Opposition Brief — Maciariello v. City of Lancaster

Penk Bupreme Court, U.S.

( 2 ek eee ee

No. 92-876 DEC 17 1992

CLERK

In The

Supreme Court of the United States

October Term, 1992

*

ROBERT P. MACIARIELLO and ARNOLD ROWELL,

Petitioners,

vs.

CITY OF LANCASTER, CITY OF LANCASTER

POLICE DEPARTMENT, W.B. SUMNER, CHIEF OF

POLICE, IN HIS INDIVIDUAL AND OFFICIAL

CAPACITY, PAUL S. PASKOFF, LANCASTER

CITY ADMINISTRATOR, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITY,

Respondents.

.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

2

. 4

BRIEF OF RESPONDENTS IN OPPOSITION

2

¥

STEPHEN T. Savitz

(Counsel of Record)

Vance J. Betmis

Linpa Pearce EDwArDs

GIGNILLIAT, Savitz & Bettis

Counsel for Respondents

1527 Blanding Street

Columbia, SC 29201

(803) 799-9311

=

ene CL COLL ECr tants 3k oN Claas

BEST AVAILABLE COPY

COUNTER STATEMENT OF

QUESTION PRESENTED FOR REVIEW

Whether the actions of police officers in conducting a

two-month secret and unauthorized investigation of a

superior officer and their actions in failing to report for

two months suspected evidence tampering by a superior

officer constitute speech on a matter of public concern

entitling them to First Amendment protection?

ii

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF QUESTION

PRESENTED ...oscvacccceueeeene ee web ewer eee. i

TABLE OF AUTTHURITIBG «iccscheceeeenceevenseses iv

OPINIONS BRLAaW ......s.s50<daGinweeee eee eee eee 1

JURISOAC TENS. . .0.5:05 000500 h eas eee eee ae 2

STATUTES AND CONSTITUTIONAL PROVISIONS

EVOLVED 5 000 0c knn cc ee ene eee ae 2

COUNTER STATEMENT OF THE CASE ........... 3

SUMMARY OF ARGUDIBINE «oo osckkiviescrekescenan 9

ARGUMENT... 0000.06: 50s ne ED eae 10

I. THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT A SECRET AND

UNAUTHORIZED INVESTIGATION OF A

POLICE OFFICER BY SUBORDINATES IS

NOT, IN AND OF ITSELF, SPEECH UNDER

THE FIRST AMEINDIMIBING «occ ccnescessccess 10

Il. THE DECISION BELOW DOES NOT CON-

FLICT WITH THE DECISION OF THE

EIGHTH CIRCUIT COURT OF APPEALS IN

FELIGHIES 0. WORUIERNIIOE os nn 45640540400 60655 11

Il. THE COURT OF APPEALS DID NOT MISAP-

PLY THE CAUSATION STANDARD SET

FORTH IN MOUNT HEALTHY CITY SCHOOL

DISTRICT BD. OF EDUC. v. DOYLE......... 12

ae Oe

ili

TABLE OF CONTENTS

Page

IV. PETITIONERS DO NOT RESPOND TO THE

HOLDING OF THE COURT OF APPEALS

THAT RESPONDENTS’ INTEREST IN MAIN-

TAINING DISCIPLINE, INTEGRITY AND

EFFICIENCY OUTWEIGHED PETITIONERS’

INTEREST IN CONDUCTING AN

UNAUTHORIZED AND SECRET INVESTIGA-

TION, AND SUCH HOLDING IS AN INDE-

PENDENT BASIS FOR SUPPORTING THE

POUR CIRCUIT'S DECISION ............. 14

Ee Cane h inc ehaweces acd 6aWa eNta ee eos 17

iv

TABLE OF AUTHORITIES

Page

CASES

Breuer v. Hart, 909 F.2d 1035 (7th Cir. 1990)...... 14, 15

Brown v. City of Trenton, 867 F.2d 318 (6th Cir.

_. EEA ON A NR eins bey eee PMP POE OP SOR AR pee 15

Connick v. Myers, 461 U.S. 138 (1983)............. 15, 16

Daniels v. Quinn, 801 F.2d 687 (4th Cir. 1986)........ 13

Dennison v. County of Frederick, Va., 921 F.2d 50

(4th Cir. 1990), cert. denied, 111 S.Ct. 2828 (1991) .... 10

Givhan v. Western Line Consolidated School District,

ee es ST POE cen cask a e4cn cavakouaensbeaeues 13

Guillory v. St. Landry Parish Police Jury, 802 F.2d

822 (5th Cir. 1986), cert. denied, 482 U.S. 916

ETT ee Pee Seer re ree rrr et Teer ee eee 10

Huang v. Bd. of Governors of the Univ. of North

Carolina, 902 F.2d 1134 (4th Cir. 1990)............. 13

Hughes v. Whitmer, 714 F.2d 1407 (1983), cert.

ee, GES GG Tee CONN sh oon cies caceveancn 11, 15

Johnson v. Town of Elizabethtown, 800 F.2d 404 (4th

Re WED A ea neueen us tesas APE Pee re ore

Joyner v. Lancaster, 815 F.2d 20 (4th Cir. 1987), cert.

ge ks ee ere rere rer 14, 15

Jurgensen v. Fairfax County, Va., 745 F.2d 868 (4th

Reh DN er 90a kb NE ENA ORK ROTA REN A So O¥s ChER 13, 15

Kelly v. Johnson, 425 U.S. 238 (1976)................. 15

McMurphy v. Flushing, 802 F.2d 191 (6th Cir. 1986).... 14

| |

TABLE OF AUTHORITIES

Mt. Healthy City School District Board of Education

Theme, GaP UD. BER CONE sac icc kas yarcvennss 12, 13

Terrell v. University of Texas System Police, 792 F.2d

1360 (5th Cir. 1986), cert. denied, 479 U.S. 1064

LEW Db n 4 0'000 55 4p awd ev ae aa Renee ENE RREMEES eS awaes 10

STATUTES AND CONSTITUTIONAL PROVISIONS

GUAC £06. ee 2

First Amendment to the United States Constitu-

OR cos ne uke coavee eet eee 2, 8, 10, 15, 16

No. 92-876

.

In The

Supreme Court of the United States

October Term, 1992

a

ROBERT P. MACIARIELLO and ARNOLD ROWELL,

Petitioners,

VS.

CITY OF LANCASTER, CITY OF LANCASTER

POLICE DEPARTMENT, W.B. SUMNER, CHIEF OF

POLICE, IN HIS INDIVIDUAL AND OFFICIAL

CAPACITY, PAUL S. PASKOFF, LANCASTER

CITY ADMINISTRATOR, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITY,

Respondents.

¢

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

¢

BRIEF OF RESPONDENTS IN OPPOSITION

¢

Respondents herein respectfully request that peti-

tioners’ request for a writ of certiorari to the Fourth

Circuit Court of Appeals be denied.

+

OPINIONS BELOW

The opinion of the District Court of South Carolina

(Petitioners’ Appendix 4a-14a) is not officially reported.

1

The opinion of the Fourth Circuit Court of Appeals (Peti-

tioners’ Appendix 36a-57a) is reported at 973 F.2d 295

(4th Cir. 1992).

JURISDICTION

The judgment of the Fourth Circuit Court of Appeals

was entered on August 18, 1992. This court has jurisdic-

tion pursuant to 28 U.S.C. § 1254(1).

*

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

' This case involves 42 U.S.C. § 1983 and the First

Amendment to the Constitution of the United States. The

First Amendment provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press, or the right of the people peacea-

bly to assemble, and to petition the Government

for a redress of grievances.

42 U.S.C. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the

District of Columbia.

COUNTER STATEMENT OF THE CASE!

Statement of Facts

The City of Lancaster is a municipality of about

10,000 residents and employs a police force of approx-

imately 35 sworn officers. Robert Maciariello and Daryl

Rowell were employed as police officers. Maciariello was

hired in 1978 and Rowell in 1981. Both received several

promotions and, at the time they resigned in 1987, Mac-

iariello was a shift lieutenant and Rowell was the ser-

geant on Maciariello’s shift.

The events leading to their demotions began in May

1987. On or about May 1, 1987, Rowell arrested a Shawn

Scott for driving under the influence. Pursuant to depart-

ment policy Scott took a breathalyzer test and was video-

taped. (J.A. 247:4-24). Several weeks later, at the request

of Susan Howle (Scott’s sister and Rowell’s co-worker),

Rowell decided to nol pros Scott’s case. (J.A. 250:15 -

253:17). Around this time Rowell learned that the Scott

videotape was defective in that it contained no picture,

just audio. (J.A. 257:6 — 259:21). Rowell theorized that

1 References to the Joint Appendix below are noted “J.A.

page:line(s).”

Captain Robert Broach, the department’s patrol com-

mander and third in command, tampered with the Scott

video. The basis for Rowell’s assumption was his unsub-

stantiated belief that Broach was infatuated with Howle

(J.A. 275:10-23) and that Broach altered the videotape in

the hopes of assisting Scott in getting the charges

dropped, thus endearing himself to Howle. (J.A. 92:8-20).

Instead of reporting their suspicions to internal

affairs, the Assistant Chief of Police, the Chief of Police,

or anyone else in authority, Maciariello and Rowell

decided to conduct an “investigation.” It was not until

mid-August that the department learned that Maciariello

and Rowell were “investigating” Robert Broach for

alleged evidence tampering.

On or about August 16, 1987, Assistant Chief Harris

overheard someone talking about the secret investigation.

(J.A. 67; 82:25 — 83:3). He called Maciariello and Rowell

into his office and asked them to explain to him what

they were doing. Harris reported this meeting to Chief

Sumner, who then concluded that the department should

conduct an internal investigation into the suspected evi-

dence tampering. (J.A. 36:8-17). Sumner appointed Lt.

Balkcum of the detective division to complete the internal

review.?

2 Captain Bailey, head of the detective division, could not

conduct the investigation because of a conflict of interest. (J.A.

57-58). Bailey was in charge of the evidence room and stated

that he had given Broach the Scott videotape to review. How-

ever, Broach denied viewing the tape and the chain of custody

card did not show that Broach had checked out the tape. (J.A.

79:20-23).

Balkcum took statements from all City employees

involved in any way with the Shawn Scott case. As part

of the investigation Captain Broach took a polygraph

examination at the South Carolina Law Enforcement Divi-

sion (SLED). Balkcum reported that the polygraph results

were conclusive that Broach was telling the truth when he

stated that he did not tamper with the Scott video. Balk-

cum’s final report (J.A. 30-35) cleared Broach of any

wrongdoing.

Sumner was disturbed that two of his officers had

conducted an investigation of a superior officer for evi-

dence tampering without reporting their suspicions to

anyone in authority. It was his belief that if Broach, who

was then the patrol commander and third in command in

the police department, had tampered with evidence then

the Chief needed to know. (J.A. 412:8-13). For two months

Maciariello and Rowell conducted an investigation of a

superior officer, their patrol commander. As part of their

unauthorized investigation they surreptitiously tape

recorded a conversation with a municipal judge. (J.A.

264:22 — 265:21). It was not until Harris, the Assistant

Chief, overheard someone talking about the “investiga-

tion” and confronted Maciariello and Rowell that they

came forward with their suspicions.>

3 In their petition, petitioners assert, incorrectly, that they

reported their suspicions to Captain Bailey. (Petition at p. 14).

However, Captain Bailey’s affidavit (Petitioners’ Apperidix 30a

— 32a) specifically states that he first spoke to Maciariello and

Rowell about their investigation in September, one month after

Chief Sumner and Assistant Chief Harris learned of the secret

investigation.

Sumner decided that Maciariello and Rowell should

be demoted for their failure to report the alleged evi-

dence tampering to him and for conducting an

unauthorized investigation. He met personally with each

one on Monday, October 5, 1987, to give them his deci-

sion. (J.A. 36; 37; 395:14-18).

Immediately upon learning of their demotions Mac-

iariello and Rowell went to see Paul Paskoff, the City

Administrator. After talking with Paskoff for approx-

imately forty-five minutes, Maciariello and Rowell placed

their badges on his desk and told him that they did not

need their jobs with the City. Both admitted that it was

their intention to resign and not return to work for the

City when they placed their badges on Paskoff’s desk.

(J.A. 105:25 -— 106:6; 287:3 -— 288:7).

According to City policy, however, in order to resign

in good standing an employee must resign to his depart-

ment head and give two weeks notice. (J.A. 432:6-18). On

Thursday, October 8, 1987, after Maciariello and Rowell

failed to report to work, Sumner notified them that they

were no longer employed with the City. (J.A. 38; 39).

Despite their resignations, Maciariello and Rowell

filed grievances over their demotions. (J.A. 40-41; 42).

Sumner responded. (J.A. 43; 44). The grievance committee

recommended that the demotions be reversed. (J.A. 47;

48). City Council decided to reject the grievance commit-

tee’s recommendation and accepted Paskoff’s recommen-

dation that the demotions be upheld.* Maciariello and

4 The City of Lancaster is governed by a Council form of

government pursuant to South Carolina Code of Laws § 5-1-10,

—— — 2

Rowell were notified by letter that City Council denied

their grievances concerning their demotions. (J.A. 52; 53).

Proceedings in the District Court and Fourth Circuit

Maciariello and Rowell filed suit in March 1990 alleg-

ing three causes of action: 1) violations of their First and

Fourteenth Amendment rights to freedom of speech; 2)

outrageous conduct; and 3) violation of the public policy

of the State of South Carolina.

The defendants - Chief Sumner (Sumner), City

Administrator Paskoff (Paskoff), the City of Lancaster

(City), and the Lancaster Police Department (Depart-

ment) — answered the complaint on April 18, 1990. On

December 19, 1990, they filed a motion for summary

judgment as to all three causes of action. By Order

entered January 31, 1991, the court granted the motion as

to the claim for outrageous conduct and denied the

motion as to the remaining claims.

On July 24, 1991, in response to recent legal develop-

ments, the defendants renewed their motion for summary

judgment as to the remaining causes of action. Mac-

iariello and Rowell responded and filed a cross-motion

for summary judgment on August 12, 1991. In an Order

entered on October 7, 1991, the court denied both parties’

motions for summary judgment as to the First Amend-

ment claim. The court also ruled that Sumner and Paskoff

et seq. South Carolina Code of Laws § 8-17-140 provides that

final determination for grievance matters rests with the govern-

ing body, in this case, City Council.

were not entitled to the defense of qualified immunity on

the First Amendment claim.

Sumner and Paskoff appealed the qualified immunity

issue by filing a Notice of Appeal on October 17, 1991.

Sumner, Paskoff, the City, and the Department filed a

Motion to Amend Interlocutory Order on October 17,

1991, pursuant to 28 U.S.C. § 1292(b) and Federal Rule of

Appellate Procedure 5(a). By Order entered on November

25, 1991, the district court amended its Order and certi-

fied the free speech issue to the Fourth Circuit. The

defendants filed a Petition to Appeal Interlocutory Order

on November 25, 1991, and the Fourth Circuit granted the

Petition on December 31, 1991.

The court of appeals held that Maciariello and Row-

ell’s secret and unauthorized investigation per se was not

speech. The court recognized, however, that certain com-

ponents of the employees’ investigation were speech,

specifically, their conversations with each other and with

City Judge Sowell. The court proceeded to determine

whether the speech components of the employees’ inves-

tigation was the “but for” cause of their demotions and

concluded that they were not. The unanimous panel fur-

ther reasoned that even if the investigation were speech

and even if the investigation were the “but for” cause of

the demotions, Maciariello and Rowell’s First Amend-

ment rights were nevertheless not violated because their

interest in this speech was outweighed by the defendants’

interest in promoting efficiency, discipline and integrity

within the police department.

¢

SUMMARY OF ARGUMENT

The Fourth Circuit’s decision that the petitioners’

actions in conducting an unauthorized and secret investi-

gation of a superior officer and their failure to report

their suspicions is not protected speech, is a narrow hold-

ing which is limited to the facts in this case.

Furthermore, despite petitioners’ argument to the

contrary, there is no conflict among the circuits on the

points of law raised by petitioners. The Eighth Circuit

decision cited by petitioners is easily distinguished from

the instant case and, in any event, the final conclusion of

the two circuits is identical.

The Fourth Circuit did not misapply the Mt. Healthy

balancing test in requiring the petitioners to show that

“but for” their protected activity they would not have

been demoted. The “but for” standard is not a higher

standard, as petitioners contend, and this Court has pre-

viously held that the standard enunciated in Mt. Healthy

is “but for.”

Finally, petitioners failed to respond to the Fourth

Circuit’s ultimate conclusion that even if petitioners’

investigation were “speech,” and even if this “speech”

were the “but for” reason for their demotions, the inter-

ests of the Police Department outweighed the interests of

the petitioners.

The Fourth Circuit’s analysis and ultimate conclusion

accords with both its own precedent and this Court's

precedent. The petition for writ of certiorari should,

therefore, be denied.

10

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY CON-

CLUDED THAT A SECRET AND UNAUTHORIZED

INVESTIGATION OF A POLICE OFFICER BY SUB-

ORDINATES IS NOT, IN AND OF ITSELF, SPEECH

UNDER THE FIRST AMENDMENT.

As petitioners concede, no court has ever held that an

unauthorized and secret investigation of one police offi-

cer within a department by a subordinate police officer

within that same department in and of itself constitutes

speech under the First Amendment. The Fourth Circuit

did not, as petitioners argue, hold that petitioners’

unauthorized investigation of their patrol commander

was not speech because the speech was privately commu-

nicated. The court held that the investigation itself was

not speech because it

. . . did not express, and was not intended to

express, anything to anyone; its central feature

was secrecy. Rowell and Maciariello deliberately

chose not to speak, and they hid their activities

so that those activities would not convey a mes-

sage. Though they claim that they intended to

speak out eventually, their intention expresses

nothing.

973 F.2d at 299. (emphasis in original).

The Fourth Circuit’s holding that the investigation

itself was not “speech” is supported not only by logic but

also by the decisions of other courts of appeal. Dennison

v. County of Frederick, Va., 921 F.2d 50 (4th Cir. 1990), cert.

denied, 111 S.Ct. 2828 (1991); Terrell v. University of Texas

System Police, 702 F.2d 1360 (5th Cir. 1986), cert. denied, 479

U.S. 1064 (1987); Guillory v. St. Landry Parish Police Jury,

11

802 F.2d 822 (5th Cir. 1986), cert. denied, 482 U.S. 916

(1986). The Fourth Circuit’s holding is not in conflict with

any of this Court’s decisions, and petitioners’ rhetorical

excesses do not change that fact.

Il. THE DECISION BELOW DOES NOT CONFLICT

WITH THE DECISION OF THE EIGHTH CIRCUIT

COURT OF APPEALS IN HUGHES V. WHITMER.

Petitioners argue that this Court should grant certiorari

because the Fourth Circuit’s decision is in conflict with the

Eighth Circuit’s decision in Hughes v. Whitmer, 714 F.2d 1407

(1983), cert. denied, 465 U.S. 1023 (1984). They are wrong.

There is no conflict between the two decisions.° In suggest-

ing otherwise, petitioners simply have conveniently over-

looked a critical factual distinction.

In Hughes, the plaintiff state trooper alleged that he

had been transferred in retaliation for, inter alia, accusing

a fellow trooper’s son of drug trafficking and in retalia-

tion for conducting an investigation into the son’s alleged

drug trafficking. Hughes told his troop commander of his

suspicions and secured the troop commander’s authori-

zation to conduct the investigation of his colleague’s son.

714 F.2d at 1411. It was in this factual context that the

Eighth Circuit referred to Hughes’s “accusations and

investigations” as “speech-related.” Id. at 1421.

Unlike Hughes, petitioners investigated their com-

mander, not his child. Moreover, petitioners did not

report their suspicions about their commander to the

5 The Fourth Circuit was aware of Hughes and in fact, cites

Hughes in part v of the opinion. 973 F.2d at 300.

12

chief, assistant chief, city administrator or anyone else in

authority. Unlike Hughes, they did not seek or obtain

permission from anyone in authority to investigate Cap-

tain Broach. Indeed, if Assistant Chief Harris had not

overheard a conversation and confronted petitioners two

months after they began their rogue investigation, their

investigation and the possible evidence tampering by

their superior might not ever have come to light.

Thus, petitioners’ assertion that the Fourth Circuit’s

decision conflicts with the Eighth Circuit’s decision in Hughes

does not withstand scrutiny. Hughes does not stand for the

proposition that a police officer’s unauthorized and clandes-

tine investigation of a superior officer constitutes protected

speech. Not surprisingly, petitioners have cited no case that

does stand for such a proposition.

lil. THE COURT OF APPEALS DID NOT MISAPPLY

THE CAUSATION STANDARD SET FORTH IN

MOUNT HEALTHY CITY SCHOOL DISTRICT BD.

OF EDUC. V. DOYLE.

Petitioners fault the Fourth Circuit for misapplying

the causation standard enunciated in Mt. Healthy City

School District Board of Education v. Doyle, 429 U.S. 274

(1977). The court of appeals, after acknowledging that

petitioners’ speech to City Judge Sowell and each other

during the course of their unauthorized investigation of

Captain Broach constituted “speech,” declared that under

Mt. Healthy, “the protected speech must have been a ‘but

for’ cause of the discharge or demotion.” 973 F.2d at 299.

Petitioners argue that Mt. Healthy does not require a

“

showing of “but for” causation. They argue that “a

13

motivating factor” — the term used in Mt. Healthy - is

something less than “but for.”

Petitioners are simply wrong. This Court held in

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

410 (1979), that the ultimate inquiry is indeed whether

“but for” a public employee’s protected speech, the

employee would have been retained. 439 U.S. at 417.

(emphasis original). As the Court explained in Givhan,

any lesser standard “could place an employee in a better

position as a result of the exercise of constitutionally

protected conduct than he would have occupied had he

done nothing.” 439 U.S. at 416, quoting Mt. Healthy, 429

U.S. at 285.

Thus, the Fourth Circuit’s statement of the causation

standard in “but for” terms does not conflict with Mt.

Healthy. Indeed, the Fourth Circuit has consistently

couched the causation requirement in First Amendment

cases in “but for” terms. See Huang v. Bd. of Governors of

the Univ. of North Carolina, 902 F.2d 1134, 1140 (4th Cir.

1990); Daniels v. Quinn, 801 F.2d 687, 689 (4th Cir. 1986);

Johnson v. Town of Elizabethtown, 800 F.2d 404, 406 (4th Cir.

1986); Jurgensen v. Fairfax ne Va., 745 F.2d 868, 878

(4th Cir. 1984).

14

IV. PETITIONERS DO NOT RESPOND TO THE

HOLDING OF THE COURT OF APPEALS THAT

RESPONDENTS’ INTEREST IN MAINTAINING

DISCIPLINE, INTEGRITY AND EFFICIENCY

OUTWEIGHED PETITIONERS’ INTEREST IN

CONDUCTING AN UNAUTHORIZED AND

SECRET INVESTIGATION, AND SUCH HOLD-

ING IS AN INDEPENDENT BASIS FOR SUP-

PORTING THE FOURTH CIRCUIT’S DECISION.

Petitioners fail to point out that the court of appeals

assumed for the sake of argument that petitioners’ inves-

tigation and conversation with each other was “speech”

and that this speech was the effective cause of their

demotions. Nevertheless, the court held, the speech was

not protected because petitioners’ interest in this speech

was outweighed by the respondents’ interest in maintain-

ing efficiency, integrity and discipline within the police

department. 973 F.2d at 300. Petitioners do not seek

review of this determination which provides an indepen-

dent basis supporting the judgment of the court of

appeals.

The court of appeals correctly noted that personal

animosity motivated petitioners to undertake their

unauthorized investigation of Captain Broach and that

this motivation detracts from their claim that their speech

related to a matter of public concern. 930 F.2d at 300,

citing McMurphy v. Flushing, 802 F.2d 191, 197-98 (6th Cir.

1986); accord, Breuer v. Hart, 909 F.2d 1035, 1038-39 (7th

Cir. 1990); Joyner v. Lancaster, 815 F.2d 20, 23-24 (4th Cir.

1987), cert. denied, 484 U.S. 830 (1987). The court further

noted that a public employer’s interest in maintaining

efficiency, integrity and discipline within its police

i eeeencea eerie ameineeiell

15

department requires that a police officer’s First Amend-

ment rights be correspondingly restricted. 973 F.2d at 300,

citing Jurgensen v. Fairfax County, 745 F.2d 868, 880 (4th

Cir. 1984); Hughes v. Whitmer, 714 F.2d 1407, 1418 (8th Cir.

1983), cert. denied, 465 U.S. 1023 (1984); and Kelly v. John-

son, 425 U.S. 238 (1976). The court of appeals properly

concluded that the respondents’ interest in maintaining

efficiency, discipline and integrity within the police

department outweighed petitioners’ interest in secretly

speaking about and investigating Captain Broach.

To determine whether speech on a matter of public

concern is protected such that a public employee cannot

be disciplined for the speech, a court must balance the

employee’s interest in speaking as he did against the

employer’s interest in maintaining and promoting integ-

rity, discipline and efficiency. Connick v. Meyers, 461 U.S.

138, 150-151 (1983). When close working relationships are

required between subordinates and superiors, an

employer’s judgment that the speech at issue would dis-

rupt those close working relationships and impede disci-

pline and efficiency is entitled to “a wide degree of

deference.” Id. at 151-152. .

Police departments, preeminently among govern-

ment offices, require close working relationships between

superior and subordinate. Breuer v. Hart, 909 F.2d 1035,

1041 (7th Cir. 1990); Brown v. City of Trenton, 867 F.2d 318,

322 (6th Cir. 1989); Joyner v. Lancaster, 815 F.2d 20, 23 (4th

Cir. 1987); Hughes v. Whitmer, 714 F.2d 1407, 1419-20 (8th

Cir. 1983). That an unauthorized secret investigation of a

superior by a subordinate police officer has the potential

16

for serious disruption of the integrity, efficiency and dis-

cip! — ~f£asmall municipal police department is obvious.

As the Fourth Circuit observed:

A police department has an undeniable interest

in discouraging unofficial internal investiga-

tions. If personal investigations were the usual

way for an officer to check out suspicious activ-

ities of a fellow officer, the effect on efficiency

and morale could be very disrupting and the

effectiveness of the police force might deterio-

rate. Instead of concentrating on their tradi-

tional duties in the community, officers with

personal hostilities could become preoccupied

with personal investigations of one another.

Esprit de corps could collapse into a kafkaesque

nightmare of improper investigations into the

impropriety of improper investigations.

973 F.2d at 300.

The Fourth Circuit correctly weighed the competing

interests of petitioners and respondents and found that

the respondents’ interest in discipline, integrity and effi-

ciency within the ranks of the police department out-

weighed petitioners’ interest in conducting an

unauthorized secret investigation of their patrol com-

mander. As the court noted, Connick does not require a

showing of actual destruction of close working relation-

ships or actual disruption of discipline and efficiency. 461

U.S. at 152. That such destruction and disruption are

reasonably to be apprehended as a result of petitioners’

actions is apparent.

Accordingly, for the reasons given by the court of

appeals, petitioners’ First Amendment claim fails even if

their secret investigation of their patrol commander were

SS

17

protected speech and the “but for” cause of their demo-

tions.

CONCLUSION

Rule 10 of the Rules of the Supreme Court states in

pertinent part, “A petition for a writ of certiorari will be

granted only when there are special and important rea-

sons therefor.” There are no special and important rea-

sons for reviewing the Fourth Circuit’s disposition in this

case. Although petitioners argue that the unanimous

opinion of the panel was fundamentally flawed, their

failure to petition for rehearing or rehearing en banc belies

their argument. The petition should be dismissed.

Respectfully submitted,

STEPHEN T. SAviTz

‘Vance J. Bettis

LinDA PEARCE EDWARDS

GIGNILLIAT, SAviTz & BeTTIs

1527 Blanding Street

Columbia, South Carolina 29201

Telephone: (803) 799-9311

Attorneys For Respondents

Columbia, South Carolina

December 17, 1992