R. LANIER ANDERSON, III, Circuit Judge:
Appellant, Robert Lee Wilson, is a former officer with the police department of Winter Park, Florida. He filed this suit pursuant to § 1 of the Civil Rights Act of 1871, 42 U.S.C.A. § 1983 (West 1974), against various officials of Winter Park (hereinafter referred to collectively as "officials") in their individual and official capacities, alleging he was discharged from the police department without procedural due process, in contravention of his First Amendment right of association, and pursuant to regulations impermissibly vague and facially overbroad. The district court, in an order granting Wilson partial summary judgment, found his procedural due process
We vacate the judgment of the district court. We conclude that there is a genuine issue of fact as to why Wilson was discharged. Depending on the resolution of that issue on remand, it may also be necessary for the court below to address Wilson's substantive constitutional claims. In any event, Wilson is entitled to an opportunity to present evidence on his claims that he has incurred actual compensatory damages as a result of the admitted violation of procedural due process. He is also entitled to present evidence on his claim for punitive damages resulting from the procedural due process violation.
FACTS AND POSTURE OF THE CASE
Although most of the facts are undisputed, there is some disagreement as to the content of conversations Wilson had with various officers of the Winter Park Police Department relevant to the issue of why Wilson was discharged. Since this case was decided on summary judgment, we resolve all factual discrepancies in favor of Wilson.
Wilson was hired by the Winter Park Police Department on June 3, 1971, as a probationary police officer and was assigned to the Uniformed Patrol Division. A year later, pursuant to the City's Civil Service Regulations, Wilson's probationary status ceased and he became a permanent employee.
Late in 1971, Wilson became acquainted with Susan Blackburn, the adopted daughter of Harlan Blackburn, a convicted felon who was reputed to be a key figure in organized crime in Central Florida. At that time, Wilson knew of Harlan Blackburn's reputation as a member of organized crime. In early 1974, Wilson asked Officer Jerry King, a member of the Vice Squad, whether Susan Blackburn had a clean record. When advised that she did, Wilson began dating Susan. Detective Hugh H. Dearing, Commander of the Investigation Unit, shortly thereafter learned that Wilson was dating Susan. He informed Police Chief Raymond E. Beary who indicated that Wilson's association with Susan was proper so long as he did not associate with Harlan. There is no indication in the record that this restriction on Wilson's seeing Harlan Blackburn was communicated to Wilson. For approximately the next year and a half, there was no objection to Wilson's seeing Susan Blackburn, even though they continued dating.
In May, 1975, Wilson's association with Susan brought him into contact with Harlan Blackburn for the first time. About May 9, 1975, at the request of Susan, and while Wilson was not on duty, Wilson accompanied her on an automobile drive to Avon Park Correctional Institution where they picked up Harlan, who had been temporarily released from confinement on an appeal bond.
Later that month, Wilson told Detective Dearing he had picked up Harlan Blackburn at the Avon Park Correctional Institution and had eaten dinner with him twice. About May 16, 1975, at Dearing's request, Wilson had a meeting with Dearing who stated that Chief Beary had asked Wilson to terminate his association with Susan. (Record on Appeal, p. 309). Although Dearing indicated his meeting with Wilson was in strict confidence, immediately after the meeting Wilson was approached by fellow officers who questioned his ability to continue as chairman of the Collective Bargaining Committee of the Local Fraternal Order of Police in light of the department's concern over his activities.
Wilson's sworn testimony concerning this meeting is that most of the discussion was about his association with Susan. His impression was that Chief Beary understood the only reason he had any contact with Harlan was because of his dating Susan. Wilson testified that he had already determined on his own not to see Harlan again. (Record on Appeal, pp. 638-639). At this meeting, Wilson promised not to see Susan again, but denies being asked to promise not to see Harlan again. (Record on Appeal, p. 145 and pp. 638-9, and Supp. Record on Appeal, pp. 63-64). Wilson states that it was understood among the participants that he would not associate with Harlan again.
Shortly thereafter, Wilson called Deputy Chief Aurbeck and reneged on his promise not to see Susan Blackburn again. (Record on Appeal, pp. 143-145; 738-740). Deputy Chief Aurbeck states under oath that Wilson indicated he could not keep his promise not to see "the Blackburn family" again.
During the suspension period, at the request of Chief Beary, Wilson and Dearing met for further discussion of Wilson's relationship with the Blackburns. The meeting was recorded and its purpose, though apparently not communicated to Wilson, was for Dearing to formulate a recommendation on whether or not Wilson should be disciplined. The transcript reveals that Dearing began the interview eliciting a history of Wilson's association with Susan. Dearing
Dearing conveyed the substance of this meeting to Deputy Chief Aurbeck, who recommended to Chief Beary that some disciplinary action be taken against Wilson. On June 13, 1975, Deputy Chief Aurbeck requested Wilson's resignation. Wilson refused to resign. Aurbeck then brought Wilson before Chief Beary, who informed Wilson that he was fired, effective immediately.
Wilson timely invoked his right to appeal his dismissal to the City's Civil Service Board. The Board granted him an informal hearing on August 5, and at its conclusion voted to rescind the termination notice effective upon the completion of a six-month disciplinary suspension. Dissatisfied with the Board's decision, Chief Beary instituted, without formal notice to Wilson, an appeal to the Winter Park City Commission. After a public hearing, also held without formal notice to Wilson, the Commission members present voted to overrule the Civil
Wilson thereupon filed this suit. The district court, in a partial summary judgment order dated September 1, 1978, found that Wilson had a property interest in his employment affording him rights to procedural due process.
In timely fashion, the police department notified Wilson of the remedial hearing before the City Commission and sent him a copy of the June 13 memorandum as the reasons the police department would be seeking Wilson's dismissal. At a bifurcated hearing before the City Commission on October 26, 1978, and on November 21, 1978, Wilson and his attorney were allowed to address the Commission. At the November 21 meeting, the Commission adopted the findings of the Civil Service Board that Wilson had violated Section 35 of the Civil Service Rules and Sections 22.214.171.124 and 126.96.36.199 of the Standard Operating Procedure Manual. The Commission overruled the Board's action in supplanting termination with suspension, and reinstated the dismissal of Wilson.
After the remedial hearing before the City Commissioners, the parties renewed their motions for summary judgment. After a hearing on the renewed motions, the district court found that any procedural defects in Wilson's dismissal had been cured by the October 26 and November 21 meetings of the City Commission. The district court then turned to Wilson's substantive constitutional claims. The district court found that no material fact remained in dispute. The district court relied upon the memorandum given to Wilson when he was terminated, plus Wilson's sworn statements, to find that the "basic cause" Wilson was dismissed was his close, personal contact with Harlan. (Record on Appeal, p. 1172). It rejected Wilson's allegation that he was dismissed because of his association with Susan, noting that it was only after Wilson had come into contact with Harlan that the police department objected to his seeing Susan. The district court concluded that the police department, by requiring Wilson to terminate his relationship with Susan, was taking reasonable precautions to insure that Wilson would not reestablish his contact with Harlan, finding there to be no basis to assume that Wilson's seeing Susan would not again result in a contact with Harlan. It concluded that the police department had a compelling interest in preventing personal contact between a police officer and a convicted felon which might and, in the district court's view, did result in a loss of morale and integrity to the police force. On the basis of these findings, the district court held that Wilson's associational rights under the First Amendment had not been violated. With respect to Wilson's Fourteenth Amendment vagueness claims, the district court concluded that the regulations were not impermissibly vague and that because the regulations clearly applied to association with convicted felons, Wilson lacked standing to argue vagueness as applied to other contexts. Finally, the district court found only a procedural due process violation which had been subsequently cured and concluded that Wilson was entitled only to nominal damages.
PROPRIETY OF SUMMARY JUDGMENT: FIRST AMENDMENT RIGHT OF ASSOCIATION CLAIM
Although the primary issue for us to decide is whether a genuine issue of material
A fundamental proposition in our constitutional jurisprudence is that government employment may not be conditioned upon a relinquishment of a constitutional right, including the rights to speech and association guaranteed under the First Amendment. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2473, 49 L.Ed.2d 547 (1976). No public employee can be dismissed from his job for a constitutionally infirm reason.
In determining whether Wilson was fired for a reason infringing upon his constitutionally-protected freedom of association, the court must apply a tripartite test derived from Mt. Healthy City School District Board of Education v. Doyle, supra, and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See also Bickel v. Burkhart, 632 F.2d 1251 (5th Cir. 1980); Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir. 1980), rehearing en banc granted, 640 F.2d 12 (5th Cir. 1981). First, it must be determined whether the activity or speech in question constituted a "substantial" or "motivating" factor in the employee's being dismissed. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. at 287, 97 S.Ct. at 576. Second, it must be determined whether such activity or speech is constitutionally protected. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), a case involving speech by a school teacher, announced the paradigm test for making this determination:
Quoted in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 564, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973). See also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). The fact that Wilson is a policeman does not obviate the need to balance the interests of the employee against the interests of the governmental employer: "[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); Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978); Kannisto v. City and County of San Francisco, 541 F.2d 841 (9th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1977). On the other hand, because being a policeman is public employment with unique characteristics, not the least being the promotion of safety of persons and property, several courts have read into the Pickering balance more deference to the state interest in preserving the morale and integrity of police departments than might be appropriate in other contexts. Byrd v. Gain, 558 F.2d 553 (9th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978); Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970); Gasparinetti v. Kerr, supra; see also Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) (affording lessened protection to policeman's Fourteenth Amendment liberty interest). Third, if it is determined that the speech or activity is constitutionally protected, the court must ascertain whether the employee would have been fired even in the absence of such speech or activity. Mt. Healthy City School District Board of Education v. Doyle, supra; Van Ooteghem v. Gray, supra.
Wilson does not contest the district court's finding that association with Harlan Blackburn — a known and convicted felon, and reputedly a leader of organized crime — is not a constitutionally protected activity. Instead, he alleged that he was dismissed
In passing on Wilson's argument, we note the posture of this case. We are not reviewing a finding of fact made by the district court after a trial on the merits; rather, we must decide whether the district court properly granted summary judgment for the officials. In this posture, we must not only resolve all factual discrepancies in Wilson's favor, but also we must make all reasonable inferences in Wilson's favor. Constrained by this standard of review, we hold that a genuine issue remains as to whether Wilson was dismissed because of his refusal to stop associating with Susan. The district court, in rejecting Wilson's claim that he was dismissed for associating with Susan stated, "[T]he decision [of the police department] must be viewed in the totality of the circumstances." (Record on Appeal, p. 1172). In viewing the police department's decision in light of the "totality of the circumstances," the district court strayed from the requirement that all reasonable inferences be drawn in favor of the party opposing the summary judgment motion.
Several facts, and reasonable inferences therefrom construed favorably to Wilson, compel this conclusion. In his May 16 meeting with Chief Beary, Deputy Chief Aurbeck and Detective Dearing, Wilson promised not to see Susan, and made clear his intention not to see Harlan again. It was only when he reneged on his promise not to see Susan again that he was dismissed. He has at no time reneged on the understanding that he would not associate with Harlan again. The tape recorded interview with Detective Dearing, held after Wilson had reneged on his promise not to see Susan, was concerned primarily with establishing an accounting of Wilson's association with Susan and with a discussion about her background. Detective Dearing during this interview indicated that Susan had come under suspicion of a state and municipal agency. The memorandum given to Wilson when he was dismissed listed as one reason for dismissal, his dating Susan Blackburn. A reasonable inference from these facts is that while the police department believed Wilson would not see Harlan again, they had concluded they could no longer tolerate his dating Susan.
The district court rejected Wilson's claim that he was discharged because of association with Susan on the ground that, insofar as the officials were concerned about association with Susan, they were motivated only by a concern that this association would necessarily lead to an association with Harlan. The district court in effect made two findings in so reasoning. The first was a finding of fact that, insofar as the police department's discharge of Wilson was motivated by Wilson's refusal to terminate his relationship with Susan, it was to prevent contact with Harlan. The second was that it was necessary and appropriate to limit association with Susan to prevent association with Harlan. The district court assumed that because Wilson's relationship with Susan led to personal association with Harlan, even though Wilson had been cognizant of Harlan's reputation, there was no basis to assume that a continuing relationship with Susan would not again result in a recurrence of association with Harlan. (Record on Appeal, pp. 1173-74).
We also find improper, in the summary judgment context of this case, the finding that terminating Wilson's association with Susan was necessary to prevent association with Harlan. Any restriction on an individual's right of association must be closely drawn in order to avoid unnecessary abridgement of associational freedoms. Elrod v. Burns, 427 U.S. at 362-63, 96 S.Ct. at 2684-2685. Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976); Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir. 1977). If it is determined at trial that the officers were motivated by a belief that any association with Susan would necessarily result in contact with Harlan, then a determination would have to be made of whether continuing the relationship with Susan presented an undue risk of association with Harlan. In this summary judgment context, we think a reasonable inference is that Wilson could avoid association with Harlan while continuing to see Susan. Wilson had known Susan for approximately three and one-half years and had been dating her for almost a year and a half before he had any personal association with Harlan.
An unusual feature in this case bolsters our conclusion that summary judgment was inappropriate. In their answer, and in their two amended answers to Wilson's complaint, the officials have in effect denied that Wilson was discharged for the reasons set forth in the memorandum he received on June 13 and relied upon by the district court.
Fed.R.Civ.P. 56(c) states that summary judgment shall be granted if the pleadings, together with other materials on file, shall show there is no material issue of fact. The language is mandatory, requiring that pleadings be included among those documents submitted in support of a motion for summary judgment. Consistent with this reading, courts have stated that a district court is obligated to consider not only material specifically offered in support of the motion, but also must consider all pleadings, depositions, answers to interrogatories, and admissions properly a part of the record. Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); Moore, Federal Practice, ¶ 56.13 (1976) ("[W]hile the pleadings are to be considered on a motion for summary judgment, they do not have controlling force.") The officials have in effect pleaded that Wilson was dismissed because he continued to associate with Harlan Blackburn after receiving specific instructions to the contrary. This fact is not supported by the officials' affidavits or testimony and is expressly controverted by Wilson. While the denial by the officials of the reasons stated in the June 13 memorandum in their pleadings may be a mistake, it is a mistake which should not be overlooked or resolved on a summary judgment motion. Nor do we believe it appropriate for the district court to rely on this memorandum in light of the officials' denial of it in their pleadings. We do not imply that a movant for summary judgment necessarily loses if there is any discrepancy between his pleading and the facts presented in support of his motion. In this case, however, motivation is material, indeed crucial, and the inconsistency is too important to be overlooked. Moreover, the officials have offered no support for their affirmative defense, and have in some cases made sworn statements inconsistent with this pleading.
Wilson clearly exercised poor judgment in allowing his friendship with Susan to lead to social association with Harlan. On appeal, Wilson has not attempted to defend his association with Harlan or to attack the district court's holding that a police department has a compelling interest to limit off-duty association with felons. He has limited his attack on this issue to whether there was a genuine issue of fact as to why he was discharged. Our holding is similarly limited. There remain questions as to the motivation of the police department and the extent to which Wilson's refusal to terminate his association with Susan played a role in the officials' actions. Depending on the determination of these questions, the district court will have to determine whether association with Susan is protected by the First Amendment and, perhaps, whether restrictions on association with Susan were necessary to insure no further association with Harlan.
Wilson claims that Rule 35 of the Civil Service Rules and Sections 188.8.131.52,
PROCEDURAL DUE PROCESS CLAIM: SECOND HEARING
Wilson maintains that the second hearing before the City Commissioners did not comport with the district court's order of September 1, 1978, and did not comply with procedural due process. He argues that the notice of the second hearing did not specify the grounds on which the City Commission could overrule the Civil Service Board's decision. This is the only procedural due process attack he makes upon the second, remedial hearing before the City Commissioners. The October 4, 1978, letter from James A. Driver, Mayor of Winter Park, to Wilson sets forth the June 13 memorandum as containing the grounds on which Chief Beary would seek Wilson's termination before the City Commissioners. The district court correctly found that this letter gave Wilson adequate notice of the reasons his discharge would be sought at the remedial hearing. Accordingly, we find that the requirements of due process have been met in the October 26 and November 21 remedial hearings.
DAMAGES FROM DEPRIVATION OF DUE PROCESS
We recall that there was an undisputed deprivation of procedural due process with respect to Wilson's pretermination rights and the first posttermination hearing before the City Commission.
In a sworn interrogatory, Wilson specified that he was seeking punitive damages as a result of the deprivation of procedural due process. Without specifying the cause of the injury, he also indicated he was seeking compensatory damages consisting of back pay, educational benefits and retirement investments, from the date of his dismissal until November 21, 1978, the date of the procedurally proper hearing, as well as future losses after November 21, 1978. He also claimed damage to his career, his personal reputation, and mental anguish, again without specifying the cause. During a February 6, 1979, hearing on the renewed motions for summary judgment, the district court indicated its skepticism that Wilson would be able to prove any compensatory damages solely from the deprivation of procedural due process, citing Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Despite its skepticism that Wilson would be able to introduce such evidence, the district court made clear Wilson would have an opportunity at a later date to introduce evidence on the issue.
The district court subsequently rendered its decision awarding Wilson only nominal damages on the procedural due process violation without having given Wilson the promised evidentiary hearing.
Insofar as the district court believed Carey v. Piphus limited possible damages from violations of procedural due process to nominal damages, it was mistaken. With respect to deprivation of procedural due process, that case held only that "in the absence of actual injury, [plaintiffs] are entitled to recover only nominal damages." 435 U.S. at 248, 98 S.Ct. at 1044 (emphasis added). Carey v. Piphus makes it clear that if a plaintiff can prove actual damages resulting solely from the deprivation of procedural due process, the plaintiff is entitled to damages. The Supreme Court stated:
435 U.S. at 254, 98 S.Ct. at 1047.
With respect to Wilson's actual damage claims, we think he should be allowed the opportunity to present his evidence of damages resulting from the deprivation of procedural due process. Although we too are skeptical that Wilson will be able to prove that deprivation of procedural due process contributed to damage to his career and reputation, he must be given the opportunity, as the district court promised. Rodriguez de Quinonez v. Perez, 596 F.2d 486 (1st Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 78, 62 L.Ed.2d 51 (1979) (remanding for determination whether procedural due process violation contributed to damage to reputation). One of the elements of damage the Supreme Court indicated was recoverable for denial of procedural due process
The Supreme Court in Carey v. Piphus expressed no opinion as to whether punitive damages might be awarded in a proper case under § 1983 with the specific purpose of deterring or punishing violations of constitutional rights. 435 U.S. at 257, n.11, 98 S.Ct. at 1049, n.11. This circuit, however, has held that punitive damages may be awarded in a § 1983 action even without actual loss, despite local law to the contrary. McCulloch v. Glasgow, 620 F.2d 47 (5th Cir. 1980); Mansell v. Saunders, 372 F.2d 573 (5th Cir. 1967); see also Brown v. Bullard Independent School District, 640 F.2d 651 (5th Cir. 1981). Accordingly, on remand the district court should hear whatever evidence Wilson may present on the punitive damage issue.
Of course, if Wilson is unable to prove any actual damage from the deprivation of procedural due process, he may receive nominal damages under Carey v. Piphus, 435 U.S. at 266-67, 98 S.Ct. at 1053-1054.
The question of whether Wilson may recover back pay, educational benefits and retirement benefits for solely a procedural due process violation is more difficult in this circuit. Wilson argues strenuously that he is entitled to these payments from his dismissal on June 13 until the procedurally adequate hearing on November 21, 1978. An analogous question was considered by the Supreme Court in Carey v. Piphus. There students were suspended from school without being afforded appropriate procedural due process. The Seventh Circuit remanded the case to the district court, holding, inter alia, that "the District Court should have considered evidence submitted by ... [the students] to prove the pecuniary value of each day of school that they missed while suspended," but further holding that such damages would not be recoverable if the school officials "showed on remand `that there was just cause for the suspension[s] and that therefore ... [the students] would have been suspended even if a proper hearing had been held.'" 435 U.S. at 252, 98 S.Ct. at 1046. In this regard, the Supreme Court held:
435 U.S. at 260, 98 S.Ct. at 1050. The Carey students' loss of the value of their time in school is analogous to the instant plaintiff's loss of the value of his time at work, i. e., back pay. The analogy was explicitly recognized by the Supreme Court in Carey, when it referred to, and implicitly disapproved of, four circuit court cases in the public employee context. 435 U.S. at 260, n. 15, 98 S.Ct. at 1050, n. 15. In all four cases,
This circuit has not addressed the question of whether Carey v. Piphus precludes awards of back pay for violations of only procedural due process. Three cases in this circuit decided since Carey have indicated those panels' assumption that procedural due process does merit an award of back pay, but with no mention of Carey and no indication that the pertinent Carey language was brought to the attention of those panels.
In Glenn v. Newman, 614 F.2d 467 (5th Cir. 1980), a policeman was dismissed with a pretermination procedure which was constitutionally defective. At a later posttermination proceeding complying with the requirements of due process, the discharge of the policeman was reaffirmed. Although there was no claim of a violation of a substantive constitutional right and although the posttermination proceeding cured any constitutional due process deficiency in the pretermination proceeding, we remanded for a determination of back pay from the time of the policeman's termination until the adequate posttermination proceeding. 614 F.2d at 473.
It is the firm rule of this circuit that we cannot disregard the precedent set by a prior panel, even though we perceive error in the precedent. Absent an intervening Supreme Court decision which changes the law, only the en banc court can make the change. Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. 1981); Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976), majority opinion adopted by en banc court, 550 F.2d 342 (5th Cir. 1977); Davis v. Estelle, 529 F.2d 437 (5th Cir. 1976). Application of
Wilson asked for attorney's fees below. The district court denied such fees on grounds that because Wilson had been awarded only nominal damages for the procedural due process violation, he had won a "moral victory" at most, citing Huntley v. Community School Board of Brooklyn, 579 F.2d 738 (2d Cir. 1978). Wilson does not argue to this court that he is entitled to attorney's fees if he obtains only nominal damages on remand.
Wilson raises other arguments to this court which we find to be meritless and reject.
VACATED AND REMANDED FOR ACTION CONSISTENT WITH THIS OPINION.