Opposition Brief — Fleisher v. City of Signal Hill

In The

Supreme Court of the United States

October Term, 1987

fy.

Vv

GERRY FLEISHER,

Petitioner,

V.

CITY OF SIGNAL HILL, MICHAEL McCRARY,

and RICHARD DIAZ,

Respondents.

fy.

Vv

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

fy.

Vv

BRIEF IN OPPOSITION FOR RESPONDENTS

CITY OF SIGNAL HILL, MICHAEL McCRARY,

and RICHARD DIAZ

fy

Vw

Ciinnin, Srracuse & BELCHER

Horvitz, Levy & AMERIAN

Barry R, Levy

*Davip M. AxeLRaD

Grant MAryYLANDER

18th Floor

15760 Ventura Boulevard

Encino, California 91436

(818) 995-0800

Attorneys for Respondents

City of Signal Hill,

Michael McCrary, and

Richard Diaz

counsel of record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

er call collect (402) 342-2831

QUESTION PRESENTED

Whether the enforcement of a police department reg-

ulation which subjects officers to dismissal for the com-

mission of a felony or misdemeanor, conduct unbecoming

an officer, or immorality, violates the constitutional rights

of an officer who engages in criminal sexual misconduct.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED —._. i

FUR Be lines 5) | ili

STATEMENT OF THE CASE —.. .— ._._£__... 1

REASON FOR DENYING THE WRIT .... aasitiiate 1

THE COURT OF APPEALS’ OPINION IS

CONSISTENT WITH THE DECISIONS OF

THIS COURT AND THE COURTS OF AP-

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TABLE OF AUTHORITIES

Page

CasEs

Andrade v. City of Phoenix, 692 F.2d 557 (9th

Cir. 1982) ees

Bowers v. Hardwick, — U.S. —, 106 S.Ct. 2841,

92 L.Ed.2d 140 (1986) ‘ 1,5

Fugate v. Phoenix Civil Service Board, 791 F.2d

736 (9th Cir. 1986) 2

Griswold v. Connecticut, 381 U.S. 479 (1965) 2. 3

Kelley v. Johnson, 425 U.S. 238 (1976) ccc ccscssceseeeee 5

Roberts v. United States Jaycees, 468 U.S. 609 (1984) 4,5

Shawgo v. Spradlin, 701 F.2d 470 (5th Cir. 1983) .......... 2

Swope v. Bratton, 541 F.Supp. 99 (W.D.Ark. 1982) .... 2

Thorne v. City of El Segundo, 726 F.2d 459 eve

NERS ar NS I as a a 2,4

CopEs

California Penal Code section 261.5 1

RvuLEs

Supreme Court Rule 34.2 1

oooh eps

STATEMENT OF THE CASE

Respondents City of Signal Hill, Michael McCrary,

and Richard Diaz believe petitioner Gerry Fleisher’s

Statement of the Case is inaccurate. Accordingly, respon-

dents incorporate by reference the Court of Appeals’ state-

ment of the facts as set forth at pages 2a-4a and 11a of re-

spondents’ Appendix (hereinafter referred to as ‘‘App.’’).

Sup. Ct. R. 34.2. Respondents have reproduced the Court

of Appeals’ opinion in its entirety because petitioner’s

reproduction of that opinion is incomplete.

REASON FOR DENYING THE WRIT

THE COURT OF APPEALS’ OPINION IS CON-

SISTENT WITH THE DECISIONS OF THIS

COURT AND THE COURTS OF APPEALS.

Petitioner argues that under existing case law his

sexual misconduct, which constituted statutory rape un-

der California Penal Code section 261.5, is constitutionally

protected. Petitioner cites no supporting authority for

this bald assertion. Nor can he. The constitutional pro-

tections invoked by petitioner do not extend to protect

admittedly criminal sexual misconduct.

This Court has made clear that not all forms of sex-

ual conduct are protected from State proscription by the

Constitution. Bowers v. Hardwick, — U.S. —, 106 S.Ct.

2841, 2844, 92 L.Ed.2d 140, 146 (1986).

‘“‘TA]ny claim that [Griswold v. Connecticut, 381 U.S.

479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972) ;

and Roe v. Wade, 410 U.S. 113 (1973); ete.] never-

theless stand for the proposition that any kind of

1

private sexual conduct between consenting adults is

constitutionally insulated from state proscription is

unsupportable. Indeed, the Court’s opinion in Carey

twice asserted that the privacy right, which the Gris-

wold line of cases found to be one of the protections

provided by the Due Process Clause, did not reach

so far.’’ Ibid.

The unwillingness of the courts to extend blanket con-

stitutional rights to all forms of consensual sexual conduct

is demonstrated in decisions considering the sexual activ-

ities of law enforcement personnel. ‘‘[T]he ‘zone of pri-

vacy’ is much smaller for public officers than it is for the

average citizen. It is well-known that public officers are

subject to close scrutiny. The respect and confidence of

the public is [sic] essential to the performance of a job

such as that held by [a public officer].’’ Swope v. Bratton,

541 F.Supp. 99, 108-09 (W.D.Ark. 1982); see Thorne v.

City of El Segundo, 726 F.2d 459, 470 n.10 (9th Cir. 1983)

(‘‘the state’s interest in regulating the conduct of its em-

ployees is perhaps at its greatest where paramilitary or-

ganizations, such as a police force, are involved’’) ; Fugate

v. Phoenix Civil Service Board, 791 F.2d 736, 741 (9th

Cir. 1986) (‘‘The City has legitimate interests in main-

taining the morale, integrity, and public acceptance of

the police department’’); Shawgo v. Spradlin, 701 F.2d

470, 482-83 (5th Cir. 1983).

Here, petitioner admitted to engaging in sexual con-

duct constituting statutory rape while a member of the

police explorer scout program. Following a narrowly

tailored investigation into this misconduct, petitioner’s

probationary status was terminated under police depart-

ment regulation 162 which provides: ‘‘Any employee is

subject to discipline, dismissal, demotion or suspension by

3

the Chief of Police for committing any of the following

offenses: a. The commission of a felony or misdemeanor

... @ Conduct unbecoming an officer which might be det-

rimental to the service. ...1. Immortality... .’’ App. at

lla.

The Ninth Circuit held:

‘‘The illegality of Fleisher’s behavior creates a sub-

stantial barrier to his successfully asserting a pri-

vacy claim. Fleisher has not challenged the constitu-

tionality of California’s statutory rape law or of the

Department’s regulations, and yet he would have us

hold that acts amounting to statutory rape are pro-

tected by the right of privacy. Were we to accept his

argument, we would in effect be holding that the City

is unable to consider as a basis for terminating an

employee the employee’s admission of having com-

mitted criminal sexual misconduct.”’

App. at 17a.

‘‘TWle are unable to find that the right of privacy

extends to sexual conduct that is concededly illegal,

that implicates a police officer candidate’s ability to

perform effectively as an officer, and that adversely

affects a police department’s morale and community

reputation.’’

App. at 19a.'

Petitioner argues his conduct is constitutionally protected

because his association with the minor was for social and

cultural ends. While the freedom/of association protects

certain highly personal relationships such as the marriage

relationship (Griswold v. Connecticut, 381 U.S. 479, 485-86

: The Ninth Circuit applied this same analysis to petitioner’s

freedom of intimate association claim. App. at 21a.

4 ‘

(1965) ), it does not extend to criminal sexual misconduct.

Andrade v. City of Phoenix, 692 F.2d 557, 559 (9th Cir.

1982). Statutory rape, then, clearly does not fall within

the ambit of constitutionally protected association for ex-

pressive purposes. See Roberts v. United States Jaycees,

468 U.S. 609, 620-21 (1984). Thus, the Ninth Circuit prop-

erly concluded petitioner and the minor did not associate

with a view toward any of the ‘‘ ‘wide variety of political,

social, economic, educational, religious, and cultural

ends’ ’’ protected under an individual’s freedom of asso-

ciation. App. at 21a.

Petitioner further argues respondents violated his

freedom of association because they considered the identity

of the minor involved when they terminated him. He cites

no authority to support this contention. Instead, he re-

lies upon a selectively edited portion of the Ninth Cir-

cuit’s opinion in Thorne v. City of El Segundo, 726 F.2d

459, for the fundamentally erroneous proposition that an

individual’s choice of sexual partners under any and all

circumstances is protected by the Constitution.”

2 In Thorne, the Court of Appeals held:

“(T]he inquiry by the City of El Segundo that appellant

challenges under section 1983 bears on those matters

acknowledged to be at the core of the rights protected

by the constitution’s guarantees of privacy and free

association—appellant’s interest in family living ar-

rangements, procreation and marriage.” Id. at p. 469,

emphasis added.

Petitioner's version of this same quotation is obviously in-

accurate:

“lone’s sexual preferences and partners are] matters

acknowledged to be at the core of the rights protected

by the constitution’s guarantees of privacy and free

association. ...” Petition, pp. 13-14.

5

Petitioner’s characterization of the law directly con-

flicts with this Court’s holding in Bowers v. Hardwick,

106 S.Ct. at 2844, that there are certain limits to the pro-

tections afforded private sexual conduct. In fact, as ex-

plained herein, there is no constitutional protection for

petitioner’s sexual misconduct. Respondents’ considera-

tion of the identity and status of the minor was therefore

wholly permissible because it was related to a legitimate

state interest. See Kelley v. Johnson, 425 U.S. 238, 248-49

(1976).? As the Court of Appeals explained:

‘*Fleisher, a leader of the Department Explorer post,

committed statutory rape with a girl who was a mem-

ber of the Post. The Department has a manifest in-

terest in ensuring that minor girls who join the Ex-

plorer program do not become victims of statutory

rape as a result of their participation in the program.

If behavior like Fleisher’s became commonplace in

the Post, the Explorer program would be the object

of community disrepute. Similarly, if it became known

that the Department was willing to hire as permanent

officers individuals who had admitted to acts amount-

ing to statutory rape with female Explorers, the en-

tire Department’s reputation could suffer.’’ App. at

18a.

In sum, petitioner offers no support for his claim that

the termination of his probationary status for admittedly

3 Petitioner's reliance upon selective quotations from this

Court’s opinion in Roberts v. United States Jaycees, 468 U. S.

609, is misplaced. Petition, p. 13. In Roberts, this Court only

considered the discriminatory membership practices of a nat-

ional association, not whether certain sexual relations were pro-

tected by the Constitution. Further, this Court never held in

Roberts or any other published opinion that the identity of a

person’s sexual partner is not a permissible consideration in

evaluating certain sexual conduct. Indeed, in Bowers, the ident-

ity of the sexual partners, i.e., their gender, was the crucial

consideration.

ES Earn eso rer rn

criminal sexual misconduct violated his constitutional

rights. Further, he does not challenge the regulation un-

der which he was terminated or the Court of Appeals’

holding that the regulation is rationally related to a legiti-

mate government interest. Accordingly, petitioner’s rea-

sons for seeking review by certiorari are without merit.

o

CONCLUSION

For the reasons stated herein, the Petition for Writ of

Certiorari of Gerry Fleisher should be denied.

Respectfully submitted,

Cuinnin, Stracuse & BELCHER

Horvitz, Levy & AMERIAN

Barry R. Levy

*Davip M. AxEeLRaD

Grant MaryYLANDER

18th Floor

15760 Ventura Boulevard

Encino, California 91436

(818) 995-0800

Attorneys for Respondents

City of Signal Hill,

Michael McCrary, and

Richard Diaz

* counsel of record

la

APPENDIX

Gerry FLEISHER, Plaintiff-Appellant

and Cross-Appellee,

Vv.

CITY OF SIGNAL HILL, Michael McCrary, and

Richard Diaz, Defendants-Appellees and Cross-Appellants.

Nos. 86-6191, 86-6193.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 7, 1987.

Decided Oct. 14, 1987.

Appeal from the United States District Court for the

Central District of California.

Before PREGERSON, NELSON and WIGGINS, Cir-

cuit Judges.

PREGERSON, Circuit Judge:

BACKGROUND

In March 1980, Gerry Fleisher became an Explorer

Scout with the Police Department (‘‘the Department’’)

of the City of Signal Hill (‘‘the City’’). The Explorer

program, sponsored by the Boy Scouts of America, is de-

signed to prepare youngsters for careers in law enforce-

ment. Signal Hill Explorers normally do sixteen hours

of volunteer work for the Department per week.

While Fleisher was an Explorer, he met Margaret

Main, a fifteen-year-old girl who was also an Explorer.

Subsequently, Fleisher attained the rank of lieutenant,

Za

making him the leader of the Explorer group. At about

the time of Fleisher’s promotion to lieutenant, he and

‘Main began to socialize, forming a relationship that Fleish-

er calls a boyfriend/girlfriend relationship and that Main

calls a ‘‘special friendship.’’ Main and Fleisher agree that

in July 1980, when Fleisher was nineteen and Main was

fifteen, they had sexual intercourse twice. According to

Main, they also had sexual intercourse once in 1982.

Fleisher denies that a third encounter occurred.

In late July 1980, Fleisher was hired as a temporary

police cadet, a paid position with the Department. He

held this position for one month. Thereafter he served the

Department in various paid non-police officer capacities.

Then, in August 1982, Fleisher applied for a probationary

police officer position with the City. Officer Larry Mor-

ris interviewed Fleisher for the position. Morris asked

Fleisher whether he had ever had sexual relations with a

minor. Fleisher_responded that he had had sex with his

girlfriend. Morris submitted a report on the interview

to Department Chief Michael McCrary, but the report

contained no information about Fleisher’s sexual history. :

Fleisher was hired as a probationary police officer

for an eighteen-month trial period beginning in February

1983. The purpose of the probationary period is to allow

the Department time to evaluate officer candidates to en-

sure that they have the makings of effective police officers.

During the five months in which he served in this pro-

bationary status, Fleisher received three reprimands based

on his failure to perform his duties properly.'

1. The first reprimand occurred after Fleisher accidentially

caused his weapon to discharge in the hallway of the police

(Continued on following page)

3a

On June 9, 1983, Main filed a forcible rape charge

against an officer in the Department. During investigation

of the charge, the investigating officer, Lieutenant Rich-

ard Diaz, asked Main whether she had had sexual rela-

“tions with any other officers. She responded that she had

had relations with three other officers, one of whom was

Fleisher.” é

Chief McCrary asked Lieutenant Diaz to investigate

Fleisher’s sexual conduct with Main. After a three-week

investigation, Diaz submitted an investigation report to

Chief McCrary. Chief McCrary terminated Fleisher’s em-

ployment in July 1983, stating that Fleisher had failed to

complete probation satisfactorily. The Chief testified that

his reasons for terminating Fleisher were Fleisher’s three

reprimands for misconduct during probation and Fleisher’s

sexual conduct with Main.

Fleisher brought this action for damages under 42

U.S.C. § 1983 against the City and against Chief McCrary

and Lieutenant Diaz. His first amended complaint stated

four claims: (1) that defendants had violated his free-

(Continued from previous page)

station. The second occurred after Fleisher failed to notify

a police dispatcher of his decision to respond to a traffic

incident with red lights and siren. The third occurred after

an incident at Fleisher’s residence in which Fleisher fired shots

into a vehicle driven by someone Fleisher suspected of at-

tempted auto theft.

2. The officer implicated in the forcible rape charge and the

other two officers with whom Main had allegedly had sexual

relations were all terminated. One of the three officers was

reinstated following an appeal to the Civil Service Commis-

sion.

4a

dom of association; (2) that defendants had violated his

right of privacy; (3) that, by failing to afford him a pre-

or post-termination hearing, defendants had denied him

due process in violation of the fourteenth amendment; and

(4) that defendants’ failure to afford him a hearing vio-

lated his rights under California law.

The district court dismissed the California statutory

claim without prejudice after the court received the par-

ties’ written arguments on the doctrine of pendent juris-

diction. The district court then granted summary judg-

ment in favor of defendants on Fleisher’s procedural due

process claim.

The remaining claims, based on Fleisher’s freedom

of association and right of privacy, were tried before a

jury. The jury returned a verdict for Fleisher in the

amount of $175,000.00. The district court awarded Fleish-

er attorney’s fees in the amount of $65,537.50. :

Fleisher appeals from the district court’s grant of

summary judgment on the due process claim, from the

court’s refusal to give a punitive damages instruction, and

from the attorney’s fees award, which he contends is in-

adequate. The City cross-appeals, contending that the

right of privacy and freedom of association are, as a mat-

ter of law, unavailable to Fleisher. The City also con-

tends that the district court improperly instructed the

jury on qualified immunity, on the fourteenth amendment,

and on imputed knowledge. Finally, the City contends that

there was no support in the record for the jury’s award

of emotional distress damages to Fleisher.

We affirm the district court’s ruling on the due pro-

cess claim. We vacate the jury verdict in favor of Fleisher

5a

on the right of privacy and freedom of association claims

because we hold, as a matter of law, that Fleisher’s sex-

ual misconduct is not entitled to constitutional protection.

Because Fleisher is no longer the prevailing party, we

also vacate the award of attorney’s fees. Because the net

effect of this opinion is to deny Fleisher any recovery,

discussion of punitive damages, qualified immunity, the

fourteenth amendment jury instruction, and imputed

knowledge would be superfluous, and we see no need to

address the parties’ contentions concerning those issues.

DISCUSSION

I. Appellant Fleisher’s Contentions

A. Procedural Due Process

The district court granted summary judgment in fa-

vor of defendants on the due process elaim.? This court

reviews grants of summary judgment de novo. Darring

v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (citing

Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983)).

The fourteenth amendment’s guarantee of procedural

due process applies when a constitutionally protected

property or liberty interest is implicated. Board of Re-

gents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705,

33 L.Ed.2d 548 (1972).

3. Fleisher’s brief states that the district court “dismissed” the

due process claims. However, the record indicates that the

district court dismissed only the state law claim. This dis-

missal was proper pursuant to the court’s discretion to as-

sume or refuse jurisdiction over pendent state claims. See

Dezell v. Day Island Yacht Club, 796 F.2d 324, 328 (9th Cir.

1986). The court disposed of the constitutional due process

claim by granting partial summary judgment for defendants.

6a

1. Property Interest

A property interest arises ‘‘only when there is a legi-

timate claim of entitlement, rather than an abstract need

or desire for the particular benefit.’’ Vanelli v. Reynolds

School Dist. No. 7, 667 F.2d 773, 777 (9th Cir.1982) (citing

Roth, 408 U.S. at 577, 92 S.Ct. at 2709). Thus, the critical

question here is whether Fleisher was entitled by law to

a pre- or post-termination hearing. *

The district court, in its order granting summary

judgment for defendants on this issue, cites Rule 2.80.190

of the City Personnel Rules and Regulations, which ‘‘pro-

vides that a probationary employee may be rejected at

any time without right of appeal or hearing.’’ However,

Fleisher argues that notwithstanding this provision, the

California Government Code guarantees him a hearing.

Fleisher is incorrect. Cal.Gov’t Code § 3301 (West

1980) states that the rights and protections of peace of-

ficers are a matter of statewide concern. Section 3309.5(a)

provides that it shall be unlawful to deny public officers

the rights and protections guaranteed them by ‘‘this chap-

ter.’’ Section 3304(b) provides that ‘‘[n]o punitive action,

nor denial of promotion on grounds other than merit, shall

be undertaken by any publie agency without providing

the public safety officer with an opportunity for admin-

istrative appeal.’’ It is unclear from the language of

these sections whether they apply to probationary em-

ployees like Fleisher. California courts have, however, de-

termined the circumstances under which a probationary

police officer is entitled to a hearing. The California Court

of Appeal, in Lubey v. City € County of San Francisco, 98

Cal.App.3d 340, 159 Cal.Rptr. 440 (1979), stated: ‘‘It is

—_ = ”

~

7a

settled law that a probationary (or non-tenured) civil ser-

vice employee, at least ordinarily, may be dismissed with-

out a hearing or judicially cognizable good cause.’’ Id.

at 345, 159 Cal.Rptr. at 443. In Swift v. County of Placer,

153 Cal.App.3d 209, 200 Cal.Rptr. 181 (1984), the court

suggested that the California Government Code sections

discussed above, which guarantee a hearing in some cases,

do not affect the general rule described in Lubey unless

a charge of misconduct was made against the probationary

employee, thus amounting to a ‘‘punitive action’’ under

Government Code Section 3303. Id. at 215-16, 159 Cal.Rptr.

at 185-86. The Swift court stated that ‘‘[b]jare rejection

during an initial hiring probation is not ‘punitive action’

which triggers the ‘administrative appeal’ right provided

by section 3304, subdivision (b).’’ Jd. at 216, 159 Cal.Rptr.

at 185.

Under this standard, California law does not provide

Fleisher with a right to a hearing. Fleisher was denied

a permanent position because he failed to complete his

probation satisfactorily. His termination constituted a

‘‘bare rejection.”” The Department made no charge of

miseonduct. To the extent that the Department’s internal

decision was based on Fleisher’s sexual misconduct, the

decision derived directly from his admitted sexual rela-

tions with Main rather than from some unsupported charge

the proof of which would require a hearing. Thus, Fleisher

has established no property interest entitling him to a due

process hearing.

2. Liberty Interest

Fleisher contends that the besmirchment of his good

name in connection with his termination deprived him of

8a

a liberty interest. Under the fourteenth amendment, a

person’s liberty interest is implicated by a termination

of employment ‘‘only when the state makes a ‘charge

against him that might seriously damage his standing and

associations in his community.’ ’’ Stretten v. Wadsworth

Veterans Hosp., 537 F.2d 361, 365 (9th Cir.1976) (quoting

Roth, 408 U.S. at 573, 92 S.Ct. at 2707). The Supreme

Court has stated that a hearing for a nontenured em-

ployee based on stigmatization is required ‘‘[o]nly if the

employer creates and disseminates a false and defamatory

impression about the employee in connection with his ter-

mination.’’ Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct.

882, 884, 51 L.Ed.2d 92 (1977) (per curiam).

In this case, the record indicates that the Department

disseminated no false and defamatory charges or infor-

mation about Fleisher when it terminated him. His dis-

missal was based only on his failure satisfactorily to com-

plete probation. Therefore, Fleisher’s liberty interest was

not implicated. Because neither a property nor a liberty

interest was implicated when the Department dismissed

Fleisher for unsatisfactory performance, we affirm the

district court’s grant of summary judgment in favor of

defendants on the due process claim.

II. Cross-appellant City of Signal Hill’s Contentions

A. Illegal Conduct as Bar

The City contends as a threshold matter that because

Fleisher’s admitted sexual activity constituted the crime of

statutory rape,‘ he is thereby barred from maintaining an

4. Cal.Penal Code § 261.5 (West Supp.1987), California’s stat-

utory rape law, states that ‘[uJnlawful sexual intercourse is

(Continued on following page)

9a

action under 42 U.S.C. § 1983 for deprivation of his con-

stitutional rights. In support of this contention, the City

cites The ‘‘Florida’’, 101 U.S. (11 Otto) 37, 43, 25 L.Ed.

898 (1879), in which the Supreme Court stated that ‘‘[n]o

court will lend its aid to a party who founds his claim for

redress upon an illegal act.’’ In The ‘‘Florida’’, the cap-

tain of an American ship sank a Brazilian ship and then

brought an action in which he claimed the Brazilian ship

as a prize of war. The Supreme Court refused to provide

relief on the ground that the American captain had engaged

in illegal conduct in sinking the Brazilian ship.

The rule of The ‘‘Florida’’ does not apply here.

Fleisher’s claims for relief are not founded on illegal acts;

he does not seek to benefit because of his own misconduct.

He merely asserts that he should not have been investi-

gated or terminated from employment because of that mis-

eonduct. The City’s contention, if accepted, would re-

quire us to arrive at the anomalous holding that a person

who engages in criminal conduct is thereby stripped of all

constitutional protection. The cases abound with exam-

ples of courts’ according constitutional protection to those

who have engaged in criminal conduct. Therefore, we de-

cline to hold that Fleisher’s misconduct bars him from

asserting his constitutional claims.

(Continued from previous page)

an act of sexual intercourse accomplished with a female not

the wife of the perpetrator, where the female is under the

age of 18 years.” When Fleisher had sexual relations with

Main, he was nineteen and she was fifteen.

10a

B. Right of Privacy and Freedom of Association

The City contends that the jury verdict for Fleisher

was improper because, as a matter of law, Fleisher’s sex-

ual conduct with Main is not protected by the constitutional

right of privacy and freedom of association. We review

this question of law de novo. United States v. McConney,

728 F.2d 1195, 1201 (9th Cir.) (en bane) cert. denied, 469

U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The focus of our analysis is on whether privacy and

associational rights obtain in the circumstances presented

in the instant case. Fleisher has based his section 1983

claim on two constitutional rights of limited scope, see

Karst, The Freedom of Intimate Association, 89 Yale L.J.

624, 625 (1980), and we conclude that the district court’s

determination that those rights extend to Fleisher’s con-

duct is unwarranted, particularly in light of case law that

issued after the district judge rejected the City’s motions

for summary judgment and directed verdict.

Chief McCrary terminated Fleisher in compliance with

Rule 162 of the Signal Hill Police Department Rules and

Regulations, which provides that

[a]ny employee is subject to_discipline, dismissal, de-

motion or suspension by the Chief of Police for com-

mitting any of the following offenses: a. The commis-

sion of a felony or misdemeanor . . . e. Conduct unbe-

coming an officer which might be detrimental to the

service.... 1. Immorality....

Fleisher’s sexual conduct arguably violates this regu-

lation in three respects. First, Fleisher admitted to hav-

ing committed acts that amounted to statutory rape, a

lla

crime under California law. Cal.Penal Code §4 261.5, 264

(West Supp.1987). Second, Fleisher’s having had sexual

intercourse with a minor who was a member of the Ex-

plorer Post is arguably conduct that might indicate that

his ability to serve as an effective police officer is impaired.

Third, Fleisher’s conduct arguably violates Rule 162’s pro-

hibition against immorality.

The issue before us is whether this regulation as ap-

plied to Fleisher violated his constitutional right of pri-

vacy and freedom of association.

The district court in its rulings and jury instructions

and both parties in their briefs treat the right of privacy

and freedom of association together without distinguishing

between them. For the sake of clarity, it is important to

define the individual ramifications of and the relationship

between the two rights.

1. Origins of the Right of Privacy and

Freedom of Association

In NAACP v. Alabama ex rel. Patterson, 357 US.

449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the Supreme

Court held that it was unconstitutional for the state of

Alabama to force the NAACP to produce records indi-

cating the names of its members. The Court reasoned that

compelled disclosure of members’ names would restrict

the members’ right to associate freely and thus to engage

in the expressive activities protected by the first amend-

ment. /d. at 462-63, 78 S.Ct. at 1171-72. The Court noted

that because of ‘‘the vital relationship between freedom to

associate and privacy in one’s associations,’’ td. at 462, 78

12a

S.Ct. at 1172, the members were entitled to opt for anony-

mity.

Expanding on the discussion in NAACP v. Alabama,

the Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct.

1678, 14 L.Ed.2d 510 (1965), explained that ‘‘the First

Amendment has a penumbra where privacy is protected

from governmental intrusion.’’ Jd. at 483, 85 St.Ct. at

1681. The Court added that other ‘‘specific guarantees

in the Bill of Rights have penumbras, formed by emana-

tions from those guarantees that help give them life and

substance.’’ Jd. at 484, 85 S.Ct. at 1681. Stating that the

first, third, fourth, fifth, and ninth amendments have

emanations that constitute ‘‘zones of privacy,’’ id., the

Court held that a Connecticut statute forbidding the use

of contraceptives impermissibly invaded this protected

zone. Id. at 485-86, 85 S.Ct. at 1682.

2. The Right of Privacy

The right of privacy discussed in Griswold is one as-

pect of the liberty interest created by the fourteenth amend-

ment’s due process clause. Carey v. Population Servs.

Int’!, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 2015-16, 52 L.Ed.

2d 675 (1977) (citing Roe v. Wade, 410 U.S. 113, 152, 93

S.Ct. 705, 726, 35 L.Ed.2d 147 (1973)).6 The Supreme Court

5. This generalized liberty interest includes two aspects. “One

is the individua! interest in avoiding disclosure of personal

matters, and another is the interest in independence in mak-

ing certain kinds of important decisions.” Whalen v. Roe,

429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977)

(footnotes omitted). Fleisher argues that both types of pri-

vacy interests are implicated here. He argues that the inves-

(Continued on following page)

| ed

13a

has not defined the outer limits of the right of privacy,

but has extended the right to cases involving personal de-

cisions about marriage, procreation, contraception, family

relationships, child rearing and education, and abortion.

See Carey, 431 U.S. at 684-85, 97 S.Ct. at 2015-16. In

many of these cases, the Court has reasoned that the right

of privacy obtained because the state law at issue threat-

ened the sanctity of marriage or of the family. See, e.g.,

Griswold, 381 U.S. at 485-86, 85 S.Ct. at 1682; see also

Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736, 739-40

(9th Cir.1986). In a smaller group of cases, the Court has

extended the right of privacy to certain matters implicat-

ing individual autonomy, whether or not the individual in

question was married. See, e.g., Eisenstadt v. Baird, 405

U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972);

see also Fugate, 791 F.2d at 739. Thus far, the Supreme

Court has only extended the right of privacy to unmarried

individuals in cases involving contraception and abortion.

Fugate, 791 F.2d at 740. In addition, the Court has ex-

pressly stated that the right of privacy does not protect

all private sexual conduct. The Court stated in Bowers

v. Hardwick, — U.S. —, 106 S.Ct. 2841, 92 L.Ed.2d 140

(1986), that

any claim that [the Court’s prior privacy cases]...

stand for the proposition that any kind of private

sexual conduct between consenting adults is constitu-

(Continued from previous page)

tigation into his sexual conduct with Main violated his in-

terest in “avoiding disclosure of personal matters.” He also

contends that by terminating him because of his sexual re-

lations with Main, the City deprived him of his independence

in “making certain kinds of important decisions.”

l4a

tionally insulated from state proscription is unsup-

portable. Indeed, the Court’s opinion in Carey twice

asserted that the privacy right, which the Griswold

line of cases found to be one of the protections pro-

4 by the Due Process Clause, did not reach so

ar.

Id. 106 S.Ct. at 2844 (citing Carey, 431 U.S. at 688 n. 5,

694 n. 17, 97 S.Ct. at 2018 n. 5, 2021 n. 17).

In Bowers, the Supreme Court held that a Georgia

sodomy statute did not violate the right of privacy of

homosexuals. While Bowers indicates that the right of

privacy does not protect ail kinds of sexual conduct, the

Court’s earlier cases also make clear that the sexual con-

duct of unmarried persons is protected by the right of

privacy in some contexts.

Because Fleisher was not married to Main when they

engaged in sexual intercourse, none of the cases grounded

in the sanctity of marriage applies to this case. We must

determine whether the principle of individual autonomy

alone justifies conferring right of privacy protection on

Fleisher’s conduct with Main.

Two Ninth Circuit cases have considered the consti-

tutionality of police departments’ employment decisions

based on the sexual conduct of unmarried persons. In

Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir.

1983), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d

315 (1984), plaintiff served as a clerk in the El] Segundo

police department. When she applied to become a police

officer with the department, she was subjected to a poly-

graph interview and was questioned extensively about her

sexual history. When the polygraph interviewer learned

Rivtmees

see me

15a

that she had been pregnant and had suffered a miscar-

riage, he asked who the father was. Thorne told him that

the father was a married officer in the department with

whom she had had an affair that had since ended. Ulti-

mately, Thorne was refused the position, in part because

of her relationship with the married officer.

We held that the inquiry into Thorne’s sexual his-

tory and the refusal to hire her based on her sexual con-

duct violated her right of privacy and freedom of associa-

tion. We stated:

In the absence of any showing that private, off-duty,

personal activities of the type protected by the con-

stitutional guarantees of privacy and free association

have an impact upon an applicant’s on-the-job per-

formance, and of specific policies with narrow imple-

menting regulations, we hold that reliance on these

private non-job-related considerations by the state in

rejecting an applicant for employment violates the

applicant’s protected constitutional interests and can-

not be upheld under any level of scrutiny.

Thorne, 726 F.2d at 471.

In the second case, Fugate v. Phoenix Civil Serv. Bad.,

791 F.2d 736, 741 (9th Cir.1986), we attempted to define

the general contours of the right of privacy in sexual con-

duct recognized in Thorne.® In Fugate, two vice officers

6. When the district court in the instant case issued its sum-

mary judgment order, when the court instructed the jury,

and when the jury delivered its verdict, the court did not

have the benefit of the Fugate decision. The summary judg-

ment order was issued on October 9, 1985. The jury was

instructed on May 22, 1986. The jury rendered its verdict

on May 22, 1986. Fugate was decided on June 10, 1986. The

district court also did not have the benefit of Bowers, which

was decided on June 30, 1986.

l6a

of the Phoenix Police Department were revealed to have

had sexual relationships with prostitutes. These relation-

ships were carried on openly and publicly and while the

officers were on duty. One of the prostitutes was a paid

police informant. Numerous prostitutes and members of

the police force were aware of the relationships. When

their superiors learned of this conduct, both officers were

terminated pursuant to a departmental regulation pro-

hibiting ‘‘ ‘conduct unbecoming an officer and contrary to

the general order of the police department.’’’ Fugate,

791 F.2d at 742.

We held that the right of privacy as described in

Thorne did not protect the officers’ activity, stating:

Fugate and Barnhart .. . ask us to find that

Thorne’s protection of the right of privacy extends

to sexual behavior that is not purely private, that

compromises a police officer’s performance, and that

threatens to undermine a police department’s internal

morale and community reputation. We find that

Thorne’s protection does not extend that far.

Id.

Under the line of Supreme Court cases beginning with

Griswold and extending to Bowers and under our deci-

sions in Thorne and Fugate, we hold that the Department

did not violate Fleisher’s right of privacy by terminating

him because of his admitted misconduct. This conduct

was illegal, inappropriate in an individual who aspired to

become an officer on the Department’s police force, and

detrimental to the Department as a whole.

The illegality of Fleisher’s behavior creates a sub-

stantial barrier to his successfully asserting a privacy

en a

Annas ts st

17a

claim. Fleisher has not challenged the constitutionality of

California’s statutory rape law or of the Department’s

regulations, and yet he would have us hold that acts

amounting to statutery rape are protected by the right

of privacy. Were we to accept his argument, we would

in effect be holding that the City is unable to consider as

a basis for terminating an employee the employee’s ad-

mission of having committed criminal sexual misconduct.

Fleisher’s sexual misconduct, like that of the officers

in Fugate, compromised his performance as an aspiring

police officer. Although Fleisher committed the conduct

while still an Explorer, the conduct nevertheless has some

bearing on his foreseeable conduct as a police officer. It

is understandable that the Department would be concerned

that individuals hired to be guardians of the law should

themselves have a history of compliance with the law.

Like the officers’ conduct in Fugate, Fleisher’s con-

duct threatened to undermine the Department’s commun-

ity reputation and internal morale. Fleisher, a leader of

the Department Explorer Post, committed statutory rape

with a girl who was a member of the Post. The Depart-

ment has a manifest interest in ensuring that minor girls

who join the Explorer program do not become the victims

of statutory rape as a result of their participation in the

program. If behavior like Fleisher’s became commonplace

in the Post, the Explorer program would be the object of

community disrepute. Similarly, if it became known that

the Department was willing to hire as permanent officers

individuals who had admitted to acts amounting to stat-

utory rape with female Explorers, the entire Department’s

reputation could suffer. Finally, if other members of the

18a

Department learned that the Department would hire ad-

mitted violators of the law as permanent officers, Depart-

ment morale would suffer as well.

Unlike the conduct engaged in by the plaintiff in

Thorne, Fleisher’s conduct was clearly listed in the De-

partment regulations as grounds for termination. While

arguably vague in some respects,’ Department Rule 162

clearly puts employees and candidates for employment on

notice that illegal or immoral conduct will put their em-

ployment in jeopardy. The presence of this regulation

limits the Department’s ability to apply arbitrary stand-

ards in its employment decisions.

In sum, we are unable to find that the right of privacy

extends to sexual conduct that is concededly illegal, that

implicates a police officer candidate’s ability to perform

effectively as an officer, and that adversely affects a police

department’s morale and community reputation.

Now that we have established that the right of privacy

does not protect Fleisher’s conduct, it remains for us to

consider whether Department Rule 162 has a rational

basis. See Fugate, 791 F.2d at 741. In Fugate, we held that

the Phoenix regulation at issue was presumptively valid

because it ‘‘is based on the City’s method of organizing its

police force.’’ Jd. We conclude that Rule 162, which is

quite similar to the Phoenix rule prohibiting conduct un-

becoming to officers or contrary to department order, is

part of the Department’s method of organization. The

7. Like the plaintiff in Fugate, Fleisher has not challenged the

applicable regulation on vagueness grounds. Thus, we need

not reach the vagueness issue. See Fugate, 791 F.2d at 742 n.7.

19a

Signal Hill regulation appears to be designed to protect

the reputation of the Department and to ensure discipline

and high morale among members of the Department.

Thus, Rule 162 is presumptively valid.

Fleisher therefore bears the burden of showing ‘‘that

there is no rational connection between the regulation in

question and the promotion of safety of persons and prop-

erty.’’ Id. at 742 (citing Kelley v. Johnson, 425 U.S. 238,

248, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976)). We hold

that Fleisher has not carried his burden. Regulation 162,

which prohibits illegal and immoral conduct and conduct

that would otherwise impair an officer’s effectiveness, cer-_

tainly bears a rational relationship to the achievement of

the goals of safety of persons and property.

3. The Freedom of Association

The freedom of association substantially overlaps

with the right of privacy. See Griswold, 381 U.S. at 483-84,

85 §.Ct. at 1681; NAACP v. Alabama, 357 U.S. at 462, 78

S.Ct. at 1171. As described by Supreme Court precedent,

the freedom of association takes two forms. Roberts v.

United States Jaycees, 468 U.S. 609, 617, 104 S.Ct. 3244,

3249, 82 L.Ed.2d 462 (1984). In Roberts, Justice Bren-

nan’s majority opinion described the two forms as follows:

In one line of decisions, the Court has concluded that

choices to enter into-and maintain certain intimate

human relationships must be secured against undue

intrusion by the State because of the role of such rela-

tionships in safeguarding the individual freedom that

is central to our constitutional scheme. In this respect,

freedom of association receives protection as a funda-

mental element of personal liberty. In another set of

decisions, the Court has recognized a right to associate

20a

for the purpose of engaging in those activities pro-

tected by the First Amendment—speech, assembly,

petition for the redress of grievances, and the exercise

of religion. The Constitution guarantees freedom of

association of this kind as an indispensable means of

preserving other individual liberties.

Roberts, 468 U.S. at 617-18, 104 S.Ct. at 3249.

The first of these two manifestations of the freedom

of association, the ‘‘freedom of intimate association,’’ see

Roberts, 468 U.S. at 618, 104 S.Ct. at 3249, extends to var-

ious aspects of individual liberty guaranteed by the Bill of

Rights. This branch of the freedom of association affords

‘*the formation and preservation of certain kinds of highly

personal relationships a substantial measure of sanctuary

from unjustified interference by the State.’’ Id. at 618, 104

S.Ct. at 3249. As applied thus far in Supreme Court case

law, the freedom of intimate association is coextensive with

the right of privacy; both the freedom of intimate associa-

tion and the right of privacy describe that body of rights

that protect intimate human relationships from unwar-

ranted intrusion or interference by the state. See Linder,

Freedom of Association After Roberts v. United States

Jaycees, 82 Mich.L.Rev. 1878, 1884-85 & n. 38 (1985); see

generally Karst, The Freedom of Intimate Association, 89

Yale L.J. 624 (1980).®

8. In many of the cases cited in Roberts’ discussion of inti-

mate association, the Court casts its reasoning solely in terms

of the right of privacy, see, e.g., Carey v. Population Serv.

Int'l, 431 U.S. at 684-86, 97 S.Ct. at 2015-16, cited in Roberts,

468 U.S. at 619, 104 S.Ct. at 3250, or treats the right of pri-

vacy and the freedom of association as a single concept, see

Griswold, 381 U.S. at 483, 85 S.Ct. at 1681, cited in Roberts,

468 U.S. at 622, 104 S.Ct. at 3252.

21a

Because the right of privacy and the freedom of inti-

mate association have the same scope, our analysis of the

freedom of association in this case is the same as our an-

alysis of the right of privacy. Because Fleisher’s sexual

conduct with Main was illegal, compromised Fleisher’s

performance as an aspiring officer, and threatened the De- .

partment’s community reputation and internal morale, we

decline to hold that the freedom of intimate association

protects Fleisher’s illegal sexual conduct with Main.

The second manifestation of the freedom of associa-

tion, ‘‘the right to associate for expressive purposes,’’ see

Roberts, 468 U.S. at 623, 104 S.Ct. at 3252, allows individ-

uals to ‘‘associate with others in pursuit of a wide variety

of political, social, economic, educational, religious, and

cultural ends.’’ Jd. at 622, 104 S.Ct. at 3252. From all in-

dications, Main and Fleisher did not associate with a view

toward any of these goals. Therefore, we hold that Fleish-

er’s sexual conduct, which constituted statutory rape, does

not receive protection from the freedom of expressive as-

sociation.®

Because we hold as a matter of law that Fleisher’s

right of privacy and freedom of association were not vio-

lated by his termination, we must vacate the jury verdict

in favor of Fleisher on those issues.

9. The record makes clear that Chief McCrary terminated

Fleisher partly because of the nature of his sexual conduct

and partly because of the identity of Fleisher’s sexual partner.

Even assuming that Fleisher was terminated solely because his

sexual partner was another Explorer, the termination does not

violate the freedom of expressive association because no ac-

tivity that was arguably expressive was involved.

22a

CONCLUSION

We affirm the district court’s grant of summary judg-

ment for defendants on the due process claim. We vacate

the jury verdict in favor of Fleisher on the right of privacy

and freedom of association, vacate the award of attorney’s

fees, and remand for further proceedings consistent with

this opinion. Each side shall bear its own costs.