Arvinger v. Mayor of Baltimore

862 F.2d 75, 1988 WL 123915
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 23, 1988
DocketNo. 88-2002
StatusPublished
Cited by16 cases

This text of 862 F.2d 75 (Arvinger v. Mayor of Baltimore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arvinger v. Mayor of Baltimore, 862 F.2d 75, 1988 WL 123915 (4th Cir. 1988).

Opinion

RICHARD L. WILLIAMS, District Judge:

This case involves the first amendment rights of public employees. The lower court held that the appellants violated the first amendment rights of the appellee when it fired him for a statement he made. Because we hold that the statement in question did not involve a matter of public concern, but was rather made with only private interests in mind, the lower court decision must be reversed.

I.

Stephen A. Arvinger was a school police officer employed by the Department of Education of the City of Baltimore. On the evening of July 14, 1983, he and fellow school police officer Diane Diggs drove in Mr. Arvinger’s van to the home of a third person. Ms. Diggs went into the house while Mr. Arvinger remained outside in his van. While he was waiting, Baltimore City police officers approached the van and, because they spotted cigarette rolling papers on the dashboard, searched the van. The search turned up an envelope containing marijuana. At this point, the stories of appellants and appellee begin to differ. Mr. Arvinger claims that, in response to police questioning concerning the marijuana, he told them that it was not his, and that he did not know whether it belonged to Ms. Diggs. The appellants claim that Mr. Arvinger told the police that night that the marijuana belonged to Ms. Diggs. Mr. Arvinger was arrested; Ms. Diggs was not.

Following the arrest, Mr. Arvinger was repeatedly questioned concerning the ownership of the marijuana, and there are several conflicting accounts of his answers. Mr. Arvinger maintains that he did not know whether the marijuana belonged to Ms. Diggs, and that he has so stated consistently. The appellants claim that Mr. Arvinger has twice stated that the marijuana in fact belonged to Ms. Diggs. Criminal charges against Mr. Arvinger were [77]*77dropped in August. Ms. Diggs was fired in September because the department’s investigation led them to believe that the marijuana was hers.

In March of 1984, Ms. Diggs filed sex discrimination charges against the department based on the disparate treatment she and Arvinger received following the discovery of the marijuana. In connection with this suit, Mr. Arvinger was again questioned about the incident by an investigator of the Baltimore Community Relations Commission (CRC) in June, 1984, and he stated that he did not know whether the marijuana was hers. On December 4, 1984, Larry Burgan, Chief of School Security Force and Bernard Stokes, Assistant Chief, informed Mr. Arvinger that he was fired for lying to the CRC investigator.

Mr. Arvinger responded by filing the present suit under 42 U.S.C. § 1983, charging that the department fired him for speaking out on an issue of public concern — sex discrimination — and that this was a violation of his first amendment rights. He also sued under 42 U.S.C. § 1985, alleging a conspiracy to violate these same rights. The court below ruled as a matter of law that Mr. Arvinger’s statement was about a matter of public concern, and that the defendants had failed to prove that it was disruptive or in any other way impaired Arvinger’s or the department’s work. The case was tried to a jury on the § 1983 and § 1985 claims. The jury found liability under the former, but not the latter, and assessed damages accordingly. This appeal followed.

II.

A public employee, it has long been held, does not have a constitutional right to his job. This does not mean, however, that any condition, no matter how arbitrary or unconstitutional, may be placed on continued public employment. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). There is a tension inherent in the government’s role as employer. In its capacity as government, its actions are constrained by the constitution in ways that the actions of private entities are not. In its proprietary capacity, however, it must be free to make efficient personnel decisions. See Rankin v. McPherson, 483 U.S. 378,_, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315, 324 (1987), reh’g denied_.U.S_, 108 S.Ct. 31, 97 L.E.2d 819 (1987); Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1982).

The effort to resolve this tension in the free speech context began with Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1972). That case established a balancing test between “the interests of the [employee], as a citizen, in commenting upon matters of public concern,” and “the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568, 88 S.Ct. at 1735. A proper Pickering analysis asks first whether the speech in question involved a matter of public concern, and then whether that speech so disrupted the employer’s functioning as to justify the imposition on the speaker’s first amendment rights. If it is determined that the statement concerns private rather than public matters, it is not necessary to proceed to a consideration of the employer’s interests. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1982). The public concern determination is a question of law to be decided by the court. Id. at 147 n. 7, 103 S.Ct. at 1690 n. 7. We therefore review de novo the district court’s holding that Arvinger’s statement involved a matter of public concern.

Constitutional scholars have discussed many different purposes for the First Amendment. We do not undertake to decide among these today, but rather note that with respect to the Pickering doctrine, one purpose stands out. The Supreme Court, in the Connick case noted that the public concern prong of the Pickering test was rooted in the understanding that “ ‘speech concerning public affairs is more than self-expression; it is the essence of [78]*78self-government.’ ” Connick, 461 U.S. at 145, 103 S.Ct. at 1689, quoting Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125 (1964). The Pickering doctrine is not aimed at protecting the jobs of public employees in the face of any statement they might make on any subject. Instead, because debate on topics of public concern is fundamental to the American system of government at all levels, Pickering is designed to ensure that a governmental entity does not use its personnel decisions to influence that debate.

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Arvinger v. Mayor And City Council Of Baltimore
862 F.2d 75 (Fourth Circuit, 1988)

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Bluebook (online)
862 F.2d 75, 1988 WL 123915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arvinger-v-mayor-of-baltimore-ca4-1988.