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Eric Beyer v. Duncannon Borough

October 1, 2012

ERIC BEYER, PLAINTIFF
v.
DUNCANNON BOROUGH, ET AL., DEFENDANTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

We are considering Defendants' motion for summary judgment. This matter relates to the 2008 termination of Plaintiff from the Duncannon Borough Police Department. Plaintiff alleges that Defendants Duncannon Borough, Duane Hammaker, and Patrick Brunner retaliated against him for exercise of his First Amendment right of free speech. Defendants filed a motion for summary judgment, arguing that Plaintiff's speech was not constitutionally protected, and Defendants Hammaker and Brunner did not engage in any retaliatory conduct.

II. Background

In November 2005, two officers in the Duncannon area were in pursuit of a man involved in a shooting. The suspect, armed with a 7 mm Magnum rifle, shot and injured one officer and then killed himself. Within the community, the shooting raised the issue of officer safety, because the officers were armed with shot guns that had a significantly shorter range than the rifle used by the shooter. Following the incident, the Duncannon Police Department purchased two AR-15 rifles.

On November 20, 2007, the Borough Council learned that the two rifles had been purchased and began investigating the purchase. On December 18, 2007, the Council removed the rifles from service. On January 15, 2008, Plaintiff, a part-time police officer in Duncannon, attended a Borough Council meeting and requested that the rifles be placed back into service. Council denied the request. On March 6, 2008, Council placed one of the rifles back into service.

In June 2008, Borough Council became aware of internet postings made under the name "bigbear," discussing the Council's decision to remove the rifles from service. Some postings by "bigbear" used derogatory language to refer to Council members. In a January 16, 2008 posting, "bigbear" wrote "I told the mayor that I will be carrying my [personal] rifle until next month, but that they will be providing me with ammo." Pursuant to Borough policy, Plaintiff was required to provide his own weapon while on duty, but the Borough supplied ammunition.

The Council sent a letter to Plaintiff, asking whether he was the author of internet postings under the name "Big Bear." Plaintiff responded that he identified himself on some web sites as "bigbear." The Chairman of Duncannon's Community Policing Committee sent a letter dated July 1, 2008 to Beyer requesting his presence at a fact-finding interview on July 8, 2008. On the day of the scheduled meeting, the Chairman of the Committee received a written note from Plaintiff indicating that he would not be able to attend the meeting. On July 15, 2008, at a regularly scheduled meeting, the Council approved a motion terminating Plaintiff's employment.

Plaintiff argues that his termination was a result of his criticism of the Council's decision to remove the rifles from service and reference to the negative impact on officer safety. Michael Fedor and Duane Hammaker, members of the Council, contend Plaintiff was discharged because he failed to attend the July 8, 2008 meeting. Hugh Brunner, another member of the Council, was concerned with an internet posting, believed to be authored by Plaintiff, indicating he would continue to carry a rifle after Council removed the Borough-owned rifles from service.

Council members Lauster, Bomberger, Fedor, and Bell voted in favor of Plaintiff's discharge. Members Brunner and Conrad voted against the discharge. Hammaker did not participate in the vote, but he did, in his capacity as Council President, send Plaintiff a termination notice.

Plaintiff brought the present action on July 17, 2009, alleging Defendants Hammaker, Brunner, and the Duncannon Borough retaliated against him for exercise of his First Amendment right of freedom of speech. Defendants filed a motion for summary judgment on May 30, 2012. Plaintiff responded on August 3, 2012.

III. Discussion

A. Standard of Review

We will examine the motions under the well-established standard. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir. 2008). We "must view all evidence and draw all inferences in the light most favorable to the non-moving party, and may affirm a grant of summary ...


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