Federal appeals court rejects fired police officers’ free-speech case

Monday, July 12, 1999

A federal appeals court has rejected the First Amendment retaliation lawsuit
of two Texas police officers who were discharged after filing a grievance
against the police chief.

Officers Tom Teague and David Burkett sued the city of Flower Mound, Texas,
and Chief of Police Dave Brungardt after they were fired.

Brungardt said the officers were fired after a private investigator concluded
that they had too many cases backlogged.

However, the officers argued that the real reason for their discharge was
because they filed a grievance against Brungardt over how he handled the
investigation of a fellow officer.

Teague and Burkett had launched an investigation, with department approval,
into another police officer whom they suspected of wrongdoing, including
perjury. When Brungardt learned of the investigation, he removed Teague and
Burkett from the case and hired a private firm to investigate the officer.

After the private firm cleared the officer of wrongdoing, Teague and Burkett
complained to an assistant district attorney and filed their grievance over
Brungardt's handling of the situation.

Shortly after the grievance was filed, Brungardt launched an investigation of
Teague and Burkett. In June 1996, they were discharged.

Teague and Burkett then sued in federal court, claiming several
constitutional violations. These included unlawful retaliation for the exercise
of their First Amendment rights, denial of their right to petition and a
due-process claim.

After a federal judge dismissed their case, the officers appealed in March
1998 to the 5th U.S. Circuit Court of Appeals. They appealed only on the
First Amendment retaliation claim.

Last week, the 5th Circuit rejected their appeal in Teague v. City of
Flower Mound
. The court noted that public employees have to show four
elements in a First Amendment retaliation claim:

  1. Plaintiff must suffer an adverse employment decision.

  • Plaintiff's speech must involve a matter of public concern.
  • Plaintiff's interest in free speech must outweigh the defendant's interests
    in an efficient workplace.
  • Plaintiff's speech must have motivated the defendant's action.

  • The 5th Circuit on July 6 dismissed the police officers' claim,
    ruling that their speech was more a matter of private than public concern.

    “The instant case involves speech that is of both public and private
    concern,” the court wrote. “We know that it involves a matter of public concern,
    because our circuit's caselaw has established that speech regarding police
    misconduct constitutes a matter of public concern.”

    However, the court focused on the fact that the speech was private because it
    involved the conditions of employment.

    When presented with a “mixed speech” case, the 5th Circuit
    said it must examine three factors — content, context and form — to determine
    whether the speech is primarily public or private.

    “In terms of content, we acknowledge that the speech in question was
    predominately public,” the court wrote. However, the court ruled that the
    context and the form of the speech were private.

    The court said the officers' grievance was made in “the setting of a
    employee-employer dispute.” As for form, the 5th Circuit
    wrote “the speech in question is undeniably private in form.”

    “When taken as a whole, the statements of Teague and Burkett were primary of
    private concern,” the court concluded. “Although interspersed with apparently
    genuine concerns regarding police wrongdoing, Teague's and Burkett's grievances
    were primarily motivated by, and primarily addressed, concerns particular to
    their private interests.”

    Russell Howard Daniels, attorney for the two officers, characterized the
    decision as “troubling.”

    “In my opinion as a matter of law, this speech was clearly on a matter of
    public concern,” he said. He says
    that his clients have indicated they will probably not appeal the decision.

    Terrence Welch, the attorney representing Flower Mound in the case, called
    the decision a “good one.”

    “We never felt this case was a First Amendment case,” he said. “This was really nothing more than an employment dispute.”