David C. SINGLETON, Appellant,
v.
Don CECIL, Individually and in his official capacity as
Chief of Police; Harley Moyer; Ivan Parker;
Kevin Tidwell; Della Price; City of
Advance, Appellees.
No. 97-1726.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 18, 1997.
Decided Jan. 8, 1998.
Order Vacating Opinion and Judgment on Grant of Rehearing
March 6, 1998.
Jim R. Bruce, Kennett, Missouri, argued, for Appellant.
D. Keith Henson, St. Louis, MO, argued (Matthew R. Shetley, on the brief), for Appellees.
Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and MAGILL, Circuit Judges.
MAGILL, Circuit Judge.
After the City of Advance, Missouri, terminated the employment of police officer David Singleton, Singleton sued the City of Advance's police chief and members of its city council under 42 U.S.C. § 1983 (1994). Singleton initially claimed that he was terminated in retaliation for his knowledge of the police chief's allegedly improper purchase of an automobile. After discovery revealed that Singleton was discharged because his wife and daughter had plotted to frame the police chief, Singleton amended his complaint to claim that his termination infringed on his rights of free speech, association, privacy, and due process. The district court1 granted summary judgment to the defendants on all claims. Singleton appeals only the grant of summary judgment on his claims that the termination infringed on his fundamental right of privacy in the marital relationship and on his right to intimate familial association. We affirm.
I.
The City of Advance, Missouri, employed plaintiff David Singleton as a police officer from 1990 until his termination in March 1994. During the period relevant to this appeal, defendant Don Cecil served as the City of Advance's police chief. Defendants Harley Moyer, Ivan Parker, Kevin Tidwell, and Della Price were elected members of the City of Advance's city council. William Bradshaw, the mayor of Advance during this period, was not a named defendant. The City of Advance did not have a written employment аgreement with Singleton. Under Missouri law, Singleton's employment was terminable at will, either by the mayor with approval of a simple majority of the city council, or by a two-thirds vote of the city council. See Mo. Ann. Stat. § 79.240 (West 1987); State ex rel. Lupo v. City of Wentzville,
On the morning of March 8, 1994, Joann Singleton, the plaintiff's wife, сalled Sabrina Scaggs, the plaintiff's daughter, on a cordless telephone. Their conversation turned to the subject of Police Chief Cecil, who, in David Singleton's view, had purchased for his own benefit a red 1994 Ford Crown Victoria under an incentive program designed only for government purchases.2 At оne point in the conversation, Joann Singleton remarked that she wanted to "set up" Cecil by hiring someone to bribe him. Scaggs Dep. at 57, reprinted in Appellees' App. at 237. Unfortunately for the Singletons, this statement was recorded by private investigator David George. Throughout March 1994, George monitored cordless phone channels in the City of Advance with his radio scanner, "[m]ore or less" for entertainment purposes. George Dep. at 37, reprinted in Appellees' App. at 228. George played the tape for Police Chief Cecil and the mayor and later gave Cecil a copy of the tape.
Over the next few days, Police Chief Cecil played the tape for the city council members individually. Each recognized the voices on the tape as Joann Singleton and Sabrina Scaggs. At a special meeting on March 11, 1994, the city council unanimously voted tо terminate Singleton's employment as a police officer, based on the recording of Joann Singleton plotting to frame Police Chief Cecil. See Tidwell Aff. at 3-4, reprinted in Appellees' App. at 134-35; Moyer Aff. at 3-4, reprinted in Appellees' App. at 139-40; Parker Aff. at 3-4, reprinted in Appellеes' App. at 144-45; Price Aff. at 3-4, reprinted in Appellees' App. at 149-50. Singleton received a discharge letter dated March 11, 1994, which did not state a reason for his termination.
Singleton then sued Police Chief Cecil and the city council. Singleton's initial complaint alleged wrongful discharge and a violаtion of procedural due process. Singleton later amended this complaint to allege that the City of Advance violated his First Amendment, due process, and privacy rights by terminating him in retaliation for his knowledge of Police Chief Cecil's automobile purchase. During discovery, Singleton learnеd that the defendants' sole reason for their action was the recording of Joann Singleton plotting to bribe the chief of police. On November 11, 1996, Singleton again amended his complaint to include the additional claims that the dismissal based on his wife's statement violated Singleton's rights of free speech, intimate association, privacy, and due process.
Based solely on the second complaint,3 the defendants moved for summary judgment. Singleton did not respond to this motion. The district court ruled on all of the claims in the third amended complaint and granted summary judgment for the defendants. The district court concluded that Singleton could not shоw retaliatory discharge because insufficient evidence connected Singleton's allegedly protected conduct (the intended whistle-blowing) and his termination. The district court also held that, as an employee at will under Missouri law, Singleton did not have a liberty or property interest in his employment sufficient to implicate procedural due process rights. Finally, the district court held that the defendants did not violate Singleton's privacy or associational rights and noted that the defendants "had a legitimate, good faith belief that plaintiff, with his family, was engaging in improper conduct by conspiring to bribe the Chief of Police." Mem. and Order (Feb. 20, 1997) at 8, reprinted in Appellant's App. at 95.
Singleton appeals only the district court's determination that the city did not violate his substantive due process right of privacy in his martial relationship and his First Amendment right of intimate association.
II.
We review the district court's grant of summary judgment de novo. Morgan v. Rabun,
Singleton acknowledges that his employment as a police officer was terminable at the will of the City of Advance. Advance could thus terminate Singleton for any reason or no reason at all. See Cooper v. City of Creve Coeur,
Singleton claims that his termination violated his substantive due process right of privacy in his marital relationship.4 The fundamental right of privacy embodies the "principle that personal decisions that profoundly affect bodily integrity, identity, and destiny should be largely beyond the reаch of government." Planned Parenthood v. Casey,
In this cаse, the City of Advance did not directly or substantially interfere with Singleton's right to be married when they terminated him on the basis of his wife's recorded statement threatening to frame the police chief. Singleton presented no evidence that his termination "significantly discouraged, let alone made 'prаctically impossible,' " his marriage to Joann Singleton. Zablocki,
Singleton also alleges that the City of Advance infringed on his intimate association right. As a component of the First Amendment right of association, the right of intimate association guards against excessive government intervention into "the formation and prеservation of certain kinds of highly personal relationships...." Roberts v. United States Jaycees,
Accordingly, we affirm the district court's grant of summary judgment in favor of the defendants.
RICHARD S. ARNOLD, Chief Judge, dissenting.
I can agree that plaintiff has failed to establish a violation of those aspects of the Due Process Clause of the Fourteenth Amendment that have been particularized as the rights of intimate association and marital privacy. But Mr. Singleton makes an additional argument that the Court's opinion fails to address. He claims (and the City admits) that he was fired solely because оf what his wife said to his daughter on the telephone. He argues that this "is precisely the kind of arbitrary and capricious logic that fails to pass even the most relaxed scrutiny ... under substantive due process." Brief for Appellant 15. The Due Process Clause stands as a protection against all purely arbitrary governmental action--for example, a rule against hiring anyone whose name begins with "A." In my view, it is this more general aspect of substantive due process that provides plaintiff with a winning argument.
In our legal tradition, fault is individual. A is not punished for what B does, let alone for what B says. Is the situation different whеn A and B are married? At common law, it was. If a wife committed a crime in the presence of her husband, she was presumed to have acted at his direction, and he was held responsible. Presumably any such rule would be constitutionally condemned today under the Due Process Clause. Is what happened here any more defensible? I think not. In a related context, we have held that a husband's political opinion cannot be automatically attributed to his wife. Forbes v. Arkansas Educational Television Comm'n,
The District Court's opinion, quoted ante at 634, says that the City had "a legitimate, good faith belief that plaintiff, with his family, was ... conspiring to bribe the Chief of Police." This would doubtless make the case quite different. A city is entitled to have police officers in its employ who are not conspiring to bribe the Chief. A reasonable belief that an officer is conniving at such conduct would certainly be a rational, non-arbitrary basis for discharge. But what is the evidence for this statement (aside from the bare fact of the marital relationship)? The District Cоurt cited none, this Court cites none, and I know of none.
I respectfully dissent.
ORDER
March 6, 1998
The panel grants the petition for rehearing filed by appellant Singleton. The grant of rehearing by the panel moots Singleton's suggestion for rehearing en banc and no action will be taken on the suggestion.
The Court's opinion and judgment filed January 8, 1998, are vacated.
Notes
The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri
Mayor Bradshaw and the city council members had prior knowledge of Police Chief Cecil's purchase and considered the car available for use by the city as a backup poliсe vehicle. See Bradshaw Dep. at 30, reprinted in Appellees' App. at 90; Tidwell Aff. at 1-2, reprinted in Appellees' App. at 132-33; Moyer Aff. at 1, reprinted in Appellees' App. at 137; Price Aff. at 1, reprinted in Appellees' App. at 147. Despite David Singleton's belief that Police Chief Cecil had engaged in illegal activity, Singleton never notified any law enforcement officials, the mayor, or the city council of his concerns
Due to an oversight on behalf of Singleton's counsel, the third amended complaint was never properly served on the defendants
The only disputed privacy right in this сase is located in the substantive component of the Fourteenth Amendment's due process clause. This case does not concern the privacy of communications over cordless telephones, which are not constitutionally protected. See Tyler v. Berodt,