# Petition — City of Columbus v. Leonard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0650%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 468 U.S. 1204 ## Text U.S. ED 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 i QUESTIONS PRESENTED FOR REVIEW l. 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.) 2. 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 ii 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.) a 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?) 4. 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’ iv x 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! K 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! 6. 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 Vv 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! vi 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 ix 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 ~ x 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 xi 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, 13 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 2 443 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 3 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 4 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- 5 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 6 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- 7 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 8 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 9 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- 10 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.” 11 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 12 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. 13 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 14 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 15 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.” 16 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 17 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 18 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: 19 “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 4 20 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. 21 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 oe ip 12. 22 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.” 23 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 24 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- 25 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. 26 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 27 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 28 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 - 29 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 oy 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, A4 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 ng 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 AY 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 i : 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 V. 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 wt * au * 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0650%3A1. Public record. Not legal advice.