Dible v. City of Chandler ( 2008 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    RONALD DIBLE; MEGAN DIBLE,                    No. 05-16577
    husband and wife,                                D.C. No.
    Plaintiffs-Appellants,        CV-03-00249-JAT
    v.                              ORDER
    CITY OF CHANDLER, a municipality               AMENDING
    in the State of Arizona; CHANDLER             OPINION AND
    POLICE DEPARTMENT, a law                      CONCURRING
    enforcement agency of the City of            OPINION AND
    Chandler; BOBBY JOE HARRIS,                     DENYING
    Chandler Police Chief and                     APPELLANT’S
    husband; JUDY HARRIS, wife,                   PETITION FOR
    Defendants-Appellees.         REHEARING AND
    FOR REHEARING
    EN BANC AND
    AMENDED
            OPINION
    Appeal from the United States District Court
    for the District of Arizona
    James A. Teilborg, District Judge, Presiding
    Argued and Submitted
    June 11, 2007—San Francisco, California
    Filed September 5, 2007
    Amended February 1, 2008
    Before: Mary M. Schroeder, William C. Canby, Jr., and
    Ferdinand F. Fernandez, Circuit Judges.
    Opinion by Judge Fernandez;
    Concurrence by Judge Canby
    1629
    1632              DIBLE v. CITY OF CHANDLER
    COUNSEL
    Keith M. Knowlton, Keith M. Knowlton, L.L.C., Mesa, Ari-
    zona, for the plaintiffs-appellants.
    Katherine E. Baker, Green & Baker, Scottsdale, Arizona, for
    the defendants-appellees.
    ORDER
    The opinion which appears at slip op. 11501 (9th Cir. Sept.
    5, 2007) is amended as follows:
    (1) The first full paragraph at slip op. 11506 is hereby
    revoked and the following is substituted in its place:
    Ronald Dible believed, indeed most likely knew,
    that his position in the disreputable sexually explicit
    website business was not compatible with his posi-
    tion as a police officer and risked violating the City
    and Police Department rule against engaging “in
    conduct which might bring discredit to the City ser-
    vice.” So he took steps to cover up his participation,
    and in so doing violated the rule that he could not
    engage in outside employment unless he first filled
    out and filed a request to engage in employment out-
    side the department. He did not inform any Depart-
    ment officials about it.1 He did, however, tell a few
    people about it, including a fellow police officer,
    whom he urged to start his own website. The officer
    eventually did.
    DIBLE v. CITY OF CHANDLER                    1633
    (2) The first full paragraph at slip op. 11511 is revoked
    and the following is substituted in its place:
    Of course, as the Court noted, Roe had gone out
    of his way to identify himself with police work. See
    
    id. at 81,
    125 S. Ct. at 524. Perhaps that alone would
    have sufficed to make his activity related to his
    employment. If that were the case, it must be said
    that Ronald Dible did not do what Roe did. Ronald
    Dible took some pains to keep the police out of the
    pictures, but because of other clues and information,
    it became publicly known that he was involved and
    that he was a police officer. In any event, Ronald
    Dible’s attempts to conceal his activity came to
    nought and do not distinguish the underlying situa-
    tion in Roe. Many a rule breaker does so clandes-
    tinely in the hope that his violations will not come
    to light and have untoward consequences. When that
    hope is dashed, the results and consequences for him
    are the same as they would have been if he had bro-
    ken the rules overtly. Roe overtly broke his employ-
    er’s rules (outside employment and immoral
    conduct) and he properly suffered the consequences
    by losing his job. Ronald Dible’s discovered clan-
    destine activity also broke his employer’s rules (out-
    side employment and conduct that brought disrepute)
    and he properly suffered the consequences by losing
    his job. In addition, it can be seriously asked whether
    a police officer can ever disassociate himself from
    his powerful public position sufficiently to make his
    speech (and other activities) entirely unrelated to that
    position in the eyes of the public and his superiors.
    Whether overt or temporarily hidden, Ronald Dible’s
    activity had the same practical effect — it “brought
    the mission of the employer and the professionalism
    of its officers into serious disrepute.” Id. at 
    81, 125 S. Ct. at 524
    .
    1634               DIBLE v. CITY OF CHANDLER
    That said, the Court has never explicitly defined
    what is or is not related, and we need not do so here.
    As in Roe, the result would be the same “under
    either line of cases.” 
    Id. at 80,
    125 S. Ct. at 524. The
    Dibles cannot prevail. We will explain.
    (3) The concurring opinion is amended as follows: Foot-
    note 2 at slip op. 11527 is amended to add the word “of” after
    the phrase “In light.”
    With the above amendments, the panel has voted unani-
    mously to deny the petition for rehearing. The petition for
    rehearing en banc was circulated to the judges of the court,
    and no judge requested a vote for en banc consideration.
    The petition for rehearing and the petition for rehearing en
    banc are DENIED.
    No subsequent petition for rehearing or rehearing en banc
    may be filed.
    OPINION
    FERNANDEZ, Circuit Judge:
    Ronald and Megan Dible appeal from the district court’s
    grant of summary judgment against them in their action
    against the City of Chandler, Arizona, the Chandler Police
    Department, and the Chandler Police Chief Bobby Joe Harris
    (collectively the City). Principally, the Dibles assert that Ron-
    ald Dible was a police officer whose rights under the First
    Amendment to the United States Constitution were violated
    when he was terminated for participating in (performing in,
    recording and purveying) a sexually explicit website with his
    wife. We affirm.
    DIBLE v. CITY OF CHANDLER              1635
    BACKGROUND
    In January of 2002, the Chandler Police Department
    learned that one of its officers, Ronald Dible, was running a
    website featuring sexually explicit photographs and videos of
    his wife. After initially placing Ronald Dible on administra-
    tive leave and conducting an internal investigation into his
    involvement with the website, the City terminated his
    employment as a police officer.
    Ronald Dible and his wife Megan Dible began running the
    website in September of 2000, after Megan Dible signed a
    contract with CDM Networks, which operated the website.
    The Dibles then posted pictures of Megan Dible on the web-
    site, under the pseudonym “Katelynn.” Those photographs
    portrayed Megan Dible in various sexual poses and activities
    with Ronald Dible, another woman, and inanimate objects.
    The Dibles also posted, among other things, a videotape of
    Megan Dible masturbating that had been filmed by Ronald
    Dible. The Dibles did not intend to express any kind of mes-
    sage or engage in social or political commentary through the
    material they posted on their website. They participated in
    those activities to make money; it was as simple as that.
    The website operated as follows: Any computer user with
    internet capability could access the website’s home page with-
    out charge. The home page featured partially nude pictures of
    Megan Dible in order to entice customers. If the user wanted
    to view more pictures of Megan Dible, a fee was required, but
    before the pictures could be reviewed, the user had to enter
    into a purported contract with CDM Networks. Once the user
    accepted the terms of the contract and paid the fee, he was
    free to view the website’s sexually explicit photographs and
    videos.
    The Dibles also offered a CD-ROM for sale on the website.
    Like the website itself, the CD-ROM featured photographs of
    Megan Dible having sex with Ronald Dible, other women,
    1636                 DIBLE v. CITY OF CHANDLER
    and inanimate objects. Although the photographs on the web-
    site and the CD-ROM generally did not show Ronald Dible’s
    face, one of the photographs did.
    The Dibles also promoted their website by attending “bar-
    meets.” The purpose of the bar-meets was to have fans of the
    website meet Megan Dible, although Ronald Dible also
    attended. The bar-meets, which took place at local bars, were
    open to the public, and attendees were free to take photo-
    graphs. They did, and sometimes posted those on their own
    websites. Although some attendees knew Megan Dible only
    as Katelynn, others knew her true identity. At those bar-
    meets, both Megan Dible and Ronald Dible posed in sexually
    suggestive ways with each other and with other people, some
    of whom were partially nude. The Dibles’ photographs from
    the bar-meets were compiled on a CD-ROM and were then
    sold through their website.
    Ronald Dible believed, indeed most likely knew, that his
    position in the disreputable sexually explicit website business
    was not compatible with his position as a police officer and
    risked violating the City and Police Department rule against
    engaging “in conduct which might bring discredit to the City
    service.” So he took steps to cover up his participation, and
    in so doing violated the rule that he could not engage in out-
    side employment unless he first filled out and filed a request
    to engage in employment outside the department. He did not
    inform any Department officials about it.1 He did, however,
    tell a few people about it, including a fellow police officer,
    whom he urged to start his own website. The officer eventu-
    ally did.
    Sometime in the later part of 2001, rumors about the
    Dibles’ website began circulating among members of the
    department, and eventually the news of the website filtered up
    1
    In fact, he lied about his participation when police department people
    asked.
    DIBLE v. CITY OF CHANDLER                1637
    to department officials. Upon learning about it, the police
    chief on January 25, 2002, ordered Ronald Dible to cease all
    activity with the website and placed him on administrative
    leave. The chief then opened an investigation into Ronald
    Dible’s involvement with the website. The investigators ques-
    tioned Ronald Dible about it, and, in response, he provided
    several misleading answers. After establishing that he was, in
    fact, involved in the website, the investigators questioned him
    about, among other things, whether he and Megan Dible had
    earned money from the site, and asked to see the contract
    between Megan Dible and CDM Networks.
    By January 25, 2002, the press had also learned about the
    website and began reporting on it in an unflattering manner.
    The press reported that the website was run by the Dibles and
    that he was employed as a city police officer. The record con-
    tains no evidence identifying the person who alerted the press
    to the website’s existence or to the Dibles’ involvement in it,
    but, of course, a lot of people already knew. The result of that
    publicity was disquieting to say the least. A police lieutenant
    assigned to look into the situation spoke to a large number of
    officers and others, found that it had severely impacted their
    working situation, and declared that police officer morale “re-
    ally hit bottom.”
    In due course, Ronald Dible’s supervisor recommended his
    dismissal. The supervisor found that Ronald Dible had vio-
    lated the department’s regulation prohibiting its officers from
    bringing discredit to the city service, and that Ronald Dible
    had provided false answers to district investigators in the
    course of their investigation. Chief Harris approved Ronald
    Dible’s dismissal.
    Ronald Dible then appealed that decision to the City’s
    Merit Board, which conducted an evidentiary hearing. At the
    hearing, several officers testified that they had been ques-
    tioned and ridiculed about the website. A female officer, Amy
    Hedges, testified that she was called a “porn whore” by an
    1638                  DIBLE v. CITY OF CHANDLER
    individual she was attempting to arrest. She further testified
    that she was subjected to derogatory remarks while respond-
    ing to a bar fight. Specifically, when she arrived at the bar, a
    patron began gyrating, told her to take off her clothes, and
    harassed her about the website. Officer Hedges testified that
    the patron’s comments added to the instability of an already
    fluid field situation and confrontation. Another officer testi-
    fied to the disrespect that he was shown after the website
    became publicly known. An investigating officer, who had
    interviewed many other officers, as well as other people, also
    testified to the impact of the Dibles’ activity on the depart-
    ment. In addition, potential police recruits questioned an offi-
    cer about the website on each of the five separate recruitment
    trips that she had conducted after the existence of the site
    became widely known to members of the public. Assistant
    Chief Joseph Gaylord testified that he believed the scandal
    involving Ronald Dible’s participation in the sexually explicit
    website would negatively impact the department’s efforts to
    recruit female officers for years to come. Ultimately, on April
    3, 2002, the Merits Board issued a recommendation affirming
    the decision to discharge Ronald Dible.
    Thereafter, the Dibles initiated the underlying action.2 The
    district court granted summary judgment in the City’s favor
    on each of the Dibles’ claims. In its order, the district court
    found that, among other things, Ronald Dible’s involvement
    in the website was not protected by the First Amendment.
    Subsequently, the Dibles’ counsel, Keith Knowlton, filed a
    motion for a new trial and filed a supplement thereto. The dis-
    trict court denied the motions. This appeal ensued.
    JURISDICTION AND STANDARD OF REVIEW
    The district court had jurisdiction pursuant to 28 U.S.C.
    2
    Although the Dibles filed their action in state court, the case was later
    removed to federal district court.
    DIBLE v. CITY OF CHANDLER                     1639
    §§ 1331, 1343, 1367. We have jurisdiction pursuant to 28
    U.S.C. § 1291.
    We review the district court’s grant of the summary judg-
    ment de novo. Buono v. Norton, 
    371 F.3d 543
    , 545 (9th Cir.
    2004).
    DISCUSSION
    The major issue before us is whether Ronald Dible’s First
    Amendment right to freedom of speech3 was violated when he
    was terminated for maintaining and participating in a sexually
    explicit website with his wife, Megan Dible. In fact, for all
    practical purposes, the other issues in this case hinge on the
    decision of that issue. We will, therefore, consider it first and
    consider the other issues raised by the Dibles thereafter.
    A.    Freedom of Speech
    The Dibles claim that because Ronald Dible’s activities
    must be treated as protected employee speech, the City
    improperly terminated him. See Coszalter v. City of Salem,
    
    320 F.3d 968
    , 973 (9th Cir. 2003) (setting forth elements of
    a prima facie case). We disagree.
    The Supreme Court recently took up the issue of employee
    speech in general and conduct of the sort engaged in by Ron-
    ald Dible in particular. See City of San Diego v. Roe, 
    543 U.S. 77
    , 
    125 S. Ct. 521
    , 
    160 L. Ed. 2d 410
    (2004) (per curiam). In
    that case, a police officer with the City of San Diego, Califor-
    nia, made a video of “himself stripping off a police uniform
    and masturbating.” 
    Id. at 78,
    125 S. Ct. at 522. He sold copies
    on eBay, under a user name of Codestud3@aol.com. 
    Id. While it
    appears that the uniform was not the specific uniform
    3
    We recognize that the Dibles’ conduct was more expression (nudity
    and sexual activity) than speech as such. That does not change the analy-
    sis.
    1640              DIBLE v. CITY OF CHANDLER
    worn by San Diego police officers, it was “clearly identifiable
    as a police uniform,” and Roe also sold custom videos and
    official “uniforms of the San Diego Police Department,”
    along with other items of police equipment. 
    Id. “Roe’s eBay
    user profile identified him as employed in the field of law
    enforcement.” 
    Id. at 78,
    125 S. Ct. at 523. When the police
    department found out, it investigated and ultimately termi-
    nated him. 
    Id. at 78-79,
    125 S. Ct. at 523. He then brought an
    action in which he claimed that his First Amendment right to
    freedom of speech had been violated. 
    Id. at 79,
    125 S. Ct. at
    523.
    The Supreme Court surveyed First Amendment law as it
    related to government employees, and set forth an analytical
    framework for consideration of the issue. The Court first rec-
    ognized that “[a] government employee does not relinquish all
    First Amendment rights otherwise enjoyed by citizens just by
    reason of his or her employment.” 
    Id. at 80,
    125 S. Ct. at 523.
    That said, when a government employee’s speech is under
    consideration, there are two paths of analysis, depending on
    whether the speech is related or unrelated to the person’s
    employment. As the Court put it:
    [A] governmental employer may impose certain
    restraints on the speech of its employees, restraints
    that would be unconstitutional if applied to the gen-
    eral public. The Court has recognized the right of
    employees to speak on matters of public concern,
    typically matters concerning government policies
    that are of interest to the public at large, a subject on
    which public employees are uniquely qualified to
    comment. See [Connick v. Myers, 
    461 U.S. 138
    , 
    103 S. Ct. 1684
    , 
    75 L. Ed. 2d 708
    (1983)]; Pickering v.
    Bd. of Ed. of Township High School Dist. 205, Will
    County, 
    391 U.S. 563
    , 
    88 S. Ct. 1731
    , 
    20 L. Ed. 2d 811
    (1968). Outside of this category, the Court has
    held that when government employees speak or
    write on their own time on topics unrelated to their
    DIBLE v. CITY OF CHANDLER                   1641
    employment, the speech can have First Amendment
    protection, absent some governmental justification
    “far stronger than mere speculation” in regulating it.
    United States v. Treasury Employees, 
    513 U.S. 454
    ,
    465, 475, 
    115 S. Ct. 1003
    , 
    130 L. Ed. 2d 964
    (1995)
    (NTEU). We have little difficulty in concluding that
    the City was not barred from terminating Roe under
    either line of cases.
    
    Id. at 80,
    125 S. Ct. at 523-24.
    The Court then went on to consider whether Roe’s speech
    activities were related or unrelated to his position as a police
    officer with the city. It determined that Roe’s indecent activ-
    ity, indeed, related to his employment. 
    Id. at 80-82,
    125 S. Ct.
    at 524. In so doing, the Court observed that in NTEU the
    speech in question was not only unrelated but also “had no
    effect on the mission and purpose of the employer.” 
    Id. at 80,
    125 S. Ct. at 524. The Court also emphasized that in NTEU
    “none of the speech at issue ‘even arguably [had] any adverse
    impact’ on the employer.” Id. at 
    81, 125 S. Ct. at 524
    . It
    finally pointed out that the City of San Diego had conceded
    that Roe’s activities were unrelated in the sense that they were
    not concerned with the “workings or functioning” of the
    police department, but, it concluded:
    It is quite a different question whether the speech
    was detrimental to the SDPD. On that score the
    City’s consistent position has been that the speech is
    contrary to its regulations and harmful to the proper
    functioning of the police force. The present case falls
    outside the protection afforded in NTEU. The author-
    ities that instead control, and which are considered
    below, are this Court’s decisions in Pickering, supra,
    Connick, 
    461 U.S. 138
    , 
    103 S. Ct. 1684
    , and the
    decisions which follow them.
    
    Id. at 81-82,
    125 S. Ct. at 524.
    1642               DIBLE v. CITY OF CHANDLER
    Of course, as the Court noted, Roe had gone out of his way
    to identify himself with police work. See 
    id. at 81,
    125 S. Ct.
    at 524. Perhaps that alone would have sufficed to make his
    activity related to his employment. If that were the case, it
    must be said that Ronald Dible did not do what Roe did. Ron-
    ald Dible took some pains to keep the police out of the pic-
    tures, but because of other clues and information, it became
    publicly known that he was involved and that he was a police
    officer. In any event, Ronald Dible’s attempts to conceal his
    activity came to nought and do not distinguish the underlying
    situation in Roe. Many a rule breaker does so clandestinely in
    the hope that his violations will not come to light and have
    untoward consequences. When that hope is dashed, the results
    and consequences for him are the same as they would have
    been if he had broken the rules overtly. Roe overtly broke his
    employer’s rules (outside employment and immoral conduct)
    and he properly suffered the consequences by losing his job.
    Ronald Dible’s discovered clandestine activity also broke his
    employer’s rules (outside employment and conduct that
    brought disrepute) and he properly suffered the consequences
    by losing his job. In addition, it can be seriously asked
    whether a police officer can ever disassociate himself from
    his powerful public position sufficiently to make his speech
    (and other activities) entirely unrelated to that position in the
    eyes of the public and his superiors. Whether overt or tempo-
    rarily hidden, Ronald Dible’s activity had the same practical
    effect — it “brought the mission of the employer and the pro-
    fessionalism of its officers into serious disrepute.” Id. at 
    81, 125 S. Ct. at 524
    .
    That said, the Court has never explicitly defined what is or
    is not related, and we need not do so here. As in Roe, the
    result would be the same “under either line of cases.” 
    Id. at 80,
    125 S. Ct. at 524. The Dibles cannot prevail. We will
    explain.
    [1] (1) Related Speech. If we determined that Ronald
    Dible’s activities were related to his public employment, we
    DIBLE v. CITY OF CHANDLER                     1643
    would necessarily approach his First Amendment claim as did
    the Supreme Court in Roe. It said:
    To reconcile the employee’s right to engage in
    speech and the government employer’s right to pro-
    tect its own legitimate interests in performing its
    mission, the Pickering Court adopted a balancing
    test. It requires a court evaluating restraints on a pub-
    lic employee’s speech to balance “the interests of the
    [employee], as a citizen, in commenting upon mat-
    ters of public concern and the interest of the State,
    as an employer, in promoting the efficiency of the
    public services it performs through its employees.”
    
    Id. at 82,
    125 S. Ct. at 524-25. As the Court explained, before
    an employee is even entitled to have the balancing test
    applied, the “speech must touch on a matter of ‘public con-
    cern.’ ” 
    Id. at 82-83,
    125 S. Ct. at 525. The Court further
    pointed out: “Connick held that a public employee’s speech is
    entitled to Pickering balancing only when the employee
    speaks ‘as a citizen upon matters of public concern’ rather
    than ‘as an employee upon matters only of personal inter-
    est.’ ” 
    Id. at 83,
    125 S. Ct. at 525. And, while the borders of
    the territory of public concern are not entirely defined, they
    do encompass matters that are “of legitimate news interest;
    that is, a subject of general interest and of value and concern
    to the public at the time of publication,” and even some pri-
    vate comments in the proper circumstances. 
    Id. at 83-84,
    125
    S. Ct. at 525-26. So, for example, the Court has said that an
    employee’s quiet statement to a fellow employee at a county
    constable’s office that she hoped that a future attempt at
    assassination of the President would succeed, touched on a
    matter of public concern. See Rankin v. McPherson, 
    483 U.S. 378
    , 379-82, 386, 
    107 S. Ct. 2891
    , 2894-96, 2898, 
    97 L. Ed. 2d
    315 (1987).
    No matter. Whatever a periplus of the outer limits of public
    concern might show, it was pellucid that Roe’s vulgar behav-
    1644                 DIBLE v. CITY OF CHANDLER
    ior would be discovered to be outside of those borders. As the
    Court said, “there is no difficulty in concluding that Roe’s
    expression does not qualify as a matter of public concern
    under any view of the public concern test. He fails the thresh-
    old test and Pickering balancing does not come into play.”
    
    Roe, 543 U.S. at 84
    , 125 S. Ct. at 526.
    [2] The same is true of Ronald Dible’s activities in this
    case. They did not give the public any information about the
    operations, mission or function of the police department, and
    were not even close to the kind of private remarks that the
    Court has countenanced. His activities were simply vulgar
    and indecent. They did not contribute speech on a matter of
    public concern. The Dibles could not prevail if Ronald
    Dible’s speech is deemed to have been related to his employ-
    ment.
    (2) Unrelated Speech. If we determined that Ronald
    Dible’s activities were unrelated to his public employment,
    we would also have to apply a balancing test. Interestingly
    enough, it is not entirely clear whether the public concern
    concept would be a necessary threshold to that balancing. In
    Roe, id. at 
    80-82, 125 S. Ct. at 524
    , the Supreme Court did not
    exactly say that the public concern concept must be consid-
    ered, but it also did not expressly hold that the Court of
    Appeals’ determination that public concern was part of the
    test was incorrect.4 And in 
    NTEU, 513 U.S. at 466
    , 115 S. Ct.
    at 1013, the Court pointed out that:
    Respondents’ expressive activities in this case fall
    within the protected category of citizen comment on
    matters of public concern rather than employee com-
    ment on matters related to personal status in the
    workplace. The speeches and articles for which they
    received compensation in the past were addressed to
    4
    See Roe v. City of San Diego, 
    356 F.3d 1108
    , 1117-18 (9th Cir.), rev’d,
    
    543 U.S. 77
    , 
    125 S. Ct. 521
    , 
    160 L. Ed. 2d 410
    (2004) (per curiam).
    DIBLE v. CITY OF CHANDLER                1645
    a public audience, were made outside the workplace,
    and involved content largely unrelated to their gov-
    ernment employment.
    Moreover, in 
    Rankin, 483 U.S. at 386
    , 107 S. Ct. at 2898, the
    Court did indicate that a comment about the President was a
    matter of public concern, but Rankin dealt with an unrelated
    comment made at the workplace itself. We, however, need not
    resolve whether the public concern test must be satisfied in
    this instance. See Locurto v. Giuliani, 
    447 F.3d 159
    , 175 (2d
    Cir. 2006).
    If a statement must be one of public concern when it con-
    sists of unrelated activity away from the workplace, Ronald
    Dible’s conduct was no more protected than it would be if the
    activity were related, and the Dibles’ claim would fail on that
    account. But, suppose passing the public concern test is not
    required when unrelated expressive activity takes place away
    from the work setting. What then? Again, we must balance
    the asserted First Amendment right against the government’s
    justification. See Roe, 543 U.S. at 
    80, 125 S. Ct. at 524
    . The
    Dibles’ First Amendment claim cannot survive that balance
    either.
    We first note that a number of Supreme Court justices have
    expressed some dubiety about the strength of the protection
    offered to activities that can be said to be of the same ilk as
    those we deal with here, or, perhaps, of an even less indecent
    ilk. See City of Erie v. Pap’s A.M., 
    529 U.S. 277
    , 289, 
    120 S. Ct. 1382
    , 1391, 
    146 L. Ed. 2d 265
    (2000) (plurality opin-
    ion) (stating that public nude dancing is “only within the outer
    ambit of the First Amendment protection”); Barnes v. Glen
    Theatre, Inc., 
    501 U.S. 560
    , 565-66, 
    111 S. Ct. 2456
    , 2460,
    
    115 L. Ed. 2d 504
    (1991) (plurality opinion) (stating that pub-
    lic nude dancing is protected but “only marginally”) How-
    ever, this court has said that plurality decisions of the
    Supreme Court do not make law and that “the degree of pro-
    tection the first amendment affords speech does not vary with
    1646                 DIBLE v. CITY OF CHANDLER
    the social value ascribed to that speech by the courts.” Kev,
    Inc. v. Kitsap County, 
    793 F.2d 1053
    , 1058 (9th Cir. 1986).
    None of those cases is exactly like the one at hand. We are
    not dealing with the rights of an ordinary citizen vis-à-vis the
    government; we are dealing with the rights of a governmental
    employee (a police officer at that) vis-à-vis his employer. In
    this context, the reflections of the Justices about the weight of
    the right to engage in public indecent activity commend them-
    selves to our consideration. As Roe suggests, it is a bit diffi-
    cult to give that activity the same weight as the right to
    engage in political debate5 or to lecture on religion and black
    history or to write articles about the environment.6 Especially
    is that true where, as here, the employee admits that he was
    not interested in conveying any message whatsoever and was
    engaged in the indecent public activity solely for profit.
    [3] In any event, the interest of the City in maintaining the
    effective and efficient operation of the police department is
    particularly strong. It would not seem to require an astute
    moral philosopher or a brilliant social scientist to discern the
    fact that Ronald Dible’s activities, when known to the public,
    would be “detrimental to the mission and functions of the
    employer.” 
    Roe, 543 U.S. at 84
    , 125 S. Ct. at 526. And
    although the government’s justification cannot be mere specu-
    lation, it is entitled to rely on “reasonable predictions of dis-
    ruption.” Waters v. Churchill, 
    511 U.S. 661
    , 673, 
    114 S. Ct. 1878
    , 1887, 
    128 L. Ed. 2d 686
    (1994) (plurality opinion).
    [4] Police departments, and those who work for them, are
    engaged in a dangerous calling and have significant powers.
    The public expects officers to behave with a high level of pro-
    priety, and, unsurprisingly, is outraged when they do not do
    so. The law and their own safety demands that they be given
    a degree of respect, and the sleazy activities of Ronald and
    5
    City of 
    Erie, 529 U.S. at 294
    , 120 S. Ct. at 1393-94.
    6
    
    NTEU, 513 U.S. at 461-62
    , 115 S. Ct. at 1010-11.
    DIBLE v. CITY OF CHANDLER                1647
    Megan Dible could not help but undermine that respect. Nor
    is this mere speculation.
    [5] Almost as soon as Ronald Dible’s indecent public activ-
    ities became widely known, officers in the department began
    suffering denigration from members of the public, and poten-
    tial recruits questioned officers about the Dibles’ website.
    Moreover, the department feared that the recruiting of female
    officers would be affected because of what it seemed to say
    about the climate at the department. That is not rank specula-
    tion. In a similar case involving police officers’ public sexual
    activities, the Eleventh Circuit Court of Appeals noted that
    this kind of activity by officers, once known, could not help
    but interfere with the functions and mission of the police
    department because “it reflected on [deputies’] fitness as dep-
    uties and undermined public confidence” in the department.
    Thaeter v. Palm Beach County Sheriff’s Office, 
    449 F.3d 1342
    , 1356 (11th Cir. 2006). Just so.
    We are not gallied by the Dibles’ claim that Ronald Dible
    is being subjected to some kind of heckler’s veto. Worries
    about a heckler’s veto have generally dealt with the restriction
    of a citizen’s speech based upon the anticipated disorderly
    reaction by members of an audience. See Rosenbaum v. City
    and County of San Francisco, 
    484 F.3d 1142
    , 1158-59 (9th
    Cir. 2007). Those worries do not directly relate to the wholly
    separate area of employee activities that affect the public’s
    view of a governmental agency in a negative fashion, and,
    thereby, affect the agency’s mission. The Dibles’ argument
    ignores the fact that the public can form a negative view of
    a person due to his particular mode of expression — there is
    nothing unconstitutional about that. It also ignores the unique
    and sensitive position of a police department and its necessary
    and constant interactions with the public. See Byrd v. Gain,
    
    558 F.2d 553
    , 554 (9th Cir. 1977) (noting that police depart-
    ments have special concerns regarding employees’ speech due
    to the nature of their mission); see also 
    Waters, 511 U.S. at 1648
                     DIBLE v. CITY OF CHANDLER
    
    674-75, 114 S. Ct. at 1887-88
    (noting government’s signifi-
    cant interest in employee activity).
    As the Second Circuit Court of Appeals has pointed out,
    even where the unrelated expression is a matter of public con-
    cern — there a comment on race relations — police officers
    “are quintessentially public servants” and “part of their job is
    to safeguard the public’s opinion of them.” 
    Locurto, 447 F.3d at 178
    . Thus, said the court, the actions of the police depart-
    ment were not due to a heckler’s veto, but rather an example
    of the government’s accounting for the public’s perception of
    the officers’ actions when it considered the potential for dis-
    ruption of the department’s functions. 
    Id. at 179;
    see also
    
    Rankin, 483 U.S. at 389
    , 107 S. Ct. at 2899 (taking particular
    note of the fact that a clerical employee’s comments were not
    made public and, therefore, did not discredit the constable’s
    office).7
    [6] In fine, whether Ronald Dible’s activities were related
    to his employment or not, the City could discipline him for
    those activities without violating his First Amendment rights.
    Thus, the Dibles’ claim to the contrary must be rejected.
    B.    Right of Privacy and Freedom of Association
    The Dibles also claim that their First Amendment rights to
    privacy and freedom of association were violated by the City.
    No doubt the First Amendment does encompass a right of pri-
    vacy, whose contours include within it a right to make per-
    sonal decisions and a right to keep personal matters private.
    See Ferm v. United States Trustee (In Re Crawford), 
    194 F.3d 7
        We have not overlooked Flanagan v. Munger, 
    890 F.2d 1557
    , 1566-67
    (10th Cir. 1989) and Berger v. Battaglia, 
    779 F.2d 992
    , 1000-01 (4th Cir.
    1985). However, to the extent that they minimize the potential for an
    actual effect on the efficiency and efficacy of police department functions
    arising from public perceptions of the inappropriate activities of police
    officers, they are severely undermined by Roe, and we decline to follow
    them.
    DIBLE v. CITY OF CHANDLER                       1649
    954, 958 (9th Cir. 1999). It also encompasses a freedom of
    association right, which includes the freedom of intimate
    expression and the right to associate with others in activities
    otherwise protected by the First Amendment. See Fleisher v.
    City of Signal Hill, 
    829 F.2d 1491
    , 1499-1500 (9th Cir. 1987).
    Neither the Dibles’ right of privacy nor their right to freedom
    of association was violated here.
    [7] Beyond any other considerations, there is no evidence
    that the City released any information that connected the
    Dibles to the website. Thus, it could not have violated their
    right to privacy and intimate association by giving them
    unwanted publicity.
    [8] Speaking of unwanted publicity leads to the obvious
    reflection that intimate as their activity may have been in one
    sense, it certainly was not intimate in the sense of an activity
    that they intended to hide. Megan Dible was the star of her
    own show and happily displayed herself to those willing to
    pay to view her, and even, as a teaser, to those who were not
    yet paying. Ronald Dible, for his part, participated in the
    activity, both as a performer, and as a videographer. He even
    appeared in public places for the purpose of advertising the
    Dibles’ activities and their products. While some believe that
    when we assume the bench we enter a hibernaculum and
    retreat from reality, we can see that on the facts of this case
    the Dibles’ right of privacy claims are virtually oxymorons.8
    [9] Moreover, to the extent that the Dibles assert that Ron-
    ald Dible’s freedom of association was violated because of his
    8
    We recognize that Ronald Dible also asserts that inquiry into his finan-
    cial interests in the website violated some asserted right of privacy. There
    are some limits to a governmental entity’s investigation of its employees.
    See Thorne v. City of El Segundo, 
    726 F.2d 459
    , 469-71 (9th Cir. 1983).
    However, we have never gone so far as to suggest that those limits are
    exceeded where, as here, the question is directly related to the employee’s
    connection to an otherwise unprotected activity that affects the functions
    and mission of the employer.
    1650              DIBLE v. CITY OF CHANDLER
    right to participate in speech activities, as we have already
    explained, he did not have a right to participate in the activi-
    ties at hand and avoid City discipline at the same time.
    [10] In short, in a case of this nature, a governmental
    employee cannot avoid the strictures of the balancing tests
    that we have heretofore described by attempting to resurrect
    fallen speech claims as privacy and associational claims.
    Those First Amendment claims must also necessarily fall with
    the Dibles’ speech claim.
    C.   Qualified Immunity
    The Dibles also assert that the district court erred when it
    decided that the City’s police chief, Bobby Joe Harris, was
    entitled to qualified immunity. In considering that question
    we must apply the approach delineated in Saucier v. Katz, 
    533 U.S. 194
    , 
    121 S. Ct. 2151
    , 
    150 L. Ed. 2d 272
    (2001). That
    involves a two-step process. We must first consider whether
    a constitutional right was violated by the official. 
    Id. at 201,
    121 S. Ct. at 2156. If not, the inquiry ends and the official is
    entitled to qualified immunity. 
    Id. If a
    right was violated, we
    must proceed to the second step and determine whether that
    right was clearly established. Id.; see also Brosseau v. Hau-
    gen, 
    543 U.S. 194
    , 198-99, 
    125 S. Ct. 596
    , 599, 
    160 L. Ed. 2d 583
    (2004) (per curiam).
    Our disposition of the Dibles’ First Amendment claims
    demonstrates that Police Chief Harris did not violate the
    Dibles’ constitutional rights, and that is enough to end the
    inquiry. But even if we were to find a violation, we would
    also be constrained to declare that because “whether a public
    employee’s speech is constitutionally protected turns on a
    context-intensive, case-by-case balancing analysis, the law
    regarding such claims will rarely, if ever, be sufficiently
    ‘clearly established’ to preclude qualified immunity.” Moran
    v. Washington, 
    147 F.3d 839
    , 847 (9th Cir. 1998); see also
    DIBLE v. CITY OF CHANDLER                1651
    Lytle v. Wondrash, 
    182 F.3d 1083
    , 1088 (9th Cir. 1999). This
    would not be one of those rarities.
    [11] Thus, Chief Harris was entitled to qualified immunity.
    D.   State Law Claims
    [12] The Dibles also claim that the district court erred when
    it granted summary judgment on their state law claims. It did
    not.
    They first assert that they should be able to pursue their
    claim to right of privacy under Arizona law. See Med. Lab.
    Mgmt. Consultants v. Am. Broad. Cos., Inc., 
    306 F.3d 806
    ,
    812 (9th Cir. 2002). What we have already said about their
    First Amendment privacy claim applies here also. Not only
    does their claimed seclusion right overlook all that they did to
    publicize and publish their activities, but also they have
    wholly failed to demonstrate that the City advised the general
    public about their connection to their little enterprise.
    They also assert that they have been subjected to the inten-
    tional infliction of emotional distress as that is described
    under Arizona law. See Johnson v. McDonald, 
    197 Ariz. 155
    ,
    160, 
    3 P.2d 1075
    , 1080 (App. Div. 1999). In order to prevail,
    they would have to show that terminating Ronald Dible
    because of his indecent activities was “ ‘so outrageous in
    character and so extreme in degree, as to go beyond all possi-
    ble bounds of decency, and to be regarded as atrocious and
    utterly intolerable in a civilized community.’ ” Mintz v. Bell
    Atl. Sys. Leasing Int’l, Inc., 
    183 Ariz. 550
    , 554, 
    905 P.2d 559
    ,
    563 (App. Div. 1995). Even if an error were made, just how
    the mere fact of terminating Ronald Dible for his disreputable
    activities could meet that standard is not apparent upon an
    apercu or even upon a perscrutation of the facts of this case.
    Surely, this is not one of those “extremely rare” instances
    where the tort can be found to have been committed in the
    employment context. 
    Id. 1652 DIBLE
    v. CITY OF CHANDLER
    Finally, the Dibles assert that the termination of Ronald
    Dible constituted a wrongful termination within the meaning
    of Arizona law. See Ariz. Rev. Stat. § 23-1501(3)(a)-(d);
    Bodett v. CoxCom, Inc., 
    366 F.3d 736
    , 746 (9th Cir. 2004);
    Galati v. Am. West Airlines, Inc., 
    205 Ariz. 290
    , 292, 293 n.4,
    
    69 P.2d 1011
    , 1013, 1014 n.4 (App. Div. 2003). To the extent
    that their claim is based upon the alleged violation of Ronald
    Dible’s First Amendment rights it must, of course, fail. Like-
    wise, the claim must also fail to the extent that it is intended
    to be an appeal from the determination of the City’s Merit
    Board on the basis that the Board abused its discretion when
    it recommended affirming Ronald Dible’s termination. See
    Hamilton v. City of Mesa, 
    185 Ariz. 420
    , 427-28, 
    916 P.2d 1136
    , 1143-44 (App. Div. 1995). The record clearly demon-
    strates that the Board could properly determine that Ronald
    Dible’s activities discredited the police department and
    affected its functions.
    CONCLUSION
    Even though many believe that we live in anomic times, we
    have not yet abandoned our social codes to the point that a
    city can be sanctioned for violating a police officer’s First
    Amendment rights when he causes disrespect of the police
    department and its members by performing in and purveying
    pictures of his and his wife’s sexually explicit activities over
    the internet. 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 mis-
    sion and functions. To paraphrase Justice Holmes:9 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. Therefore, the Dibles’ claims
    must fail.
    9
    See McAuliffe v. Mayor of New Bedford, 
    155 Mass. 216
    , 220, 
    29 N.E. 517
    , 517 (1892).
    DIBLE v. CITY OF CHANDLER                1653
    AFFIRMED.
    CANBY, Circuit Judge, concurring in the judgment:
    I
    With all due respect, I am unable to join the majority opin-
    ion because I disagree with its resolution of Dible’s First
    Amendment speech claim. Under the facts of this case and the
    existing precedent, the police department could not discharge
    Dible for his website expression without violating the First
    Amendment.
    I have no quarrel with some of the majority’s analysis. I
    agree that, if Dible’s expressive website activity were prop-
    erly characterized as employment-related, then his First
    Amendment claim would fail because his expression, while
    protected, was not of public concern. The majority opinion
    correctly reasons that this point is established by City of San
    Diego v. Roe, 
    543 U.S. 77
    , 84 (2004) (per curiam).
    Dible’s website activity was not employment-related, how-
    ever. As the majority opinion points out, Dible was careful
    not to identify himself or his website with the police depart-
    ment or with police status at all. That fact differentiates his
    case from Roe. Certainly nothing in the activity Dible por-
    trayed suggested a connection with the police. I am unwilling
    to conclude, for reasons I will set forth below, that such unre-
    lated expression becomes related to Dible’s employment sim-
    ply because people who disapprove of his expression find out
    that he is a policeman and make their disapproval or disdain
    known to the police department in ways that could affect its
    work.
    As the majority opinion points out, the Supreme Court has
    not, in Roe or its antecedents, made perfectly clear whether a
    1654              DIBLE v. CITY OF CHANDLER
    governmental employee’s expression unrelated to the employ-
    ment must be of public concern to be protected. In my view
    it makes little sense to impose the public concern requirement
    for the protection of unrelated speech. The requirement of
    public concern comes from Pickering v. Bd. of Educ., 
    391 U.S. 563
    (1968). Its usefulness is in making an exception to
    the right of a public employer to control the expression of
    employees in matters relating to their employment. One way
    of limiting the rule to its context, which I would follow, is to
    hold that there is no requirement that an employee’s speech
    that is unrelated to his employment be of public concern in
    order to merit First Amendment protection. The Tenth Circuit
    adopted that rule in Flanagan v. Munger, 
    890 F.2d 1557
    ,
    1562-64 (1989). Another way of reaching the same result is
    to hold, as we did in Roe, 
    356 F.3d 1108
    , 1119 (9th Cir.),
    rev’d, 
    543 U.S. 77
    (2004), that any speech by a government
    employee that is not about his employer, that occurs outside
    the workplace, and is directed to a segment of the general
    public, qualifies ipso facto as a matter of public concern. As
    the majority opinion here recognizes, the Supreme Court did
    not say this approach was incorrect when it reversed Roe.
    Similarly, in Berger v. Battaglia, 
    779 F.2d 992
    , 998 (4th Cir.
    1985), the Fourth Circuit held, in a case of unrelated expres-
    sion, that all such expression was of public concern unless it
    constituted a private personnel grievance. Either way —
    whether the public concern requirement is simply dispensed
    with for expression unrelated to employment, as I prefer, or
    whether the public concern requirement for unrelated speech
    is broadened to include virtually the universe of unrelated
    speech — the outcome is the same. Public concern should not
    be a hurdle depriving employee speech of First Amendment
    protection when that speech is unrelated to the employment.
    Now, I recognize that pornography, although apparently
    popular, is not a very respected subject of First Amendment
    protection in many quarters. The majority opinion here
    reflects that distaste, variously characterizing Dible’s expres-
    sive activities as “vulgar,” “indecent,” “sleazy,” and “disrepu-
    DIBLE v. CITY OF CHANDLER                        1655
    table.” But vigorous enforcement of the free speech guarantee
    of the First Amendment often requires that we protect speech
    that many, even a majority, find offensive. See, e.g., Cohen
    v. California, 
    403 U.S. 15
    , 23-25 (1971). Pornography, and
    sexual expression in general, is protected by the First Amend-
    ment when it does not constitute obscenity (and there is no
    showing that Dible’s expression meets that extreme standard).
    See Sable Communications of Calif., Inc. v. FCC, 
    492 U.S. 115
    , 132 (1989). We should accept that fact and accord
    Dible’s expression the constitutional protection to which it is
    entitled. The majority opinion here falls short of the First
    Amendment standard in two major respects.
    Because Dible’s expressive activity was not employment-
    related, the police department must demonstrate that the
    alleged harm caused by his expression was “ ‘real, not merely
    conjectural.’ ” United States v. Nat’l Treasury Empl. Union,
    
    513 U.S. 454
    , 475 (1995) (quoting Turner Broadcasting Sys.,
    Inc. v. FCC, 
    512 U.S. 622
    , 664 (1994)). The evidence of harm
    in this case is so insubstantial that it can be characterized as
    “conjectural.” An officer testified that he feared the effect on
    recruitment of female officers, but no such effect was demon-
    strated. At least three officers testified that they had been ver-
    bally harassed in a manner attributable to the website, but
    there was no testimony that this seriously interfered with the
    performance of their duties. In sum, the findings of interfer-
    ence with the mission of the police department are based on
    the conjecture that Dible’s expressive activities might cause
    some persons to think less well of the police department and
    that this disfavor might in some ways lead to disruption of
    police activities. The evidence simply does not meet the Trea-
    sury Employees standard. It does not outweigh Dible’s inter-
    est in expression, which is his “interest in engaging in free
    speech, not the value of the speech itself.” 
    Flanagan, 890 F.2d at 1565
    .1
    1
    I place no significance at all on Dible’s statement that he did not intend
    to convey any message in his expressive activity. His website constituted
    1656                  DIBLE v. CITY OF CHANDLER
    A second flaw in the majority’s analysis is that it enshrines
    the “heckler’s veto” with respect to all conduct of a public
    employee, or at least of a police department employee. Noth-
    ing that Dible did or said in relation to his website activities
    in itself caused any disruption to police department functions.
    The alleged (and minimal) disruption was caused by other
    persons’ disapproval of Dible’s activities once it became
    known that he was an officer of the police department. The
    rule to be drawn from the majority’s analysis, apparently, is
    that police officers may be fired for engaging in expressive
    activities, unrelated to their employment, when numbers of
    the public disapprove of the expression vigorously and possi-
    bly disruptively. That rule empowers the heckler to veto the
    speech, and is inconsistent with the First Amendment. See
    Terminiello v. Chicago, 
    337 U.S. 1
    , 4-5 (1949). In such a situ-
    ation, it is the duty of the police department to prevent the dis-
    ruption by those opposed to the speech, not to suppress or
    punish the speech. See 
    Cohen, 403 U.S. at 23
    .
    The heckler’s veto applied to sexually expressive activities
    has disturbing potential for expansive application. A measur-
    able segment of the population, for example, is vigorously
    antagonistic to homosexual activity and expression; it could
    easily be encouraged to mobilize were a police officer discov-
    ered to have engaged, off duty and unidentified by his activ-
    ity, in a Gay Pride parade, or expressive cross-dressing, or
    any number of other expressive activities that might fan the
    embers of antagonism smoldering in a part of the population.
    For this reason, it is far better to adopt a rule that protects off-
    duty speech unrelated to employment when the speech itself
    causes no internal problems, and the only disruption is in the
    external relations between the police department and the pub-
    expression, and he has raised a First Amendment defense to his termina-
    tion because of his website activity. It is equally irrelevant to his First
    Amendment protection that he sought to make money from his expression,
    as many speakers or writers do. See, e.g., Smith v. California, 
    361 U.S. 147
    , 150 (1959).
    DIBLE v. CITY OF CHANDLER                1657
    lic unhappy with the police officer’s expression. The Tenth
    Circuit adopted just such a rule. See 
    Flanagan, 890 F.2d at 1566
    . The Fourth Circuit avoided adopting an inflexible rule,
    but held that a police department could not prohibit off-duty,
    unrelated speech by an officer under circumstances parallel to
    those in Dible’s case: “[N]ot only was the perceived threat of
    disruption only to external operations and relationships, it was
    caused not by the speech itself but by threatened reaction to
    it by offended segments of the public.” 
    Berger, 779 F.2d at 1001
    . This public reaction in Berger was not inconsequential;
    it threatened to disrupt the tenuous relationship between the
    police department and the black community. Even so, “this
    sort of threatened disruption by others reacting to public
    employee speech simply may not be allowed to serve as justi-
    fication for public employer disciplinary action directed at
    that speech.” 
    Id. The majority
    opinion states that to the extent that Flanagan
    and Berger “minimize the potential for an actual effect on the
    efficiency and efficacy of police department functions arising
    from public perceptions of the inappropriate activities of
    police officers, they are severely undermined by Roe.” Supra,
    p. 1648 n.7. The rationale of Flanagan and Berger, however,
    was not that disruption was minimal, but that as part of the
    heckler’s veto it could not support discipline of the employee.
    It is true that Roe permitted discipline of an officer because
    of public reaction to his expressive conduct, but that expres-
    sive conduct was purposely employment-related. The head of
    a governmental agency is entitled to control the speech of
    members of the agency with regard to agency-related matters,
    unless that speech is a matter of public concern. 
    Pickering, 391 U.S. at 574
    . But that rule is an exception to the general
    First Amendment protection of speech. See Treasury Employ-
    
    ees, 513 U.S. at 465
    . To apply the same restriction to off-duty
    expression by a public employee, unrelated to his employ-
    ment, is to reject the established principle that public employ-
    ees may not be required to surrender their constitutional right
    of free speech as a condition of their employment. See, e.g.,
    1658                  DIBLE v. CITY OF CHANDLER
    Keyishian v. Board of Regents, 
    385 U.S. 589
    , 605 (1967). Roe
    did not extend to off-duty conduct unrelated to employment,
    and accordingly it did not undermine Flanagan and Berger.
    In my view, the rationale of Flanagan and Berger is not
    only sound, but constitutionally required. We should apply
    those principles and hold that Dible’s expressive website con-
    duct was an unconstitutional ground for his discharge.2
    II
    I concur in the judgment, however, because the record
    demonstrates that any rational trier of fact would find that
    Dible would have been discharged for making false state-
    ments to police department investigators, had he not been dis-
    charged for his website activity. See Mt. Healthy City School
    Dist. Bd. of Educ. v. Doyle, 
    429 U.S. 274
    , 287 (1977). There
    was ample and uncontradicted evidence that, early in the
    investigation, Dible denied any connection with the website,
    and later denied that he appeared in any of the videos. He also
    denied telling anyone to lie about his involvement in the web-
    site, when he had told a co-worker to lie. Although some of
    these statements were later “corrected” or modified, the origi-
    nal deception was clearly established.
    The false statements constituted one of the two charges in
    the investigative complaint, and that violation of personnel
    rules was listed as a class 7 violation. The minimum and only
    authorized sanction for a class 7 violation, as listed in the
    2
    In light of the fact that a majority of the panel disagrees with my con-
    clusion that Dible could not be discharged because of his website activity,
    I concur in the majority’s ruling that Chief Harris is entitled to qualified
    immunity because the constitutional law that he allegedly violated was not
    clearly established.
    I also concur in the majority’s rejection of Dible’s claims of violation
    of his right of privacy and freedom of association, as well as its rejection
    of his state-law claims.
    DIBLE v. CITY OF CHANDLER                1659
    report, was dismissal for a first offense. The City Merit Board
    referred to Dible’s false denial of involvement, and found that
    Dible had been “less than truthful.” A majority of the Board
    accordingly sustained the charge of dishonesty. The City
    Manager subsequently accepted the Board’s recommendation
    and terminated Dible, in a memorandum that devoted more
    discussion to Dible’s false statements than to his website
    activities.
    There is little question, therefore, that Dible’s false state-
    ments would have caused his discharge even in the absence
    of his website activity, and that such a discharge would not
    have been arbitrary or capricious.
    Dible contends, however, that his false statements cannot
    be a ground for discharge because the entire investigation was
    instituted because of his First Amendment protected activity.
    He relies on Gilbrook v. City of Westminster, 
    177 F.3d 839
    ,
    854 (9th Cir. 1999), which held that subordinates who retali-
    ated against an employee for protected activity were not
    shielded when they initiated termination proceedings that ulti-
    mately resulted in a discharge of the employee by superiors
    who acted without a retaliatory motive. Gilbrook is distin-
    guishable on several grounds, but two are sufficient for pres-
    ent purposes. First, Gilbrook did not involve false statements
    or other misconduct by the employee during the administra-
    tive process. Second, the disciplinary process in Gilbrook
    “began with a retaliatory motive, but ended with a legitimate
    one.” 
    Id. The investigation
    by the police department in the
    present case was not illegitimate in its inception. The depart-
    ment was entitled to inquire into Dible’s off-duty activity to
    see whether it was employment-related, which would bring it
    within the unprotected scope of Roe. In addition, the depart-
    ment had a policy requiring police officers to obtain prior
    approval before engaging in any outside employment, because
    certain jobs were deemed compromising. The department was
    entitled to inquire whether this policy had been violated.
    Nothing in the nature of the investigation entitled Dible to lie.
    1660              DIBLE v. CITY OF CHANDLER
    I am persuaded, therefore, that Dible would have been fired
    for his unprotected false statements, and that his discharge
    would not have been arbitrary, capricious, or contrary to law.
    I therefore concur in the judgment affirming the dismissal of
    Dible’s claims.
    

Document Info

Docket Number: 05-16577

Filed Date: 1/31/2008

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (25)

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Sable Communications of California, Inc. v. Federal ... , 109 S. Ct. 2829 ( 1989 )

Barnes v. Glen Theatre, Inc. , 111 S. Ct. 2456 ( 1991 )

Waters v. Churchill , 114 S. Ct. 1878 ( 1994 )

City of San Diego v. Roe , 125 S. Ct. 521 ( 2004 )

Kev, Inc. v. Kitsap County and the Honorable Ray Aardal and ... , 793 F.2d 1053 ( 1986 )

Galati v. America West Airlines, Inc. , 205 Ariz. 290 ( 2003 )

Ronald Thaeter v. Palm Beach Co. Sheriff's Office , 449 F.3d 1342 ( 2006 )

nickie-larelle-moran-v-state-of-washington-deborah-senn-individually-and , 147 F.3d 839 ( 1998 )

william-p-flanagan-victor-b-morris-and-donald-m-bjornsrud-v-james , 890 F.2d 1557 ( 1989 )

robert-m-berger-and-ray-franklin-barhight-jr-v-frank-j-battaglia , 779 F.2d 992 ( 1985 )

Terminiello v. Chicago , 69 S. Ct. 894 ( 1949 )

United States v. National Treasury Employees Union , 115 S. Ct. 1003 ( 1995 )

lawrence-rosenbaum-eric-livingston-v-city-and-county-of-san-francisco-fred , 484 F.3d 1142 ( 2007 )

Gerry Fleisher, and Cross-Appellee v. City of Signal Hill, ... , 829 F.2d 1491 ( 1987 )

Johnson v. McDonald , 197 Ariz. 155 ( 1999 )

frank-buono-allen-schwartz-v-gale-norton-secretary-of-the-interior-in , 371 F.3d 543 ( 2004 )

guido-coszalter-gary-jones-steve-johnson-v-city-of-salem-a-municipal , 320 F.3d 968 ( 2003 )

joseph-locurto-jonathan-walters-and-robert-steiner-v-rudolph-giuliani , 447 F.3d 159 ( 2006 )

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