Horstkoetter v. Department of Public Safety , 159 F.3d 1265 ( 1998 )


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  •                                                                      F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    OCT 28 1998
    UNITED STATES COURT OF APPEALS
    PATRICK FISHER
    Clerk
    TENTH CIRCUIT
    PAULA HORSTKOETTER; L.D.
    HORSTKOETTER; KIM DEAN; JEFF
    DEAN,
    Plaintiffs - Appellants,
    v.                                            No. 97-6367
    DEPARTMENT OF PUBLIC
    SAFETY, State of Oklahoma, ex rel.;
    MIKE GRIMES; JERRY CASON;
    LARRY WARLICK,
    Defendants - Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF OKLAHOMA
    (D.C. NO. 97-CV-529)
    David B. Christian, Woodward, Oklahoma, for Appellants.
    Cara Epps Clifton, Department of Public Safety, Oklahoma City, Oklahoma, for
    Appellees.
    Before ANDERSON, HOLLOWAY , and BALDOCK , Circuit Judges.
    ANDERSON , Circuit Judge.
    In this case, we must determine whether the State of Oklahoma, through its
    Department of Public Safety (“the Department”), may, consistent with the First
    Amendment, prohibit members of the Oklahoma Highway Patrol from displaying
    political signs at their private residences, even if the signs were placed there by
    members’ spouses. L.D. Horstkoetter and Jeff Dean, members of the Oklahoma
    Highway Patrol, and their wives, Paula Horstkoetter and Kimberly Dean
    (collectively, “Plaintiffs”), brought this action, pursuant to 
    42 U.S.C. § 1983
    ,
    against the Department and three of the troopers’ supervisors (collectively,
    “Defendants”), contending that they violated the Plaintiffs’ First Amendment
    rights to freedom of speech and expression by ordering them to remove political
    signs from their private yards. The district court entered summary judgment as
    to all claims in favor of the Defendants. For the reasons discussed below, we
    affirm.
    BACKGROUND
    During the 1996 election season, Paula Horstkoetter and Kimberly Dean
    asked Les Morton, a challenger candidate for Woodward County Sheriff, to place
    campaign signs in their yards. The Horstkoetter property is owned by L.D. and
    Paula Horstkoetter in joint tenancy; the Dean property is titled in the name of
    Jeff Dean only.
    -2-
    Several days after the wives placed the signs in the yards, the troopers’
    supervisor, Mike Grimes, instructed several Oklahoma Highway Patrol troopers,
    including Larry Warlick, to check the homes of other troopers to see whether any
    campaign signs were visible in members’ yards. Grimes ordered this
    reconnaissance pursuant to a departmental policy which prohibits members of the
    Oklahoma Highway Patrol from displaying partisan political signs at their
    residences. The policy states, in relevant part, that
    [m]embers [of the Oklahoma Highway Patrol] shall not wear a political
    badge, button, or similar partisan emblem. Members shall not display any
    partisan political sticker or sign on motor vehicles operated by them or
    under their control and shall not publicly display any partisan political
    stickers or signs at their residences .
    Oklahoma Highway Patrol General Policy Order 78-52-2.16(d) (emphasis added).
    After Grimes learned that there were signs at the Horstkoetter and Dean
    residences, Oklahoma Highway Patrol supervisors, including Jerry Cason,
    approached L.D. Horstkoetter and Jeff Dean separately and told them to remove
    the signs. Both Horstkoetter and Dean objected to the demand, stating that the
    signs belonged to their wives. The supervisors responded that it did not matter
    that the signs belonged to their wives, and that if the troopers did not remove the
    signs quickly, they could be suspended or even terminated. Horstkoetter and
    Dean called their wives and explained that their jobs would be put in jeopardy if
    -3-
    the signs were not removed. When the wives heard of this possible threat to
    their husbands’ livelihood, they removed the signs.
    Ms. Horstkoetter then sent a letter to the Commissioner of Oklahoma’s
    Department of Public Safety, explaining the situation and expressing her
    dissatisfaction with its resolution. In response, Colonel Gene Lockwood, Chief
    of the Oklahoma Highway Patrol, sent a letter to Ms. Horstkoetter, informing her
    of the departmental policy, and explaining to her that the Department would
    continue to enforce the policy in the future. Lockwood endorsed the
    interpretation the supervisory officers had given to the policy, and stated that
    because Ms. Horstkoetter was married to a patrolman, certain restrictions were
    therefore placed on the residential property. In the letter, Lockwood also hinted
    that Mr. Horstkoetter could potentially face criminal liability under a state
    statute, in addition to adverse employment action, if he took any active role in
    politics. The state statute reads, in relevant part, as follows:
    No member . . . of the Oklahoma Highway Patrol Division shall,
    while in such position, be a candidate for any political office or take
    part in or contribute any money or other thing of value, directly or
    indirectly, to any political campaign or to any candidate for public
    office. Anyone convicted of violating the provisions of this section
    shall be guilty of a misdemeanor and shall be punished as provided
    by law.
    
    Okla. Stat. Ann. tit. 47, § 2-105
    (a) (West 1998).
    -4-
    After receiving the Department’s response, the Horstkoetters and Deans
    filed this suit, alleging that the Department         1
    and the individual defendants had,
    under color of state law, infringed upon their First Amendment rights to free
    expression, made applicable to the states by the Fourteenth Amendment. The
    Complaint sought damages, as well as a declaration stating that the policy of the
    Oklahoma Highway Patrol is unconstitutional, both on its face and as applied to
    Plaintiffs, and an injunction barring Defendants from enforcing the departmental
    policy. In May 1997, approximately two months after the complaint was filed,
    L.D. Horstkoetter retired from the Oklahoma Highway Patrol.
    At the close of discovery, the Department and the individual defendants
    moved for summary judgment, and Ms. Horstkoetter and Ms. Dean moved for
    partial summary judgment. The district court resolved these cross motions on
    October 2, 1997. First, the district court held that Defendants were entitled to
    summary judgment as to the claims of Mr. Horstkoetter and Mr. Dean, because,
    in view of the undisputed fact that the signs belonged to the wives, the patrolmen
    had engaged in no protected speech or expression. Next, the district court held
    1
    Plaintiffs’ claims against the State of Oklahoma’s Department of Public
    Safety, as well as their claims against the individual defendants in their official
    capacities, were dismissed by the district court pursuant to Will v. Michigan Dept.
    of State Police, 
    491 U.S. 58
    , 
    109 S. Ct. 2304
    , 
    105 L. Ed. 2d 45
     (1989). Plaintiffs
    do not appeal the district court’s dismissal of these claims. Thus, the only claims
    that remain on appeal are the plaintiffs’ claims against the individual defendants
    in their personal capacities.
    -5-
    that the wives had engaged in protected political speech, and that the wives had
    standing to challenge the Department’s requirement that they remove the signs.
    Finally, however, the court held that the individual defendants were entitled to
    qualified immunity from suit, because it found that the law in this area was not
    sufficiently clear to make the unlawfulness of their conduct apparent. Therefore,
    the court entered summary judgment in favor of Defendants as to the wives’
    claims as well, and denied the wives’ motion for partial summary judgment. The
    district court’s order contained no discussion of the plaintiffs’ claims for
    injunctive or declaratory relief.
    On appeal, Mr. Horstkoetter and Mr. Dean claim that they, along with their
    wives, engaged in protected political speech. Also, all Plaintiffs claim that the
    individual defendants are not entitled to qualified immunity in this case because
    the law in the First Amendment area is sufficiently clear. Finally, all Plaintiffs
    claim that the district court erred by refusing to dispose of their claims for
    injunctive and declaratory relief. In response, the Department and the individual
    defendants argue in favor of affirmance, but additionally argue that the wives do
    not have standing to bring this suit.
    -6-
    STANDARD OF REVIEW
    We review a decision granting summary judgment de novo, using the same
    legal standard applicable in the district court.    See Miles v. Denver Pub. Sch. ,
    
    944 F.2d 773
    , 775 (10th Cir. 1991). In cases involving the First Amendment, the
    de novo standard is “appropriate . . . for the further reason that . . . ‘[i]n cases
    raising First Amendment issues . . . an appellate court has an obligation to make
    an independent examination of the whole record in order to make sure that the
    judgment does not constitute a forbidden intrusion on the field of free
    expression.’”   Lytle v. City of Haysville    , 
    138 F.3d 857
    , 862 (10th Cir. 1998)
    (quoting Rankin v. McPherson , 
    483 U.S. 378
    , 386 n.9, 
    107 S. Ct. 2891
    , 2898 n.9,
    
    97 L. Ed. 2d 315
     (1987)). Summary judgment is proper only in cases where
    “there is no genuine issue as to any material fact and . . . the moving party is
    entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);     see Romero v.
    Fay , 
    45 F.3d 1472
    , 1475 (10th Cir. 1995).
    DISCUSSION
    I.     The Claims of L.D. Horstkoetter and Jeff Dean
    Mr. Horstkoetter and Mr. Dean assert that their First Amendment rights
    were violated when their supervisors, pursuant to departmental policy, required
    them to remove their wives’ political signs or face potential disciplinary action.
    -7-
    A.      The Pickering/Connick        Balancing Test
    The patrolmen’s claims raise the issue of whether, and to what extent, the
    government, acting as an employer, can restrict the speech of its public
    employees. When the government is acting as an employer, rather than as a
    sovereign, the First Amendment does not apply with full force. Although the
    government, acting as an employer, “cannot condition public employment on a
    basis that infringes the employee’s constitutionally protected interest in freedom
    of expression,” Connick v. Myers , 
    461 U.S. 138
    , 142, 
    103 S. Ct. 1684
    , 1687, 
    75 L. Ed. 2d 708
     (1983), a government employer “may impose restraints on the job-
    related speech of public employees that would be plainly unconstitutional if
    applied to the public at large.”    United States v. National Treasury Employees
    Union (NTEU) , 
    513 U.S. 454
    , 465, 
    115 S. Ct. 1003
    , 1012, 
    130 L. Ed. 2d 964
    (1995). To determine whether a public employer has infringed the employee’s
    freedom of expression, we apply a four-part test, known as the
    Pickering/Connick test. See Pickering v. Board of Education         , 
    391 U.S. 563
    , 568,
    
    88 S. Ct. 1731
    , 1734-35, 
    20 L. Ed. 2d 811
     (1968);       Lytle , 
    138 F.3d at 863
    ; see
    also NTEU , 
    513 U.S. at 467
    , 
    115 S. Ct. at 1013
     (stating that “the Government
    must be able to satisfy a balancing test of the     Pickering form to maintain a
    statutory restriction on employee speech”). The first two parts of this      test are
    -8-
    questions of law for the court; the remaining two steps are questions of fact for
    the jury. Cragg v. City of Osawatomie , 
    143 F.3d 1343
    , 1346 (10th Cir. 1998).
    First, we must consider whether the speech in question involves a matter
    of public concern. A matter is of public concern, and therefore entitled to First
    Amendment protection, if it is “of interest to the community, whether for social,
    political, or other reasons.”   Lytle , 
    138 F.3d at
    863 (citing   Connick , 
    461 U.S. at 145-49
    , 
    103 S. Ct. at 1689-91
    ). If the matter is of merely personal interest to the
    government employee, then the speech is not protected by the First Amendment.
    
    Id.
    If the speech is found to be of public concern, the court must then weigh
    the employee’s interest in the expression against the government employer’s
    interest in regulating the speech of its employees so that it can carry on an
    efficient and effective workplace.     See Pickering , 
    391 U.S. at 568
    , 
    88 S. Ct. at 1734-35
    . The employee’s speech is protected only if his interest in engaging in
    the speech outweighs the government employer’s interest in regulating it.
    Next, the employee must show that the speech was a substantial factor
    driving the challenged governmental action.       See Mt. Healthy City Sch. Dist. Bd.
    of Educ. v. Doyle , 
    429 U.S. 274
    , 287, 
    97 S. Ct. 568
    , 576, 
    50 L. Ed. 2d 471
    (1977). And finally, if the employee can make the showings required by the first
    three parts of the test, the employer is then given the opportunity to show that it
    -9-
    would have taken the same employment action against the employee even in the
    absence of the protected speech.     
    Id.
    B.     The Test Applied to this Case
    Mr. Horstkoetter and Mr. Dean do not contest the government’s power
    generally to restrict the political speech of its employees. For over a century,
    courts have upheld regulations, such as the federal Hatch Act, curtailing the
    rights of public employees to engage in certain kinds of political speech.        See
    United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers         , 
    413 U.S. 548
    , 
    93 S. Ct. 2880
    , 
    37 L. Ed. 2d 796
     (1973);       United Public Workers v. Mitchell       ,
    
    330 U.S. 75
    , 
    67 S. Ct. 556
    , 
    91 L. Ed. 754
     (1947);         Ex Parte Curtis , 
    106 U.S. 371
    ,
    
    1 S. Ct. 381
     (1882). These regulations were enacted to further several legitimate
    and important interests of government, including the following: (1) the
    protection of public employees’ job security,       see Letter Carriers , 
    413 U.S. at 566
    ,
    
    93 S. Ct. at 2890-91
     (stating that placing restrictions on the political speech of
    public employees “make[s] sure that Government employees [are] free from
    pressure and from express or tacit invitation to vote in a certain way or perform
    political chores in order to curry favor with their superiors rather than to act out
    their own beliefs”); (2) the eradication of corruption,      see 
    id.
     , 
    413 U.S. at 557-58, 559-60
    , 
    93 S. Ct. at 2886-87, 2890
     (discussing the anti-corruption origins of the
    -10-
    civil service rules and the Hatch Act); (3) the promotion of efficiency in
    government offices, see Waters v. Churchill , 
    511 U.S. 661
    , 674-75, 
    114 S. Ct. 1878
    , 1887-88, 
    128 L. Ed. 2d 686
     (1994) (plurality opinion) (stating that
    “[g]overnment agencies are charged by law with doing particular tasks,” that
    “[a]gencies hire employees to help do those tasks as effectively and as efficiently
    as possible” and that “[w]hen [an employee] . . . begins to do or say things that
    detract from the agency’s effective operation, the government employer must
    have some power to restrain her”); and (4) the encouragement of impartiality,
    and the public perception of impartiality, in government services.       See Letter
    Carriers , 
    413 U.S. at 565
    , 
    93 S. Ct. at 2890
     (stating that public employees “are
    expected to enforce the law . . . without bias or favoritism” and that “[a] major
    thesis of the Hatch Act is that to serve this great end of Government–the
    impartial execution of the laws–it is essential that federal employees” not
    become involved in politics).
    These permissible restrictions on political speech can also apply to
    employees of state and local governments,      see Broadrick v. Oklahoma , 
    413 U.S. 601
    , 606, 
    93 S. Ct. 2908
    , 2913 (1973) (upholding state laws similar to the federal
    Hatch Act), including law enforcement officers.     2
    See , e.g. , Reeder v. Kansas
    2
    Nearly every state in this circuit, as well as most states outside the circuit,
    has a statute restricting the political activities of highway patrol members. See,
    (continued...)
    -11-
    City Board of Police Comm’rs , 
    733 F.2d 543
    , 547 (8th Cir. 1984) (upholding
    
    Mo. Rev. Stat. § 84-830
    , which prohibited members of the Kansas City Police
    Department from making any political campaign contributions);            Wachsman v.
    City of Dallas , 
    704 F.2d 160
     (5th Cir. 1983) (upholding various provisions of the
    Dallas city charter which prevented city police officers from making
    contributions to or soliciting contributions for city council candidates);    Otten v.
    Schicker , 
    655 F.2d 142
    , 144 (8th Cir. 1981) (upholding a St. Louis Police
    Department local rule which prevented officers from running or campaigning for
    public office); Perry v. St. Pierre , 
    518 F.2d 184
    , 186 (2d Cir. 1975) (upholding a
    provision of the Plattsburgh, New York, city charter which made it unlawful for
    a city police officer to, among other things, “attempt to influence any voter”).
    The patrolmen’s First Amendment challenge, then, is a narrow one: Mr.
    Horstkoetter and Mr. Dean assert that the government’s well-established power
    to regulate the political speech of its employees does not extend far enough to
    2
    (...continued)
    e.g., 
    Colo. Rev. Stat. Ann. § 24-33.5-215
     (1997); 
    Kan. Stat. Ann. § 74-2113
    (e)
    (1997); 
    Okla. Stat. Ann. tit. 47, § 2-105
    (a) (West 1998); 
    Utah Code Ann. § 67-19
    -
    19 (1997); see also 
    Ky. Rev. Stat. Ann. § 16.170
     (Michie 1996); 
    Mich. Comp. Laws Ann. § 28.10
     (West 1997); 
    Miss. Code Ann. § 45-3-11
     (1998). Other states
    have enacted less restrictive statutes which prohibit officers from engaging in
    political activity while at work or while using state resources, but authorizing
    officers to participate in politics on their own time. See, e.g., 
    Ark. Code Ann. § 12-8-205
     (Michie 1997) (amended 1997); 
    N.M. Stat. Ann. § 29-14-10
     (Michie
    1998).
    -12-
    sustain a regulation prohibiting a state law enforcement officer from placing
    political signs on his residential property. We analyze this challenge under the
    framework of the Pickering/Connick test set forth above.
    Mr. Horstkoetter and Mr. Dean cannot meet the requirements of the
    Pickering/Connick test in this case. Even assuming that Mr. Horstkoetter and
    Mr. Dean can survive the first hurdle,   3
    they must show that their interest in the
    expression outweighs the government employer’s interest in regulating it. This
    they cannot do. Certainly, the employees here have a strong interest in engaging
    in political speech. Indeed, “[t]he First Amendment affords the broadest
    protection to . . . political expression in order to assure the unfettered
    interchange of ideas for the bringing about of political and social changes
    3
    There is some question as to whether the troopers were even engaging in
    speech at all. The district court held that the troopers were not engaging in any
    constitutionally protected speech, in view of the undisputed fact that the signs
    were requested by the troopers’ wives, and not by the troopers themselves.
    Indeed, when confronted by their supervisors about the signs, both patrolmen
    protested that the signs were not theirs, but were their wives’. If the patrolmen
    were not speaking, they cannot meet the first requirement of the test, because the
    patrolmen cannot be said to have engaged in speech regarding matters of public
    concern if they were not speaking at all. There is, however, some force to the
    argument that at least Mr. Dean was speaking, even if Mr. Horstkoetter was not,
    because Mr. Dean has sole title to the Dean residence, including the legal right to
    exclude his wife’s signs, and may therefore be said to have implicitly adopted the
    signs as his own speech. To the extent the patrolmen were speaking, that speech
    would undoubtedly be related to matters of public concern. See Zorzi v. County
    of Putnam, 
    30 F.3d 885
    , 896 (7th Cir. 1994) (stating that an employee fired for
    participating in political activity was engaging in speech on matters of public
    concern).
    -13-
    desired by the people.”    Buckley v. Valeo , 
    424 U.S. 1
    , 14, 
    96 S. Ct. 612
    , 632, 
    46 L. Ed. 2d 659
     (1976) (internal quotation marks omitted). However, we think that
    the employer’s interest in regulating troopers’ political signs outweighs that
    interest.
    The Oklahoma Highway Patrol’s policy prohibiting troopers from
    displaying political yard signs serves at least three of the governmental interests
    set forth in the Hatch Act cases.   4
    See Letter Carriers , 413 U.S. at 557-66, 93 S.
    4
    Plaintiffs argue that, in order for the balancing test to weigh in the
    government’s favor, there must be evidence in the record that the removal of
    these particular political signs furthered the interests behind the policy. The
    district court seemed to agree, citing Gardetto v. Mason, 
    100 F.3d 803
    , 815-16
    (10th Cir. 1996) (stating that “the government . . . cannot rely on purely
    speculative allegations that certain statements caused or will cause disruption to
    justify the regulation of employee speech”). While this may be true in cases
    involving employees who were fired for isolated instances of disruptive speech or
    whistleblowing not connected to any statute or policy, see Rankin v. McPherson,
    
    483 U.S. 378
    , 380, 388-89, 
    107 S. Ct. 2891
    , 2899, 
    97 L. Ed.2d 315
     (1987) (where
    an employee criticized President Reagan, stating after the 1981 assassination
    attempt that “[i]f they go for him again, I hope they get him”); Gardetto, 
    100 F.3d at 815-16
     (where an employee was openly critical of the policies of her supervisor
    and her employer), such a showing is not required when the constitutionality of a
    particular regulation curtailing political speech is at issue, at least where that
    regulation is aimed at protecting, rather than restricting, the rights of public
    employees. For instance, in Mitchell, the Supreme Court upheld the
    constitutionality of the Hatch Act without a particularized showing that the
    statute’s interests were furthered in that specific case, stating that even though the
    particular employee at issue, a roller in the mint, was a relatively non-influential
    employee,
    Congress may have concluded that the activity may promote or retard his
    advancement or preferment with his superiors. Congress may have thought
    (continued...)
    -14-
    Ct. at 2886-91; Mitchell , 
    330 U.S. at 101
    , 
    67 S. Ct. at 570
    . First, the policy
    serves to “assure persons aspiring to careers in law enforcement that they are not
    obliged to make public display of political affiliation or defer to the wishes of
    political dignitaries in order to guarantee retention and promotion.”      Pollard v.
    Board of Police Comm’rs , 
    665 S.W.2d 333
    , 336 (Mo. 1984),          cert. denied , 
    473 U.S. 907
    , 
    105 S. Ct. 3534
    , 
    87 L. Ed. 2d 657
     (1985).       In the absence of this
    4
    (...continued)
    that government employees are handy elements for leaders in political
    policy to use in building a political machine. For regulation of employees
    it is not necessary that the act regulated be anything more than an act
    reasonably deemed by Congress to interfere with the efficiency of the
    public service. There are hundreds of thousands of United States
    employees with positions no more influential than [the roller in the mint].
    Evidently what Congress feared was the cumulative effect on employee
    morale of political activity by all employees who could be induced to
    participate actively. It does not seem to us an unconstitutional basis for
    legislation.
    Mitchell, 
    330 U.S. at 75, 101
    , 
    67 S. Ct. at 570
    . Likewise, in Letter Carriers, the
    Court did not require a particularized showing. 413 U.S. at 564, 93 S. Ct at 2889
    (stating that “[a]lthough Congress is free to strike a different balance than it has,
    if it so chooses, we think the balance it has so far struck is sustainable by the
    obviously important interests sought to be served” by such restrictions on public
    employees’ political speech). And in United States v. National Treasury
    Employees Union, 
    513 U.S. 454
    , 470-71, 475-76 n.21, 
    115 S. Ct. 1003
    , 1015,
    1017-18 n.21, 
    130 L. Ed.2d 964
     (1995), the Court did require some evidence of
    disruption, but only because the regulation at issue there, a ban on honoraria, was,
    unlike the Hatch Act and other similar regulations on political speech, aimed at
    restricting employees’ rights rather than protecting their job security. We are
    persuaded that, in cases involving a constitutional challenge to a regulation on
    public employees’ political speech, the government need not make a
    particularized showing where at least one of the interests served by the regulation
    is the protection of public employees’ job security.
    -15-
    policy, troopers could feel pressure to display signs advocating the election of
    candidates favored by superiors.
    Second, the policy promotes efficiency and harmony among law
    enforcement personnel. In some cases, public endorsement of candidates by
    police officers has stirred great controversy within police departments and has
    detracted from “the efficiency and the quality of the services” provided by law
    enforcement. See Ruff v. City of Leavenworth , 
    858 F. Supp. 1546
    , 1554 (D.
    Kan. 1994).
    Third, the policy “proclaim[s] that police protection will be available to
    the public, free from political overtones, and that the police will deal impartially
    with all who give them concern.”      Pollard , 665 S.W.2d at 336. Also, the policy
    helps to further harmonious relations between state police, local law
    enforcement, and the citizenry. In many rural communities, such as northwestern
    Oklahoma, “[a] state trooper is often the most conspicuous representative of the
    state government to a large percentage of the population, . . . who may view the
    trooper as a symbol of stability and authority.”    Wicker v. Goodwin , 
    813 F. Supp. 676
    , 681 (E.D. Ark. 1992). Such policies help to avoid the perception that public
    law enforcement organizations support a particular political candidate or party.
    “[I]t is not only important that the Government and its employees in fact avoid
    practicing political justice, but it is also critical that they appear to the public to
    -16-
    be avoiding it, if confidence in the system of representative Government is not to
    be eroded . . . .”   Letter Carriers , 413 U.S. at 565, 93 S. Ct. at 2890. “It is proper
    for a state to insist that the police be, and appear to be, above reproach, like
    Caesar’s wife.”      Reeder , 
    733 F.2d at
    547 .
    Most courts that have considered the issue have concluded that the
    government’s interest in regulating the political speech of law enforcement
    personnel outweighs the individual officer’s interest in engaging in certain kinds
    of political speech. Indeed, courts have held that a government employer’s
    power to curtail the political speech of law enforcement personnel extends far
    enough to ban activities such as attempting to influence voters, endorsing
    political candidates, and displaying political signs in their yards.    See , e.g. , Perry
    v. St. Pierre , 
    518 F.2d at 186
     (upholding a provision of the Plattsburgh, New
    York, city charter which made it unlawful for a city police officer to, among
    other things, “attempt to influence any voter”);      Wicker , 
    813 F. Supp. at 680-81
    (upholding, against a First Amendment challenge, 
    Ark. Code Ann. § 12-8-205
    (before its 1997 amendments), which prohibited members of the Arkansas State
    Police from making contributions to or participating in campaigns, among other
    things); cf. Ruff , 
    858 F. Supp. at 1554-55
     (holding that a city may
    constitutionally prohibit police officers from endorsing candidates, even though
    holding that the city’s stated policy banning all “political activity” was
    -17-
    overbroad). We are persuaded that the government’s well-established right to
    restrict the political speech of its employees extends far enough to allow state
    and local law enforcement organizations to prohibit members from displaying
    political signs at their residences.   5
    The Wicker case is especially apposite here. In that case, the court passed
    on the constitutionality of an Arkansas statute which barred members of the state
    police from participating in political campaigns.    See 
    Ark. Code Ann. § 12-8-205
    (before 1997 amendments). One of the plaintiff troopers had been suspended
    without pay for violating the statute, because he had, among other things,
    “erect[ed] yard signs [and] ha[d] a bumper sticker displayed on a privately
    owned vehicle.”      Wicker , 
    813 F. Supp. at 679
    . The court upheld the statute, as
    applied to this trooper, against a First Amendment challenge, holding that the
    state’s interest in regulating trooper speech outweighed the trooper’s interest in
    displaying yard signs and bumper stickers. The court stated that the statute
    5
    In cases involving other less emblematic public employees, the balance
    may come out differently. Indeed, under the federal Hatch Act, federal
    “employees” are allowed to display signs at their residences, see 
    5 C.F.R. § 734.205
    (a) (1998), but this permission does not extend to “member[s] of the
    uniformed services.” 
    5 C.F.R. § 734.101
     (1998) (defining “employee,” for
    purposes of that subpart, as excluding “member[s] of the uniformed services”).
    And at least one court has held that general city employees cannot be prohibited
    from displaying political signs in their yards. See Goodman v. City of Kansas
    City, 
    906 F. Supp. 537
     (W.D. Mo. 1995). But for high-profile public employees,
    such as law enforcement personnel, we are confident that the constitutional
    balance weighs in favor of the government.
    -18-
    “serves several valid and important interests,” including ensuring “troopers job
    security, free from the vicissitudes of the election process; . . . avoid[ing] the
    appearance of political partisanship on the part of the Arkansas State Police; and
    . . . promot[ing] a harmonious working relationship between the State Police,
    citizens, and political officials throughout the State.”   
    Id. at 681
    .
    We conclude, therefore, that the interests of the government employer,
    here the Oklahoma Highway Patrol, in prohibiting political yard signs outweigh
    the patrolmen’s interest in displaying the yard signs. Thus, the patrolmen cannot
    meet the second requirement of the      Pickering/Connick test. Accordingly, we
    hold that the First Amendment does not prohibit a state from barring members of
    its highway patrol or state police from displaying political signs in their private
    yards. The policy of the Oklahoma Highway Patrol prohibiting troopers from
    displaying political signs in their yards is facially constitutional under the First
    Amendment.
    C.      The Limits of the Oklahoma Highway Patrol’s Policy
    Our holding that the policy of the Oklahoma Highway Patrol is
    constitutional is not without limits. By its plain language, the policy applies only
    to “[m]embers” of the Oklahoma Highway Patrol, and not to members’ spouses.
    Our holding permits the Oklahoma Highway Patrol to take disciplinary action
    -19-
    against members who display political signs in their private yards. Thus, if the
    trooper, rather than the trooper’s spouse, requests that a sign be placed in his
    yard, that trooper may be disciplined without offending the Constitution.
    A more difficult question arises when the trooper’s spouse erects a sign in
    the residential yard. The district court resolved this situation by determining that
    the signs belonged to the spouses rather than to the troopers. Under the district
    court’s analysis, the state may not constitutionally discipline the trooper if the
    speech in the residential yard is the spouse’s speech rather than the trooper’s.
    The crucial factor under the district court’s analysis was whether the speech was
    that of a trooper or that of a spouse. While this analysis is wholly defensible as
    far as it goes, we think it does not go far enough in explaining the circumstances
    under which a state may discipline a trooper for having a sign in his private yard.
    A way to look at this situation in a manner more directly related to the trooper’s
    personal accountability is in terms of the trooper’s lawful right to remove the
    sign from his residential property. If a trooper has sole ownership, or its
    equivalent, of the residential property, then, by legal definition, he has the lawful
    right to remove political signs from his property, whether placed there by
    himself, his spouse, or a passerby. By refusing to exercise this legal right to
    remove the sign, the trooper would seem, at least implicitly, to be adopting the
    sign as his own, even if the sign was placed there by someone else. And, in such
    -20-
    a situation, it becomes difficult to escape the conclusion that the trooper is
    violating the state’s requirement that he refrain from displaying signs at his
    residence. Therefore, as applied to troopers who have sole title, or its state law
    equivalent, in their residential property, the policy may extend far enough to
    allow a state to take disciplinary action against a trooper who has a political sign
    in his yard, even if the sign was originally placed there by another person.
    However, the situation changes where someone else owns, or has an
    ownership interest in, the residential property. The trooper clearly does not have
    the right to remove signs placed in a yard owned by a spouse or by someone else,
    or in which the spouse or others have a property interest, such as a joint tenancy
    or tenancy in common.       See Matthews v. Matthews , 
    961 P.2d 831
    , 834-35 (Okla.
    1998) (stating that “[o]ne who stands in a cotenancy relation to another may not
    act or claim ‘in derogation of’ the [other cotenants’] interest” and that “[t]his
    means that a cotenant is not allowed to lessen or diminish the value or effect of
    the other cotenant’s right, title, interest or status in the land” (citations and
    footnotes omitted)); 20 A    M . J UR .2 D   Cotenancy and Joint Ownership   § 1 (1997)
    (stating that “[i]n a true cotenancy the interest of each cotenant is coextensive
    with the common property and extends to every part of the property, although
    none has the right to occupy any particular part of it to the exclusion of the
    others”). A state highway patrol organization cannot, through a policy restricting
    -21-
    political speech, require a trooper to do what property law does not allow him to
    do. Therefore, as applied to situations in which a trooper has no interest, or
    merely a joint or common interest, in his residential property, the policy cannot
    extend far enough to allow a trooper to be disciplined for not removing a sign
    from his residential property placed there by one who possesses a common
    interest in the property, so long as the sign is solely the speech of the common
    interest holder.   6
    To apply these principles to the case before us, we must look to the
    property interests of the Plaintiffs. The Dean residence is titled solely in the
    name of Jeff Dean. Appellee’s App. at 203. Under the facts presented to us in
    this case, Ms. Dean has no property interest in the residential property.   7
    6
    We note, however, that even in situations where the trooper does not have
    the sole property interest in his residence, the trooper may be constitutionally
    barred from erecting a sign in his yard. In these situations, the property aspect of
    the analysis is unhelpful, and the speech-based analysis set forth by the district
    court is sufficient. The focus of the regulation is on what the trooper does or fails
    to do with respect to signs under his control. Therefore, if there is evidence to
    indicate that the trooper, rather than another cotenant, placed the sign there, the
    trooper may constitutionally be disciplined. Thus, there are two situations in
    which a state may constitutionally discipline a trooper for displaying a political
    sign at his residence: (1) where the trooper is the sole interest holder in the
    residential property; and (2) where there is evidence in the record that the trooper
    himself placed, or caused to be placed, the sign at his residence.
    7
    On the record before us, we know only that the Dean property is titled in
    the name of Jeff Dean. We are unaware of any other potential interests, based in
    other areas of state law, that Ms. Dean might have in the residential property. For
    instance, Oklahoma family law may provide non-titled spouses certain rights in
    (continued...)
    -22-
    Therefore, the policy of the Oklahoma Highway Patrol can extend far enough to
    prohibit Mr. Dean from displaying, or allowing the display of, political signs at
    the Dean residence, and the Oklahoma Highway Patrol may, within the bounds of
    the Constitution, discipline Mr. Dean for displaying, or for refusing to remove,
    political signs in his yard, even if the signs were originally placed there by
    someone else. Therefore, all of Mr. Dean’s claims must fail, and the district
    court properly granted summary judgment in favor of the Defendants as to the
    claims of Jeff Dean.
    The Horstkoetters present a different situation. Mr. and Ms. Horstkoetter
    own their residence together as joint tenants. Appellee’s App. at 201. By
    attempting to enforce its policy against the Horstkoetters, the Oklahoma Highway
    Patrol is essentially requiring Mr. Horstkoetter, upon penalty of disciplinary
    action, to remove his wife’s sign from her property. The Oklahoma Highway
    Patrol cannot constitutionally extend its policy so far. Any discipline imposed
    under these circumstances would violate Mr. Horstkoetter’s constitutional rights.
    7
    (...continued)
    the residential property. However, such interests have not been brought to the
    attention of this court, and thus, on the record before us, we must conclude that
    Ms. Dean has no property interest in the Dean family residence.
    -23-
    D.     Mr. Horstkoetter’s Remedies
    As remedies for the potential violation of his constitutional rights, Mr.
    Horstkoetter seeks injunctive and declaratory relief, as well as damages.
    Defendants argue that Mr. Horstkoetter’s claims for prospective relief have been
    mooted by his retirement, and that his claims for damages are precluded because
    the individual defendants are entitled to qualified immunity. We agree.
    1.     Mootness
    Mootness, like standing, stems from the Article III requirement that federal
    courts hear only “Cases” and “Controversies.” U.S. Const. art. III, § 2. Indeed,
    mootness is “the doctrine of standing set in a time frame: The requisite personal
    interest that must exist at the commencement of the litigation (standing) must
    continue throughout its existence (mootness).”      Arizonans for Official English v.
    Arizona , 
    520 U.S. 43
    , 68 n.22, 
    117 S. Ct. 1055
    , 1069 n.22, 
    137 L. Ed. 2d 170
    (1997) (citations omitted). Mr. Horstkoetter certainly had standing to bring this
    suit at the outset of the litigation, and indeed he still has standing to seek
    retrospective relief such as damages. However, his claims for prospective relief
    will be mooted “[i]f an event occurs while a case is pending that heals the injury.”
    Southern Utah Wilderness Alliance v. Smith       , 
    110 F.3d 724
    , 727 (10th Cir. 1997);
    see also McClendon v. City of Albuquerque        , 
    100 F.3d 863
    , 867 (10th Cir. 1996)
    -24-
    (stating that “[w]hen a party seeks only equitable relief, . . . past exposure to
    alleged illegal conduct does not establish a present live controversy if
    unaccompanied by any continuing present effects”).
    Mr. Horstkoetter’s retirement from the Oklahoma Highway Patrol has
    mooted his claims for prospective relief. Because he is no longer a state trooper,
    and because the policy only applies to “[m]embers,” Mr. Horstkoetter will now
    not come under any possible interpretation of the policy. Mr. Horstkoetter cannot
    show that there is any possibility that he could ever be subject to sanction by the
    Oklahoma Highway Patrol should he or his wife choose to erect political signs in
    their yard in upcoming political campaigns. Any injunction that we might issue in
    this case, prohibiting the highway patrol from applying its policy to Mr.
    Horstkoetter, would be meaningless, because the patrol has no reason to apply its
    policy to him now that he has left the patrol. Likewise, any declaratory judgment
    in favor of Mr. Horstkoetter would also be meaningless.     See Southern Utah
    Wilderness Alliance , 
    110 F.3d at 730
     (stating that “[f]or the same reasons that
    injunctive relief is not available, a declaratory judgment also is not available,”
    because the “declaratory judgment would serve no purpose”).
    Because Mr. Horstkoetter cannot “demonstrate a good chance of being
    likewise injured in the future,”   McClendon , 100 F.3d at 867, his claims for
    prospective relief are moot.
    -25-
    2.     Qualified Immunity
    Although Mr. Horstkoetter’s claims for prospective relief have been
    rendered moot, his claims for damages have not. However, Defendants argue, and
    the district court held, that his claims for damages are barred by the doctrine of
    qualified immunity. We agree.
    Qualified immunity is a doctrine which “shields government officials
    performing discretionary functions from individual liability under 
    42 U.S.C. § 1983
     unless their conduct violates ‘clearly established statutory or constitutional
    rights of which a reasonable person would have known.’”           Baptiste v. J.C. Penney
    Co., Inc. , 
    147 F.3d 1252
    , 1255 (10th Cir. 1998) (quoting       Harlow v. Fitzgerald ,
    
    457 U.S. 800
    , 818, 
    102 S. Ct. 2727
    , 2738, 
    73 L. Ed. 2d 396
     (1982)). The law
    provides these officials with qualified immunity because “it is impossible to know
    whether the claim is well-founded until the case has been tried,” and “to submit
    all officials, the innocent as well as the guilty, to the burden of a trial and to the
    inevitable danger of its outcome, would dampen the ardor of all but the most
    resolute, or the most irresponsible, in the unflinching discharge of their duties.”
    Gregoire v. Biddle , 
    177 F.2d 579
    , 581 (2d Cir. 1949)       ; see also Albright v.
    Rodriguez , 
    51 F.3d 1531
    , 1534 (10th Cir. 1995) (stating that qualified immunity
    exists to “ensure that erroneous suits do not even go to trial”). The doctrine of
    qualified immunity “strik[es] a balance between compensating those who have
    -26-
    been injured by official conduct and protecting government’s ability to perform
    its traditional functions.”   Lawmaster v. Ward , 
    125 F.3d 1341
    , 1347 (10th Cir.
    1997).
    When a defendant pleads qualified immunity, as these Defendants have
    done, the plaintiff must make a two-part showing. First, he must show that the
    defendant’s actions violated a federal constitutional or statutory right.   See
    Baptiste , 
    147 F.3d at 1255
    ; Albright , 
    51 F.3d at 1534
    . As discussed above, Mr.
    Horstkoetter has cleared this first hurdle. We held above that the Oklahoma
    Highway Patrol cannot constitutionally extend its policy against political signs to
    Mr. Horstkoetter’s situation, namely, where the trooper owns the residential
    property in joint tenancy, and where there is evidence to show that one of the
    other joint tenants, rather than the trooper, placed the sign at the residence.
    Next, he must show that “the right violated was clearly established at the
    time of the conduct at issue.”    Baptiste , 
    147 F.3d at 1255
    . A right is “clearly
    established” when “[t]he contours of the right [are] sufficiently clear that a
    reasonable official would understand that what he is doing violates that right.”
    Anderson v. Creighton , 
    483 U.S. 635
    , 640, 
    107 S. Ct. 3034
    , 3039, 
    997 L. Ed. 2d 523
     (1987). Although a plaintiff need not show that the very action in question
    was previously held unlawful,     
    id.
     , she must demonstrate that there is a “Supreme
    Court or Tenth Circuit decision on point, or the clearly established weight of
    -27-
    authority from other courts must have found the law to be as the plaintiff
    maintains.” Medina v. City and County of Denver           , 
    960 F.2d 1493
    , 1498 (10th
    Cir. 1992).
    Often, the court’s determination about whether the right is clearly
    established turns on the level of generality to be applied. On a very general level,
    all constitutional rights are clearly established. For instance, in      Anderson the
    Court noted that the Fourth Amendment right to be free from unreasonable
    searches and seizures was clearly established, but held that it was not clear
    whether the Fourth Amendment’s protections extended to the particular factual
    situation at issue in that case.   Anderson , 483 U.S. at 639-40, 107 S. Ct. at 3038.
    Too general an approach “would destroy ‘the balance that our cases strike
    between the interests in vindication of citizens’ constitutional rights and in public
    officials’ effective performance of their duties.’”       Id. at 639 (citations omitted).
    In this circuit, we require “some but not precise factual correspondence” between
    the cases cited and the factual situation in the case at hand.        Lawmaster , 
    125 F.3d at 1351
    .
    Here, Mr. Horstkoetter argues that his wife’s right to display signs, and
    therefore his right not to be punished for her displays, is clearly established. In
    support of that proposition, he cites four cases.       City of Ladue v. Gilleo , 
    512 U.S. 43
    , 
    114 S. Ct. 2038
    , 
    129 L. Ed. 2d 36
     (1994);         Burson v. Freeman , 
    504 U.S. 191
    ,
    -28-
    196-97, 112 S. Ct.1846, 1850, 
    110 L. Ed. 2d 5
     (1992);     Buckley , 
    424 U.S. at 14
    ,
    
    96 S. Ct. at 632
    ; Spence v. Washington , 
    418 U.S. 405
    , 
    94 S. Ct. 2727
    , 
    41 L. Ed. 2d 842
     (1974). All of these cases stand for propositions far too general to assist
    Mr. Horstkoetter here; none of the cited cases deals at all with the rights of public
    employees or their spouses.     Burson and Buckley contain only the most general
    statements to the effect that political speech is entitled to the highest protections.
    And Ladue and Spence deal only with the rights of persons who are not public
    employees, and give no guidance at all to government employers about how to
    handle situations where otherwise lawful restrictions on the political speech of
    public employees incidentally impact the speech of those employees’ spouses. As
    such, these cases cannot assist Mr. Horstkoetter in showing that the law at the
    time was clearly established.
    Mr. Horstkoetter cites no other cases in support of his contention that the
    law was clearly established. Both this court and the district court conducted
    exhaustive research on the issue, and were unable to find any cases which set
    forth the contours of the limits of government’s power to indirectly restrict the
    political speech of public employees’ spouses.
    In sum, the rights of a spouse of a law enforcement officer to display signs
    at her residence were not clearly established at the time of Defendants’ actions.
    Defendants’ interpretation of their policy, in view of the law at the time, was not
    -29-
    clearly unlawful. Therefore, defendants Grimes, Cason and Warlick are entitled
    to qualified immunity. Mr. Horstkoetter is not entitled to a damages award
    against these Defendants. The district court properly entered summary judgment
    in favor of Defendants as to the claims of L.D. Horstkoetter.
    II.    The Claims of Paula Horstkoetter and Kimberly Dean
    Before we may reach the merits of Ms. Horstkoetter’s and Ms. Dean’s
    claims that their First Amendment rights were violated, we must first decide
    whether Ms. Horstkoetter and Ms. Dean have standing to bring their claims.
    Standing is a concept rooted in Article III of the U.S. Constitution, which requires
    that federal courts hear only actual “Cases” and “Controversies.” U.S. Const. art.
    III, § 2. The “irreducible constitutional minimum” of Article III’s case-or-
    controversy requirement contains three elements.        Lujan v. Defenders of Wildlife   ,
    
    504 U.S. 555
    , 560, 
    112 S. Ct. 2130
    , 2136-37, 
    119 L. Ed. 2d 351
     (1992);
    Committee to Save the Rio Hondo v. Lucero          , 
    102 F.3d 445
    , 447 (10th Cir. 1996).
    First, the plaintiff must have suffered an “injury in fact” that is “concrete” rather
    than “conjectural or hypothetical.”      Lujan , 504 U.S. at 560, 112 S. Ct. at 2130.
    Second, the plaintiff must show that there is a “causal connection between the
    injury and the conduct complained of.”       Id. Finally, the plaintiff must show that
    -30-
    it is “likely” and not merely “speculative” that the injury complained of will be
    “redressed by a favorable decision.”   Id. , 504 U.S. at 561, 112 S. Ct. at 2130.
    Here, Defendants claim that the troopers’ wives do not have standing
    because they do not allege an “injury in fact.” Ms. Horstkoetter and Ms. Dean
    claim, in turn, that they were injured because, in order to spare their husbands’
    jobs, they were required to remove their signs from their private yards. We hold
    that, because they were never in danger of being directly punished under the
    policy, Ms. Horstkoetter and Ms. Dean have standing only to raise the same
    claims as their husbands, and do not have standing to raise any separate claims of
    their own.
    By its own terms, the policy can only apply to troopers, and not troopers’
    spouses. It is true that the Oklahoma Highway Patrol interpreted the policy to
    restrict the property rights of the spouses as well. Indeed, Col. Lockwood told
    Ms. Horstkoetter that because she was married to a trooper, “there are certain
    restrictions placed on [her] property.” Appellant’s. App. vol. III, at 58.
    However, the only penalties that can be inflicted upon anyone for violations of the
    policy, even as interpreted by the Oklahoma Highway Patrol, were employment
    sanctions or criminal penalties against the troopers themselves. Under the terms
    of the policy itself, there was never any possibility of disciplinary action against
    the wives directly. For instance, the Oklahoma Highway Patrol could not have
    -31-
    fined the wives, could not have imposed any criminal penalties upon the wives,
    or, because they are not troopers, taken disciplinary action against the wives in
    their respective employment situations. The Oklahoma Highway Patrol could not
    even have, within the law, physically removed the signs from the troopers’ yards.
    In short, had the wives elected to leave the signs in the yard, the only possible
    action the highway patrol could have taken would have been to suspend or
    terminate the troopers themselves. Thus, there is no way that the wives could
    ever have been directly injured by any application of the policy. Therefore, in
    view of the fact that the state is not regulating their speech, the wives do not have
    standing to mount a separate and independent First Amendment challenge to the
    policy. The district court erred in holding that the wives had standing to raise
    separate claims, and therefore also erred in assessing the wives’ claims under a
    different level of scrutiny than the husbands’ claims.
    However, Ms. Horstkoetter and Ms. Dean were, without question, indirectly
    injured by the application of the policy to their husbands, because their husbands
    were faced with a loss of income which would have affected the entire family.
    See Ben Oehrleins & Sons & Daughter v. Hennepin County        , 
    115 F.3d 1372
    , 1379
    (8th Cir. 1997) (stating that “indirect economic injury constitutes injury in fact”
    if, while indirect, the injury “is neither speculative nor merely incidental”). This
    indirect injury is, however, only enough to confer standing to raise, derivatively,
    -32-
    the same claims as their husbands raised. In other words, based on this injury, the
    wives’ claims would in essence be that the state cannot constitutionally discipline
    their husbands for having political signs on their residential property, the same
    claim raised by their husbands. Thus, both the wives and the husbands have
    standing to challenge the constitutionality of the policy. However, the claims of
    the troopers’ wives are exactly the same, and would be analyzed under the same
    standards, as the claims of the troopers themselves.
    For the reasons discussed above, the troopers’ claims fail, and therefore the
    claims of their spouses must necessarily fail with them. Accordingly, the district
    court properly entered summary judgment in favor of Defendants as to the claims
    of Paula Horstkoetter and Kimberly Dean.
    CONCLUSION
    Accordingly, we AFFIRM the district court’s grant of summary judgment in
    favor of the defendants as to all claims. It is so ordered.
    -33-
    

Document Info

Docket Number: 97-6367

Citation Numbers: 159 F.3d 1265

Judges: Anderson, Baldock, Holloway

Filed Date: 10/28/1998

Precedential Status: Precedential

Modified Date: 8/3/2023

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