Fay , 45 F.3d 1472, 1475 (10th Cir. 1995).

DISCUSSION

I. The Claims of L.D. Horstkoetter and Jeff Dean

Mr. Horstkoetter and Mr. Dean assert that their First Amendment rights

were violated when their supervisors, pursuant to departmental policy, required

them to remove their wives’ political signs or face potential disciplinary action.

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A. The Pickering/Connick Balancing Test

The patrolmen’s claims raise the issue of whether, and to what extent, the

government, acting as an employer, can restrict the speech of its public

employees. When the government is acting as an employer, rather than as a

sovereign, the First Amendment does not apply with full force. Although the

government, acting as an employer, “cannot condition public employment on a

basis that infringes the employee’s constitutionally protected interest in freedom

of expression,” Connick v. Myers , 461 U.S. 138, 142, 103 S. Ct. 1684, 1687, 75

L. Ed. 2d 708 (1983), a government employer “may impose restraints on the job-

related speech of public employees that would be plainly unconstitutional if

applied to the public at large.” United States v. National Treasury Employees

Union (NTEU) , 513 U.S. 454, 465, 115 S. Ct. 1003, 1012, 130 L. Ed. 2d 964

(1995). To determine whether a public employer has infringed the employee’s

freedom of expression, we apply a four-part test, known as the

Pickering/Connick test. See Pickering v. Board of Education , 391 U.S. 563, 568,

88 S. Ct. 1731, 1734-35, 20 L. Ed. 2d 811 (1968); Lytle , 138 F.3d at 863; see

also NTEU , 513 U.S. at 467, 115 S. Ct. at 1013 (stating that “the Government

must be able to satisfy a balancing test of the Pickering form to maintain a

statutory restriction on employee speech”). The first two parts of this test are

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questions of law for the court; the remaining two steps are questions of fact for

the jury. Cragg v. City of Osawatomie , 143 F.3d 1343, 1346 (10th Cir. 1998).

First, we must consider whether the speech in question involves a matter

of public concern. A matter is of public concern, and therefore entitled to First

Amendment protection, if it is “of interest to the community, whether for social,

political, or other reasons.” Lytle , 138 F.3d at 863 (citing Connick , 461 U.S. at

145-49, 103 S. Ct. at 1689-91). If the matter is of merely personal interest to the

government employee, then the speech is not protected by the First Amendment.

Id.

If the speech is found to be of public concern, the court must then weigh

the employee’s interest in the expression against the government employer’s

interest in regulating the speech of its employees so that it can carry on an

efficient and effective workplace. See Pickering , 391 U.S. at 568, 88 S. Ct. at

1734-35. The employee’s speech is protected only if his interest in engaging in

the speech outweighs the government employer’s interest in regulating it.

Next, the employee must show that the speech was a substantial factor

driving the challenged governmental action. See Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle , 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471

(1977). And finally, if the employee can make the showings required by the first

three parts of the test, the employer is then given the opportunity to show that it

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would have taken the same employment action against the employee even in the

absence of the protected speech. Id.

B. The Test Applied to this Case

Mr. Horstkoetter and Mr. Dean do not contest the government’s power

generally to restrict the political speech of its employees. For over a century,

courts have upheld regulations, such as the federal Hatch Act, curtailing the

rights of public employees to engage in certain kinds of political speech. See

United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers , 413 U.S.

548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973); United Public Workers v. Mitchell ,

330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947); Ex Parte Curtis , 106 U.S. 371,

1 S. Ct. 381 (1882). These regulations were enacted to further several legitimate

and important interests of government, including the following: (1) the

protection of public employees’ job security, see Letter Carriers , 413 U.S. at 566,

93 S. Ct. at 2890-91 (stating that placing restrictions on the political speech of

public employees “make[s] sure that Government employees [are] free from

pressure and from express or tacit invitation to vote in a certain way or perform

political chores in order to curry favor with their superiors rather than to act out

their own beliefs”); (2) the eradication of corruption, see id. , 413 U.S. at 557-58,

559-60, 93 S. Ct. at 2886-87, 2890 (discussing the anti-corruption origins of the

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civil service rules and the Hatch Act); (3) the promotion of efficiency in

government offices, see Waters v. Churchill , 511 U.S. 661, 674-75, 114 S. Ct.

1878, 1887-88, 128 L. Ed. 2d 686 (1994) (plurality opinion) (stating that

“[g]overnment agencies are charged by law with doing particular tasks,” that

“[a]gencies hire employees to help do those tasks as effectively and as efficiently

as possible” and that “[w]hen [an employee] . . . begins to do or say things that

detract from the agency’s effective operation, the government employer must

have some power to restrain her”); and (4) the encouragement of impartiality,

and the public perception of impartiality, in government services. See Letter

Carriers , 413 U.S. at 565, 93 S. Ct. at 2890 (stating that public employees “are

expected to enforce the law . . . without bias or favoritism” and that “[a] major

thesis of the Hatch Act is that to serve this great end of Government–the

impartial execution of the laws–it is essential that federal employees” not

become involved in politics).

These permissible restrictions on political speech can also apply to

employees of state and local governments, see Broadrick v. Oklahoma , 413 U.S.

601, 606, 93 S. Ct. 2908, 2913 (1973) (upholding state laws similar to the federal

Hatch Act), including law enforcement officers. 2

See , e.g. , Reeder v. Kansas

2

Nearly every state in this circuit, as well as most states outside the circuit,

has a statute restricting the political activities of highway patrol members. See,

(continued...)

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City Board of Police Comm’rs , 733 F.2d 543, 547 (8th Cir. 1984) (upholding

Mo. Rev. Stat. § 84-830, which prohibited members of the Kansas City Police

Department from making any political campaign contributions); Wachsman v.

City of Dallas , 704 F.2d 160 (5th Cir. 1983) (upholding various provisions of the

Dallas city charter which prevented city police officers from making

contributions to or soliciting contributions for city council candidates); Otten v.

Schicker , 655 F.2d 142, 144 (8th Cir. 1981) (upholding a St. Louis Police

Department local rule which prevented officers from running or campaigning for

public office); Perry v. St. Pierre , 518 F.2d 184, 186 (2d Cir. 1975) (upholding a

provision of the Plattsburgh, New York, city charter which made it unlawful for

a city police officer to, among other things, “attempt to influence any voter”).

The patrolmen’s First Amendment challenge, then, is a narrow one: Mr.

Horstkoetter and Mr. Dean assert that the government’s well-established power

to regulate the political speech of its employees does not extend far enough to

2

(...continued)

e.g., Colo. Rev. Stat. Ann. § 24-33.5-215 (1997); Kan. Stat. Ann. § 74-2113(e)

(1997); Okla. Stat. Ann. tit. 47, § 2-105(a) (West 1998); Utah Code Ann. § 67-19-

19 (1997); see also Ky. Rev. Stat. Ann. § 16.170 (Michie 1996); Mich. Comp.

Laws Ann. § 28.10 (West 1997); Miss. Code Ann. § 45-3-11 (1998). Other states

have enacted less restrictive statutes which prohibit officers from engaging in

political activity while at work or while using state resources, but authorizing

officers to participate in politics on their own time. See, e.g., Ark. Code Ann.

§ 12-8-205 (Michie 1997) (amended 1997); N.M. Stat. Ann. § 29-14-10 (Michie

1998).

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sustain a regulation prohibiting a state law enforcement officer from placing

political signs on his residential property. We analyze this challenge under the

framework of the Pickering/Connick test set forth above.

Mr. Horstkoetter and Mr. Dean cannot meet the requirements of the

Pickering/Connick test in this case. Even assuming that Mr. Horstkoetter and

Mr. Dean can survive the first hurdle, 3

they must show that their interest in the

expression outweighs the government employer’s interest in regulating it. This

they cannot do. Certainly, the employees here have a strong interest in engaging

in political speech. Indeed, “[t]he First Amendment affords the broadest

protection to . . . political expression in order to assure the unfettered

interchange of ideas for the bringing about of political and social changes

3

There is some question as to whether the troopers were even engaging in

speech at all. The district court held that the troopers were not engaging in any

constitutionally protected speech, in view of the undisputed fact that the signs

were requested by the troopers’ wives, and not by the troopers themselves.

Indeed, when confronted by their supervisors about the signs, both patrolmen

protested that the signs were not theirs, but were their wives’. If the patrolmen

were not speaking, they cannot meet the first requirement of the test, because the

patrolmen cannot be said to have engaged in speech regarding matters of public

concern if they were not speaking at all. There is, however, some force to the

argument that at least Mr. Dean was speaking, even if Mr. Horstkoetter was not,

because Mr. Dean has sole title to the Dean residence, including the legal right to

exclude his wife’s signs, and may therefore be said to have implicitly adopted the

signs as his own speech. To the extent the patrolmen were speaking, that speech

would undoubtedly be related to matters of public concern. See Zorzi v. County

of Putnam, 30 F.3d 885, 896 (7th Cir. 1994) (stating that an employee fired for

participating in political activity was engaging in speech on matters of public

concern).

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desired by the people.” Buckley v. Valeo , 424 U.S. 1, 14, 96 S. Ct. 612, 632, 46

L. Ed. 2d 659 (1976) (internal quotation marks omitted). However, we think that

the employer’s interest in regulating troopers’ political signs outweighs that

interest.

The Oklahoma Highway Patrol’s policy prohibiting troopers from

displaying political yard signs serves at least three of the governmental interests

set forth in the Hatch Act cases. 4

See Letter Carriers , 413 U.S. at 557-66, 93 S.

4

Plaintiffs argue that, in order for the balancing test to weigh in the

government’s favor, there must be evidence in the record that the removal of

these particular political signs furthered the interests behind the policy. The

district court seemed to agree, citing Gardetto v. Mason, 100 F.3d 803, 815-16

(10th Cir. 1996) (stating that “the government . . . cannot rely on purely

speculative allegations that certain statements caused or will cause disruption to

justify the regulation of employee speech”). While this may be true in cases

involving employees who were fired for isolated instances of disruptive speech or

whistleblowing not connected to any statute or policy, see Rankin v. McPherson,

483 U.S. 378, 380, 388-89, 107 S. Ct. 2891, 2899, 97 L. Ed.2d 315 (1987) (where

an employee criticized President Reagan, stating after the 1981 assassination

attempt that “[i]f they go for him again, I hope they get him”); Gardetto, 100 F.3d

at 815-16 (where an employee was openly critical of the policies of her supervisor

and her employer), such a showing is not required when the constitutionality of a

particular regulation curtailing political speech is at issue, at least where that

regulation is aimed at protecting, rather than restricting, the rights of public

employees. For instance, in Mitchell, the Supreme Court upheld the

constitutionality of the Hatch Act without a particularized showing that the

statute’s interests were furthered in that specific case, stating that even though the

particular employee at issue, a roller in the mint, was a relatively non-influential

employee,

Congress may have concluded that the activity may promote or retard his

advancement or preferment with his superiors. Congress may have thought

(continued...)

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Ct. at 2886-91; Mitchell , 330 U.S. at 101, 67 S. Ct. at 570. First, the policy

serves to “assure persons aspiring to careers in law enforcement that they are not

obliged to make public display of political affiliation or defer to the wishes of

political dignitaries in order to guarantee retention and promotion.” Pollard v.

Board of Police Comm’rs , 665 S.W.2d 333, 336 (Mo. 1984), cert. denied , 473

U.S. 907, 105 S. Ct. 3534, 87 L. Ed. 2d 657 (1985). In the absence of this

4

(...continued)

that government employees are handy elements for leaders in political

policy to use in building a political machine. For regulation of employees

it is not necessary that the act regulated be anything more than an act

reasonably deemed by Congress to interfere with the efficiency of the

public service. There are hundreds of thousands of United States

employees with positions no more influential than [the roller in the mint].

Evidently what Congress feared was the cumulative effect on employee

morale of political activity by all employees who could be induced to

participate actively. It does not seem to us an unconstitutional basis for

legislation.

Mitchell, 330 U.S. at 75, 101, 67 S. Ct. at 570. Likewise, in Letter Carriers, the

Court did not require a particularized showing. 413 U.S. at 564, 93 S. Ct at 2889

(stating that “[a]lthough Congress is free to strike a different balance than it has,

if it so chooses, we think the balance it has so far struck is sustainable by the

obviously important interests sought to be served” by such restrictions on public

employees’ political speech). And in United States v. National Treasury

Employees Union, 513 U.S. 454, 470-71, 475-76 n.21, 115 S. Ct. 1003, 1015,

1017-18 n.21, 130 L. Ed.2d 964 (1995), the Court did require some evidence of

disruption, but only because the regulation at issue there, a ban on honoraria, was,

unlike the Hatch Act and other similar regulations on political speech, aimed at

restricting employees’ rights rather than protecting their job security. We are

persuaded that, in cases involving a constitutional challenge to a regulation on

public employees’ political speech, the government need not make a

particularized showing where at least one of the interests served by the regulation

is the protection of public employees’ job security.

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policy, troopers could feel pressure to display signs advocating the election of

candidates favored by superiors.

Second, the policy promotes efficiency and harmony among law

enforcement personnel. In some cases, public endorsement of candidates by

police officers has stirred great controversy within police departments and has

detracted from “the efficiency and the quality of the services” provided by law

enforcement. See Ruff v. City of Leavenworth , 858 F. Supp. 1546, 1554 (D.

Kan. 1994).

Third, the policy “proclaim[s] that police protection will be available to

the public, free from political overtones, and that the police will deal impartially

with all who give them concern.” Pollard , 665 S.W.2d at 336. Also, the policy

helps to further harmonious relations between state police, local law

enforcement, and the citizenry. In many rural communities, such as northwestern

Oklahoma, “[a] state trooper is often the most conspicuous representative of the

state government to a large percentage of the population, . . . who may view the

trooper as a symbol of stability and authority.” Wicker v. Goodwin , 813 F. Supp.

676, 681 (E.D. Ark. 1992). Such policies help to avoid the perception that public

law enforcement organizations support a particular political candidate or party.

“[I]t is not only important that the Government and its employees in fact avoid

practicing political justice, but it is also critical that they appear to the public to

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be avoiding it, if confidence in the system of representative Government is not to

be eroded . . . .” Letter Carriers , 413 U.S. at 565, 93 S. Ct. at 2890. “It is proper

for a state to insist that the police be, and appear to be, above reproach, like

Caesar’s wife.” Reeder , 733 F.2d at 547 .

Most courts that have considered the issue have concluded that the

government’s interest in regulating the political speech of law enforcement

personnel outweighs the individual officer’s interest in engaging in certain kinds

of political speech. Indeed, courts have held that a government employer’s

power to curtail the political speech of law enforcement personnel extends far

enough to ban activities such as attempting to influence voters, endorsing

political candidates, and displaying political signs in their yards. See , e.g. , Perry

v. St. Pierre , 518 F.2d at 186 (upholding a provision of the Plattsburgh, New

York, city charter which made it unlawful for a city police officer to, among

other things, “attempt to influence any voter”); Wicker , 813 F. Supp. at 680-81

(upholding, against a First Amendment challenge, Ark. Code Ann. § 12-8-205

(before its 1997 amendments), which prohibited members of the Arkansas State

Police from making contributions to or participating in campaigns, among other

things); cf. Ruff , 858 F. Supp. at 1554-55 (holding that a city may

constitutionally prohibit police officers from endorsing candidates, even though

holding that the city’s stated policy banning all “political activity” was

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overbroad). We are persuaded that the government’s well-established right to

restrict the political speech of its employees extends far enough to allow state

and local law enforcement organizations to prohibit members from displaying

political signs at their residences. 5

The Wicker case is especially apposite here. In that case, the court passed

on the constitutionality of an Arkansas statute which barred members of the state

police from participating in political campaigns. See Ark. Code Ann. § 12-8-205

(before 1997 amendments). One of the plaintiff troopers had been suspended

without pay for violating the statute, because he had, among other things,

“erect[ed] yard signs [and] ha[d] a bumper sticker displayed on a privately

owned vehicle.” Wicker , 813 F. Supp. at 679. The court upheld the statute, as

applied to this trooper, against a First Amendment challenge, holding that the

state’s interest in regulating trooper speech outweighed the trooper’s interest in

displaying yard signs and bumper stickers. The court stated that the statute

5

In cases involving other less emblematic public employees, the balance

may come out differently. Indeed, under the federal Hatch Act, federal

“employees” are allowed to display signs at their residences, see 5 C.F.R.

§ 734.205(a) (1998), but this permission does not extend to “member[s] of the

uniformed services.” 5 C.F.R. § 734.101 (1998) (defining “employee,” for

purposes of that subpart, as excluding “member[s] of the uniformed services”).

And at least one court has held that general city employees cannot be prohibited

from displaying political signs in their yards. See Goodman v. City of Kansas

City, 906 F. Supp. 537 (W.D. Mo. 1995). But for high-profile public employees,

such as law enforcement personnel, we are confident that the constitutional

balance weighs in favor of the government.

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“serves several valid and important interests,” including ensuring “troopers job

security, free from the vicissitudes of the election process; . . . avoid[ing] the

appearance of political partisanship on the part of the Arkansas State Police; and

. . . promot[ing] a harmonious working relationship between the State Police,

citizens, and political officials throughout the State.” Id. at 681.

We conclude, therefore, that the interests of the government employer,

here the Oklahoma Highway Patrol, in prohibiting political yard signs outweigh

the patrolmen’s interest in displaying the yard signs. Thus, the patrolmen cannot

meet the second requirement of the Pickering/Connick test. Accordingly, we

hold that the First Amendment does not prohibit a state from barring members of

its highway patrol or state police from displaying political signs in their private

yards. The policy of the Oklahoma Highway Patrol prohibiting troopers from

displaying political signs in their yards is facially constitutional under the First

Amendment.

C. The Limits of the Oklahoma Highway Patrol’s Policy

Our holding that the policy of the Oklahoma Highway Patrol is

constitutional is not without limits. By its plain language, the policy applies only

to “[m]embers” of the Oklahoma Highway Patrol, and not to members’ spouses.

Our holding permits the Oklahoma Highway Patrol to take disciplinary action

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against members who display political signs in their private yards. Thus, if the

trooper, rather than the trooper’s spouse, requests that a sign be placed in his

yard, that trooper may be disciplined without offending the Constitution.

A more difficult question arises when the trooper’s spouse erects a sign in

the residential yard. The district court resolved this situation by determining that

the signs belonged to the spouses rather than to the troopers. Under the district

court’s analysis, the state may not constitutionally discipline the trooper if the

speech in the residential yard is the spouse’s speech rather than the trooper’s.

The crucial factor under the district court’s analysis was whether the speech was

that of a trooper or that of a spouse. While this analysis is wholly defensible as

far as it goes, we think it does not go far enough in explaining the circumstances

under which a state may discipline a trooper for having a sign in his private yard.

A way to look at this situation in a manner more directly related to the trooper’s

personal accountability is in terms of the trooper’s lawful right to remove the

sign from his residential property. If a trooper has sole ownership, or its

equivalent, of the residential property, then, by legal definition, he has the lawful

right to remove political signs from his property, whether placed there by

himself, his spouse, or a passerby. By refusing to exercise this legal right to

remove the sign, the trooper would seem, at least implicitly, to be adopting the

sign as his own, even if the sign was placed there by someone else. And, in such

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a situation, it becomes difficult to escape the conclusion that the trooper is

violating the state’s requirement that he refrain from displaying signs at his

residence. Therefore, as applied to troopers who have sole title, or its state law

equivalent, in their residential property, the policy may extend far enough to

allow a state to take disciplinary action against a trooper who has a political sign

in his yard, even if the sign was originally placed there by another person.

However, the situation changes where someone else owns, or has an

ownership interest in, the residential property. The trooper clearly does not have

the right to remove signs placed in a yard owned by a spouse or by someone else,

or in which the spouse or others have a property interest, such as a joint tenancy

or tenancy in common. See Matthews v. Matthews , 961 P.2d 831, 834-35 (Okla.

1998) (stating that “[o]ne who stands in a cotenancy relation to another may not

act or claim ‘in derogation of’ the [other cotenants’] interest” and that “[t]his

means that a cotenant is not allowed to lessen or diminish the value or effect of

the other cotenant’s right, title, interest or status in the land” (citations and

footnotes omitted)); 20 A M . J UR .2 D Cotenancy and Joint Ownership § 1 (1997)

(stating that “[i]n a true cotenancy the interest of each cotenant is coextensive

with the common property and extends to every part of the property, although

none has the right to occupy any particular part of it to the exclusion of the

others”). A state highway patrol organization cannot, through a policy restricting

-21-

political speech, require a trooper to do what property law does not allow him to

do. Therefore, as applied to situations in which a trooper has no interest, or

merely a joint or common interest, in his residential property, the policy cannot

extend far enough to allow a trooper to be disciplined for not removing a sign

from his residential property placed there by one who possesses a common

interest in the property, so long as the sign is solely the speech of the common

interest holder. 6

To apply these principles to the case before us, we must look to the

property interests of the Plaintiffs. The Dean residence is titled solely in the

name of Jeff Dean. Appellee’s App. at 203. Under the facts presented to us in

this case, Ms. Dean has no property interest in the residential property. 7

6

We note, however, that even in situations where the trooper does not have

the sole property interest in his residence, the trooper may be constitutionally

barred from erecting a sign in his yard. In these situations, the property aspect of

the analysis is unhelpful, and the speech-based analysis set forth by the district

court is sufficient. The focus of the regulation is on what the trooper does or fails

to do with respect to signs under his control. Therefore, if there is evidence to

indicate that the trooper, rather than another cotenant, placed the sign there, the

trooper may constitutionally be disciplined. Thus, there are two situations in

which a state may constitutionally discipline a trooper for displaying a political

sign at his residence: (1) where the trooper is the sole interest holder in the

residential property; and (2) where there is evidence in the record that the trooper

himself placed, or caused to be placed, the sign at his residence.

7

On the record before us, we know only that the Dean property is titled in

the name of Jeff Dean. We are unaware of any other potential interests, based in

other areas of state law, that Ms. Dean might have in the residential property. For

instance, Oklahoma family law may provide non-titled spouses certain rights in

(continued...)

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Therefore, the policy of the Oklahoma Highway Patrol can extend far enough to

prohibit Mr. Dean from displaying, or allowing the display of, political signs at

the Dean residence, and the Oklahoma Highway Patrol may, within the bounds of

the Constitution, discipline Mr. Dean for displaying, or for refusing to remove,

political signs in his yard, even if the signs were originally placed there by

someone else. Therefore, all of Mr. Dean’s claims must fail, and the district

court properly granted summary judgment in favor of the Defendants as to the

claims of Jeff Dean.

The Horstkoetters present a different situation. Mr. and Ms. Horstkoetter

own their residence together as joint tenants. Appellee’s App. at 201. By

attempting to enforce its policy against the Horstkoetters, the Oklahoma Highway

Patrol is essentially requiring Mr. Horstkoetter, upon penalty of disciplinary

action, to remove his wife’s sign from her property. The Oklahoma Highway

Patrol cannot constitutionally extend its policy so far. Any discipline imposed

under these circumstances would violate Mr. Horstkoetter’s constitutional rights.

7

(...continued)

the residential property. However, such interests have not been brought to the

attention of this court, and thus, on the record before us, we must conclude that

Ms. Dean has no property interest in the Dean family residence.

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D. Mr. Horstkoetter’s Remedies

As remedies for the potential violation of his constitutional rights, Mr.

Horstkoetter seeks injunctive and declaratory relief, as well as damages.

Defendants argue that Mr. Horstkoetter’s claims for prospective relief have been

mooted by his retirement, and that his claims for damages are precluded because

the individual defendants are entitled to qualified immunity. We agree.

1. Mootness

Mootness, like standing, stems from the Article III requirement that federal

courts hear only “Cases” and “Controversies.” U.S. Const. art. III, § 2. Indeed,

mootness is “the doctrine of standing set in a time frame: The requisite personal

interest that must exist at the commencement of the litigation (standing) must

continue throughout its existence (mootness).” Arizonans for Official English v.

Arizona , 520 U.S. 43, 68 n.22, 117 S. Ct. 1055, 1069 n.22, 137 L. Ed. 2d 170

(1997) (citations omitted). Mr. Horstkoetter certainly had standing to bring this

suit at the outset of the litigation, and indeed he still has standing to seek

retrospective relief such as damages. However, his claims for prospective relief

will be mooted “[i]f an event occurs while a case is pending that heals the injury.”

Southern Utah Wilderness Alliance v. Smith , 110 F.3d 724, 727 (10th Cir. 1997);

see also McClendon v. City of Albuquerque , 100 F.3d 863, 867 (10th Cir. 1996)

-24-

(stating that “[w]hen a party seeks only equitable relief, . . . past exposure to

alleged illegal conduct does not establish a present live controversy if

unaccompanied by any continuing present effects”).

Mr. Horstkoetter’s retirement from the Oklahoma Highway Patrol has

mooted his claims for prospective relief. Because he is no longer a state trooper,

and because the policy only applies to “[m]embers,” Mr. Horstkoetter will now

not come under any possible interpretation of the policy. Mr. Horstkoetter cannot

show that there is any possibility that he could ever be subject to sanction by the

Oklahoma Highway Patrol should he or his wife choose to erect political signs in

their yard in upcoming political campaigns. Any injunction that we might issue in

this case, prohibiting the highway patrol from applying its policy to Mr.

Horstkoetter, would be meaningless, because the patrol has no reason to apply its

policy to him now that he has left the patrol. Likewise, any declaratory judgment

in favor of Mr. Horstkoetter would also be meaningless. See Southern Utah

Wilderness Alliance , 110 F.3d at 730 (stating that “[f]or the same reasons that

injunctive relief is not available, a declaratory judgment also is not available,”

because the “declaratory judgment would serve no purpose”).

Because Mr. Horstkoetter cannot “demonstrate a good chance of being

likewise injured in the future,” McClendon , 100 F.3d at 867, his claims for

prospective relief are moot.

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2. Qualified Immunity

Although Mr. Horstkoetter’s claims for prospective relief have been

rendered moot, his claims for damages have not. However, Defendants argue, and

the district court held, that his claims for damages are barred by the doctrine of

qualified immunity. We agree.

Qualified immunity is a doctrine which “shields government officials

performing discretionary functions from individual liability under 42 U.S.C.

§ 1983 unless their conduct violates ‘clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Baptiste v. J.C. Penney

Co., Inc. , 147 F.3d 1252, 1255 (10th Cir. 1998) (quoting Harlow v. Fitzgerald ,

457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). The law

provides these officials with qualified immunity because “it is impossible to know

whether the claim is well-founded until the case has been tried,” and “to submit

all officials, the innocent as well as the guilty, to the burden of a trial and to the

inevitable danger of its outcome, would dampen the ardor of all but the most

resolute, or the most irresponsible, in the unflinching discharge of their duties.”

Gregoire v. Biddle , 177 F.2d 579, 581 (2d Cir. 1949) ; see also Albright v.

Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995) (stating that qualified immunity

exists to “ensure that erroneous suits do not even go to trial”). The doctrine of

qualified immunity “strik[es] a balance between compensating those who have

-26-

been injured by official conduct and protecting government’s ability to perform

its traditional functions.” Lawmaster v. Ward , 125 F.3d 1341, 1347 (10th Cir.

1997).

When a defendant pleads qualified immunity, as these Defendants have

done, the plaintiff must make a two-part showing. First, he must show that the

defendant’s actions violated a federal constitutional or statutory right. See

Baptiste , 147 F.3d at 1255; Albright , 51 F.3d at 1534. As discussed above, Mr.

Horstkoetter has cleared this first hurdle. We held above that the Oklahoma

Highway Patrol cannot constitutionally extend its policy against political signs to

Mr. Horstkoetter’s situation, namely, where the trooper owns the residential

property in joint tenancy, and where there is evidence to show that one of the

other joint tenants, rather than the trooper, placed the sign at the residence.

Next, he must show that “the right violated was clearly established at the

time of the conduct at issue.” Baptiste , 147 F.3d at 1255. A right is “clearly

established” when “[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton , 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 997 L. Ed. 2d

523 (1987). Although a plaintiff need not show that the very action in question

was previously held unlawful, id. , she must demonstrate that there is a “Supreme

Court or Tenth Circuit decision on point, or the clearly established weight of

-27-

authority from other courts must have found the law to be as the plaintiff

maintains.” Medina v. City and County of Denver , 960 F.2d 1493, 1498 (10th

Cir. 1992).

Often, the court’s determination about whether the right is clearly

established turns on the level of generality to be applied. On a very general level,

all constitutional rights are clearly established. For instance, in Anderson the

Court noted that the Fourth Amendment right to be free from unreasonable

searches and seizures was clearly established, but held that it was not clear

whether the Fourth Amendment’s protections extended to the particular factual

situation at issue in that case. Anderson , 483 U.S. at 639-40, 107 S. Ct. at 3038.

Too general an approach “would destroy ‘the balance that our cases strike

between the interests in vindication of citizens’ constitutional rights and in public

officials’ effective performance of their duties.’” Id. at 639 (citations omitted).

In this circuit, we require “some but not precise factual correspondence” between

the cases cited and the factual situation in the case at hand. Lawmaster , 125 F.3d

at 1351.

Here, Mr. Horstkoetter argues that his wife’s right to display signs, and

therefore his right not to be punished for her displays, is clearly established. In

support of that proposition, he cites four cases. City of Ladue v. Gilleo , 512 U.S.

43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994); Burson v. Freeman , 504 U.S. 191,

-28-

196-97, 112 S. Ct.1846, 1850, 110 L. Ed. 2d 5 (1992); Buckley , 424 U.S. at 14,

96 S. Ct. at 632; Spence v. Washington , 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed.

2d 842 (1974). All of these cases stand for propositions far too general to assist

Mr. Horstkoetter here; none of the cited cases deals at all with the rights of public

employees or their spouses. Burson and Buckley contain only the most general

statements to the effect that political speech is entitled to the highest protections.

And Ladue and Spence deal only with the rights of persons who are not public

employees, and give no guidance at all to government employers about how to

handle situations where otherwise lawful restrictions on the political speech of

public employees incidentally impact the speech of those employees’ spouses. As

such, these cases cannot assist Mr. Horstkoetter in showing that the law at the

time was clearly established.

Mr. Horstkoetter cites no other cases in support of his contention that the

law was clearly established. Both this court and the district court conducted

exhaustive research on the issue, and were unable to find any cases which set

forth the contours of the limits of government’s power to indirectly restrict the

political speech of public employees’ spouses.

In sum, the rights of a spouse of a law enforcement officer to display signs

at her residence were not clearly established at the time of Defendants’ actions.

Defendants’ interpretation of their policy, in view of the law at the time, was not

-29-

clearly unlawful. Therefore, defendants Grimes, Cason and Warlick are entitled

to qualified immunity. Mr. Horstkoetter is not entitled to a damages award

against these Defendants. The district court properly entered summary judgment

in favor of Defendants as to the claims of L.D. Horstkoetter.

II. The Claims of Paula Horstkoetter and Kimberly Dean

Before we may reach the merits of Ms. Horstkoetter’s and Ms. Dean’s

claims that their First Amendment rights were violated, we must first decide

whether Ms. Horstkoetter and Ms. Dean have standing to bring their claims.

Standing is a concept rooted in Article III of the U.S. Constitution, which requires

that federal courts hear only actual “Cases” and “Controversies.” U.S. Const. art.

III, § 2. The “irreducible constitutional minimum” of Article III’s case-or-

controversy requirement contains three elements. Lujan v. Defenders of Wildlife ,

504 U.S. 555, 560, 112 S. Ct. 2130, 2136-37, 119 L. Ed. 2d 351 (1992);

Committee to Save the Rio Hondo v. Lucero , 102 F.3d 445, 447 (10th Cir. 1996).

First, the plaintiff must have suffered an “injury in fact” that is “concrete” rather

than “conjectural or hypothetical.” Lujan , 504 U.S. at 560, 112 S. Ct. at 2130.

Second, the plaintiff must show that there is a “causal connection between the

injury and the conduct complained of.” Id. Finally, the plaintiff must show that

-30-

it is “likely” and not merely “speculative” that the injury complained of will be

“redressed by a favorable decision.” Id. , 504 U.S. at 561, 112 S. Ct. at 2130.

Here, Defendants claim that the troopers’ wives do not have standing

because they do not allege an “injury in fact.” Ms. Horstkoetter and Ms. Dean

claim, in turn, that they were injured because, in order to spare their husbands’

jobs, they were required to remove their signs from their private yards. We hold

that, because they were never in danger of being directly punished under the

policy, Ms. Horstkoetter and Ms. Dean have standing only to raise the same

claims as their husbands, and do not have standing to raise any separate claims of

their own.

By its own terms, the policy can only apply to troopers, and not troopers’

spouses. It is true that the Oklahoma Highway Patrol interpreted the policy to

restrict the property rights of the spouses as well. Indeed, Col. Lockwood told

Ms. Horstkoetter that because she was married to a trooper, “there are certain

restrictions placed on [her] property.” Appellant’s. App. vol. III, at 58.

However, the only penalties that can be inflicted upon anyone for violations of the

policy, even as interpreted by the Oklahoma Highway Patrol, were employment

sanctions or criminal penalties against the troopers themselves. Under the terms

of the policy itself, there was never any possibility of disciplinary action against

the wives directly. For instance, the Oklahoma Highway Patrol could not have

-31-

fined the wives, could not have imposed any criminal penalties upon the wives,

or, because they are not troopers, taken disciplinary action against the wives in

their respective employment situations. The Oklahoma Highway Patrol could not

even have, within the law, physically removed the signs from the troopers’ yards.

In short, had the wives elected to leave the signs in the yard, the only possible

action the highway patrol could have taken would have been to suspend or

terminate the troopers themselves. Thus, there is no way that the wives could

ever have been directly injured by any application of the policy. Therefore, in

view of the fact that the state is not regulating their speech, the wives do not have

standing to mount a separate and independent First Amendment challenge to the

policy. The district court erred in holding that the wives had standing to raise

separate claims, and therefore also erred in assessing the wives’ claims under a

different level of scrutiny than the husbands’ claims.

However, Ms. Horstkoetter and Ms. Dean were, without question, indirectly

injured by the application of the policy to their husbands, because their husbands

were faced with a loss of income which would have affected the entire family.

See Ben Oehrleins & Sons & Daughter v. Hennepin County , 115 F.3d 1372, 1379

(8th Cir. 1997) (stating that “indirect economic injury constitutes injury in fact”

if, while indirect, the injury “is neither speculative nor merely incidental”). This

indirect injury is, however, only enough to confer standing to raise, derivatively,

-32-

the same claims as their husbands raised. In other words, based on this injury, the

wives’ claims would in essence be that the state cannot constitutionally discipline

their husbands for having political signs on their residential property, the same

claim raised by their husbands. Thus, both the wives and the husbands have

standing to challenge the constitutionality of the policy. However, the claims of

the troopers’ wives are exactly the same, and would be analyzed under the same

standards, as the claims of the troopers themselves.

For the reasons discussed above, the troopers’ claims fail, and therefore the

claims of their spouses must necessarily fail with them. Accordingly, the district

court properly entered summary judgment in favor of Defendants as to the claims

of Paula Horstkoetter and Kimberly Dean.

CONCLUSION

Accordingly, we AFFIRM the district court’s grant of summary judgment in

favor of the defendants as to all claims. It is so ordered.

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