Ezra Waters, Plaintiff-appellant, v. Clinton Chaffin, Etc., et al., Defendants-appellees, 684 F.2d 833 (11th Cir. 1982)

In this appeal we must decide whether a policeman may be disciplined for intemperately criticizing the police chief in front of another police officer while off-duty. We conclude that under the peculiar circumstances of this case a policeman may not be disciplined for such conduct. We therefore reverse the judgment of the district court and remand for further proceedings.

* Appellant Ezra Waters was a captain in the Fulton County Police Department until his dismissal on February 1, 1979. In April and May 1978 the department was investigating Waters for a number of undisclosed reasons. As part of the investigation, Margie S. Lawrence, a secretary and deputy sheriff in the department's narcotics division, telephoned Waters on May 2, 1978 for an undisclosed purpose. Later that day Waters called Lawrence back and asked her to meet him after work at a local cocktail lounge, which she agreed to do.

Waters and Lawrence met at Jerald's Lounge, in Cobb County, at approximately 4:30 in the afternoon. Both officers were off-duty and in civilian clothes and, of course, both were outside the jurisdiction of the Fulton County Police Department. Waters had several drinks in the ninety minutes the two were at the bar¹  and during the conversation he disparagingly referred to Chief of Police C.O. Chester several times. Specifically, he complained that he could not say anything to Sergeant A. L. Korey without "that son-of-a-bitch" Chester finding out about it. Waters also called Chester a bastard and said that Chester was "as sorry as they come and nothing but a back stabbing son of a bitch." After she left the bar, Lawrence immediately returned to her office and prepared and filed a report describing the incident.

Nothing came of the incident for nearly nine months, during which time Chief Chester resigned from the department.²  On January 28, 1979, however, Waters was ordered to report the next morning to Acting Chief of Police Louis Graham. When Waters arrived at Graham's office he received written notice of discharge, which detailed eight allegations of misconduct.³  One of the charges was for insubordination stemming from the name-calling that had occurred at Jerald's Lounge. Waters denied the truth of the factual allegations, but this response did not satisfy Graham. He informed Waters of his right to appeal the discharge to the Fulton County Personnel Board, and the discharge became effective on February 1, 1979.

Waters appealed his discharge to the personnel board in timely fashion. The board heard evidence regarding the discharge at five sessions before issuing its order on May 16, 1979. The personnel board absolved Waters of all charges against him, except the insubordination charge based on Rule 3-1 of the department's regulations.⁴  The board determined, however, that discharge was too harsh a punishment, and it ordered Waters reinstated in another department within Fulton County at an appropriately lower graded classification.⁵ 

Shortly thereafter, Waters filed this lawsuit in the United States District Court for the Northern District of Georgia. Waters alleged that the disciplinary action taken by the police department violated his rights under the first amendment.⁶  After a bench trial the district court first rejected the department's affirmative defense that the demotion was the result of a settlement between Waters and the department.⁷  Reaching the merits of the first amendment claim, however, the court determined that "governmental regulation of the speech of public employees will generally be appropriate ... (as to) speech which does not involve matters of public interest." Waters v. Chaffin, Civ. No. C79-1934A, at 5 (N.D. Ga. Aug. 31, 1981). The court accordingly held that Waters' derogatory comments about Chief Chester were not constitutionally protected and that the disciplinary action did not infringe Waters' first amendment rights.

II

It is axiomatic that governmental employment may not be conditioned upon the relinquishment of constitutional rights. Wilson v. Taylor, 658 F.2d 1021, 1027 (5th Cir. 1981). As the Supreme Court has stated, "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S. Ct. 675, 684, 17 L. Ed. 2d 629 (1967), quoted in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968). This rule applies to public employees who exercise their first amendment rights of free speech: "every public employee is largely free to express his views, in public or private orally or in writing." Abood v. Detroit Board of Education, 431 U.S. 209, 230, 97 S. Ct. 1782, 1797, 52 L. Ed. 2d 261 (1977) (emphasis added).⁸  Despite the fact that public employees do not relinquish the protections of the first amendment by accepting a job with the government, their rights are somewhat less extensive than those shared by the citizenry at large. Simply, "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." Pickering v. Board of Education, 391 U.S. at 568, 88 S. Ct. at 1734. In any particular case when a public employee speaks out, then, it is necessary to strike the proper balance between the interest of that employee in speaking freely and the interests of the state, as an employer, in promoting the efficient delivery of public services. Id.; see Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415, 99 S. Ct. 693, 696, 58 L. Ed. 2d 619 (1979); United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 564, 93 S. Ct. 2880, 2889, 37 L. Ed. 2d 796 (1973); Wilson v. Taylor, 658 F.2d at 1027; Bickel v. Burkhart, 632 F.2d 1251, 1256 (5th Cir. 1980).

That the employee who speaks out is a police officer does not mean that the balance is always struck in favor of the state. "(P)olicemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights." Garrity v. New Jersey, 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562 (1967); see Wilson v. Taylor, 658 F.2d at 1027; Gasparinetti v. Kerr, 568 F.2d 311, 315 & n.16 (3d Cir. 1977), cert. denied, 436 U.S. 903, 98 S. Ct. 2232, 56 L. Ed. 2d 903 (1978); Kannisto v. City & County of San Francisco, 541 F.2d 841, 843 (9th Cir. 1976), cert. denied, 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. 2d 775 (1977); Muller v. Conlisk, 429 F.2d 901, 904 (7th Cir. 1970); Flynn v. Giarrusso, 321 F. Supp. 1295, 1298 (E.D. La. 1971). Nonetheless, courts have recognized that the state's interest in regulating its police force can be especially compelling. "To the extent that being a policeman is public employment with unique characteristics, the right of the employee to speak ... may be more or less limited. It is not, however, destroyed." Muller v. Conlisk, 429 F.2d at 904; see Wilson v. Taylor, 658 F.2d at 1027; Byrd v. Gain, 558 F.2d 553, 554 (9th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978); cf. Bickel v. Burkhart, 632 F.2d at 1257 (high stakes of firefighting necessitates greater operational efficiency and, therefore, courts weigh the state's interest in regulating speech of firemen more heavily); Davis v. Williams, 617 F.2d 1100, 1104 (5th Cir.) (en banc) (vagueness and overbreadth challenge in context of fire department's disciplinary regulations less persuasive), cert. denied, 449 U.S. 937, 101 S. Ct. 336, 66 L. Ed. 2d 160 (1980).

In determining whether a public employee was disciplined unconstitutionally,⁹  the court must apply the test enunciated by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). The employee has the initial burden of demonstrating that his speech was constitutionally protected and was a substantial or motivating factor in the decision to discipline him.¹⁰  If the employee meets this twin burden, the burden of proof shifts to the government 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. Id. at 287; see Givhan v. Western Line Consolidated School District, 439 U.S. at 415, 99 S. Ct. at 696; Avery v. Homewood City Board of Education, 674 F.2d 337, 340 (5th Cir. 1982); Paschal v. Florida Public Employees Relations Commission, 666 F.2d 1381, 1384 (11th Cir. 1982). In this case the department stipulated that the sole reason for Waters' demotion was the insubordination evinced by the incident at Jerald's Lounge. The sole question presented, therefore, is whether Waters' speech was constitutionally protected.

III

Waters, like every citizen, has a strong interest in having the opportunity to speak his mind, free from government censorship or sanction. See Abood v. Detroit Board of Education, 431 U.S. at 234-35, 97 S. Ct. at 1798; Police Department v. Mosley, 408 U.S. 92, 96, 92 S. Ct. 2286, 2290, 33 L. Ed. 2d 212 (1972). Although the actual words Waters spoke cannot be said to be valuable to the public at large, the first amendment's protections do not turn on the social worth of the statements, save in a few exceptions not relevant here. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 1247, 22 L. Ed. 2d 542 (1969); Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967). Similarly, that Waters chose to express his ideas in language some might find offensive is not, in and of itself, enough to override his interest in speaking freely. See Spence v. Washington, 418 U.S. 405, 412, 94 S. Ct. 2727, 2731, 41 L. Ed. 2d 842 (1974); Street v. New York, 394 U.S. 576, 592, 89 S. Ct. 1354, 1365, 22 L. Ed. 2d 572 (1969); Wiegand v. Seaver, 504 F.2d 303, 307 (5th Cir. 1974), cert. denied, 421 U.S. 924, 95 S. Ct. 1650, 44 L. Ed. 2d 83 (1975); Clary v. Irvin, 501 F. Supp. 706, 709 & n.9 (E.D. Tex. 1980).

In addition to Waters' fundamental interest in speaking as he chooses, he has an interest in being free from unnecessary work-related restrictions while off-duty. Waters spoke the words at issue after he had left work, while he was out of uniform, while he was out of the department's jurisdiction, and to a person he considered a friend. We think it quite reasonable that he assumed he could vent a little steam over drinks, and we think that Waters, like everyone, has a legitimate interest in maintaining a zone of privacy where he can speak about work without fear of censure. Cf. Wilson v. Taylor, 658 F.2d at 1029-30 (police officer has legitimate interest in offduty dating of known felon's daughter). It must be remembered that we are talking about off-duty shoptalk, which, although regrettably indiscreet and tactless, is nonetheless basically idle barroom chatter. Such conversation generally is not subject to sanction. See Wiegand v. Seaver, 504 F.2d at 306; Egger v. Phillips, 669 F.2d 497, 503-04 (7th Cir. 1982); Yoggerst v. Stewart, 623 F.2d 35, 40 (7th Cir. 1980); Clary v. Irvin, 501 F. Supp. at 709 n.9. We do not doubt that the department may restrict the actions of its off-duty officers in many ways, but it does not follow that these off-duty restrictions may unnecessarily impinge upon private, social conversation.¹¹  Absent significant countervailing governmental interests, we are loathe to sanction the intrusion of the government's ear into the private lives of its employees.

The department argues that its interests outweigh those of Waters because the verbal sniping by Waters raises a real "question of maintaining (both) discipline by immediate superiors (and) harmony among coworkers." Pickering v. Board of Education, 391 U.S. at 570, 88 S. Ct. at 1735. The department contends that Waters' comments necessarily interfered with the close working relationship between Chief Chester and Waters, who was one of seven captains in the department. Additionally, the department argues that Waters' comments to a subordinate officer injected dissension into the force and threatened to undermine the department's chain of command.

We agree with the department that it has a "substantial interest in developing 'discipline, esprit de corps, and uniformity' ... to insure adequate 'promotion of safety of persons and property.' " Kannisto v. City & County of San Francisco, 541 F.2d at 843 (quoting Kelley v. Johnson, 425 U.S. 238, 246, 96 S. Ct. 1440, 1445, 47 L. Ed. 2d 708 (1976)); see Wilson v. Taylor, 658 F.2d at 1027; Barrett v. Thomas, 649 F.2d 1193, 1198-99 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S. Ct. 1969, 72 L. Ed. 2d 440 (1982); Aiello v. City of Wilmington, 623 F.2d 845, 855 (3d Cir. 1980); cf. Bickel v. Burkhart, 632 F.2d at 1257 (fire department, like police department, has greater interest than normal government employer in maintaining morale and discipline); Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17, 26 (2d Cir. 1979) (same conclusion). When a police department can show that the speech in question actually disrupts the officer's efficiency or the internal operation of the department or that the speech has the reasonable tendency to lead to such disruption, we hesitate to substitute our judgment for that of the department.¹²  See Barrett v. Thomas, 649 F.2d at 1198-99; Priest v. Secretary of the Navy, 570 F.2d 1013, 1018 (D.C. Cir. 1977); Kannisto v. City & County of San Francisco, 541 F.2d at 843.

We do not believe, however, that the department's asserted justifications for disciplining Waters apply with full force in this case. Two factors in particular significantly undermine the asserted interference with the close working relationship of Waters and Chester. First, at the time of the comments and thereafter, Waters and Chester did not work together closely. Waters was on assignment to the Georgia Bureau of Investigation (GBI) for almost a year prior to the incident in question and reported directly only to a GBI officer; the evidence indicates that Waters ran into Chester at most a few times a week. Consequently, the "relationship does not appear to be of the type to call for ... holding back from faultfinding." Clary v. Irvin, 501 F. Supp. at 711. Similarly, the long delay between the incident and the notice of discharge belies the argument that the comments actually had an adverse effect on the department. Had they disrupted the police force or led to dissension in the ranks, Waters would have been fired immediately. As we have stated, the reasonable possibility of adverse harm will generally be enough to invoke the full force of judicial solicitude for a police department's internal morale and discipline. In cases like this, however, where delay has belied what once was a reasonable expectation of harm, such solicitude is unwarranted. Because the court must "make individualized and searching review of the factors asserted by the employer," Tygrett v. Barry, 627 F.2d 1279, 1283 (D.C. Cir. 1980); see Porter v. Califano, 592 F.2d 770, 780 (5th Cir. 1979), we will not allow a generalized concern to overshadow the realities of the case. The asserted disruption in the close relationship between Chester and Waters appears to be more apparent than real in this case, and it does not weigh heavily in support of the disciplinary action taken. We also think that the department's concern over the fact that Waters' comments were directed to a subordinate officer is too general to justify its position. Lawrence was not in Waters' chain of command, for she was assigned to the metropolitan narcotics unit while Waters was assigned to the GBI. Consequently, any claim of a real or threatened breakdown in the department's command structure is attenuated and the asserted governmental interest is substantially weaker than if Lawrence had reported to Waters.¹³ 

We conclude that the department's interests do not outweigh those of Waters, and that his speech was constitutionally protected. We must emphasize, however, the narrowness of our decision. On one side, we have an off-duty police officer who was merely bellyaching about his job over drinks. On the other hand, we have a police department whose asserted interests in suppressing the speech do not fully withstand scrutiny. Because we do not think that the department has made a showing of actual harm or a reasonable likelihood of harm to its efficiency, discipline, or harmony, we believe that the first amendment protects this example of "the American tradition of making passing allusion to the vicissitudes of the boss." Yoggerst v. Stewart, 623 F.2d at 40. Because the only asserted basis for the disciplinary action was the statements, we hold that the demotion and transfer was unconstitutional.¹⁴ 

We do not decide whether reinstatement is an appropriate remedy in this case. That decision is for the district court in the first instance. Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED.