Barnthouse v. City of Edmond , 74 O.B.A.J. 1297 ( 2003 )

WINCHESTER, Justice,

concurring in part, dissenting in part.

T1 The case at bar involves an action against the City of Edmond and its Chief of Police, Appellee Dennis Cochran, filed by police officers, appellants herein, who are employed by Appellee City of Edmond. Appellants employment is subject to a collective bargaining agreement governed by the Fire and Police Arbitration Act, codified at 11 ©.98.2001, § 51-101 et seq. Appellants were promoted to the rank of sergeant and subsequently notified in writing by Appellee Cochran that they had been demoted to their previous rank. They filed grievances in accordance with the collective bargaining agreement, arguing they had a property interest in their continued employment as sergeants and had been demoted without cause. The portion of the majority's opinion today with which I take issue involves appellants' claim against Appellee Cochran under 42 U.S.C. § 1988. For the reasons stated herein, I respectfully dissent to section V of the majority's opinion, involving Cochran's lHability. I would uphold the trial court's entry of judgment in favor of Cochran on this issue.

¶ 2 Cochran is entitled to qualified immunity under Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895. Cochran contends that the clearly established law required him to accept and follow the arbitrator's ruling, whether or not he agreed with it. This ruling provided that appellants were to be demoted. Cochran relied upon F.O.P. and Neal v. City of Edmond, case number 93,982, an unpublished opinion of June 16, 2000, by the Court of Civil Appeals, in his belief that clearly established law required him to accept and follow the arbitrator's ruling.

¶ 3 The majority opinion states that Cochran's reliance on Neal "was misplaced." This finding is immaterial, given that Cochran's reliance on Neal was reasonable. I would adopt the rationale espoused by the United States District Court for the Western District of Oklahoma in Terrapin Leasing, Ltd. v. United States 449 F.Supp. 7, (W.D.Okla.1978). That court, in addressing the issue of qualified immunity as applied to federal officers, which has been held identical

to the immunity doctrine applied in 42 U.S.C. § 1983 actions to immunity of state officials ¹, stated: "... the issue is not the officers' attitude generally but whether they believed they were acting in accordance with the law...."

¶ 4 In Terrapin Leasing, Internal Revenue Service agents were accused of violating a corporation's rights under the Fourth and Fifth Amendments to the United States Constitution when they levied upon and seized certain automobiles to satisfy an alleged unpaid tax liability of the corporation's president and sole owner. The court held that the doctrine of qualified immunity barred any recovery against the individual IRS agents, holding among other issues, that the seizure was not in bad faith or unreasonable and was accomplished under the instructions of an IRS attorney. Citing a similar factual situation that occurred in the Tenth Cireuit case of G.M. Leasing Corp. v. United States, 560 F.2d 1011 (10th Cir.1977), the court in Terrapin Leasing, Litd., held that since the officers believed they were acting in accordance with the law, they were entitled to qualified immunity.

5 In the instant matter, I would hold that Cochran's reliance upon the Neal case for guidance, even if misplaced, constitutes convincing evidence that he reasonably believed he was acting in accordance with the law, thereby entitling him to qualified immunity from liability under § 1983. As the United States Supreme Court stated in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895, quoting from Scheuer v. Rhodes, 416 U.S. at 247-248, 94 S.Ct. at 1692, 40 L.Ed.2d 90 (1974):

"It is the existence of reasonable grounds for the belief formed at the time and in light of all the cireumstances, coupled with good-faith belief, that affords a basis for qualified fimmunity ...."

4 6 I would hold that Cochran had reasonable grounds for the belief formed at the time and in light of all the cireumstances, coupled with good-faith belief, that he must comply with the arbitrator's decision, and that this belief affords him a basis for qualified immunity. To the extent that today's majority opinion diverges from this conclusion, I must dissent.

1 . See footnote 3, Terrapin Leasing, Ltd. v. United States, 449 F.Supp. 7, 9 (W.D.Okla.1978).