Arch Bradley v. Larry K. James

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2283
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Arch Bradley, *
*
Plaintiff-Appellant, *
*
v. *
* Appeal from the United States
Larry K. James, individually * District Court for the
and in his official capacity as * Eastern District of Arkansas.
an employee of the University *
of Central Arkansas; University of *
Central Arkansas, *
*
Defendants-Appellees. *
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Submitted: November 16, 2006
Filed: March 2, 2007
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Before BYE, BOWMAN and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
After being fired by the University of Central Arkansas Police Department
(UCAPD), Captain Arch Bradley filed suit, alleging age discrimination, Fourteenth
Amendment violations, First Amendment violations under 42 U.S.C. § 1983, and state
law. The district court1 initially granted defendants summary judgment without
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.
opposition on all but the § 1983 First Amendment claim. It later granted defendants
summary judgment on the § 1983 claim, filed against UCAPD Chief Larry James in
his official and individual capacities. Bradley appeals the latter decision. We affirm.
On Friday, February 6, 2004, police at the UCAPD received a call reporting a
man with a gun in Hughes Hall, a student dormitory. Bradley, the highest-ranking
officer on duty, remained at the UCAPD station directly across the street from Hughes
Hall while six UCAPD officers and a group of Conway Police Department officers
responded.
Minutes later, one resident of Hughes Hall telephoned his father to tell him
police were running through the building with automatic weapons. The father in turn
called James at home, asking what was going on. James called the police station,
spoke to Bradley, and decided to come in. When James arrived on the scene, the
situation had been resolved – two students had been firing BB pistols at each other
and had been found and arrested. The incident was over very quickly – the call had
come in at 9:32 p.m., and officers were writing their reports by 10:17 p.m. James
asked Bradley why he had not gone over to Hughes Hall. Bradley told him he had too
much paperwork to do, and added that if James had asked him to go, he would have
immediately done so. James orally made his displeasure clear to Bradley and others
over Bradley’s not responding to the call himself.
James asked the UCAPD’s number-two officer, Major Glen Stacks, to conduct
an investigation of the incident. Stacks met with Bradley to discuss the incident, and
before he could say anything, Bradley told him James had arrived on the scene
intoxicated and had disrupted the investigation. Bradley also told Stacks he had tried
to call University of Central Arkansas (UCA) acting general counsel Jack Gillean the
day before about the matter, but did not get in touch with him.
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Stacks told James and Steve Wood, UCA’s vice president for human resources,
about Bradley’s allegation. Stacks and Wood met with Bradley, and Bradley repeated
his allegation that James had been intoxicated the night of the Hughes Hall incident
and had interfered with the investigation.
On February 27, 2004, Wood sent a letter to Bradley stating, “Your inaction on
February 6th and your unsubstantiated comments about Chief James are both
terminable offenses.” The letter offered Bradley the choice to retire or be fired.
Bradley did not respond. On March 16, James sent Bradley a letter firing him for
“deliberate or gross neglect of duty” during the Hughes Hall incident. Bradley’s
accusations that James had been intoxicated during the Hughes Hall incident were not
referenced in the letter.
Bradley filed suit. The district court granted summary judgment on the First
Amendment retaliation claim against James in his official and individual capacities.
This appeal followed.
This court reviews a grant of summary judgment de novo. The question before
the district court, and this court on appeal, is whether the record, when viewed in the
light most favorable to the non-moving party, shows that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Even assuming Bradley was fired because of his allegations against James, and
that his allegations were a matter of public concern, he cannot prevail. This case is
controlled by the Supreme Court’s decision in Garcetti v. Ceballos, 126 S. Ct. 1951
(2006), decided in May 2006, after the March 2006 decision of the district court.
Garcetti applies the two-part Pickering test to determine whether a public
employee’s speech should receive constitutional protection. See Pickering v. Bd. of
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Educ., 391 U.S. 563, 568 (1968). First, did the employee speak as a citizen on a
matter of public concern? If the answer to that question is no, the employee has no
First Amendment cause of action based on his or her employer’s reaction to the
speech.2
We cannot find Bradley spoke as a citizen. Garcetti’s test for whether a person
spoke as a citizen or as a public employee comes down to whether the speech was
made “pursuant to official responsibilities.” 126 S. Ct. at 1961. “Restricting speech
that owes its existence to a public employee's professional responsibilities does not
infringe any liberties the employee might have enjoyed as a private citizen. It simply
reflects the exercise of employer control over what the employer itself has
commissioned or created.” Id. at 1960; see also McGee v. Pub. Water Supply, Dist.
#2 of Jefferson County, Mo., 471 F.3d 918, 921 (8th Cir. 2006).
As a police officer, Bradley had an official responsibility to cooperate with the
investigation Stacks was conducting into the UCAPD’s response to the Hughes Hall
incident. His allegations of intoxication against James were made at no other time
than during this investigation, and thus his speech was pursuant to his official and
professional duties. We affirm.
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2
If the answer is yes, the possibility of a First Amendment claim arises. The
question next becomes whether the government employer had an adequate
justification for treating the employee differently from any other member of the
general public. Pickering, 391 U.S. at 568. As we answer the first Pickering question
in the negative under Garcetti, we need not address this second question.
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