Donaggio v. Arlington County Va ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN DONAGGIO,
Plaintiff-Appellant,
v.
No. 95-1842
ARLINGTON COUNTY, VIRGINIA;
WILLIAM K. STOVER, Chief,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-94-1277-A)
Argued: January 31, 1996
Decided: February 28, 1996
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Michael Tarcissius Leibig, ZWERDLING, PAUL, LEI-
BIG, KAHN, THOMPSON & WOLLY, P.C., Fairfax, Virginia, for
Appellant. Ara Loris Tramblian, Deputy County Attorney, Arlington,
Virginia, for Appellees. ON BRIEF: Barbara S. Drake, County
Attorney, Arlington, Virginia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
An Arlington County police officer, John Donaggio, brought this
action pursuant to 42 U.S.C. § 1983 against the County and its police
chief, William Stover, asserting violations of the First and Fourteenth
Amendment. Donaggio alleged that the defendants forced him to par-
ticipate in a demonstration of uniformed officers at the Capitol build-
ing in Washington, D.C., to support legislation banning assault
weapons, legislation that Donaggio opposed. The district court
granted summary judgment to the defendants. Donaggio v. Arlington
County, 880 F. Supp. 446 (E.D. Va. 1995). We affirm.
As Donaggio concedes, Appellant's Brief at 3, the district court
"correctly stated" the undisputed material facts. See, Donaggio, 880
F. Supp. at 450-53. Accordingly, there is no need to restate them here.
After setting forth the facts, the district court held: (1) "[i]t was not
unconstitutional for the County, through Chief Stover, to organize and
pay its police officers to demonstrate in favor of the bill if the officers
voluntarily and knowingly agreed to do so" id. at 457; (2) because
Donaggio "was not compelled to take part in the demonstration at the
Capitol, his constitutional right to refrain from speaking was not
infringed," id. at 459-60; (3) even assuming that Donaggio was com-
pelled to "speak" by being required to attend the demonstration, the
defendants were not liable to him because "they were not the authors
of the compulsion," id. at 460-61; and (4) in any event, qualified
immunity barred Donaggio's claim against Chief Stover. Id. at 463.
Donaggio appeals only the first holding.* He asserts that the dis-
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*Thus, Donaggio specifically disavows any appeal of the district
court's other holdings, including its conclusion that he was not forced to
attend the demonstration. Although Donaggio concedes that he was not
compelled to demonstrate, he nonetheless insists that his participation
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trict court erred in concluding "that no First Amendment issue [was]
raised" if Donaggio's participation in the demonstration was not com-
pelled. Reply Brief at 4. We have carefully considered the briefs and
arguments of the parties and the authorities cited therein, and con-
clude that the district court properly rejected this argument. Accord-
ingly, we affirm for the reasons stated in the district court's thorough
opinion. See Donaggio, 880 F. Supp. at 453-57.
AFFIRMED
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was not voluntary because he objected to the speech. Relying on several
Supreme Court cases, e.g. Abood v. Detroit Bd. of Educ., 431 U.S. 209(1977), Donaggio asserts that a plaintiff need not"stand pat and fight"
compelled speech in order to challenge it, but must merely object to it.
Even if Donaggio is correct--a question we need not decide here--this
argument does not assist him. The critical flaw in Donaggio's reasoning
is that whether the plaintiff merely objects or fights, the speech must be
compelled in order to be actionable. Based on Donaggio's earlier conces-
sion and on the undisputed facts, Donaggio can at best claim that he
objected to speech that was not compelled. In contrast, each of the free
speech cases on which Donaggio relies involves a challenge to com-
pelled speech. See e.g. Abood, 431 U.S. at 235-36.
3