Petition — City of Columbus v. Leonard

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U.S.

IN THE NOV 25 1963

ALEXANDER W STEVAS.

Supreme Court of the United-Sfates—

OCTOBER TERM, 1983

THE CITY OF COLUMBUS, a consolidated municipal

governinent; J. R. ALLEN, Mayor (deceased);

A. J. McCLUNG, Mayor Pro Tem; JOSEPH W. SARGIS,

Director of Public Safety; LEONARD LEAVELL and

HUGH BENTLEY, Members Police Hearing Board;

B. F. McGUFFEY, Chief of Police; and S. W. BROWN,

Assistant Chief of Police,

Petitioners,

versus

ROBERT LEONARD; WILLIE L. PEARSON, JR.; VINSON

WILLIS; JOHN H. Ci. ARK, JR.; GARY L. SMITH; and

FREDDIE L. WHITE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

EUGENE HARDWICK POLLEYS, JR.

City Attorney

P. O. Box 1340

Government Center

Columbus, Georgia 31993

Telephone: (404) 324-7711

Extension 453

Attorney for Petitioners

QUESTIONS PRESENTED FOR REVIEW

Does a municipality have a sufficient governmental interest

in prescribing an American flag emblem as a part of the

uniform issued to the members of its police department

so as to allow dismissal of officers who publicly remove

and publicly refuse to wear such insignia, and did the Court

of Appeals err in concluding or implying that a resolution

enacted by a governing authority and imposing such a uni-

form regulation is unconstitutional? Yes!

(This question alone should prompt the Supreme Court to

issue a writ of certiorari because it suggests that the Court of

Appeals decision is directly contrary to Kelley v. Johnson,

425 U.S. 238 (1976) -- a case to which the Court of Appeals

opinion does not even allude either in its text or in its

footnotes; the Question also affords an opportunity to

decide to what extent the application of the First Amend-

ment in the military context shall also apply to a para-mili-

tary or quasi-military police department.)

Does the conduct of subordinate police officers who, on

May 31, 1971, in front of Police Headquarters and within

the recording of television and other news media, remove

the American flag from their uniforms, and who state that

they have no intention of wearing the emblems in the future

until their superiors treat them in a manner that the sub-

ordinates deem appropriate, constitute symbolic speech

protected by the First Amendment so as to insulate them

from removal for conduct unbecoming to officers contrary

to good order and discipline and so as to make both public

officials and a municipal corporation liable for damages

under 42 U.S.C. § 1983? No!

(This question represents issues similar to those in Com-

munity for Creative Non-Violence v. Watt, 703 F.2d 586

(D.C. Cir. 1983), cert. granted, Oct. 3, 1983 (Supreme

Court No. 82-1998), and it affords the Supreme Court an

opportunity to affirm the continuing validity of United

States v. O'Brien, 391 U.S. 367 (1968) - - which, like Kelley,

also does not appear anywhere in the opinion below; it also

raises questions as to whether or not plaintiffs attempted

to exercise First Amendment rights in an appropriate time,

place, or manner.)

Did the Court of Appeals err in concluding that, under

the balancing test of Pickering v. Board of Education, 391

U.S. 563 (1968) (which involved the dismissal of a school

teacher who wrote a letter to the newspaper criticizing the

Board’s allocation of financial resources between educational

and athletic programs and charging the school superintendent

with attempting to prevent teacher opposition to a proposed

bond issue), the conduct of the seven police officers was

protected by the First Amendment - - even though the

District Court explicitly held (The Court of Appeals agreed

with the trial judge’s findings of facts: “We reach our con-

clusion, however, without disagreement as to the facts as

found by the court below.” (Footnote 4) ) that they “had

for weeks prior to May 31 been making public comment

and holding press conferences and issuing press releases

stating their grievances and criticizing the City Government

in general and the Police Department in particular and no

coercive action had been taken by anyone connected with

the City Government to stifle the criticism, and . . . were

allowed to conduct their picketing activities on the side-

walk and display their placards in front of the Police Head-

quarters for three days without hindrance” and that the

May 31, 1971 deliberate cutting of the flags from their

uniforms and the public annowncement that each would not

wear it again “‘was a calculated show of contempt for the

City authority and a demonstration of refusal to obey its

lawful ordinances, rules and commands” (District Court

Opinion, Appendix Page A-10)? Yes!

(This question affords the Supreme Court an opportunity

to define the relationships between District Courts and

Courts of Appeal in First Amendment cases: To what extent

do First Amendment questions involve law or fact? To what

extent does the “clearly erroneous” rule govern the outcome

of an appeal? To what extent may an appellate panel make

a de novo determination?)

Did the Court of Appeals err in imposing the burden-

shifting test of Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977) in a case where

the trial occurred nearly two years prior to the Mt. Healthy

decision, where the decision on the merits was made without

the necessity of re-opening the case for further evidence

because the District Court concluded that no First Amend-

ment violation constituted a substantia! factor in the dis-

missals, and where the only due process issue ever raised by

the never-amended June 18, 1971 Complaint was the May

31, 1971 summary dismissal for the “flag incident” and

not the July 1971 hearings of the Police Hearing Board

which heard numerous other allegations and upheld the

dismissals? Yes!

Would not the Mt. Healthy rule shifting the burden of

proof to a defendant only be fairly applied in situations

where defendants’ lawyer knows of the rule and defendants’

lawyer knows that a trial judge has ruled that a First Amend-

ment violation has occurred (e. g., by denying a motion for

directed verdict or a motion for summary dismissal), i.e.

isn’t such an application of Mt. Healthy required by funda-

mental due process for defendants? Yes!

Did the Court of Appeals err by completely ignoring the

considerable authority stemming from Arnett v. Kennedy,

416 U.S. 134 (1974) that a post-termination hearing cures

the procedural infirmities of a summary dismissal and by

completely faiJing to even acknowledge that this was an

issue in the case, particularly when the Fifth Circuit Court

of Appeals had remanded the case to the District Court with

an unequivocal statement that the due process issue centered

on alleged procedural defects of the May 31, 1971 summary

dismissal (no hearing, no prior notice, no opportunity to

respond, no confrontation, and no counsel: 551 F.2d 974,

976; Appendix A-77, and particularly when the Eleventh

Circuit panel concluded during the course of the opinion

now under review that the May 31 dismissals violated City

regulations and ‘the City Charter (which should have made

it mandatory to consider the curative effect of the July 1971

Police Hearing Board hearings where Plaintiffs were repre-

sented by counsel)? Yes!

By indiscriminately lumping all of the Defendants into

one composite group, did the Court of Appeals ignore the

rule in Rizzo vy. Goode, 423 U.S. 362 (1976), requiring

direct responsibility and a casual relationship between

conduct and constitutional injury, and did the Court of

Appeals compound this error by failing to even consider or

mention the properly raised defenses of good faith and

Official immunity as well as the question of how the City

could be liable without retroactively applying Monell y.

Department of Social Services of the City of New York,

436 U.S. 658 (1978)? Yes!

LIST OF PARTIES

The Caption contains all of the parties to the proceedings

in the Court of Appeals for the Eleventh Circuit.

vii

TABLE OF CONTENTS

Questions Presented for Review .............ccccceees i

FFP POSE TOE PETS OEP OL eS vi

ES I 0 gt ee rey em Pe Ns xi

I 2.3/5 cen peomeaeeeebe dd ets he ¥00 eee

Constitutional Provisions, Statutes and Ordinances .......

IED. 45.0 Sou 04d 46NE coo edo b ase eet

1. THE ELEVENTH CIRCUIT HAS REVERT-

ED TO THE ERRONEOUS POSITION THAT

WAS FORMERLY HELD BY THE SECOND

CIRCUIT AND REJECTED IN KELLEY V.

JOHNSON, 425 U.S. 238 (1976) ......... 6

2. SINCE THE COURT OF APPEALS CON-

SIDERED THE REMOVAL OF THE AMERI-

CAN FLAG INSIGNIA TO BE “SYMBOLIC

SPEECH” PROTECTED BY THE FIRST

AMENDMENT, ITS ANALYSIS OF THE

ISSUE SHOULD HAVE PROCEEDED IN

LIGHT OF UNITED STATES V. O'BRIEN,

391 U.S. 367 (1968); ON REVIEW THE

SUPREME COURT COULD MAKE SUCH

AN ANALYSIS IN CONJUNCTION WITH

WATT, SECRETARY OF THE INTERIOR

viii

TABLE OF CONTENTS

V. COMMUNITY FOR CREATIVE NON-

VIOLENCE (SUPREME COURT NO. 82-

1998, CERT. GRANTED OCT. 3, 1983) .....

PICKERING V. BOARD OF EDUCATION,

391 U.S. 563 (1968) TIPS THE BALANCE

DECISIVELY AGAINST THE PLAINTIFFS,

AND THE CONTRARY CONCLUSION BY

THE COURT OF APPEALS SUGGESTS

THAT IT EITHER IGNORED THE FAC-

TUAL FINDINGS OF THE TRIAL JUDGE

AND TRIED THE CASE DE NOVO OR

ELSE IT REACHED IN IMPERMISSIBLE

CONCLUSION OF LAW BASED ON THE

UNCONTROVERTED FACTS. ............--: 16

THE MT. HEALTHY CITY BOARD OF

EDUCATION V. DOYLE, 429 U.S. 274

(1977) RULE SHIFTING THE BURDEN

TO DEFENDANTS SHOULD NOT BE

APPLIED TO A CASE TRIED BEFORE

THE DECISION IN MT. HEALTHY WAS

RENDERED, NOR SHOULD IT BE AP-

PLIED TO A CASE IN WHICH DEFEN-

DANTS HAVE NO NOTICE UNTIL THE

APPELLATE STAGE THAT PLAINTIFFS

HAVE CARRIED THEIR INITIAL BURDEN

AND PROVED A PRIMA FACIE CASE OF

A FIRST AMENDMENT VIOLATION.......

Page

TABLE OF CONTENTS (Continued)

Page

5. ARNETT V. KENNEDY, 416 U.S. 134

(1974) SHOULD HAVE BEEN APPLIED

TO ABSOLVE THE CITY AND ITS OF-

FICIALS OF ANY LIABILITY RESULTING

FROM AN ALLEGEDLY DEFICIENT SUM-

MARY DISMISSAL BECAUSE THE POST-

TERMINATION PROCEEDINGS BEFORE

THE POLICE HEARING BOARD CURED

ANY DEFECTS WHICH MIGHT HAVE

EE F.GLnie \chw Wo We bin SRO baie Katine oo 0 018 25

6. ASSIGNMENT OF LIABILITY TO THE

DEFENDANTS CANNOT BE JUSTIFIED

UNDER R/JZZO V. GOODE, 423 U.S. 362

(1976) OR MONELL V. DEPARTMENT

OF SOCIAL SERVICES OF THE CITY OF

NEW YORK, 436 U.S. 658 (1978); NOR

WERE THE INDIVIDUALS’ DEFENSES

OF GOOD FAITH AND OFFICIAL IM-

MUNITY EVEN CONSIDERED .............. 26

APPENDIX:

Appendix A - Opinion of the Eleventh Circuit ......... A-1l

TABLE OF CONTENTS (Continued)

Page

Appendix B - District Court Opinion dated February

PE eee ee Peer Pee eS © A-19

Appendix C - Dissenting Opinion of Justices Rehn-

quist and Blackmun and Chief Justice Burger....... A-37

Appendix D - Opinion of the Fifth Circuit ........... A-45

Appendix E - Unpublished Opinion of the Trial

PE A 0s CTD ewe cedetecccakecaves A-56

Appendix F - Eleventh Circuit Mandate Stayed to

NS SUE Mac candiaveocuvies s-ccmbeceva A-71

Appendix G - Eleventh Circuit Granting Stay ......... A-73

Appendix H - Eleventh Circuit Denied Petition for

Rehearing and Suggestion for Rehearing En Banc ...A-75

Appendix I - Eleventh Circuit Judgment ............ A-77

Appendix J - Opinion and Order of District Judge

in the Community Action Group ................ A-79

ROOTES 6.02 kv hiss Vetemedades ick eens A-121

Appendix L - City’s Motion for Rehearing En Banc . . .A-143

TABLE OF AUTHORITIES

Page

Cases:

Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir. 1983) ...... 28

Anderson v. Evans, 660 F.2d 153 (6th Cir. 1981) ....... 20

Arnett v. Kennedy, 416 U.S. 134 (1974) ...... iv, 5, 25, 26

Bush v. Lucas, U.S. (June 13, 1983)....... 10

Brousseau v. United States, 640 F.2d 1235 (9) (Ct.

BP EEe 6 0s cWephhebates Geeereréeedacse 22

Brown vy. Glines, 444 U.S. 348 (1980) ...... 0.00 e ee eee 10

Byrd v. Gain, 558 F.2d 553 (4) (9th Cir. 1977) ......... 11

Chappell v. Wallace, _-_. U.S. —_. (June 13,

| PRET REET L LO TET CUP EES CTT TT ee 10

Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), cert.

CR re Bes EE wb. <6 eR ASRS Ve han VoeeKe ewe ss 20

Community Action Group v, City of Columbus, 473

F.2d 966 (Sth Cir. 1973), reh. den., 475 F.2d 1404... .3,4

Community for Creative Non-Violence v. Watt, 703

F.2d 586 (D.C. Cir. 1983), cert. granted, Oct. 3,

1983 (Supreme Court No. 82-1998) ...............- 14

Davis v. Norman, 555 F.2d 189 (2) (8th Cir. 1977) ...... 15

xii

TABLE OF AUTHORITIES (Continued)

Page

Dwen v. Barry, 483 F.2d 1126 (2d Cir. 1973) ........... 7

East Hartford Education Association v. Board of

Education of the Town of East Hartford, 562

ae es GH, HE 5k ods ove & cacnaiee be eden 9

Egger v. Phillips, 710 F.2d 292 (7th Cir. 1983) ......... 10

Foster v. Ripley, 645 F.2d 1142 (D.C.Cir. 1981) ........ 22

Garrity v. New Jersey, 385 U.S. 493 (1967)... .......... 7

Givhan v. Western Line Consolidated School District,

GP Gs ee COE cnc a eho tk iuctne- «ata dcess 24, 25

Gonzalez v. Benavides, 712 F.2d 142 (2) (Sth Cir. 1983) . .20

Harlow v. Fitzgerald, __. U.S. ___., 102 §.Ct.

DPGA MAGEE «cc duis dhanesnds 0 ds.cuemeek nee 27

Heffron v. International Society for Krishna Con-

sciousness, Inc., 452 U.S. 640 (1981)... ......50005- 14

Janusaitis v. Middlebury Volunteer Fire Department,

GBF C28 FF CR Sine 0 oe 0.000 dna sh aeeeee 18

Kannisto v. City and County of San Francisco, 541

541 F.2d 841 (4) (9th Cir. 1976) ...........2 eee ees 11

Kelley v. Johnson, 425 U.S. 238 (1976) ....i, ii, 1,9, 11, 12,

xiii

TABLE OF AUTHORITIES (Continued)

Page

Lerwill y, Joslin, 712 F.2d 435 (10th Cir. 1983) ........ 28

Lowman y. Davies, 704 F.2d 1044 (8th Cir. 1983) ...... 11

Miller v. School District, 495 F.2d 658 (7th Cir. 1974) ....9

Monell v. Department of Social Services of the City

of New York, 436 U.S. 658 (1978) ........... v, 26, 27

Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 274 (1977) .......... iii, iv, 5, 23, 25

Nathanson vy, United States, 702 F.2d 162 (8th Cir.

Ce ee ere oe aed dhe b ae abo we ee 20

New Rider v. Board of Education, 480 F.2d 693 (1)

(10th Cir. 1973), cert. den. 414 U.S.733 ............ 16

See BOPP Cle Gi TOR CLEP PED ceecvcesccevsovee 10

Phillips vy. Adult Probation Department of the City

and County of San Francisco, 491 F.2d 951 (1)

EE PED dhe aS Nha yc¥ns 66 Vebdn ee he sheukss 21

Pickering v. Board of Education, 391 U.S. 563 (1968) . ii, 16,

17, 18,19

Rizzo v, Goode, 423 U.S. 362 (1976) ............. iv, 26

Rosaly v. Ignacio, $93 F.2d 145 (ist Cir. 1979)......... 25

xiv

TABLE OF AUTHORITIES (Continued)

Page

Sabel v. State, 248 Ga. 10 (1981), cert. den. 454 U.S.

PE oid 60Gb oa be Aa Shes Eotaes te aaa 12

Santos v. Miami Region, U.S. Customs Service, 642

woke Re ts. | ee ere or reas 18

Schmidt v. Fremont County School District No. 25,

State of Wyoming, 558 F.2d 982 (10th Cir. 1977)..... 21

Shaw v. Board of Trustees of Frederick Community

College, 549 F.2d 929 (4th Cir. 1976) 2... . 0. eee eee 19

Shawgo yv. Spradlin, 701 F.2d 470 (13) (Sth Cir.

1983) cert. den. Nov. 7, 1983 (Whisenhunt y.

Spradiin, No. 62-2146)... cccvsccsccccctevevvcves 11

Sprague v. Fitzpatrick, 546 F.2d 560 (3rd Cir. 1976),

ooet: Gan. 431 UB. GSE ow ccctcccvcvccteccsatesves 19

Sumbry v. Land, 127 Ga.App. 786, 195 S.E.2d 228

(1972), cout. Gom., 4364 UBL ICTS occ vasicecessevcens 3

Tardif v. Quinn, 545 F.2d 761 (ist Cir. 1976) ........... 9

United States v. Bader, 698 F.2d 553 (2) (ist Cir.

OR rn re er Cer Tee ee 15

United States v. Crosson, 462 F.2d 96 (8) (9th Cir.

ori © © fh | errr 16

United States v, O'Brien, 391 U.S. 367 (1968) . .ii, 13, 14, 15

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

THE CITY OF COLUMBUS, a consolidated municipal

government; J. R. ALLEN, Mayor (deceased);

A. J. McCLUNG, Mayor Pro Tem; JOSEPH W. SARGIS,

Director of Public Safety; LEONARD LEAVELL and

HUGH BENTLEY, Members Police Hearing Board;

B. F. McGUFFEY, Chief of Police; and S.W. BROWN,

Assistant Chief of Police,

Petitioners,

versus

ROBERT LEONARD; WILLIE L. PEARSON, JR.;

VINSON WILLIS; JOHN H. CLARK, JR.;

GARY L. SMITH; and FREDDIE L. WHITE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINIONS BELOW

The decision of the United States District Court for the

Middle District of Georgia is not reported. The decision of

the United States Court of Appeals for the Eleventh Circuit

is reported at 705 F.2d 1299 (1983). The decision of the

United States Court of Appeals for the Fifth Circuit in the

first phase of this case involving jurisdictional and abstention

is reported at 551 F.2d 974, and the dissenting opinion on

the denial of Certiorari from that decision is reported at

443 U.S. 905. The 1975 decision of the United States Dis-

trict Court for the Middle District of Georgia during the

first phase of th. case was not reported. All of these de-

cisions are contained in the Appendices.

JURISDICTION

The original decision of the Court of Appeals for the

Eleventh Circuit was rendered on May 23, 1983, and a

Petition for Rehearing and Suggestion for Rehearing En

Banc was denied on September 9, 1983. No extension of

time within which to Petition for Certiorari has been re-

quested, but a Stay of the Issuance of the Mandate was

requested for the full ninety day period dated from Septem-

ber 9, 1983, and it was granted up to and including Decem-

ber 1, 1983. The various judgments and orders recited here

are attached in the Appendices. The statutory provision

believed to confer on the Supreme Court jurisdiction to

review the judgment or decree of the Court of Appeals by

writ of certiorari is 28 U.S.C. §1254(1) (62 Stat. 928).

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES

The following enumerated constitutional provisions,

statutes, and ordinances are set out verbatim in the Ap-

pendices:

1. First Amendment to the United States Constitution

2. Fifth Amendment to the United States Constitution

3. Fourteenth Amendment to the United States Con-

stitution

42 U.S.C. §1981 (R.S. §1977)

42 U.S.C. §1983 (R.S. §1979)

28 U.S.C. §1331 (62 Stat. 930; 72 Stat. 415)

28 U.S.C. §1343 (62 Stat. 932; 68 Stat. 1241; 71

Stat. 637)

at at ad

8. 28 U.S.C. §2201 (62 Stat. 964; 63 Stat. 105; 68

Stat. 890; 72 Stat. 349)

9. 28U.S.C. §2202 (62 Stat. 964)

10. Ordinance No. 71-1 of the Columbus Code

11. Ordinance No, 71-154 of the Columbus Code

STATEMENT OF THE CASE

Both the opinions of the District Court and the Court of

Appeals contain factual statements, and the Court of Appeals

rendered its decision after agreeing with the facts found by

the trial judge. Further statements of facts can be found in

the unpublished opinion of the trial judge which was written

in 1975 during the first phase of this case involving juris-

dictional and abstention issues (Appendix A-56), and in the

opinion of the Court of Appeals for the Fifth Circuit which

remanded the case for a decision on the merits (551 F.2d

974; Appendix A-45), and in the dissenting opinion of

Justices Rehnquist and Blackmun and Chief Justice Burger

upon the denial of a Writ of Certiorari from the Fifth Circuit

(443 U.S. 905; Appendix A-37).

This case arises from certain events during the “Summer

of 1971” in Columbus, Georgia, which produced litigation

appearing in Community Action Group v, City of Columbus,

473 F.2d 966 (Sth Cir. 1973), reh. den., 475 F.2d 1404 and

Sumbry v. Land, 127 Ga. App. 786, 195 S.E.2d 228 (1972),

cert. den., 414 U.S. 1079, both cases of which ended favor-

ably to the City or to local officials. The unreported opinion

of the District Court in the Community Action Group case

is included here as Appendix A-79 because it records in great

detail the significant unrest prevailing throughout this com-

munity in the summer of 1971. The exploits of two of the

Plaintiffs, Gary L. Smith and Robert Leonard, are recorded

in this 1972 opinion under incidents bearing their names

(Leonard had some difficulty when a July 1971 parade

degenerated into violence, and Smith was arrested in July,

1971 in either actual or constructive possession of a 30-30

rifle which was noticed by Columbus police officers investi-

gating an incident involving sniper fire.) Although none of

the present six Plaintiffs can be said to have committed

specific crimes, the Fifth Circuit Court of Appeals made

the following general observation on the twelve individuals

(four of whom are present Plaintiffs) who brought the

Community Action Group Complaint: “There was sub-

stantial direct and circumstantial evidence that at least

some of the plaintiffs were involved in the arson fires and

that the false alarms and impediments placed in the way of

the fire fighters, as well as the assaults made upon them,

had a direct relationship to the demonstrations and civil

unrest which the plaintiffs planned and executed.” 473

F.2d 966, 974. All of these points should be made not

only because they illustrate the problems which the of-

ficials of Columbus, Georgia had in governing the com-

munity following the flag incident of May 31, 1971, but

also because they raise serious questions as to the feasibility

of reinstating the Plaintiffs into positions of authority in

the Columbus Police Department - - points which apparently

escaped the members of the panel of the Eleventh Circuit.

The panel opinion very carefully describes and enumerates

the various discussions and exercises of free expression which

occurred prior to the May 31, 1971 flag incident, and this

careful dating of events goes on into June of 1971. However,

on page 1302 of the panel opinion when discussion of the

events involves the meetings of the Police Hearing Board and

the filing of this lawsuit, we find no more dates - - the ap-

parent reason being that a complaint filed in June could

hardly be regarded as questioning future events which oc-

curred in July when the Police Hearing Board heard the flag

incident charge as well as several other charges which are

recited in Footnote | of the 1977 opinion of the Fifth Cir-

cuit Court of Appeals (Appendix A-49). The reader of the

Eleventh Circuit opinion would think that the Complaint

had been filed after the Board hearings: such timing would

be absolutely necessary for there to be any justification for

the further assumption that the Complaint addressed itself

to constitutional infirmities in the Board hearings which in

itself would be a necessary fact for the Eleventh Circuit to

ignore the Arnett v. Kennedy rule allowing post-termination

hearings to cure constitutional defects and for the Eleventh

Circuit to invoke the Mr. Healthy balancing test between

permissible and impermissible reasons for dismissals. The

facts never happened that way, of course, and not one page

of transcript nor one page of pleadings needs to be referenced

in order to establish this fundamental stumbling block to

the result which the Eleventh Circuit reached. The facts

are all in the court decisions which have preceded this Peti-

tion for Certiorari, and it is simply inexplicable as to why

they have been so obviously ignored.

This case originated as a Complaint by thirty-eight plain-

tiffs who asserted various claims of discrimination and

mistreatment involving the City of Columbus Police De-

partment. They enlisted the aid of the United States Justice

Department, and their charges were found wanting. They

enlisted the aid of the United States District Court, and

they abandoned every claim contained in their massive

Complaint except the single summary dismissal of seven

officers on May 31, 1971 for the flag incident. They sought

to muddle the 1975 trial of the flag incident with all of the

various and sundry claims that they had so recently abandon-

ed, and the only success which they have had in so confusing

this narrow issue is embodied in the Eleventh Circuit opinion

which is now the subject of this Petition. It is the conduct

of the Plaintiffs on that date which is in question - - not

their state of mind or their perceptions for which they had

adequate recourse in the federal judiciary and which they

deliberately and with the advice of their attorneys abandon-

ed. It is the reaction of the City and its officials to that con-

duct on that particular day of May 31, 1971 which is an

issue - - not their alleged conduct before that date for which

they have been relieved of any liability as the result of the

abandonment of the general claims and not their conduct

after that date because no such claims against them were

ever made. As the District Court so aptly stated in his 1975

opinion (Appendix A-56), even the events pf May 31, 1971

are narrowed to the actual removal of the flag insignia and

the defiance of City authority and the public statement

that these uniform requirements will no longer be worn:

“The nub of the problem was not the picketing and the

carrying of signs but was rather this abuse of the uniform

and the plaintiffs’ stated intention to continue to refuse to

wear the flag patch.” Out of this narrow factual situation

there has arisen the constitutional aberration which gives

rise to the several questions and the argument which so

strongly suggest the imperative necessity of review and

correction by the Supreme Court.

This case was filed in the United States District Court

as an original action invoking the various Civil Rights Acts

and jurisdictional statutes enumerated in the appendices.

ARGUMENT

1, THE ELEVENTH CIRCUIT HAS REVERTED TO THE

ERRONEOUS POSITION THAT WAS FORMERLY

HELD BY THE SECOND CIRCUIT AND REJECTED

IN KELLEY V. JOHNSON, 425 U.S. 238 (1976).

A discordant echo from the past resounds in the Eleventh

Circuit opinion: “Although the district court restrained

appellants from eliciting testimony concerning the purpose

of the flag requirement itself, it was the obligation of ap-

pellees to develop that interest, and they did not seek to

do so.” 705 F.2d 1299, 1305 (Appendix A-16). Dwen ».

Barry, 483 F.2d 1126 (2d Cir. 1973), describing a police

force as different from the military without the need for

the “same type of instant unqvestioning obedience” (483

F.2d 1126, 1129), discovered that the right of a police

officer to style his own appearance could be found in the

First, Fifth, Ninth, and Fourteenth Amendments, with a

“personal liberty” label winning the most favor; according-

ly the county police department regulation limiting hair

length needed to be “justified by a legitimate state interest

reasonably related to the regulation” (483 F.2d 1126, 1130),

and the department was faulted for failure “to make the

slightest showing of the relationship between its regulation

and the legitimate interest it sought to promote” (483 F.2d

1126, 1130, 1131). It is obvious that the District Court,

sitting in Columbus, Georgia in 1975 and refusing to require

the City to prove the necessity of the uniform flag patch,

anticipated Kelley v. Johnson, 425 U.S. 238 (1976), which

reversed the Second Circuit view that the government must

prove “a genuine public need for the regulation” (483 F.2d

1126, 1131): “Choice of organization, dress, and equipment

for law enforcement personnel is a decision entitled to the

same sort of presumption of legislative validity as are state

choices designed to promote other aims within the cogni-

zance of the State’s police power.” 425 U.S. 238, 247. The

Second Circuit then, like the Eleventh Circuit now (705

F.2d 1299, 1305), had relied on Garrity v. New Jersey, 385

U.S. 493 (1967); but the Supreme Court rejected this claim

in holding that a plaintiff had the burden of proof and in

reaching its final conclusion which should control the out-

come of the present case:

“We think the answer here is so clear that

the District Court was quite right in the first

instance to have dismissed respondent’s com-

plaint. Neither this Court, the Court of

Appeals, nor the District Court is in a position

to weigh the policy arguments in favor of and

against a rule regulating hairstyles as a part of

regulations governing a uniformed civilian

service. The constitutional issue to be decided

by these courts is whether petitioner’s de-

termination that such regulations should be

enacted is so irrational that it may be branded

‘arbitrary,’ and therefore a deprivation of

respondent's ‘liberty’ interest in freedom to

choose his own hairstyle. Williamson v. Lee

Optical Co., 348 U.S. 483, 487-488 (1955).

The overwhelming majority of state and

local police of the present day are uniformed.

This fact itself testifies to the recognition by

those who direct those operations, and by

the people of the States and localities who

directly or indirectly choose such persons,

that similarity in appearance of police of-

ficers is desirable. This choice may be based

on a desire to make police officers readily

recognizable to the members of the public,

or a desire for the esprit de corps which

such similarity is felt to inculcate within

the police force itself. Either one is a suf-

ficiently retional justification for regula-

tions so as to defeat respondent’s claim

based on the liberty guarantee of the Four-

teenth Amendment” 425 U.S. 238, 247,

248.

It is also worth noting that earlier in the opinion other de-

partmental regulations were discussed without any question

as to their validity:

“Respondent’s employer has, in accordance

with its well-established duty to keep the

peace, placed myriad demands upon the mem-

bers of the police force, duties which have no

counterpart with respect to the public at

large. Respondent must wear a_ standard

uniform, specific in each detail. When in

uniform he must salute the flag. He may not

take an active role in local political affairs

by way of being a party delegate or contri-

buting or soliciting political contributions.

He may not smoke in public.” 425 U.S. 238,

245, 246 (Footnotes omitted).

It didn’t take the Second Circuit but one more year to

extend Kelley into the classroom (following Judge Stevens’

opinion in Miller v. School District, 495 F.2d 658 (7th Cir.

1974) and a “mini-skirt” case in Tardif v. Quinn, 545 F.2d

761 (ist Cir. 1976)), when, in East Hartford Education

Association vy. Board of Education of the Town of East

Hartford, 562 F.2d 838 (2d Cir. 1977), a school teacher’s

First Amendment claim of free expression and claims of

privacy and liberty were rejected when he challenged the

school dress code:

“Both Miller and Tardif are stronger cases

for the plaintiffs position than the instant

case.14 Both involved dismissals rather than,

as here, a reprimand. Moreover, Miller involv-

ed a regulation of hair and beards, as well as

dress. Thus, Miller was forced to appear as

his employers wished both on and off the job.

In contrast, Mr. Brimley can remove his tie

as soon as the school day ends. If the plain-

tiffs in Miller and Tardif could not prevail,

neither can Mr. Brimley.

14 The claim that such regulations violate

the Constitution has fared equally badly in

the state courts. See, e.g., Morrison v, Hamil-

ton County Board of Education, 494 $.W.2d

770 (Tenn.), cert. denied, 414 U.S. 1044, 94

S.Ct. 548, 38 L.Ed.2d 335 (1973); Blanchet

v. Vermilion Parish School Board, 220 So.2d

534 (La.App.), writ denied, 254 La. 17, 220

So.2d 68 (1969); but see Finot v. Pasadena

City Board of Education, 250 Cal.App. 2d

189, 58 Cal.Rptr. 520 (1967). 562 F.2d

838, 862.

The Seventh Circuit, more recently in Egger v. Phillips,

710 F.2d 292 (7th Cir. 1983), has continued to find limi-

tations to the claims of law enforcement officers (an FBI

agent) under the First Amendment; the discussion in the

opinion as to the characterization of the FBI as a “para-

military organization” (710 F.2d 292, 312) and the rather

extensive response of the concurrence as to “the compelling

needs of the Federal Bureau of Investigation and indeed all

law enforcement agencies, in maintaining the highest degree

of esprit de corps, confidentiality, efficiency, discipline and

supervision” (710 F.2d 292, 325) illustrates the desirability

of clarification by the Supreme Court as to how “military” a

“para-military”’ organization should be in light of such cases

as Parker v. Levy, 417 U.S. 733 (1974), Brown y. Glines,

444 US. 348 (1980), and even Chappell v. Wallace,

U.S. __— (June 13, 1983). It should be remembered that

state and local government can make the same argument as

the federal government made in the case of Bush v. Lucas,

—_. U.S. —— (June 13, 1983), involving an aerospace

engineer who was denied a remedy in damages because of his

demotion alleged to be in retaliation for his exercise of

First Amendment rights: “The Government argues that

supervisory personnel are already more hesitant than they

should be in administering discipiine, because the review

that ensues inevitably makes the performance of their regular

duties more difficult.”

Further applications of Kelley have appeared in other

circuits:

Shawgo v, Spradlin, 701 F.2d 470 (13) (Sth Cir. 1983),

cert. den. Nov. 7, 1983 (Whisenhunt v, Spradlin, No.

82-2148):

“Disciplined police officers’ right to privacy had not

been infringed by scope of regulation proscribing, as

conduct prejudicial to good order, cohabitation of two

police officers, or proscribing a superior officer from

sharing an apartment with one of lower rank.”

Lowman y. Davies, 704 F.2d 1044 (8th Cir. 1983):

“Hair length regulations adopted by Arkansas Depart-

ment of Parks and Tourism, Parks Division, did not

violate naturalist’s constitutional right to govern his

appearance where regulations were rationally related

to state’s interest in having ease of recognition of park

naturalists and promoting esprit de corps.”

Kannisto v. City and County of San Francisco, 541 F.2d

841 (4) (9th Cir. 1976):

“Police department regulation proscribing unofficer-

like conduct tending to subvert good order, efficiency

or discipline of department was not unconstitutionally

vague as applied to city police lieutenant who was

suspended for making disrespectful and disparaging

remarks about superior officer while addressing his

subordinates during a morning inspection and lieutenant

was not entitled to challenge regulation on basis of

facial vagueness.”’

Byrd v. Gain, 558 F.2d 553 (4) (9th Cir. 1977):

“Police department regulation proscribing unofficer-

like conduct tending to subvert good order, efficiency or

discipline of department was not unconstitutionally applied

to two police officers who received written reprimands

following complaints by other police officers which criticiz-

ed a press release and public statements made by the repri-

manded police officers in the course of a public controversy

that had developed over department's employment of stop-

and-frisk tactics which had a special impact upon black males

within city.”

Not only does the panel decision swim against the current

flowing from Kelley, but it also spouts forth a fountain of

new law by holding or implying that the uniform flag insignia

requirement is unconstitutional. In arriving at this conclu-

sion, the opinion (Footnote 6) uses the example of segregat-

ed water fountains, but we are never told whether or not

such fictures could be ripped from the walls of a govern-

ment building by any offended persons or whether or not

it would be more proper to make them the target of an

action for a declaratory judgment. Nor are we told why the

governing authority of the City of Columbus should be

condemned and held liable for enacting such a requirement

in 1969 when only one year before the Congress of the

United States enacted 18 U.S.C. §700, making it a criminal

offense to desecrate any United States flag - - which includes

in the statutory definition any “picture or representation”

of the flag. Nor does the Court of Appeals ever consider the

obvious fact that the Plaintiffs defaced government property

- - a City-issued uniform - - in plain violation of the Georgia

statute upheld in Sabel v. State, 248 Ga. 10 (1981), cert.

den, 454 U.S. 973.

2. SINCE THE COURT OF APPEALS CONSIDERED

THE REMOVAL OF THE AMERICAN FLAG IN-

SIGNIA TO BE “SYMBOLIC SPEECH” PROTECTED

BY THE FIRST AMENDMENT, ITS ANALYSIS OF

THE ISSUE SHOULD HAVE PROCEEDED IN LIGHT

OF UNITED STATES V. O'BRIEN, 391 U.S. 367

(1968); ON REVIEW THE SUPREME COURT COULD

MAKE SUCH AN ANALYSIS IN CONJUNCTION

WITH WATT, SECRETARY OF THE INTERIOR V.

COMMUNITY FOR CREATIVE NON-VIOLENCE

(SUPREME COURT NO. 82-1998, CERT. GRANTED

OCT. 3, 1983).

It might seem surprising that a decision which concluded

that the public removal of American flags from police uni-

forms constituted symbolic speech protected by the First

Amendment managed to arrive at such a result without any

reference whatsoever to United States v. O’Brien, 391 U.S.

367 (1968); but, since Kelley v. Johnson, 425 U.S. 268

(1976) met the same fate, the Court of Appeals was at least

consistent in ignoring the binding authority of the Supreme

Court. Since it had been clear from the beginning of this case

that the May 31, 1971 activity of the Plaintiffs consisted of

conduct well beyond the scope of the previous speaking

activities outlined in the facts of both the District Court and

the Court of Appeals opinions, the City and its officials gave

O'Brien prominent mention in their appellate brief. “We

cannot accept the view that an apparently limitless variety of

conduct can be labeled ‘speech’ whenever the person engag-

ing in the conduct intends thereby to express an idea’’ (391

U.S. 367, 376) was being said by the City of Columbus in

1971 just as Chief Justice Warren had said it three years

earlier. Although the seven policemen’s abuse of their City

uniforms should never have been “sufficient to bring into

play the First Amendment,” even an assumption that

“ ‘speech’ and ‘nonspeech’ elements are combined in the

same course of conduct” should have produced a conclusion

that “a sufficiently important governmental interest in

regulating the nonspeech element can justify incidental

limitations on First Amendment freedoms."’ 391 U.S. 367,

376. The Columbus regulation prescribing flag insignia for

police uniforms certainly meets the sufficient justification

test of O'Brien because it is “within the constitutional power

of the Government,” it “furthers an important or substantial

governmental interest,” that interest is “unrelated to the

suppression of free expression,”’ and any “incidental restric-

tion on alleged First Amendment Freedoms is no greater than

is essential to the furtherance of that interest.” 391 U.S. 367,

377.

A reading of the several opinions in Community for Crea-

tive Non-Violence v. Watt, 703 F.2d 586 (D.C. Cir. 1983)

cert. granted, Oct 3, 1983 (Watt v. CCNV, Supreme Court

No. 82-1998) readily suggests that both the Court of Appeals

for the District of Columbia and the Supreme Court have had

recent and thorough discussions in the matter of symbolic

speech and the rules concerning appropriate times, places,

and manners for First Amendment expression that are em-

bodied in such cases as Heffron v. International Society for

Krishna Consciousness, Inc., 452 U.S. 640 (1981). Little

would be gained now by discussing in detail the merits of

various cases and various positions, and the limited space for

this Petition does not allow it. However, the City and its

officials echo the view of the five dissenters that the Colum-

bus Police Department should be allowed to draw the line

between free speech and wilful disobedience and definance

amounting to public and insulting insubordination just as

the National Park Service should have been allowed to draw

the line at camping in Lafayette Park and the further view

of the three dissenters as to “how far judicial and scholarly

discussion of this basic constitutional guarantee has strayed

from common and common-sense understanding.” 703

F.2d 586, 622. The plight of the City of Columbus is just

as severe as the plight of the National Park Service and the

potential national ramifications of the Eleventh Circuit

opinion would produce even more damage to all levels of

government because of the critical nature of the law en-

forcement function.

The Eleventh Circuit’s ignoring of O'Brien places it in

position inconsistent with other circuits that have applied

O'Brien:

trl

United States v. Bader, 698 F.2d 553 (2) (Ist Cir.

1983):

“First Amendment did not bar convictions of defen-

dants, who conducted a sit-in inside a post-office and

courthouse building in order to protest draft registra-

tion, for failing to obey the direction of federal pro-

tective officers and for creating certain disturbances in

federal buildings.”

Davis v. Norman, 555 F.2d 189 (2) (8th Cir. 1977):

“Any incidental infringements on father’s First

Amendment rights by virtue of City ordinance requir-

ing him to remove wrecked vehicle, in which his son had

been killed in high-speed police chase, from his front

yard where it had been displayed in protest against

police abuse of authority, were justified under O'Brien

test, in that ordinance served basic purpose of protect-

ing community from health and safety hazards created

by unenclosed storage of such vehicles, effectuation of

that objective by requiring enclosed storage was within

constitutional power of city and furthered important

and substantial governmental interests, furtherance of

those interests was unrelated to suppression of free

expression, both governmental interest and opera-

tion of ordinance were limited to noncommunicative

aspect of father’s conduct, and no less restrictive means

to achieve enunciated governmental interests could be

perceived.”

3. United States vy. Crosson, 462 F.2d 96 (8) (9th Cir.

1972), cert. den, 409 U.S. 1064:

“Fact that burning of United States flag occurred in

a university building presumed to be an open forum for

the exchange of ideas did not remove defendant from

the effect of statute making it an offense to knowing-

ly cast contempt upon the flag by publicly burning it,

and fact that defendant may have intended an expres-

sion of protest over the Vietnam war was of no signifi-

cance in determining whether the statute was uncon-

stitutionally applied to defendant.”

4. New Rider vy. Board of Education, 480 F.2d 693 (1)

(10th Cir. 1973), cert. den. 414 U.S. 733:

“Junior high school hair regulation, which prohi-

bited hair of odd color or style, which required that

hair be tapered or blocked in back and that it not

touch shirt collar or ears and which required that

sideburns be no lower than earlobe and that the face

be clean shaven, was not unconstitutional as violating

right of free speech; public school students wearing of

long hair is not akin to pure speech.”

3. PICKERING V. BOARD OF EDUCATION, 391 US.

563 (1968) TIPS THE BALANCE DECISIVELY

AGAINST THE PLAINTIFFS, AND THE CONTRARY

CONCLUSION BY THE COURT OF APPEALS SUG-

GESTS THAT IT EITHER IGNORED THE FACTUAL

FINDINGS OF THE TRIAL JUDGE AND TRIED THE

CASE DE NOVO OR ELSE IT REACHED AN IM-

PERMISSIBLE CONCLUSION OF LAW BASED ON

THE UNCONTROVERTED FACTS.

The City and its officials stated at the beginning of their

Argument on Motion for Rehearing En Banc (Appendix

A-155) that “the panel decision is bizzarre in its conclusions

and bewildering in its rationale.” The panel in Footnote 2

claims to have reached its conclusions without disputing

the facts found by the trial judge but it is inconceivable that

from such facts such a result would actually occur: either

the panel ignored obvious facts which have obvious con-

sequences in human experience or else the panel reached an

unconscionable conclusion of law.

The Pickering balancing test is stated as follows: “The

problem in any case is to arrive at a balance between the

interest of the teacher, as a citizen, in commenting upon

matters of public concern and the interest of the State, as

an employer, in promoting the efficiency of the public

services it performs through its employees.’’ 391 U.S. 563,

568. The trial judge concluded that the Plaintiffs had ample

opportunity to express themselves without hindrance prior

to May 31, 1971, and the recitation of the Plaintiffs’ com-

munications and protests by the panel opinion suggests the

same thing. As indicated at the outset of the District Court

opinion (Appendix A-57), the present six plaintiffs, along

with 32 others, had requested as a part of the present action

injunctive and declaratory relief on alleged discrimination in

the Columbus Police Department - - which was the matter of

“public concern” on which they purportedly expressed them-

selves but which they apparently found to be so unconvinc-

ing that they abandoned by the time of trial. The trial judge

found as a fact that the conduct of May 31, 1971, the public

removal of the flag emblems and the stated intention not to

observe this uniform requirement until these matters of

public concern were resolved to the Plaintiffs’ satisfaction,

constituted a wilful contempt of the proper authority vested

in both the City itself and in the officials having supervisory

responsibility over the Plaintiffs. If the panel acknowledged

these facts, its decision plainly and simply ignored that side

of the Pickering equation which requires consideration for

the governmental interest in preventing disruption detrimen-

tal to the efficiency of its public services; if the panel ignored

these facts, it violated the “clearly erroneous” rule and tried

the case de novo on paper - - with a rather benign view of

a group of Plaintiffs who might produce a different impres-

sion in live courtroom testimony.

Regardless of how this decision was reached, it stands as

a procedural and constitutional anomaly among the federal

circuits. The point can be made by lining up the contrary

authority which shows that the Eleventh Circuit stands alone

in its administration of Pickering - - even if the assumption

is made for the moment that the Plaintiffs in the present case

had as much latitude in this case as the Plaintiffs in the cases

listed below, none of whom are police officers.

1. Santos v. Miami Region, U.S. Customs Service, 642 F.2d

21 (ist Cir. 1981):

Balance tips in favor of state’s interest in promoting

efficiency of service when letter-writing campaign

directed to co-workers and general public identified no

particular problem requiring correction, created discord

and loss of confidence in integrity of Service, and other

channels that could have resolved dispute could have

been used.

2. Janusaitis v. Middlebury Volunteer Fire Department,

607 F.2d 17 (2nd Cir. 1979):

Trial judge concluded, after conducting three-day trial

and hearing dismissed fireman testify, that he was more

concerned with changing the operation of the Depart-

ment and undermining the authority of its officers and

“proving himself right and every one else wrong than

with truly promoting the welfare and efficiency of the

Department.” 607 F.2d 17, 26. Applying the “clearly

erroneous” rule and holding that the fireman exhibited

a “pattern of conduct” provocative and divisive to

institutional efficiency that went beyond First Amend-

ment protection, the Court of Appeals concluded:

“In this state of affairs it would be folly to

presume that the functioning of the voluntary

fire department would not be seriously im-

paired if appellant were reinstated by an order

of a court. The. baleful glance, the hostile

look, and the positive distaste for the trouble-

maker on the part of his fellow volunteers,

coupled with the lingering resentment on the

part of appellant himself at not being given

the authority he sought, would hardly invoke

the comradeship that makes a fire-fighting

unit successful.” 607 F.2d 17, 27.

Sprague v. Fitzpatrick, 546 F.2d 560 (3rd Cir. 1976),

cert. den. 431 U.S. 937:

Even though his criticisms involved matters of public

concern First Assistant District Attorney was discharged

because his public declaration questioning the integrity

of the District Attorney undermined their working

relationship: “If the arousal of public controversy

exacerbates the disruption of public service, then it

weighs against, not for, first amendment protection in

the Pickering balance.” 546 F.2d 560, 566.

Shaw v. Board of Trustee of Frederick Community

College, 549 F.2d 929 (4th Cir. 1976):

Faculty members were discharged because their conduct

went beyond clear speech and violated employment

obligation by failing to take part in two mandatory

college functions, even thoryh this failure was part of

a protest to a change in tenure policy which, standing

alone, was protected by First Amendment: “In Chit-

wood v. Feaster, 468 F.2d 359 (4th Cir. 1972), while

we held that certain teachers were entitled to a deter-

mination of whether or not they were discharged for

engaging in constitutionally protected activity, we

stated, ‘A college has a right to expect a teacher to

follow instructions and to work cooperatively and

harmoniously with the head of the department,’ and

that one ‘does not immunize himself against [the] loss

of his position simply because his non-cooperation and

aggressive conduct are verbalized.’ 468 F.2d at 36:1.”

549 F.2d 929, 932.

Gonzalez vy. Benavides, 712 F.2d 142 (2) (Sth Cir.

1983):

“The First Amendment does not require elected of-

ficials to sit silently by while their appointed chief

executive publicly disavows the officials’ authority over

him.”

Anderson vy. Evans, 660 F.2d 153 (6th Cir. 1981):

School Board’s dismissal of teacher for “‘conduct un-

becoming a teacher” as evidenced by negative racial

remarks about blacks and for “‘inefficiency”’ as evi-

denced by her declining performance attributable to

this attitude did not violate due process standards

prohibiting vague and indefinite charges nor did First

Amendment free speech rights outweigh school’s

interest in maintaining discipline by immediate super-

visors and harmony among co-workers.

Clark v. Holmes, 474 F.2d 928 (7th Cir. 1972), cert.

den. 411 U.S. 972:

Substitute teacher had no First Amendment right to be

rehired after criticisms of university administration in

front of students: “But we do not conceive academic

freedom to be a license for uncontrolled « «pression at

variarice with established curricular contents and in-

ternally distructive of the proper functioning of the

institution. 474 F.2d 928, 931 (Per curiam, panel

composed of Judges Swygert, Pell, Stevens)

Nathanson v. United States, 702 F.2d 162 (8th Cir.

1983):

Emphasizing that the trial judge is the finder of facts

whose conclusions cannot be set aside unless clearly

erroneous and that the appellate court cannot decide

10.

the case de novo, the Court of Appeals held that an

environmentalist employed by the Army Corps of

Engineers was discharged not for his opinions but

for his argumentative discussions with his superiors

which amounted to “disruptive conduct threatening

the efficiency of performance of his duties” (702

F.2d 162, 165), and which, whether his “views were

right or wrong,” was rightfully responded to by his

boss as “behavior that was deemed bordering on in-

subordination” (702 F.2d 162, 166).

Phillips v. Adult Probation Department of the City

and County of San Francisco, 491 F.2d 951 (1) (9th

Cir. 1974):

“Regardless of lack of formal regulations forbidding the

placing of posters on walls of its employees’ offices, city

and county probation department had discretion to

determine that plaintiffs office was an inappropriate

place to display poster expressing approval of persons

who were then fugitives from justice; plaintiff's sus-

pension from department for refusal to remove poster

could not be claimed to be constitutionally imper-

missible on ground of lack of formal regulations.”

(Plaintiff claimed that this poster showing H. Rap

Brown, Angela Davis, and Eldridge Cleaver was “‘a

symbolic statement and protest’; his work involved

divorce and child support problems, and the poster

was considered to be a threat to discipline and harmony

in the work force. 491 F.2d 951, 952.)

Schmidt v. Fremont County School District No.25,

State of Wyoming, 558 F.2d 982 (10th Cir. 1977):

School principal failed to prove that he was terminated

in retaliation for statements in opposition to School

Board’s career education program and policy of reserved

football game seats; rather, he was terminated for the

constitutionally permissible reasons found by the trial

jadge, who approved the conclusions of the School

12.

Board and who struck the balance in favor of the State’s

interest in stabilizing a troubled school system and in

creating harmony among co-workers: “ ‘These con-

clusions were based on a variety of grounds, such as

tactless and unprofessional comments about a fellow

administrator and the school system at a board meet-

ing, the plaintiffs appearance at a board meeting to

oppose a board policy on reversed seating at football

games and his subsequent lack of cooperating in imple-

menting it, lack of a strong program to prevent student

absenteeism and to improve attendance, his failure to

recommend non-renewal of the assistant principal's

contract in January, 1973, his suspected failure to

make teacher evaluations because of his turning in

evaluation sheets unsigned by the teacher, his lack of

rapport with the students, an altercation with the

football coach, and disagreement over the handling of

the case of a student who was harmed as a police in-

former by fellow students.’ ” 558 F.2d 982, 984.

Foster v. Ripley, 645 F.2d 1142 (D.C. Cir. 1981):

Official of Smithsonian Science Information Exchange

made attack on his superior and others concerning

administrative controls through external rather than

internal channels and thus ended his effectiveness

resulting in a dismissal of which he was given notice

of reasons and right to appeal which he exercised with

representation of counsel.

Brousseau v. United States, 640 ©.2d 1235(9) (Ct.

of Claims 1981):

“Administrative officer’s common sense should have

forewarned him that his activities in question, i.e.,

moving before union meeting that agency position be

rejected and preparing and circulating petition opposing

agency position, were improper and disloyal and could

lead to his demotion, and his demotion was not so un-

expected as to chill exercise of First Amendment

rights.”

4. THE MT. HEALTHY CITY BOARD OF EDUCATION

V. DOYLE, 429 U.S. 274 (1977) RULE SHIFTING

THE BURDEN TO DEFENDANTS SHOULD NOT

BE APPLIED TO A CASE TRIED BEFORE THE

DECISION IN MT. HEALTHY WAS RENDERED,

NOR SHOULD IT BE APPLIED TO A CASE IN

WHICH DEFENDANTS HAVE NO NOTICE UNTIL

THE APPELLATE STAGE THAT PLAINTIFFS HAVE

CARRIED THEIR INITIAL BURDEN AND PROVED

A PRIMA FACIE CASE OF A FIRST AMENDMENT

VIOLATION.

Both the facts of this case and the detailed fourth question

suggesting review by certiorari show the peculiarly awkward

position in which the Defendants have been placed by the

Court of Appeals. Beginning with a Complaint predating the

Police Hearing Board's consideration of the other charges

(besides the “flag incident”) which makes no allegations

concerning the other charges themselves or the Board's

findings on all of the charges and ending with a denial of

certiorari and a remand from the Fifth Circuit which only

places into issue the May 31, 1971 summary dismissal either

in the First Amendment context or in the due process

context, the Defendants and their lawyer obviously are

surprised that they had some burden of coming forward with

some evidence which would address itself to matters which

neither the Plaintiffs nor the other circuit ever placed into

issue; their surprise increases when an experienced trial

judge (21 years on the federal bench) has ruled in their

favor on both the First Amendment and the due process

issues (There was also a favorable ruling on an equal pro-

tection issue, but the Court of Appeals didn’t mention it.),

and when they are informed a year later that they should

have had the prescience to foresee these events, that now

(twelve years after the original event) they are subject to

some sort of remedy - - either damages or reinstatement or

both. The situation makes no sense under any conceptions

of legal procedure.

Judicial history is now repeating itself, and, as in Givhan

v. Western Line Consolidated School District, 439 U.S. 410,

416, 417 (1979), Petitioners seek a corrective writ from the

Supreme Court:

“The Court of Appeals in the instant case

rejected respondents’ Mt. Healthy claim that

the decision to terminate petitioner would

have been made even if her encounters with

the principal had never occurred:

‘The [trial] court did not make an

express finding as to whether the

same decision would have been made,

but on this record the [respondents]

do not, and seriously cannot, argue

that the same decision would have

been made without regard to the

‘demands.’ Appellants seem to argue

that the preponderance of the evi-

dence shows that the same decision

would have been justified, but that

is not the same as proving that the

same decision would have been

made. . . . . Therefore [respon-

dents} failed to make a successful

‘same decision anyway’ defense.’

555 F.2d, at 1315.

Since this case was tried before Mt. Healthy

was decided, it is not suprising that respon-

dents did not attempt to prove in the District

Court that the decision not to rehire peti-

tioner would have been made even absent

consideration of her ‘demands.’ Thus, the

case came to the Court of Appeals in very

much the same posture as Mt. Healthy was

presented to this Court. And while the

District Court found that petitioner's ‘criti-

cism’ was the ‘primary’ reason for the School

District’s failure to rehire her, it did not

find that she would have been rehired but

for her criticism. Respondents’ Mt, Healthy

claim called for a factual determination

which could not, on this record, be resolved

by the Court of Appeals.”

(Footnote omitted)

In applying the Givhan procedural refinement of Mz. Heal-

thy, Rosaly v. Ignacio, 593 F.2d 145 (ist Cir. 1979) em-

phasizes that plaintiffs must first prove a prima facie case

before defendants are called upon to rebut this evidence and

that even a lengthy record does not provide a proper founda-

tion for a factual determination at the appellate level.

5. ARNETT V. KENNEDY, 416 U. S. 134 (1974)

SHOULD HAVE BEEN APPLIED TO ABSOLVE

THE CITY AND ITS OFFICIALS OF ANY LIABILITY

RESULTING FROM AN ALLEGEDLY DEFICIENT

SUMMARY DISMISSAL BECAUSE THE POST-

TERMINATION PROCEEDINGS BEFORE THE PO-

LICE HEARING BOARD CURED ANY DEFECTS

WHICH MIGHT HAVE EXISTED.

The opinion of the District Court (Appendix A-56) con-

cluded that the summary dismissal of May 31, 1971 was

authorized by Georgia law and that the post-termination

hearings before the Police Hearing Board which Plaintiffs

invoked and which Plaintiffs never challenged nevertheless

cured any defects which Plaintiffs alleged to have occurred.

The opinion cites both Georgia and federal authority in

support of these propositions, and this Petition would be

needlessly repetitious if it did more than refer to the able

analysis by the trial judge. Nor would a circuit by circuit

survey of the application of Arnett serve any purpose:

suffice it to say that, insofar as the City Attorney for Colum-

bus, Georgia knows, a post-termination hearing satisfies due

process in the state courts of Georgia and in all federal cir-

cuits except the Eleventh Circuit. The Eleventh Circuit

concluded, without citing any state or federal authority,

that the summary dismissals violated city regulations and

city ordinances and that an ordinance had established “‘a

Police Hearing Board to perform the function usurped by

McGuffey, Sargis, and Allen.” 705 F.2d 1299, 1302. After

that observation, there is no reflection on how the non-

party Board erred in either its proceedings or in its conclu-

sion to uphold the dismissals; nor does Arnett or the Fifth

Circuit or the Georgia cases cited by the District Court

opinion receive any mention. In effect, the Eleventh Circuit

has overruled Arnett and its own circuit precedents without

undergoing the embarassment of admitting it.

6. ASSIGNMENT OF LIABILITY TO THE DEFEN-

DANTS CANNOT BE JUSTIFIED UNDER RIZZO V.

GOODE, 423 U.S. 362 (1976) OR MONELL V. DE.-

PARTMENT OF SOCIAL SERVICES OF THE CITY

OF NEW YORK, 436 U.S. 658 (1978); NOR WERE

THE INDIVIDUALS’ DEFENSES OF GOOD FAITH

AND OFFICIAL IMMUNITY EVEN CONSIDERED.

Rizzo v. Goode, 423 U.S. 362 (1976) requires a showing

of direct responsibility in order to make officials liable,

while Monell v. Department of Social Services of the City

of New York, 436 U.S. 658 (1978) requires a city policy

to create corporate liability and rejects the respondent

superior theory. There is no analysis by the Court of Appeals

on these points. In fact, the observation by the Court of

Appeals that three officials usurped powers of the City or

the Police Hearing Board or other persons or entities un-

known would lead to speculation as to wether a “usurpee”

is liable for the acts of a “usurper.” However, one thing is

clear: none of the several individuals nor the municipal

corporation have escaped liability, yet none have been in-

formed as to why they were held liable.

The final point (No. 25) made in the City’s Motion for

Rehearing En Banc (Appendix A-162) raises the question of

whether Monell is retroactive. We respectfully refer the

Court to our brief discussion on that point. Can a City that

was not a “person” in 1971 for purposes of coming within

the jurisdiction of the Civil Rights Act become a person

twelve years after the commission of the alleged tort as a

result of a 1978 decision changing the rule?

In Harlow vy. Fitzgerald, __. U.S. —____, 102 S.Ct.

2727 (1982) there is a thorough discussion of the principle

of qualified immunity or good faith immunity which con-

cludes that government officials are shielded from liability

for civil damages insofar as their conduct does not violate a

clearly established statutory or constitutional right of which

a reasonable person would have known. The point of all of

our preceeding discussion suggests that no reasonable person

would have known that dismissing the seven police officers

in 1971 constituted an infringment on First Amendment

Rights, so it would seem that the officials in this case should

be shielded by the official immunity and the good faith

defenses which they filed in answer to the Complaint but

which the trial judge did not have to consider because he

found no First Amendment nor due process nor equal

protection violations which would create the necessity of

invoking these affirmative defenses. The point that we raise

in this Petition is that the Court of Appeals did not even

mention such defenses, and its decision effectively abolished

the rules. The Defendants should not only be considered

under the qualified immunity rule normally associated with

executive officials, but they should also receive considera-

tion under the rules of legislative or judicial or quasi-judicial

immunity. Recent application of these rules and references

to the controlling Supreme Court cases can be found in

Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir. 1983), and

Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983).

CONCLUSION

The first Petition for Certiorari during the first phase of

this case involved jurisdictional and abstention questions of

considerable importance. Once again, the City of Columbus

petitions the Supreme Court of the United States in a case

which now calls for correction, not only to prevent judicial

anarchy among the circuits and within the controlling au-

thority of Supreme Court precedents, but also to prevent

the potential for anarchy among the government services at

the national and state and local levels.

Respectfully submitted this the 23rd day of November,

1983.

ugene Hardwick Polleys, Jr.

City Attorney

P.O. Box 1340

Columbus, Georgia 31993

Attomey for Petitioners

(404) 324-7711 Extension 453

CERTIFICATE OF SERVICE

| certify that | have caused to be served the necessary

copies of this Petition on Neil Bradley, American Civil

Liberties Union Foundation, 52 Fairlie Street, N.W. Atlanta,

Georgia 30303 and Joel M. Gora, Brooklyn Law School,

250 Joralemon Street, Brooklyn, New York 11201, At-

torneys for Respondents, by causing the printer to place

said copies in the United States mail, postage prepaid.

This the 23rd day of November, 1983.

Cn.gins Hanchuishs lay § See

Eugen Hardwick Polleys, Jr.

A-|

APPENDIX A

Robert LEONARD, et al.,

Plaintiffs-Appellants,

versus

The CITY OF COLUMBUS, et al.,

Defendants-Appellees.

No. 82-8158

United States Court of Appeals,

Eleventh Circuit.

May 23, 1983.

Rehearing and Rehearing En Banc Denied Sept. 9, 1983.

Black Former policemen brought suit against city seeking

damages for wrongful discharge, and reinstatement. The

United States District Court for the Middle District of

Georgia, J. Robert Elliott, J., dismissed their claims, and

police officers appealed. The Court of Appeals, Kravitch,

Circuit Judge, held that black police officers’ removal of

American flag from their uniforms in an effort to emphasize

a widely held perception of racially discriminatory practices

in city’s police force constituted symbolic speech which

was protected under First and Fourteenth Amendments;

thus, their dismissal for removing flag from their uniforms

was unconstitutional.

Reversed and remanded.

1. Constitutional Law key 90.1(1)

Municipal Corporations key 185(1)

Black police officers’ removal of American flag from their

uniforms in an effort to emphasize a widely held perception

ee 4

= oe

A-2

of racially discriminatory practices in city’s police force

constituted symbolic speech which was protected under

First and Fourteenth Amendments; thus, their dismissal

for removing flag from their uniforms was unconstitutional.

U.S.C.A. Const. Amends. 1, 14.

2. Constitutional Law key 90.1(1)

Under test applicable to a determination of whether a

personnel decision by a governmental body violates an em-

ployee’s First Amendment rights, plaintiff bears initial

burden of proving that his speech or conduct was a sub-

stantial or motivating factor in decision and that the speech

or conduct was constitutionally protected and once plaintiff

succeeds in meeting that burden, burden of proof shifts to

defendant to show, by preponderance of the evidence, that

it would have reached the same decision in absence of the

protected speech. U.S.C.A. Const. Amend. 1.

3. Constitutional Law key 82(1)

A statute which inhibits constitutional rights without

sufficient governmental interest is invalid. U.S.C.A. Const.

Amend. 1.

ACLU Foundation, Neil Bradley, Atlanta, Ga., Joel M.

Gora, Brooklyn, N. Y., ACLU Foundation, E. Richard Lar-

son, New York City, for plaintiffs-appellants.

E.H. Polleys, Jr., City Atty., Columbus, Ga., dor defen-

dants-appellees.

Appeal from the United States District Court for the

Middle District of Georgia.

A-3

Before KRAVITCH, HENDERSON and ANDERSON,

Circuit Judges.

KRAVITCH, Circuit Judge:

Appellants are former policemen of the City of Columbus,

dismissed by the City for events occurring in May, 1971.

In this action challenging their dismissal they assert numer-

ous grounds for relief under the United States Constitution.

The district court found merit in none of the grounds assert-

ed. We conclude differently, holding appellants’ dismissal

violated their first amendment right of free speech; conse-

quently , we reverse.

In early 1971 black members of the City of Columbus

Police Department (the “Department’”’) formed the Afro-

American Patrolmen’s League (“the League’’) in order to

present effectively grievances of the black officers. At that

time there was a growing tension among black officers, who

perceived that the Department was treating blacks in a dis-

criminatory manner. Specific complaints involved discrimina-

tory hiring and promotion of blacks, discriminatory assign-

ment and disciplinary practices, and alleged police brutality

toward members of the black community. Although several

black police officers had brought complaints before the

Board of Public Safety, they believed no progress was made.

On March 26, 1971, the League’s Executive Director,

Officer Robert Leonard, issued a press release in which the

League criticized Department practices. Following issuance

of the release, on April 5, 1971, the League held a press

conference in City Commission chambers. Subsequent to

these events members of the League met with the Chief

of the Department, Chief McGuffey. League members

believed that neither the meeting with Chief McGuffey,

nor another meeting held with the Mayor of Columbus,

resulted in progress toward resolving League grievances. At

no time following these events were the plaintiffs informed

they were in violation of any Department regulations.

On May 29, 1971, Officer John Brooks telephoned the

Department and notified the desk sergeant he would be un-

able to report to work due to illness. Testimony at trial

indicated that the norma! Department practice in such event

was for the desk sergeant to arrange rescheduling of the

court cases in which the officer was to testify. Instead,

when Brooks failed to appear in court he was charged with

contempt and two officers were dispatched to his home to

arrest him. The Department then charged him with conduct

unbecoming an officer and feigning sickness to avoid duty,

and suspended Brooks indefinitely from the force.

One of the League’s chief complaints against the Depart-

ment was the disproportionately severe punishment meted

out to black officers for disciplinary violations. Not sur-

prisingly, Officer Brooks’ arrest on contempt charges, un-

deniably an event out of the ordinary, caused great con-

sternation among black officers. The black officers attempted

to meet with and discuss the suspension with Chief Mc-

Guffey. No meeting was held, however, when the Chief in-

sisted on hand-picking the officers he would see, rather than

discussing the matter with League officials, as favored by the

black officers. After attempts to pursue the matter with

Department officials failed, black officers began to picket

the police station on May 29 and 30. At all times the demon-

strations were peaceful and orderly.) Department officials

did not inform plaintiffs that the picketing was unlawful, or

could result in their dismissal.

1. There was evidence, however, that the picket violated police regu-

lations limiting spontaneous demonstrations to groups of no more than

ten individuals. Several appellants were charged with this violation in

subsequent proceedings.

A-5S

On May 30 black officers and various civic leaders met to

discuss the increasingly tense situation. The evidence is un-

clear as to what, if anything, was agreec upon by those who

participated in the meeting. League members testified the

civic leaders and intermediaries suggested a “cooling-off”’

period during which the black officers would cease picketing

and continue performing their duties, in return for which no

charges would be brought for previous picketing. Contrary

testimony suggests the civic leaders attended in an “un-

official” capacity as “ordinary citizens” and were unauthoriz-

ed to promise anything. Any notion of a “cooling-off”’

period soon was dispelled: later that day Officer Leonard

and Officer Clark, another League official, were summoned

to Department headquarters where Deputy Chief Brown

read a list of charges against them. Brown refused to provide

a written copy of the charges, and it was unclear if, and

when, the officers were to be suspended. Officer Leonard

therefore returned to his beat.

Angered by what League members perceived to be a viola-

tion of the “cooling-off” period, the League voted to resume

picketing the next day. They also agreed to participate in

the “flag incident,” which gave rise to this suit. On the

morning of May 31, seven officers, six of whom are appel-

lants in this action, began to picket the Department. All

officers were off-duty, but in uniform. Appellants carried

signs with captions such as “WE DON’T WANT TO BE

POLICEBOYS; WE WANT TO BE POLICEMEN” and

“HAVE YOU EVER HEARD OF POLICE BEING AR-

RESTED FOR CONTEMPT OF COURT.”

Later, after members of the press arrived, the picke ‘ing

officers assisted one another in removing an American flag

emblem from the sleeve of each uniform shirt. The flags were

removed carefully, thread by thread, with a razor. At no

time was the flag treated with disrespect; to the contrary,

A-6

Officer Leonard, speaking for the others present, explained

the high respect the officers had for the American flag and

the ideals it represented, particularly liberty and equal

justice for all. The officers, many of whom had served in

Viet Nam, did not believe the Department had extended

them just treatment consistent with these principles; accord-

ingly, they considered it inappropriate to wear the flag on

their uniform. After Deputy Chief Brown refused Leonard's

attempts to present the flag emblems to him, Leonard placed

the emblems in his pocket. The incident was at all times

peaceful, unaccompanied by disorder, violence or boisterous-

ness. Photographs of the incident portray the scene as peace-

ful.

At the time the “flag incident” was occurring an emergen-

cy conference was held at which Chief McGuffey, Joseph

W. Sargis, the Director of Public Safety, and City of Colum-

bus Mayor Allen agreed that discharge of the officers was in

order. Although Chief McGuffey indicated the primary

reason for the firing was the flag incident, Sargis characteriz-

ed it as a “crescendo” of the activity of past days, referring

specifically to prior League activities. The dismissal letter,

printed below in its entirety, refers specifically, and solely, to

removal of the flag patch.

Shortly after the flag incident appellants were ordered to

report to the Department major’s office, where they were

informed of their dismissal from the force and given dis-

missal letters:

Effective this date, May 31, 1971, you are discharged

from the Columbus Police Department for violation of

Section 39, paragraphs “G” and “R” of the General

Rules of Conduct of the Police Manual, which states:

(G) Conduct unbecoming an officer which might be

detrimental to the service.

A-7

(R) Any other act or omission contrary to good order

and discipline of the department

in that you did publicly remove the American flag from

the Columbus Police Uniform while picketing in front

of Police Headquarters on May 31, 1971.

The American Flag was made an official part of the

Columbus Police Uniform by a unanimous vote of

the City Commission on August 18, 1969.

Very truly yours,

B.F. McGuffey

Chief of Police

Director Sargis then held a press conference at which he

notified the press of the dismissal and included as reasons for

dismissal several grounds not mentioned in the dismissal

letter from Chief McGuffey. Sargis accused appellants of

making “baseless allegations of unlawful conduct, racism, and

discrimination” against the Department without first bringing

those complaints through “channels.” His statement con-

cluded “[t]oday they picketed the Columbus City Police

Department and removed the American Flag from their

uniforms. These men did not enlist in the Police Depart-

ment, they do not have to wear that uniform or flag again;

they are dismissed???

2 The Columbus City Commission, by resolution of August 18,

1969, made the American flag patch a part of the police uniform. The

A-#

On June 4 and 9, 1971, complaining of the procedurally

unlawful dismissals, counsel for appellants wrote defendants

stating appellants wished to preserve their right to a hearing

before the Police Hearing Board, The procedure attendant

appellants’ dismissal apparently was contrary to every pro-

mulgated City of Columbus rule, including the city charter;

Ordinance No, 71-1, which established a Police Hearing

Board to perform the function usurped by MeGuffey, Sargis,

and Allen; and the Police Manual, which specifically requires

concurrence of the Board of Public Safety (whose successor

in interest was the Police Hearing Board). By letter of June

2 (Continued)

Despite this state of the evidence the district court concluded:

“(i]t ls obvious that someone in authority in the Department in some

manner advised all members of the force of the requirement for there

to have been such unanimity of action, The fact the Police Chief could

not recall some years later exactly how the message was conveyed to

the policemen hardly justified the conclusion that it was not done,”

The weight of record evidence indicates the district Court's use of the

work “unanimity” overstates reality, Many officers failed to wear the

flag patch; in fact, one of the appellants had to pin a patch on his arm

before he could take it off because his uniform shirt contained no

patch. The only evidence that might indicate notice was given is the

statement in a League press release “(w]e are compelled to wear the

10, Deputy Chief Brown informed appellants of their “right

to appeal” their dismissal before the Board, In subsequent

letters Brown scheduled the hearings, which were postponed

once on request of appellants’ counsel, The Brown letters of

June 24 and 25 set forth additional charges which the Board

would consider,

At the hearings appellants were represented by counsel

and were given an opportunity to offer witnesses and evi-

dence on their behalf, It was not until the day of the hearing,

however, that counsel received the Department's memoran-

dum and packet of material detailing the evidence against

each witness, which evidence included a transcript of the

press conference held by the League on March 26. After the

hearings, the Board unanimously affirmed dismissal of

appellants Leonard and White, The dismissals of appellants

Smith, Pearson, Willis, and Clark were upheld by a four-to-

two vote, Neither in the letters received informing appellants

of the Board's decision, nor at any time thereafter, was it

made clear on which charges the dismissals were upheld.

Appellants brought this suit in the District Court for the

Middle District of Georgia, Initially the plaintiffs sought

declaratory and injunctive relief against allegedly discrimina-

tory employment practices of the Department, but in its

current posture the six remaining appellants seek only

damages for wrongful discharge, and reinstatement, After

a hearing, the district court dismissed the complaint on juris-

dictional and abstention grounds. We reversed and remanded

for trial. Leonard vy, City of Columbus, 551 F.2d 974 (Sth

Cir, 1977), aff'd en banc, 565 F.2d 957 (Sth Cir, 1978),

cert. denied, 443 U.S. 905, 99 S.Ct. 3097, 61 L.Ed.2d 872

(1979),

In the action plaintiffs alleged the dismissal violated their

A-10

first amendment rights, that the sections of the Police Manu-

ul under which they were dismissed were vague and over-

broad, that the dismissals were violative of due process, and

that their discharge was a result of discriminatory enforce-

ment of the Manual's requirements, violating their right to

equal protection, After a trial on the merits, the district

court denied plaintiffs’ claims, Again, we reverse,

[1] Appellants’ claim under the first amendment that

they were discharged for removing the flag from their uni-

form, that the removal of the flag constituted symbolic

speech, that the symbolic speech was protected under the

first and fourteenth amendments, and that, consequently,

dismissal on the basis of an exercise of a protected right

was unconstitutional, The district judge denied appellants’

first amendment claim, concluding that removing a flag

patch from the uniform, when the patch was required by

City resolution, was not symbolic speech:

This was a calculated show of contempt for the City

authority and a demonstration of refusal to obey its

lawful ordinances, rules and commands, If this was

not “conduct unbecoming an officer which might be

be detrimental to the service” and an “act contrary to

the good order and discipline of the department,”

then the Court does not know how it could be cate-

gorized. If this was only “symbolic speech,” then it

might well be presumed that punching the Police

Chief in the nose would also be so regarded, There was

no denial of freedom of speech.

We disagree.

The law the district court should have applied derives

from the decision of the Supreme Court in Mt. Healthy

City School District Board of Education v, Doyle, 429

A-ll

U.S, 274, 97 S.Ct. 568, 50 L.Bd.2d 471 (1977) In Me.

Healthy the Court established the test applicable to a deter:

mination of whether a decision not to rehire by a govern-

mental body violates an employee's first amendment rights,

/d,, 97 §.Ct, at §76, Since Mt. Healthy this circuit has applied

a derivative test to review allegedly unconstitutional firings.

See Waters v, Chaffin, 684 F.2d 833, 837 (11 Cir, 1982);

Wilson v, Taylor, 658 F.2d 1021, 1027 (Sth Cir, Unit B

1981); Williams v. Board of Regents, 629 F.2d 993 (Sth

Cir, 1980),

{2} Under the Mr. Healthy test the plaintiff bears the

initial burden of proving that his speech or conduct was a

substantial or motivating factor in the decision not to hire

him and that the speech or conduct was constitutionally

protected. Whether the conduct or speech is protected we

determine by reference to the balancing test established by

the Supreme Court in Pickering v. Board of Education,

391 U.S. 563, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968),

In Pickering the Court stated:

{[T)he theory that public employment which may

may be denied altogether may be subjected to any

conditions, regardless of how unreasonable, has been

uniformly rejected, Keyishian v. Board of Regents,

supra, 385 U.S. [589] at 605-606, 87 S.Ct, [675] at

685 [17 L.Bd.2d 629]. At the same time it cannot

be gainsaid that the State has interests as an employer

in regulating the speech of its employees that differ

significantly from those it possesses in connection with

regulation of the speech of the citizenry in general. The

problem in any case is to arrive at a balance between the

4 The district judge decided the first amendment claim without

reference to any case law and without citation to settled authority,

Applying the correct legal standard we reach a conclusion different

than that of the court below. We reach our conclusion, however, with-

out disagreement as to the facts as found by the court below.

-_,

vi we

A-12

interests of the teacher, as a citizen, in commenting

upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of

the public services it performs through its employces.

(citation omitted). Once the plaintiff succeeds in meeting

his burden, the burden of proof shifts to the defendant to

show, by a preponderance of the evidence, “that it would

have reached the same decision to discipline the employee

in the absence of the protected speech.” Berdin v. Duggan,

701 F.2d 909, 911-12 (11th Cir. 1983); Waters v. Chaffin,

684 F.2d at 837.

Appellants experienced no difficulty in meeting the first of

their burdens, that of showing that their activity was a

“substantial’”’ or “motivating” factor in their dismissals.

Appellees virtually concede as much. Chief McGuffey testi-

fied the officers were dismissed for the flag incident. Director

Sargis stated that the flag incident was the culmination of

a “cresendo” of activity, that he could not have seven of-

ficers act as appellants did and not dismiss them. Because the

Police Hearing Board failed to make findings it is impossible

to know which charges carried what weight in the decision to

uphold McGuffey’s decision. Nevertheless, Board members

who testified at trial indicated they affirmed the dismiss-

als on the basis of all the charges. “The opinion in Mt.

Healthy clearly contemplates that a decision may be the

product of more than one substantial factor; it refers to ‘a

substantial factor.’ " Bowen vy. Watkins, 669 F.2d 979,

984-85 (Sth Cir. 1982) (emphasis in Bowen). Beyond dis-

pute, appellants have met the first half of their burden.

The law underlying whether appellants’ activities were

protected under the first and fourteenth amendments is

more complex. We must weigh “the interests of the [em-

ployee] as a citizen, in commenting upon matters of public

concern and the interests of the State, as an employer, in

A-13

promoting the efficiency of the public services it performs

through its employees,” Pickering, supra, 88 §.Ct. at 1734-

35. The facts of each case will affect the balance uniquely;

in this case we weigh the conduct of officers that goes be-

yond “pure speech,” Tinker v. Des Moines Independent

School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21

L.Ed.2d 731 (1969) against the interest of the City of

Columbus in seeing that its police services, a function tradi-

tionally accorded special respect, remain effective, see

Waters, supra, 684 F.2d at 839 (more deference accorded

police in Pickering balance due to fact that safety of proper-

ty and person at issue); Wilson, supra, 658 F.2d at 1027

(same).

We address initially the interests of appellants, and con-

clude that despite the fact that the activities of appellants

involved conduct as well as “pure speech” their interest

in expressing themselves was substantial. Three factors lead

to this conclusion. First, the conduct here at issue was sym-

bolic speech, closely “akin to pure speech,” Tinker, supra,

393 U.S. at 508, 89 S.Ct. at 737. The conduct of the officers

involved no violence or disorder: they peacefully removed

the American flag from their uniforms. Representing as it

does precepts fundamental to this nation, the American

flag frequently has been the focal point of suits involving

freedom of expression. Spence v. Washington, 418 U.S. 405,

94 S.Ct. 2727, 41 L.Ed.2d 842 (1974); Street v. New York,

394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); West

Virginia State Board of Education v. Barnette, 319 U.S. 624,

63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Significantly, the

officers in no way mutilated or defaced the flag; rather in

their view they expressed their deep respect for it and the

principles it represented. Removal of the patch under these

circumstances bears great similarity to pure speech. Second,

although we do not evaluate the content, or “social worth”

A-14

of ideas, Williams, supra, 629 F.2d at 1003, certain types of

speech traditionally are accorded greater protection in our

society by virtue of the fact that the speech goes to the heart

of our democratic process. See Connick v. Myers, US.

P , 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983)

(speech on “public issues occupies the ‘highest rung of the

hierarchy of First Amendment values’ "); Pickering v. Board

of Education, supra, 88 S.Ct. at 1737 (debate on matters of

public importance “core value” of the Free Speech Clause of

the First Amendment); Williams, supra, 629 F.2d at 1003

(when matters vital to the public interest at issue employee’s

right to speak must be protected “vigorously”); Berdin v.

Duggan, 701 F.2d at 912 (Pickering balance includes ques-

tion whether speech a matter of “public concern”). Appel-

lants sought to emphasize a widely-held perception of racially

discriminatory practices in the City of Columbus Police

Force. These practices concerned not only internal police

matters, but matters of interest to the community-at-arge

as well. See Connick, supra, ___. U.S. at ___, 103 S.Ct.

at 1691 (First Amendment affords less protection to com-

plaints concerning purely internal office affairs of public

offices than it accords to matters of “public concern”).

For example, appellants publicized a perception of discrim-

inatory hiring of police officers, and a concern that beat

assignments were being made along racial lines, i.e. black

officers in black communities. For a police force to be

effective it must have the respect and support of the com-

munity as well as its officers; our system of government

demands that support be garnered through informed evalu-

ation of circumstance, and not through the suppression of

dissent. Third, and finally, courts repeatedly have held that

a police officer does not receive a “‘watered-down version”

of constitutionally protected rights by virtue of his public

employment on the police force. Garrity v. New Jersey,

385 U.S. 493, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967);

Waters, supra, 684 F.2d at 836; Wilson, supra, 658 F.2d

A-15

at 1027. In this context, appellants’ interest in peaceful,

effective expression of their veiws was great, and we accord

it commensurate weight.

Balanced against the interest of appellants is the interest

of the City and Police Department in promoting “the effec-

tiveness of the force.’’ We must go beyond asserting the need

for “discipline” in “paramilitary” or ‘“‘quasi-military” or-

ganizations, Leonard v, City of Columbus, No. 1514, mem.

op. at 5-7 (M.D.Ga. Feb. 23, 1982); see Williams, supra,

629 F.2d at 1002, and identify the true interest the De-

partment has in suppressing the speech and conduct that

resulted in appellants’ dismissal. That interest must derive

from the reason appellants were dismissed.

Appellees’ brief states “‘[n]one of the plaintiffs in this

case were dismissed for speaking, nor were they dismissed

for flag abuse; all of them were dismissed for /d/efying

properly constituted authority.”’ . .. . Brief of Appellee

at 38 (emphasis supplied). The district court elaborated

upon the “properly constituted authority.” “[Removing

the flag) was a calculated show of contempt for the City

authority and a demonstration of refusal to obey its lawful

ordinances, rules and commands.”

[3] Simply stated, the officers were dismissed for fail-

ing to obey a resolution of the City of Columbus requiring

the flag patch on police uniform. That the speech/conduct

that led to dismissal is proscribed by statute is irrelevant to

first amendment analysis, however, if that statute suppresses

constitutionally protected activity. See Williams, supra, 629

F.2d at 1000 n. 13 and cases cited. In other words, there

must be an interest apart from compliance with a statute;

a statute which inhibits constitutional rights without suffi-

cient governmental interest is invalid.

A-16

Although the district court restrained appellants from

eliciting testimony concerning the purpose of the flag re-

quirement itself, it was the obligation of appellees to develop

that interest, and they did not seek to do so. Given the

nature of the ordinance violated, however, we can deduce

what the interest would be. The resolution required a flag

patch on the sleeve of a police uniform, it did nothing more

and nothing less. Testimony confirms the presence of the

patch had no relation to the efficient performance of police

duties. What the flag patch did accomplish is an integration

of the police into the community, the flag patch repre-

senting a devotion to, and concern for, American ideals.

Although this sort of goal is most admirable, it is specifically

because of what the flag stands for that the interest in having

the patch worn must bow to the greater interest of the dis-

missed officers’ free speech.

We can discern yet another interest here, one intimately

tied to appellants’ status as police officers. Although the

City fails to advance this argument itself, we recognize an

intrinsic interest in having police officers comply with

ordinances of a properly constituted governing body. This

interest is a valid and important one. It is not determinative

in every instance, however, and certainly is insufficient

here. Uncontroverted evidence at trial indicated that a

number of police officers invariably were without the flag

patch. Whether this was because “old” uniform shirts did

not have the patch, and whether the officers wilfully or

failed to sew them on, is irrelevant: if the City’s

interest in police compliance with City ordinances was

compelling, discipline should have followed every violation.

It is likewise undisputed that appellants were the first officers

ever disciplined for failing to wear the patch. It was not

until after appellants were dismissed that a white officer

was disciplined for failing to wear the flag; in contrast to

> fo

A-17

the dismissals here, that officer was suspended for five days.

Witnesses for the City acknowledged the above facts, but

sought to distinguish this case on the basis that appellants

stood up in front of the media and removed the flag patcli,

announcing they could not wear it because of injustice on

the force. Such testimony only serves to emphasize that

appellants were not punished for failing or refusing to wear

the flag.5 they were punished for speaking. That the City

may not do. Mr. Healthy, supra Williams, supra. Weighing

the strong interest of appellants in speaking on a matter of

public importance against the interest of the City in having

the flag worn on the uniform, an interest no City official

showed concern for until these black officers took the patch

off, we can only conclude the speech was protected.6

This brings us to the second step of analysis under Mt.

Healthy. Mt Healthy recognized that if the speech was

protected no reason would justify disciplinary actionon

account of the speech. The Mt. Healthy Court therefore

required that, once a plaintiff has met his burden, the bur-

den shifts to the defendant to show, by a preponderance

5 Even if every officer who forgot or refused to wear the flag had

been punished prior to these events, on the facts of this case it is

doubtful that the conduct of appellants was properly subject to dis-

cipline. At the time of the flag incident appellants were off-duty; they

would not be in violation of the City resolution until they appeared

for duty without the flag. See Hess v. Indiana, 44 U.S. 105, 94 S.Ct.

326, 38 L.Ed.2d 303 (1973) (words advocating lawless activity in

A-18

of the evidence, that the discipline would have occurred

even in the absence of the protected conduct. Here, it was

the obligation of the City of Columbus to show that dis-

missals would have occurred despite the flag incident. The

City offered no evidence in this regard; indeed, it objected

to plaintiff counsel’s attempt to discern what role the flag

incident played in the minds of Board members who affirm-

ed the dismissal.? The Chief of Police testified he dismissed

the officers for participating in the flag incident. Director

Sargis compared the flag incident to the straw that broke the

camel’s back, the culmination of a “crescendo” of first

amendment activity.

Appellees having failed entirely to address, let alone

prove, their burden under Mr. Healthy, the judgment of the

court below is reversed and the case is remanded for a de-

termination of the appropriate remedy.

REVERSED.

A-19

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

ROBERT LEONARD, et al.,

Plaintiffs

THE CITY OF COLUMBUS, et al.,

Defendants

CIVIL ACTION NO. 1514

OPINION

Filed February 23, 1982

This suit stems from certain events occurring during the

“Summer of 1971” in Columbus, Georgia. Other groups of

Plaintiffs have litigated constitutional claims arising during

this period and both federal and state courts have refused to

sustain their complaints. See the unpublished opinion of this

Court in Community Action Group, et al. v. City of Colum-

bus, et al. (Civil Action No. 1528 in the Columbus Division,

decided January 31, 1972), which decision was affirmed by

the Court of Appeals for the Fifth Circuit at 473 F.2d 966

(1973), and rehearing denied at 475 F.2d 1404, and Sum-

bry, et al. v. Land, 127 Ga. App. 786, 195 SE2d 228 (1972),

cert. den. 414 U.S. 1079 (1973), The turbulent events from

which this case arose have been well documented in those

opinions.

The present action was brought under the provisions of

§§ 1331 and 1343 of Title 28, and §§ 1981 and 1983

of Title 42 of the United States Code. There were originally

38 Plaintiffs who requested injunctive and declaratory relief

A-20

with regard to alleged discriminatory employment practices

by the Columbus Police Department, but by the time the

case came on for hearing 32 of the Plaintiffs had opted out

of the litigation and the 6 remaining Plaintiffs who had been

discharged from the Columbus Police Department on May

31, 1971 elected to pursue only the relief sought in divisions

1, 2, 10 and 11 of the prayers of the complaint, which seek

damages for wrongful discharge and injunctive relief for

reinstatement.

After a hearing this Court entered an order dismissing the

complaint on jurisdiction and abstention grounds because the

Plaintiffs had initiated an appeal proceeding available to them

in the state tribunals which was still in process at the time

they filed this complaint in this Court. On appeal the Court

of Appeals for the Fifth Circuit remanded the case to this

Court to be decided on the merits. Leonard, et al. v. City of

Columbus, et al., 551 F.2d 974 (1977). Thereafter the

Supreme Court denied the Defendants’ petition for a writ

of certiorari, three of the Justices dissenting and filing an

opinion. 443 U.S. 904 (1979).

This opinion is filed in compliance with the remand order

and the Court’s findings of fact and conclusions of law are

as hereinafter indicated.

The Plaintiffs who remain in this case are Robert Leonard,

Willie L. Pearson, Jr., Vinson Willis, John H. Clark, Jr.,

Gary L. Smith and Freddie L. White, who were as of May

31, 1971 sworn members of the Police Department of the

City of Columbus, Georgia.! The Defendant City of Colum-

bus, Georgia is a consolidated minicipal government incor-

1 _—As of that date there were 52 black police officers on the force.

A-21

porated pursuant to the laws of the State of Georgia. The

Defendant J. R. Allen was Mayor of Columbus on May 31,

1971, but he is now deceased. The Defendant A. J. McClung

was the Mayor Pro Tem of the City. The Defendant Joseph

W. Sargis was the Director of Public Safety. He no longer

occupies that position. The Defendant Leonard Leavel was

a civilian member of the Police Hearing Board, but he no

longer occupies that position. The Defendant Hugh Bentley

was a civilian member of the Police Hearing Board, but he

no longer occupies that position. The Defendant B. F. Mc

Guffey was the Chief of Police of the Columbus Police

Department, but he no longer occupies that position. The

Defendant S.W. Brown was the Assistant Chief of Police

of the Police Department, but he no longer occupies that

position.

On August 18, 1969 the Columbus City Commission, the

governing body of the City, by official action ordered that all

police officers would thereafter be required to wear a replica

of the American flag in the form of a cloth patch as a part of

the police uniform.

For several weeks prior to May 31, 1971 the 6 Plaintiffs

above named and a number of other black police officers

were members of an organization known as the Afro-Ameri-

can Patrolmen’s League, a group who had made public com-

plaints about the Columbus Police Department, principal

of which was that there was racial discrimination within the

Department. These complaints were aired by them through

press conferences, press releases, etc. When the officials of

the City did not respond to their complaints in a manner

deemed satisfactory to them the 6 Plaintiffs began picket-

ing the police headquarters carrying signs setting forth some

of their demands. The picketing was carried on during the

Plaintiffs’ off-duty hours, but they wore their police uni-

A-22

forms. Neither their superiors in the Police Department nor

any other official connected with the City at any time made

any attempt to interfere with the picketing nor was there any

intimation that the Plaintiffs would be penalized in any way

for the public expression of their views. When by the after-

noon of May 31 (the third day of picketing) it appeared that

the picketing activity was not attracting sufficient public

attention the Plaintiffs decided to stage an incident that

would arouse the public. When television cameramen and

newspaper photographers arrived on the scene, as if by

pre-arrangement, each of the Plaintiffs proceeded to cut the

flag emblems from their uniforms. Having done so, they

attempted to deliver the emblems to the Deputy Chief of

Police and when he refused to accept them one of the Plain-

tiffs acting as spokesman for the group stated that they

would not wear the flag emblem until they got what they

wanted, All of this was, of course, dutifully recorded by the

news media and widely publicized, just as the Plaintiffs

clearly intended it should be. Later that afternoon the

Plaintiffs were summoned to the Police Major's office and

they were advised that they were being dismissed from the

police force and they were given letters explaining their

dismissal, The letters stated:

“Effective this date, May 31, 1971, you are

discharged from the Columbus Police De-

partment for violation of Section 39, para-

graphs ‘G’ and ‘R’ of the General Rules of

Conduct of the Police Manual, which states:

(G) Conduct unbecoming an officer which

might be detrimental to the service

(R) Any other act or omission contrary

to good order and discipline of the

department

In that you did publicly remove the American

A-23

Flag from the Columbus Police Uniform while

picketing in front of Police Headquarters on

May 31,1971.

The American Flag was made an official part

of the Columbus Police Uniform by a un-

animous vote of the City Commission on

August 18, 1969,

Very truly yours,

B.F. McGuffey

Chief of Police”

Section 39 of the General Rules of Conduct of the Police

Manual (in pertinent part) is as follows:

“39, Charges Resulting in Dismissal or Disci-

plinary Action, Any member is subject

to discipline by the Police Chief, or to

dismissal, demotion or suspension by

the Police Chief, subject to concur-

rence by the Board of Public Safety,

for committing any of the following

offenses:

@® Conduct unbecoming an officer

which might be detrimental to

the service.

“@ Any other act or ommission con-

trary to good order and dis-

cipline of the department.”

The Director of Public Safety concurred in and approved

the action taken by the Chief of Police and an ordinance

adopted by the City Government on January 12, 1971 had

aw, 5

A-24

named the Police Hearing Board as the successor to the

Board of Public Safety,

The Chief of Police notified each of the Plaintiffs in writ-

ing that they had the right to appeal their dismissals to the

Police Hearing Board, Counsel for the Plaintiffs advised the

Board that the Plaintiffs wished to preserve their right of

appeal to the Board, Thereafter the Plaintiffs were given

written notice of the charges which would be the subject of

the hearing, a date agrecable to the Plaintiffs’ counsel was

fixed for the hearings and the hearings were conducted by

the Board. The Plaintiffs were present, were represented by

counsel and were given opportunity to make a full presen-

tation of their cases, After consideration the Board aoproved

the dismissals and the dismissals thereupon became final.

The Plaintiffs contend that they were denied their con-

stitutional right to freedom of speech and that they were

not accorded due process,

With regard to freedom of speech it should be remembered

that a municipal police department is a para-military or-

ganization which is charged with the responsibility of pro-

tecting the public and upholding the authority of the City

government, Thus a vital public interest is involved and to

satisfactorily perform this duty the employees of a police

department must be governed by reasonable rules and regula-

tions. One may certainly criticize, but for a police officer

to publicly announce that he will not obey the commands

of a valid city ordinance is the rankest form of insubordina-

tion and, unless promptly dealt with, would lead to the

complete disruption of the proper relationship between the

superior and the subordinate with the concomitant impair-

ment of an effective municipal police force, The evidence

A-25

shows that the Plaintiffs and the black police officers associa-

tion of which they were members had for weeks prior to

May 31 been making public comment and holding press

conferences and issuing press releases stating their grievances

and criticizing the City Government in general and the Police

Department in particular and no coercive action had been

taken by anyone connected with the City Government to

stifle the criticism, and, as hus already been noted, Plaintiffs

were allowed to conduct their picketing activities on the

sidewalk and display their placards in front of the Police

Headquarters for three days without hindrance. But, the

Plaintiffs contend that cutting the flag emblem from the

uniform was only “symbolic speech", likening this to a

situation in which a person might refuse to salute the flag.

The comparison is invalid, The person who refuses to salute

the flag is under no compulsion to do so, Here we have

police officers of a city who upon assuming office agreed to

obey the Rules of Conduct of the Police Department and

who are sworn? to uphold the authority of the City and

enforce its ordinances, one of which requires the wearing of

the flag emblem as a part of the uniform, deliberately cutting

the flag emblem from the uniform and announcing publicly

2 ‘The oath which the Plaintiff took was as follows:

“OATH OF A POLICEMAN, CITY OF COLUMBUS, GEORGIA

I, a Police Officer for the City of Columbus,

do solemnly swear that during my continuance in sald office, I will,

A-26

that they will refuse to wear it. This was a calculated show of

contempt for the City authority and a demonstration of re-

fusal to obey its lawful ordinances, rules and commands.

If this was not “conduct unbecoming an officer which

might be detrimental to the service” and an “act contrary

to the good order and discipline of the department”, then

the Court does not know how it could be categorized. If

this was only “symbolic speech’, then it might well be

presumed that punching the Police Chief in the nose would

also be so regarded. There was no denial of freedom of

speech.

With regard to due process, the first contention of the

Plaintiffs is that no one ever told them before May 31, 1971

that the flag emblem was a part of the police uniform and

that they were required to wear it. All of the evidence (with

the exception of the Plaintiffs’ testimony) contradicts this

assertion. Immediately after the adoption of the ordinance

in 1969 which mandated the wearing of the flag emblem

the emblems were acquired by the Police Department and

delivered to the individual policemen and were sewn on the

uniforms and were thereafter worn by all policemen on the

force. It is obvious that someone in authority in the Depart-

ment in some manner advised all members of the force of

the requirement for there to have been such unanimity of

action. The fact that the Police Chief could not recall some

years later exactly how the message was conveyed to the

policemen hardly justifies the conclusion that it was not

done.

But the evidence which most clearly belies the Plaintiffs’

contention that they did not know that they were required

to wear the flag emblems is the fact that each of the 6

Plaintiffs was a member of the Afro-American Patrolmen’s

League, an organization which had been formed to present

* ee = Poe Lit ase a

A-27

grievances to the City governing body and to the Police

Department and which from time to time made public

pronouncements and issued press releases alleging what

were described therein as “abuses” in the Police Depart-

ment, and on March 27, 1971 the League issued a “press

release” to the news media in which a number of grievances

were listed and the first complaint made was that they

(the members of the League) were required to wear the

flag emblem, the exact language being: “We are compelled

to wear the flag.”

The Plaintiff Leonard was the Executive Director of the

League and the Plaintiffs Perason and Clark were officers

in the organization. Indeed, the Plaintiff Leonard is the

person who disseminated the news release. All of these facts

lead the Court to conclude that the Plaintiffs’ contention

that they did not know that they were required to wear the

flag emblem is simply incredible and would justify the en-

tertainment of some doubt as to their credibility in other

respects.

The Plaintiffs next complain that the Rules of Conduct

contained in the Police Manual are unconstitutionally over-

broad and vague and that they were never advised by the

Police Department as to what might constitute “conduct

unbecoming an officer which might be detrimental to the

service” or “any other act or omission contrary to good

order and discipline of the department”, and specifically

that they were never told prior to May 31, 1971 that their

conduct on that date would constitute “conduct unbecom-

ing an officer which might be detrimental to the service”

or “any other act or omission contrary to good order and

discipline of the department”, and that the determination

made by the Police Chief on May 31, 1971 without such

prior notice was a denial of due process.

A-28

It is the Court's view that it would be entirely unreason-

able to require that a police manual describe every act

which might be committed by an officer which could proper-

ly be categorized as “conduct unbecoming an officer which

might be detrimental to the service” or “any other act or

omission contrary to good order and discipline of the depart-

ment”. All that is required is that the officer know that he

is subject to dismissal if his act is one that reasonably fits the

general description.? In this case it is clear that it could

reasonably be anticipated that the conduct of the Plaintiffs

in the circumstances here presented would have been con-

sidered “‘conduct unbecoming an officer which might be

detrimental to the service’ or “any other act or omission

contrary to good order and discipline of the department”

by the Police Chief, who was the person responsible for

maintaining good order and discipline in the department.

The Plaintiffs knew that the act of defiance which they

put on for the benefit of the news media could not be

countenanced by their superiors in the department and was

bound to be regarded as “conduct unbecoming an officer

which might be detrimental to the service” or “any other

act or omission contrary to good order and discipline of

the department”.4 The Chief of Police could not have

reasonably been expected to notify the Plaintiffs in advance

of their actions that their conduct would subject them to

3 “Moreover, it is not feasible or necessary for the Government to

spell out in detail all that conduct which will result in retaliation. The

most conscientious of codes that define prohibited conduct of em-

ployees includes ‘catchall’ clauses prohibiting employee ‘misconduct’,

‘immorality’, or ‘conduct unbecoming.’ ”

Meehan v. Macy, 392 F.2d 822, 835 (U.S. App.D.C. 1968).

4 “One to whose conduct a statute clearly applies may not success-

fully challenge it for vagueness.”

Parker v. Levy, 417 U.8, 783, 756 (1974).

A-29

discharge because no police officer in the department had

ever done such a thing and the Police Chief had no reason

to expect that the Plaintiffs would do so.

The Plaintiffs complain of procedural defects in their

dismissals, asserting that they were “discharged without

prior notice or hearing by B.F. McGuffey, Chief of Police,

contrary to the Ordinance No. 71-7 which grants the ex-

clusive power to discharge to the Police Hearing Board. . .”’.

The ordinance referred to had as its stated purpose the

establishment of “‘procedures for the prompt and thorough

investigation of alleged or suspected misconduct of com-

missioned officers of the Columbus Police Department,” and

it sets out a process of investigation and notice culminating

in a hearing before the Police Hearing Board. Section 17-

35.4(C) of the ordinance provides that “The Chief of Police

shall exercise the powers as shown in Section 17-38 of this

Article,” but, apparently as a result of error in drafting,

there is no Section 17-38, so this ordinance does not inhibit

or diminish in any way the authority of the Chief of Police

to dismiss an officer as set out in Section 39 of the General

Rules of Conduct of the Police Manual, subject to ultimate

review by the Police Hearing Board, and the Chief of Police

made it clear by his testimony that when he discharged the

Plaintiffs he was exercising the powers given him under

Section 39 of the Police Manual. He stated: “I had the power

in “71 to interview and hire and . . . I could also fire... . we

were going under Section 39 where I had the power to

discipline, suspend or demote . . . by taking it up with the

Director of Public Safety.”

When the Police Hearing Board conducted the hearing in

this matter all of the procedural requirements of the or-

dinance were complied with. Each of the Plaintiffs received

A-30

written notice of the charges which brought about their

dismissals on May 31, 1971, and each was represented by

counsel before, during and after the hearings. But the Plain-

tiffs contend that all of the procedural formalities listed in

the ordinance should have been complied with before the

Police Chief issued his dismissal order and that the absence

of such compliance deprived them of due process. Neither

the law of Georgia nor of the United States supports such

a theory.

Even if it is assumed for the purpose of discussion that

there was some procedural defect prior to the hearing before

the Police Hearing Board this would not constitute a denial

of due process under Georgia law as explained by the Court

of Appeals of Georgia in Lentz v. State Personnel Board,

146 Ga.App. 366 (1978). Lentz was a state employee with

a permanent status under the Merit System. He was discharg-

ed from this employment because of alleged misconduct.

He was not informed of the nature of the accusations against

him prior to his discharge. He demanded a hearing to contest

the grounds of his discharge, whereupon he was advised of

the nature of the charge against him 18 days after his ter-

mination and he was afforded a hearing. He contended that

a failure to grant him a hearing prior to discharge deprived

him of due process. The Court of Appeals said:

“Due process does not require a hearing

prior to discharge (Brownlee v. Williams, 233

Ga. 548, 553 (212 SE2d 359)), and proce-

dural defects prior to a fair hearing may be

cured by that subsequent hearing. Peppers v.

United States Army 479 F.2d 79, 83 (4th

Cir. 1973). When an agency neglects to follow

a procedural rule but its failure inflicts no

significant injury on the party entitled to

observance of the rule, the error does not

A-31

prevent further administrative or judicial

action. EEOC v. Airguide Corp., 539 F.2d

1038, 1042 (Sth Cir. 1976). For a procedural

defect to violate due process, the defect must

be shown to be prejudicial. Alsbury v. United

States Postal Service, 392 F.Supp. 71 (C.D.

Cal. 1975). Assuming, arguendo, that the

regulations in existence at the time of appei-

lant’s dismissal required that he be given 15

days notice prior to an adverse action being

taken against him with the right to call

witnesses and present rebuttal, and that

these requirements were violated, such

violations were cured by the full hearing

subsequently extended to Lentz with the

right, exercised by him, to cross examine

adverse witnesses and present evidence in

his own behalf.”

146 Ga. App. 366, at 367-368.

In the case of Jn re Wiggins, 144 Ga. App. 707 (1978),

the Court of Appeals of Georgia dealt with issues and facts

similar to those here presented. A Columbus police officer

was dismissed from the force for conduct unbecoming an

officer and for falsification of reports, all of which were

alleged to be violations of the “Police Manual”. He was

notified in writing of the results of a police investigation and

he was advised of his right to appeal to the Personnel Review

Board. He filed an appeal and at a hearing conducted by the

Board all of the witnesses who were interviewed in the in-

denied due process by the failure to grant him a hearing

prior to the dismissal action taken against him by the Chief

A-32

of police. The Court of Appeals held:

“At the police department investigation

appellant was not confronted by any witness

who gave testimony against him and was not

permitted to cross examine these witnesses

prior to the date of his discharge on October

21, 1976. It is on this factor that he con-

tends that he was denied due process of law

under our Federal and State Constitutions.

While he was not granted a hearing prior to

the initial discharge, he was granted a trial-

type hearing on his appeal before the per-

sonnel review board where he was confronted

by the witnesses and afforded the opportuni-

ty to cross examine the witnesses and to offer

evidence in his own behalf. In Aycock v.

Police Committee, 133 Ga.App. 883 (212

SE2d 456) we held, citing Arnett v. Kennedy,

416 U.S. 134 (94 Sc 1633, 40 LE2d 15), that

concluded that appellant was not denied

due process by the failure to grant him a

hearing prior to the dismissal action taken

against him by the chief of police.” 5

5 Wiggins contended that bis discharge was complete when he was

dismissed by the Chief of Police (which is the same contention made

by the Pisintiffs in this case) but the Court of Appeals held that “s

reasonable construction requires the conclusion that the police chief

A-33

144 Ga. App. 707, at 708.

The dismissal of the Plaintiffs on May 31, 1971, as subse-

quently approved by the Police Hearing Board, not only

complied with the procedural rules of Columbus, Georgia,

but also complied with any rules of procedural due process

as guaranteed by any constitutional provision. The above

quoted Georgia cases not only make this clear as a matter

of state law, but they also cite federal authority including

the leading case of Arnett v. Kennedy, 416 U.S. 134 (1974)

for the proposition that a posttermination hearing satisfies

the requirements of procedural due process.

Even if it should be assumed that the Defendants in some

manner failed to follow all of the specifics of City Ordinance

No. 71-7, the Court of Appeals for the Fifth Circuit has

nevertheless held in Glenn v. Newman, 614 F.2d 467 (1980)

that:

“Although pretermination procedures af-

forded city police officer did not conform

with minimum due process requirements,

any error involved was cured in subsequent

public hearing before mayor and city council

in which officer received written notice of

charges against him, was given sufficient

opportunity to prepare for hearing, was

represented by an attorney who examined

and cross-examined witnesses on his behalf,

and was allowed to present his case orally.”

Headnote 6.

A-34

From the foregoing the Court concludes that the dis-

missals of the Plaintiffs were valid under Georgia law and

Federal law and the procedures employed did not deprive

the Plaintiffs of due process.

It is noted that the opinion of the Court in Glenn y.

Newman, supra, suggested that if there was an erroneous

pretermination procedure which was subsequently cured by

posttermination hearing, the discharged employee could

recover back pay which would have accrued between the

two events. However, in Wilson v. Taylor, 658 F.2d 1021

(Sth Cir. 1981) the Court of Appeals for the Fifth Circuit

applying the decision of the Supreme Court in Carey y.

Piphus, 435 U.S. 247 (1978), makes it clear that the con-

clusion arrived at by the Court in Glenn v. Newman regard-

ing back pay could no longer be followed. So, the Plaintiffs

in this case could not be sustained in any claim for damages

for pay lost between the time they were discharged by the

Chief of Police and the time the discharge was affirmed by

the Police Hearing Board even if there was some procedural

deficiency in connection with the discharge by the Chief of

Police.

Finally, the Plaintiffs assert an equal protection claim,

contending that the action taken by the Chief of Police

A-35

refuse to wear the emblem. He did not cut the emblem from

the jacket. He did not stage an act of defiance for the bene-

fit of the news media. He did not proclaim that he would

not wear the emblem. He had simply negligently failed to

see to it that the emblem was affixed and was therefore

considered to be “out of uniform”. No valid comparison

can be made of these two incidents and the Court concludes

that there is no evidence to support the claim of disparate

treatment.

Consistent with the foregoing, the Court concludes that

the Plaintiffs have not carried their burden of proving that

they are entitled to prevail on any of their asserted claims.

Accordingly, judgment will be entered for the Defendants.6

ENTERED this 23rd day of February, 1982.

/s/ J. Robert Elliott

UNITED STATES DISTRICT

JUDGE

6 _In view of the disposition here made, the Court pretermits discus-

sion of the question whether some or all of the Defendants are entitled

to a defense of partial or total immunity as against the claims of the

A-36

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

ROBERT LEONARD, et al

Plaintiffs

Versus

THE CITY OF COLUMBUS, et al

CIVIL ACTION NO. 1514

Filed February 23, 1982

JUDGMENT

Pursuant to the Opinion dated and filed on February 23,

1982, and for the reasons stated therein, Plaintiff's are not

entitled to prevail on any of their asserted claims.

Judgment is therefore entered in favor of the Defendants.

This 23rd day of February, 1982

GIRARD W. HAWKINS, CLERK

By; /s/ Louie G. Broadwell

Louie G. Broadwell

Deputy Clerk

A-37

APPENDIX C

SUPREME COURT OF THE UNITED STATES

CITY OF COLUMBUS ET AL. V.

ROBERT LEONARD ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

No. 77-1032. Decided June 25, 1979

The petition for a writ of certiorari is denied.

Mr. JUSTICE REHNQUIST, with whom THE CHIEF

JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.

Respondents were dismissed from their positions with

the Columbus Police Department on May 31, 1971, for

deliberately removing the American flag emblem from their

uniforms during a public demonstration. Four days later,

respondents requested hearings before the Police Hearing

Board, a state-created board to which officers could appeal

their discharges. Counsel for respondents informed city

officials that respondents “are anxious to have a hearing on

these matters and request that all efforts be made to give us

an early hearing date.” The Deputy Chief of Police responded °

by promptly notifying respondents that a “Police Hearing

Board will be scheduled in the near future to hear your

appeal and you will be notified of the time, date and place

the hearing will be conducted.” Only a week after receiving

the letter granting their request for a Police Hearing Board,

respondents, apparently not satisfied to invoke only the state

review process, also filed the federal civil rights action now

A-38

before us. Respondents claimed, inter alia, that the failure to

accord them a hearing before they were discharged violated

both their Fourteenth Amendment right to due process

and Columbus City Ordinance No. 71-71

Hearings were initially scheduled before the Police Hearing

Board for June 28, 1971, but, at the request of respondents’

counsel, postponed until mid-July. The dismissals of respond-

ents Leonard and White were unanimously upheld by the

Board; the remaining dismissals were upheld on four to two

votes. Although review of the Board's decisions was clearly

available in state court, see Ball v. Police Committee of the

City of Atlanta, 136 Ga.App. 144, 145, 220 S.E. 2d 479,

480 (1975), respondents chose not to avail themselves of the

further state proceedings. Instead, having lost in the first

stage of the state remedial process, respondents decided to

change horses and pursue their action in federal court.

On April 17, 1975, the District Court for the Middle

District of Georgia dismissed respondents’ federal action.

The District Court ruled that respondents could not pursue

state remedies part way and then switch in mid-stream to a

federal forum; having chosen initially to invoke state reme-

dies, that route must be exhausted. Respondents

The second prayer of the respondents’ complaint asked:

“2. That, this Court exercise its pendent jurisdiction and Chief of

Police, B.F. McGuffey be preliminarily and permanently enjoined

from discharging plaintiffs . . . on the grounds that he lacks the power

or authority under City of Columbus Ordinance 71-7 to discharge

as he did on May 31, 1971, and enjoin the

A-39

“seek to relitigate the same cause of action,

based on the same sect of facts, merely by

changing legal theories and sovereignties.

They do so despite the availability of a state

process of judicial review of decisions of

quasi-judicial tribunals such as the Police

Hearing Board.”

Dismissal of respondents’ complaint was also supported by

federal principles of abstention since respondents claim for

relief relied in part

“on the alleged misapplication of a local

ordinance which [respondents] ask this

Court to construe in their prayers for relief.

The present federal action seeking reinstate-

ment would have been obviated had the

[respondents] prevailed in their view before

any of the four levels of state tribunals

available to them.”

The Court of Appeals for the Fifth Circuit reversed, hold-

ing, without detailed analysis, that the District Court should

have reached the merits of respondents’ claims.

Petitioners contend, amongst other arguments, that

respondents should be required to exhaust their state reme-

dies before filing an action under 42 U.S.C. §1983 and that

the District Court therefore properly dismissed the action.

In Monore v. Pape, 365 U.S. 167 (1961). this Court held

that one seeking redress for the deprivation. of federal rights

need not initiate state proceedings before filing an action

under § 1983. /d., at 183. Here, however, we are confronted

by a quite different and unanswered exhaustion issue ——

“that of the deference to be accorded state proceedings

A40

which have already been initiated and which afford a com-

petent tribunal for the resolution of federal issues.”’ Cf.

Huffman v. Pursue, Lid., 420 U.S. 592, 609-610, n. 21

(1955) (emphasis added). The District Court held that dis-

missal was in order under a doctrine that is best described

as “They who invoke must also exhaust.” Such a rule is not

precluded by our prior decisions and indeed would seem to

be supported by the logic of prior opinions. | would there-

fore grant certiorari to consider whether the Court of Ap-

peals erred when it concluded that the District Court should

have reached the merits of respondents’ action.

Principles of federal-state comity have given rise to a

number of limitations on the exercise of federal jurisdic-

tion over state laws and actions. The equitable restraint

doctrine enunciated in Younger v. Harris, 401 U.S. 37

(1971) holds that, absent “exceptional circumstances,”

a federal court should not interfere with pending state

criminal or civil proceedings in which the State has an im-

portant interest.2 See. e.g., Huffman, v. Pursue, Ltd., supra;

Juidice v. Vail, 430 U.S. 327 (1977); Trainor v. Hernandez,

431 U.S. 434 (1977); Moore v. Sims, U.S. (1979).

2 In Younger, supra, we recognized that the doctrine of equitable

restraint “is based in part on the traditional doctrine that a court of

equity should stay its hand when a movant has an adequate remedy

at law, and that it ‘particularly should not act to restrain a criminal

prosecution.’ [401 U.S.,] at 43. But we went on to explain that this

doctrine ‘ts reinforced by an even more vital consideration,’ an aspect

of federalism which we described as

“ the notion of “comity,” that is, a proper respect for state functions,

& recognition of the fact that the entire country is made up of a Union

of separate state governments, and a continuance of the belief that the

National Government will fare best if the States and their institutions

are left free to perform thetr separate functions in their separate ways.’

id., at 44.”

Huffman v. Pursue, Lid., 420 U.S. 592, 600-601 (1975).

A4Il

The federal action must be dismissed not only where it

threatens to interfere with active state proceedings but also

where state proceedings have ended because of the failure

of the federal plaintiff to appeal an adverse state decision.

In Hauffman v. Pursue, Ltd., supra, for example, a state

trial court ordered the respondent's theater closed and all

personal property used in its operation seized and sold.

Rather than appealing this decision, the respondent brought

a §1983 action in federal court seeking to enjoin enforce-

ment of the state court's judgment. We held that the Federal

District Court’s action in granting the injunction was im-

proper under Younger. Even though the state trial court

judgment might have become final, “‘a necessary concomitant

of Younger is that a party . . . must exhaust his state ap-

pelate remedies before seeking relief in the District Court.”

420 US., at 608.

“Virtually all of the evils at which Younger

is directed would inhere in federal interven-

tion prior to completion of state appellate

proceedings, just as surely as they would

if such intervention occurred at or before

trial. Intervention at the later stage is if

anything more highly duplicative, since

an entire trial has already taken place, and

it is also a cirect aspersion on the capabilities

and good faith of state appellate courts... .

“Federal post-trial intervention, in a

fashion designed to annul the results of a

state trial, also deprives the States of a func-

A-42

importance because it is typically a judicial

system's appellate courts which are by their

nature a litigant’s most appropriate forum

for the resolution of constitutional con-

tentions. Especially is this true when, as here,

the constitutional issue involved a statute

which is capable of judicial narrowing. In

short, we do not believe that a state’s judicial

system would be fairly accorded the op-

portunity to resolve federal issues arising

in its courts if a federal district court were

permitted to substitute itself for the State’s

appellate courts.”’ /d., at 608-609.

Here, the state proceedings were initiated by respondents

rather than by the State. But this only strengthens the

rationale for requiring respondents to exhaust their state

appellate remedies. Respondents invoked the resources of

the State to vindicate what they believed to have been illegal

dismissals. Having lost the first round of this contest, they

should not be allowed to abandon it and transfer the con-

test to another arena. As in Huffman, such belated forum-

shifting is “highly duplicative” and “a direct aspersion on

the capabilities and good faith of state appellate courts.”

Action by a federal district court also would deprive the state

appellate courts “of a function which quite legitimately

is left to them.”

A requirement that respondents exhaust state remedies

that they have themselves initiated is particularly appropriate

here where respondents’ claim for relief rests in part on state

law. On appeal, the Georgia courts may well have found that

the dismissal of respondents without a hearing was unlawful

under Columbus City Ordinance No.71-7, obviating much,

if not all, of respondents’ federal claim for relief and avoiding

A43

the federal constitutional issues that the District Court may

now have to decide. In Boehning v. Indiana State Employees

Association, 423 U.S. 6 (1975), a discharged employee

brought suit in federal court under § 1983 alleging procedural

due process violations even though “controlling state stat-

utes, as yet unconstrued by the state courts, might require

the hearing demanded .. . and so obviate decision on the

constitutional issue.” /d., at 7. We held that under these

circumstances the District Court properly decided to “‘ab-

stain until construction of the Indiana statutes had been

sought in the state courts.” /bid. The similar abstention

concerns present here, in combination with respondents’

invocation of their state remedies, supports the District

Court’s dismissal of respondents’ action because of their

failure to exhaust state appellate remedies.

As noted earlier, Monroe v. Pape, 365 U.S. 167 (1961),

is not to the contrary. In Monroe, we merely held that a

federal plaintiff need not initiate state proceedings before

filing a §1983 action. According to the Court, this conclu-

sion flowed from the purpose of the Civil Rights Act “to

provide a federal remedy where the state remedy, though

adequate in theory, was not available in practice.” 365

US., at 174 (emphasis added). Here, after deliberately

invoking state review proceedings, respondents should not

be heard to challenge the state procedures as either “not

available in practice” or otherwise inadequate. Nor indeed

have respondents attempted to raise such a challenge.

Quite apart from this distinction, the time may now be

ripe for a reconsideration of the Court’s conclusion in Mon-

AA44

federal remedy where the state remedy, though adequate in

theory, was not available in practice.” Id., at 174. But this

purpose need not bar exhaustion where the State can demon-

strate that there is an available and adequate state remedy.

Indeed, scholarly commentators have soundly criticized

the Court for holding to the contrary. See, ¢. g., Note,

Limiting the Section 1983 Action in the Wake of Monroe

v. Pape, 82 Harv. L. Rev. 1486 (1969). In Monell v. Depart-

ment of Social Services, 436 U.S. 658, 663 (1978), the

Court, in examining another section of Monroe v. Pape,

“overrule[d] Monore v. Pape . . . insofar as it holds that

local governments are wholly immune from suit under

§ 1983.” The Court having reopened that portion of Monroe

v. Pape, | would take the opportunity afforded by this case

to reconsider the Court’s conclusion as to exhaustion of

state remedies. Not only is the Court’s conclusion open to

serious question, as noted earlier, but the conclusion was

reached in an almost off-the-cuff manner, in distinct con-

trast to that portion of Monroe overruled by the Court in

Monell.

For all of these reasons, I dissent from the denial of

certiorari.

A-45

APPENDIX D

Robert LEONARD et al.,

Plaintiffs-Appellants,

The CITY OF COLUMBUS et al.,

Defendants-Appellees.

No. 75-2344

United States Court of Appeals,

Fifth Circuit.

May 9, 1977.

Rehearing En Banc Granted July 1, 1977.

Civil Rights Act suit was brought charging racial discrim-

ination in discharge of city policemen. The United States

District Court for the Middle District of Georgia, J. Robert

Elliott, Chief Judge, dismissed the complaint on jurisdiction-

al and abstention grounds, and plaintiffs appealed. The

Court of Appeals, Coleman, Circuit Judge, held that al-

though administrative decision was reviewable in state

courts and although claim of wrongful discharge was pre-

dicated on both constitutional grounds and alleged mis-

A446

was predicated on both constitutional grounds and alleged

misapplication of local ordinance, federal district court

acted improperly in disposing of officers’ Civil Rights Act

case on jurisdictional and abstention grounds; district court

should have decided the case on the merits.

Joel M. Gora, American Civil Liberties Union, New York

City, Ellen Leitzer, American Civil Liberties Union Founda-

tion of Ga., Inc., Margie Pitts Hames, Neil Bradley, Atlanta,

Ga., Melvin L. Wulf, American Civil Liberties Union Founda-

tion, New York City, for plaintiffs-appellants.

Lennie F. Davis, City Atty., E. H. Polleys, Jr., Asst. City

Atty., Columbus, Ga., for defendants-appellees.

Appeal from the United States District Court for the

Middle District of Georgia.

Before BROWN, Chief Judge, and COLEMAN and MOR-

GAN, Circuit Judges.

COLEMAN, Circuit Judge.

Robert Leonard and thirty-seven others filed this action

in the United States District Court for the Middle District

of Georgia, June 18, 1971, seeking declaratory relief, equit-

able relief, and damages. As originally cast, the suit alleged

that the defendants engaged in certain racially discriminatory

employment practices. At the pre-trial conference, however,

After a three day non-jury trial in February, 1975, the

A47

District Court entered an order dismissing the complaint on

jurisdictional and abstention grounds. The plaintiffs appeal,

asking this Court to vacate the dismissal and to instruct the

District Court to decide the case on the merits. Their position

is well taken.

The turbulent events from which this case arose have been

well documented in other cases. See, Community Action

Group v. City of Columbus, 5 Cir., 1973, 473 F.2d 966,

reh. den., 475 F.2d 1404; Sumbry v. Land, 127 Ga.App.

786, 195 S.E.2d 228 (1972), cert. den., 414 U.S. 1079,

94 S.Ct. 598, 38 L.Ed.2d 486 (1973).

The basic facts from which this appeal arose were:

In May, 1971, the Columbus, Georgia, police depart-

ment employed approximately 318 officers, of whom fifty-

two were black. Various black officers including appellants,

formed the Afro-American Police League. This was the

vehicle by which the black officers presented their grievances

to public officials and by which they publicized their com-

plaint of discrimination against blacks within the police

department. The goup’s activities included issuing a press

release which criticized various police activities, holding a

press conference on those charges, and formulating a petition

of grievances describing their complaints of discrimination

within the department.

On May 29, 1971, a black patrolman, John Brooks, failed

to appear in court as a witness and was charged with con-

-tempt. He was subsequently arrested under the Judge’s

A483

meeting was held between the disgruntled black officers and

various civic leaders. Appeals were made for the patrolmen

to return to work. A motion was made that they go back to

work, which carried by a split vote. No bargains were ap-

parently struck at the meeting but it was stated that an

attempt would be made to confer with officials to see if a

solution to the complaints could be achieved.

Later on May 30, Patrolman Leonard was called off his

beat and told to report to police headquarters. When he

arrived, the deputy chief read a list of charges which were

to be directed against Leonard. Patrolman Clark was also

called in and presented with various charges.

Upset over what they thought was unfair treatment and a

violation of a “cooling off” period allegedly agreed upon,

the black policemen met on the morning of May 31 and

decided to again picket the police department. Wearing

their police uniforms, each of the seven policemen carried

handettered signs with statements such as: “We Don't

Want to be Policeboys - We Want to be Policemen”, and

“Afro-American Police League Want (sic) Justice.” Later

that day, with the news media assembled in front of the

station, the seven black officers publicly unstitched the

United States flag emblem from their uniforms. They stated

that the American flag represented liberty and justice, and

they would not wear the flag until they received those things

for which the flag stood.

A-49

discharged from the Columbus Police Depart-

ment for violation of Seetion 39, paragraphs

‘G’ and ‘R’ of the General Rules of Conduct

of the Police Manual, which states:

‘(G) Conduct unbecoming an officer

which might be detrimental to the service.

“(R) Any other act or omission contrary to

good order and discipline of the depart-

ment

in that you did publicly remove the American Flag from the

Columbus Police Uniform while picketing in front of Police

Headquarters on May 31, 1971.

“The American Flag was made an official

part of the Columbus Police Uniform by a

unanimous vote of the City Commission on

August 18, 1969.

Very truly yours,

B.F. McGuffey

Chief of Police”

Later that day, the Public Safety Director held a press

conference at which he read a statement which explained

the actions taken by the City in dismissing the officers.)

1. _I have this date instructed Chief B.F. McGuffey to dismiss from

the Columbus Police Department the following officers:

for:

Conduct unbecoming an officer which might be detrimental to

the service.

Other acts of omission contrary to good order and discipline

A-50

As the case is now presented, the basis of appellants’

complaint concerns allegations of procedural defects in the

dismissals and discharge for unconstitutional reasons. At

the time of the dismissals, City Ordinance No. 71-7 was in

effect. This ordinance established disciplinary procedures

for the Columbus Police Department. The appellants com-

plain that their dismissals were cffectuated without the

procedural safeguards afforded by the ordinance.2

On June 4, 1971, counsel for appellants wrote the de-

fendants, stating that the discharged patrolmen wished to

1 (Continued)

of the department.

The Director of Public Safety, Chief of Police and Command

Officers have exercised patience and forbearance concerning the

conduct individually and as a group by these black officers who

call themselves the Afro-American Police League.

Beginning March 26, 1971, and on various dates thereafter,

these officers have repetitiously made baseless allegations of

unlawful conduct, racism, and discrimination against their fellow

officers, the Director of Public Safety, Chief of Police and rank-

ing officers,

They did not present their grievances through channels prior

to other public proclamations and accusations.

The F.B.L, Grand Jury, and a Special Committee appointed

by the Mayor have addressed themselves to the group's discon-

tents. This obviously has not been satisfactory to these men who

are more concerned with publicity than fact.

Today they picketed the Columbus City Police Department

and removed the American Flag from their uniforms. These men

did not enlist in the Police Department, they do not have to

wear that uniform or Flag again; they are dismissed.

2 _— Although their complaint centers on their being dismissed before

receiving a hearing, they also state that they failed to receive prior no-

tice of the charges, did not have an opportunity to respond, and were

denied the rights of confrontation and to consult with counsel.

A-SI

preserve their rights to a hearing before the Police Hearing

Board and requested seven days’ notice prior to the hearings.

On June 10, the Deputy Chief sent a letter to the appellants,

replying that each had the right to appeal their dismissals to

the Board and that the hearing would be scheduled in the

near future. The letters also said that they would be notified

of the date, time, and place for the hearing.

On June 18, the present suit was filed in the United States

District Court.

On June 24 and 25, the appellants received letters from

the Deputy Chief, advising them that their hearings were

scheduled for June 28. In addition to restating the charges

contained in the original letters of dismissal, these letters set

forth additional charges against appellants based on con-

duct prior to their discharges. At the request of Leonard's

counsel, the hearing was postponed until July 9. Five other

appellants received a hearing on July 15, White’s hearing was

held on July 22. The dismissals of Leonard and White were

3. These additional charges were as follows:

Amold: Feigning sickness to escape duty; participation in unlaw-

ful picket.

Clark: Conduct unbecoming an officer by use of profane and

abusive language toward female employees of police department;

participation in unlawful picket; absent from duty without leave.

Leonard: Feigning sickness to escape duty; two counts of negiect

of duty; participation in unlawful picket; conduct unbecoming an

Pearson: Feigning sickness to escape duty; participation in un-

lawful picket.

Smith: Participation in unlawful picket.

White: Conduct unbecoming an officer by pawing a stolen movie

cape .

Willis: Participation in unlawful picket.

A-S2

unanimously upheld by the Board. The remaining dismissals

were upheld on four to two votes. No attempt was made by

the plaintiffs to have the Board decision reviewed in the

state courts, although such review is available, Ball v. Police

Committee of the City of Atlanta, 136 Ga.App. 144, 220

S.E.2d 479, 480 (1975).

As noted, following a trial in this action, the District Court

disposed of the case on jurisdictional and abstention grounds

and did not reach the merits of the plaintiffs’ claims. In so

doing, the Court stated:

“It has been observed that the ‘Civil

Rights Act, unlike federal habeas corpus,

does not permit a second bite at the cher-

ry’. Lackawanna Police Benevolent Associa-

tion v. Balen, 446 F.2d 52, 53 (2 Cir., 1971).

By attempting to invoke the jurisdiction of

this Court after invoking the jurisdiction of

the Police Hearing Board, the plaintiffs have

sought the forbidden ‘second bite’. They seek

to relitigate the same cause of action, based

on the same set of facts, merely by changing

legal theories and sovereignties. They do so

despite the availability of a state process of

judicial review of decisions of quasi-judicial

tribunals such as the Police Hearing Board.

(citing McClung v. Richardson, 232 Ga. 530,

207 S.E.2d 472 (1974).”

The second factor upon which the District Court based its

opinion was that plaintiffs’ claim of wrongful discharge was

predicated upon constitutional grounds and the alleged

misapplication of the local ordinance. Accordingly, had the

plaintiffs prevailed before any of the four levels of state

tribunals available to them there would have been no necessi-

ty for the federal action seeking reinstatement. This, said the

A-53

Court, presented a classic case for the application of the

abstention doctrine:

“The present case is in essence an em-

ployment dispute, involving a local regu-

latory scheme which is of great interest to

the local government, and cases of this

genre normally are appropriate for state

adjudication. This Court should not serve as

an instrument for the disruption of state

administrative proceedings conducted on

matters of local concern.”

The facts and legal issues here presented are not novel.

A strikingly similar case was before this Court in Moreno

vy. Henckel, § Cir., 1970, 431 F.2d 1299. In Moreno, a city

security guard was fired for “conduct prejudicial to good

order”. He appealed the dismissal to the San Antonio Civil

Service Committee which remommended that he be rein-

stated. This recommendation, however, was not followed and

the City Manager upheld Moreno’s dismissal. Despite the

availability to Moreno of adequate state court review, he

elected to file a §1983 action in the United States District

Court. This suit for injunctive relief, a declaratory judgment,

and damages, alleged that he had been discharged in a pro-

cedurally defective manner for unconstitutional reasons.

The District Court applied the abstention doctrine and

dismissed the complaint on the ground that “a remedy

was available to the plaintiffs in the Texas Courts”. Id. at

1300. We reversed. In so doing we stated:

“The fact that a state remedy is available

is not a valid basis for federal court absten-

tion.

A-54

“After {Moreno’s| dismissal by the City

Manager, he was forced to choose between

one court and another court to decide his

rights under the Civil Rights Act. He made

the natural choice. His case turns upon

federal rights of a particularly high order.

see

“The abstention doctrine is an excep-

tion to the litigant’s choice of forum, applied

‘only in narrowly limited, “‘special circum-

” 9

stances .

es*+ ee ee &

“We yet like to believe that wherever the

Federal Courts sit, human rights under the

Federal Constitution are always a proper

subject for adjudication, and that we have not

the right to decline the exercise of that

jurisdiction simply because the rights asserted

may be adjudicated in some other forum.”

Moreno v. Henckel, supra, at 1300, 1307,

1309.

We doubt that this result falls afoul of the recent Supreme

Court decision of Juidice v. Vail, WD. cinitees OT

1211, 51 L.Ed.2d 376 (dated March 22, 1977). Therein, the

Supreme Court applied the principles of Younger v. Harris

and Huffman v. Pursue, Ltd.® to an injunction by the District

Court against enforcement of contempt procedures in New

York state courts. The High Court there stated that nothing

4. 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

5. 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).

ee | ea,

A-S5

more was required to invoke Younger than the party’s

opportunity to present their federal claims in the state pro-

ceedings (emphasis in original). Juidice, however, involved a

writ running from a state court which had jurisdiction to

issue it, not the failure to exercise a state court appeal from

local administrative action.

We think Moreno vy. Henckel, supra, teaches that the Dis-

trict Court should have decided this case on the merits.

Accordingly , we vacate the judgment of dismissal and remand

the case for a decision on the merits, the Court having al-

ready conducted a full evidentiary trial in the matter.6

VACATED and REMANDED.

ON PETITION FOR REHEARING AND PETITION FOR

REHEARING EN BANC

Before BROWN, C. 1, and THORNBERRY, COLEMAN,

GOLDBERG, AINSWORTH, GODBOLD, MORGAN,

CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit

Judges.

BY THE COUPT:

A member of the Court in active service having requested

a poll on the application for rehearing en banc and a ma-

jority of the judges in active service having voted in favor

of granting a rehearing en banc,

IT IS ORDERED that the cause shall be reheard by the

Court en banc with oral argument on a date hereafter to be

fixed. The Clerk will specify a briefing schedule for the

filing of supplemental briefs.

6. On remand, at its initial determination, the District Court may

allow the record to be appropriately supplemented.

A-56

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

CIVIL ACTION NO. 1514

ROBERT LEONARD, et al.,

Plaintiffs

VERSUS

THE CITY OF COLUMBUS, et al.,

Defendants

OPINION

Filed April 17, 1975

This suit stems from certain events occurring during the

“Summer of 1971” in Columbus, Georgia. Other groups

of plaintiffs have litigated constitutional claims arising

during this period, and both federal and state courts have

refused to sustain their complaints. See the unpublished

opinion of this Court in Community Action Group, et al.

v. City of Columbus, et al. (Civil Action No. 1528 in the

Columbus Division, decided January 31, 1972), which

decision was affirmed by the Court of Appeals for the

Fifth Circuit at 473 F.2d 966 (1973), and rehearing denied

at 475 F.2d 1404. See also Sumbry, et al. v. Land, 127 Ga.

App. 786 (1972) (195 S.E.2d 228), cert. den. 94 S.Ct. 598.

A reading of these cases gives some insight into the turbu-

lent local “‘atmosphere” which prevailed during the period

referred to.

A-57

The present action was brought under the provisions of

Sections 1331 and 1343 of Title 28 and Sections 1981 and

1983 of Title 42 of the United States Code. There were

originally 38 plaintiffs who requested injunctive and de-

claratory relief with regard to alleged discriminatory em-

ployment practices by the Columbus Police Department,

but at the pre-trial conference of January 16, 1975 plain-

tiffs’ counsel abandoned these contentions and stated that

the seven remaining plaintiffs, who had been discharged

from the Columbus Police Department on May 31, 1971,

would pursue only the relief sought in divisions 1, 2, 10 and

11 of the prayers of the complaint which seek damages for

wrongful discharge and injunctive relief for reinstatement.

It should be noted at the outset that although the com-

plaint was filed in June, 1971 it was not until December,

1974 that the plaintiffs requested that the matter be set

down for trial. whereupon a pre-trial conference was prompt-

ly scheduled and the case was brought on for trial on Febru-

ary 10, 1975. By that time not only had 31 of the original

38 plaintiffs withdrawn from the case, but 5 of the 7 in-

dividual defendants no longer had any official connection

with the City and the Police Hearing Board had passed out

of existence.

Since the Court disposes of the case on jurisdictional and

abstention grounds and does not reach the merits of the

plaintiffs’ claim, only a few basic facts need be recited.

The 7 plaintiffs, 6 of whom testified at the trial, were

black police officers who were discharged from their posi-

tions in the Columbus Police Department on May 31, 1971

as a result of their action in deliberately cutting off American

flag insignia from their official uniforms during a picketing

demonstration in front of Police Headquarters in full view

A-58

of television and otlier news media. The nub of the problem

was not the picketing and the carrying of signs but was rather

this abuse of the uniform and the plaintiffs’ stated intention

to continue to refuse to wear ti flag patch. Police Chief

B.F. McGuffey signed the May 31 discharge letter and

Safety Director Joseph W. Sargis issued a concurring public

statement on the same date. The Mayor of Columbus also

participated in this decision. These three officials form

an executive “chain of authority” under the Charter of

the Columbus Consolidated Government.

On June 4, 1971 the attorney for the plaintiffs addressed

letters to defendants Sargis, Leavell and Bentley, all of

whom were permanent members of the Police Hearing Board,

requesting hearings before the Board with regard to the

discharges as follows: ‘This is to advise that my client named

above wishes to preserve his rights to a hearing before the

Police Hearing Board. I would appreciate at least seven

days prior notice of the hearing since it will be necessary for

me to arrange my Atlanta court calendar so that I may be

present in Columbus for the hearing.” On June 9, 1971

plaintiffs’ attorney addressed a letter to Mr. Sargis confirm-

ing a telephone conversation the same date with regard to

the prospective hearings, stating: “We are anxious to have

a hearing on these matters and request that all efforts be

made to give us an early hearing date.” On June 10, 1971

(which was the same day on which he received the letter

immediately above referred to), defendant S.W. Brown,

Deputy Chief of Police, addressed letters to each of the

plaintiffs informing them that a “Police Hearing Board will

be scheduled in the near future to hear your appeal and you

will be notified of the time, date and place the hearing will

be conducted.”” On June 24 and 25, 1971 Brown addressed

notification letters to the plaintiffs and these letters in-

cluded a number of charges in addition to the incident of

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May 31, and Brown’s testimony at trial indicated that these

charges and supporting evidence were being formulated over

a period of time before and after the flag incident. The plain-

tiffs’ complaint was filed in this Court on June 18, 1971, but

was not served on the Mayor of Columbus until June 24.

Pursuant to their request, three separate hearing boards

were convened in July, 1971 to hear the cases of the seven

plaintiffs, At these hearings all of the plaintiffs were repre-

sented by counsel in the person of Mr. Peter Rindskopf,

whose name also appears as co-counsel on the complaint

filed in this Court. By its action the Board determined that

none of the plaintiffs should be reinstated and they were

so notified. No attempt was made by the plaintiffs to review

the Board’s decisions in the state courts.

It has been observed that the “Civil Rights Act, unlike

federal habeas corpus, does not permit a second bite at the

cherry”. Lackawanna Police Benevolent Association v. Balen.

446 F.2d 52, 53 (2 Cir. 1971). By attempting to invoke

the jurisdiction of this Court after invoking the jurisdiction

of the Police Hearing Board, the plaintiffs have sought the

forbidden “second bite”. They seek to relitigate the same

cause of action, based on the same set of facts, merely by

changing legal theories and sovereignties. They do so despite

the availability of a state process of judicial review of de-

cisions of quasi-judicial tribunals such as the Police Hearing

Board. In McClung v. Richardson, 232 Ga. 530 (207 S.E.

2d 472) (1974). in a case dealing with a decision of this

same Columbus Police Hearing Board, the Georgia Supreme

Court has said:

“. . . We are of the opinion that in making its

decision the board acts in a judicial or quasi-

judicial capacity. Therefore, any erroneous

decision by the board, which is adverse to an

employee, may be reviewed by certiorari

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to the superior court.” (p. 533)

It is not the proper function of federal district courts to

review questions of fact or law to which state officials or

judges have addressed themselves.

Although no reference is m

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