effective, it was not improper for the Commissioner to so assure the public.
The existence of a particular alleged improper motive is a question of fact, while the question of whether an action is rationally related to a legitimate governmental interest is one of law. Midnight Sessions, 945 F.2d at 682-83. It would seem to follow that whether a particular motive is improper is a question of law. If not, juries would be permitted to return verdicts variously for and against defendants for engaging in identical conduct with an identical motive based on differing perceptions of the propriety of such a motive. In any event, a jury reasonably could not find that a desire of the Police Department hierarchy to show the citizens they serve and the elected officials to whom they are accountable that alleged misconduct can be efficiently and effectively addressed by the Department constitutes an "improper motive." Indeed, jurors would likely be incredulous upon being instructed that they may find such a purpose to be improper.
There are times when police officers are justified in using deadly force. Indeed, this is a reason why they carry firearms. Police officers who face difficult and dangerous situations understandably do not like to be second-guessed. The public understandably expects that with the training and resources available to them, police officers will undertake every effort to avert the use of or need to use deadly force. It ultimately falls upon the leaders of the Department to implement and effectuate policies to delimit the use of deadly force. They too do not like to be second-guessed.
The most that fairly appears from the record viewed most favorably to plaintiff is that at a time when the Commissioner wished to reassure the public and elected governing officials that the Department could effectively address police misconduct, defendants made or participated in a precipitous and erroneous decision about whether plaintiff had violated deadly force policy.
The evidence of record does not reasonably support a finding that in doing so, any defendant was capricious or ill-motivated or violated plaintiff's right to substantive due process.
C. PLAINTIFF'S REPUTATIONAL CLAIMS
Plaintiff claims that the public remarks of Commissioner Neal at the time of plaintiff's suspension and the published remarks attributed to the Commissioner and unidentified "city officials" following the ruling of the arbitrator were defamatory and violative of plaintiff's liberty interest in his reputation which, he asserts, is protected by substantive due process and Article I, § 1 of the Pennsylvania Constitution.
As a general matter, one does not have a federal constitutionally protected liberty interest in his reputation. Paul v. Davis, 424 U.S. 693, 711, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). A public official may properly disclose charges against a discharged employee. Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5th Cir. 1989), aff'd on relevant grounds, 901 F.2d 61 (5th Cir. 1990)(en banc).
Where one is defamed or stigmatized in the course of his dismissal from public employment, however, he does have a cognizable liberty interest. Codd v. Velger, 429 U.S. 624, 628, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1978); Paul, 424 U.S. at 709; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir. 1989); Doe v. Department of Justice, 243 U.S. App. D.C. 354, 753 F.2d 1092, 1111 (D.D. Cir. 1985). That interest, however, is not accorded substantive due process protection. In re Selcraig, 705 F.2d 789, 796-97 (5th Cir. 1983). See also Brown & Kerrigan, 42 U.S.C. § 1983: The Vehicle for Protecting Public Employees' Constitutional Rights, 47 Baylor L. Rev. 619, 645 (1995). Rather, the right accorded is that of procedural due process, specifically the right to an opportunity to refute the charges and clear one's name. Codd, 429 U.S. at 627; Paul, 424 U.S. at 710; Roth, 408 U.S. at 573; Brennan, 888 F.2d at 196; Doe, 753 F.2d at 1102-03.
That a right to one's reputation is recognized in the state constitution does not confer federal substantive due process protection. See Puricelli v. Borough of Morrisville, 820 F. Supp. 908, 914 (E.D. Pa. 1993), aff'd, 26 F.3d 123 (3d Cir. 1993), cert. denied, 130 L. Ed. 2d 282, 115 S. Ct. 321 (1994). Federal substantive due process rights are created by the U.S. Constitution and federal substantive due process protection is accorded only to fundamental interests derived from the federal Constitution. Ewing, 474 U.S. 214 at 229, 88 L. Ed. 2d 523, 106 S. Ct. 507 (Powell, J. concurring); Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995); Kraushaar v. Flanigan, 45 F.3d 1040, 1047 (7th Cir. 1995) (rights accorded substantive due process protection are those implicating fundamental principles of liberty and justice); Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986).
That a state has created a liberty interest in reputation would at most implicate procedural due process rights. Kraushaar, 45 F.3d at 1047; Puricelli, 820 F. Supp. at 915.
As noted, however, even when accompanied by other tangible injury such as loss of employment, federal due process requires no more than a timely opportunity to clear one's name.
Thus, a federal constitutional claim arises not from the defamatory or stigmatizing conduct per se but from the denial of a name-clearing hearing. Selcraig, 705 F.2d at 797 & n.10. It follows that to sustain a § 1983 stigmatization claim, an aggrieved employee must allege and prove that he timely requested a name-clearing hearing and that the request was denied. Howze v. City of Austin, 917 F.2d 208 (5th Cir. 1990); Rosenstein, 876 F.2d at 396.
There is no evidence of record that plaintiff requested or was refused a name-clearing hearing at the time of his dismissal. He was expressly given ten days to appeal to the decisionmaker and provide any reasons why he believed that his dismissal for inappropriate use of deadly force was unjustified, and he failed to do so. Thus, even if defendant Neal's public statement of May 24, 1993 could be found to be defamatory or stigmatizing, plaintiff has failed to establish a critical element on which he bears the burden of proof to sustain a § 1983 reputational claim for the remarks made on that occasion.
The remarks attributed to Commissioner Neal following the ruling of the arbitrator would have been made two years after plaintiff's dismissal. The Answer contains no admission that the Commissioner actually made the remarks attributed to him and plaintiff presents no competent evidence that he did. Plaintiff merely submits copies of news articles in which the reporter ascribes the remarks to the Commissioner. Plaintiff presents neither deposition testimony in which defendant Neal acknowledges making these comments nor an affidavit of a reporter or anyone else averring that he heard the Commissioner make them.
There is no evidence of the identity of any of the "city officials" to whom most of the later comments complained of were attributed and no competent evidence that the comments as synopsized in new accounts were actually made.
In any event, even assuming that the various comments were made as reported, that they were defamatory, that they were made in the course of denying plaintiff employment and that the statements of anonymous city officials could constitute a policy or practice, there is no evidence that following the publication of these statements plaintiff timely made a request for a name-clearing hearing which any defendant refused.
It is not clear that Pennsylvania would require more than a meaningful opportunity to be heard when one's liberty interest in reputation created by Article I, § I is impinged. See R. v. Com., Dept. of Public Welfare, 535 Pa. 440, 636 A.2d 142, 152-53 (Pa. 1994) (state constitutional interest in reputation vindicated by procedure mandated in Paul v. Davis for stigmatization-plus cases); Pennsylvania Bar Ass'n. v. Com., 147 Pa. Commw. 351, 607 A.2d 850, 857 (Pa. Cmwlth. 1992) (citizen cannot be deprived of state constitutional reputational interest "without a meaningful opportunity to be heard"). In the absence of any viable federal claim, however, this is something the court need not resolve. Similarly, the court need not address the parties' respective contentions about whether the comments attributed to Commissioner Neal and others following the arbitrator's ruling reasonably may be found to satisfy the elements of a state law defamation claim pursuant to 42 Pa. C.S.A. § 8343(a).
D. DEFENDANTS' IMMUNITY AND MONELL CLAIMS
Because plaintiff has not sustained a claim of a violation of a federal constitutional right in this case, it is unnecessary to resolve the individual defendants' claims of entitlement to qualified immunity.
The court notes, however, that qualified immunity protects officials from mistaken judgments and shields from liability "all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991). Qualified immunity is denied only if it reasonably appears that "the unlawfulness of [an official's] actions was so apparent that no reasonable [official] could have believed his actions were lawful." Lee v. Mihalich, 847 F.2d 66, 69 (3d Cir. 1988).
As noted, whether a tenured public employee, absent good cause for termination, has a fundamental right to continued employment which is entitled to substantive due process protection is debatable and unsettled. It was eminently reasonable to conclude that plaintiff appreciated on May 21, 1993 the charge he faced, the reason for that charge and the possible consequences, and to rely on Mr. Minehart's acceptance of the notice of plaintiff's suspension on May 24, 1993. Thus, even if there were some deficiency, it appears that reasonable officials in the circumstances presented could have believed that no due process right had been violated and that their actions were lawful.
The City claims that it cannot be liable because there is no evidence of any pertinent policy, practice or custom. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Suffice it to say that in so far as Commissioner Neal had final decisionmaking authority with regard to the challenged actions, the City could be liable for those actions were they unconstitutional. See Pembaur v. Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986); Keenan v. City of Philadelphia, 983 F.2d 459, 468 (3d Cir. 1992); DeFeo v. Sill, 810 F. Supp. 648, 655 (E.D. Pa. 1993).
It seems clear that the City and the individual defendants, in so far as they are sued in their official capacities, enjoy immunity from liability for defamation. See 42 Pa. C.S.A. § 8542; Kessler v. Monsour, 865 F. Supp. 234, 240-41 (M.D. Pa. 1994); Verde v. City of Philadelphia, 862 F. Supp. 1329, 1336-37 (E.D. Pa. 1994); Weinstein v. Bullick, 827 F. Supp. 1193, 1205-06 (E.D. Pa. 1993); Petula v. Mellody, 158 Pa. Commw. 212, 631 A.2d 762, 765 (Pa. Cmwlth. 1993).
Accepting that his conduct is attributable to defendants, Lt. Hodgen proceeded on May 21 and May 24, 1993 in a manner consistent with the guaranty of procedural due process.
Even assuming that continued public employment is a fundamental right which enjoys substantive due process protection, the record presented would not reasonably sustain a finding that any defendant deliberately acted in an arbitrary, capricious, ill-motivated or conscience-shocking manner in taking, recommending or acquiescing in the adverse employment action complained of.
Plaintiff's stigmatization claim implicates procedural, not substantive, due process rights. In the absence of any proof that he timely requested a name-clearing hearing and that any defendant refused such request, plaintiff cannot sustain his federal reputational claim.
Defendants' request for summary judgment will be granted on plaintiff's federal claims. In the absence of a viable federal claim, the court will dismiss plaintiff's state claims without prejudice to pursue them in a state forum. See 28 U.S.C. §§ 1367(c)(3) and (d); 42 Pa. C.S.A. § 5103(b)(1).
Appropriate orders will be entered.
AND NOW, this 3rd day of June, 1996, upon consideration of defendants' Motion for Summary Judgment and plaintiff's response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is GRANTED in that JUDGMENT is ENTERED in the above action for defendants and against plaintiff on his federal claims, the remaining state claims are DISMISSED without prejudice and accordingly, the above case is closed.
BY THE COURT:
JAY C. WALDMAN, J.
AND NOW, this 3rd day of June, 1996, upon consideration of plaintiff's Motion for Partial Summary Judgment and defendants' response thereto, IT IS HEREBY ORDERED that said Motion is DENIED.
BY THE COURT:
JAY C. WALDMAN, J.