Thursday, September 6, 2007
Court Rejects Suit by Police Officer Fired for Role in Sex Videos
Ninth Circuit Panel Rebuffs Arizona Man’s First Amendment, Privacy Claims
By KENNETH OFGANG, Staff Writer
An Arizona city did not violate the First Amendment or privacy rights of a police officer whom it fired for his involvement with a Web site that included sexually explicit photos of both the officer and his wife, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A three-judge panel affirmed the grant of summary judgment to the City of Chandler and its police chief in Ronald and Megan Dible’s suit for violation of federally protected rights under 42 U.S.C. Sec. 1983 and various torts under Arizona law.
A majority of the panel said the city had the right to terminate Ronald Dible’s employment because his extracurricular activities were detrimental to the city, while a concurring jurist argued that those activities were constitutionally protected, but said the city had the right to fire Dible anyway because he lied about his involvement.
Dible was fired five years ago after his superiors learned that he was running the site and conducted an internal investigation. The site featured photographs of the Dibles and another woman in various sexual poses and activities, as well as a sexually explicit videotape of Megan Dible that investigators concluded was made by Ronald Dible.
Evidence was also presented that the Dibles promoted their site at “bar-meets” open to the public at which attendees took photographs of the Dibles, sometimes in suggestive poses with each other and with other people. Those pictures were printed compiled on a CD-ROM that was sold through the site.
While Ronald Dible was on administrative leave and the police were investigating, the local press reported the story. The result, a police lieutenant said in a declaration, was that morale in the department “really hit bottom.”
Others said that the publicity hurt recruiting efforts, especially among women, and that officers were publicly ridiculed for their association with the Chandler department.
Dible was eventually fired for bringing discredit to the department and for lying to investigators by claiming that he was not involved with the site. The city’s Merits Board upheld the firing.
In granting summary judgment to the city, U.S. District Judge James A. Teilborg rejected the Dibles’ contention that their activities were protected as employee speech.
Ninth Circuit Senior Judge Ferdinand Fernandez agreed wit the trial judge, noting that Supreme Court precedent limits a public entity’s ability to discipline an employee for speech on matters of public concern. The Dibles, he noted, acknowledged that their sole motive for creating and promoting the Web site was to make money.
Ronald Dible’s actions “were vulgar and indecent,” Fernandez wrote, and “did not contribute speech on a matter of public concern.”
The city, he went on to say, had the right to protect police morale and its public image by firing an officer who had disgraced it.
“The City could properly take notice of the fact that officers and the department were vilipended. It could react to the effects that Ronald Dible’s activities could be expected to and did have upon the police department’s mission and functions. To paraphrase Justice Holmes: Ronald Dible may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the City at the same time.”
Chief Judge Mary M. Schroeder concurred in the opinion, while Senior Judge William Canby Jr. concurred separately.
Canby argued that while “pornography...is not a very respected subject of First Amendment protection in many quarters,” it is protected by the First Amendment as long as it is not obscene, and there was no showing that Dible was guilty of obscenity. To fire Dible for engaging in constitutionally protected activity, Canby argued, the city was required to show that it suffered harm that was “real, not merely conjectural,” a standard that Canby said the city failed to meet.
Canby concluded, however, that the city was entitled to summary judgment because it would have, and legally could have, fired Dible solely for lying during the internal investigation.
While the activity may have been constitutionally protected, Canby explained, the city had a legitimate interest in investigating, at least to determine whether Dible had engaged in unapproved outside employment in violation of department policy. “Nothing in the nature of the investigation entitled Dible to lie,” the jurist wrote.
Canby also agreed with the majority that the police chief could not be held personally liable, under the doctrine of qualified immunity, since the rights asserted by Dible were not “clearly established” by case law at the time of his firing.
The case is Dible v. City of Chandler, 05-16577.
Copyright 2007, Metropolitan News Company