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FIRE FIGHTERS ASSN. v. BARRY

July 13, 1990

FIRE FIGHTERS ASSOCIATION, DISTRICT OF COLUMBIA, et al.
v.
MARION S. BARRY, et al.


June L. Green, United States District Judge.


The opinion of the court was delivered by: GREEN

This case pits two important societal interests against one another: the interest in maintaining an effective and efficient fire department against the free speech interests of allowing government employees to criticize the workings of that department without fear of punishment. The Washington, D.C. Fire Fighters Association and five individual District of Columbia firefighters are suing the Washington, D.C. Fire Department and various Fire Department officials, seeking monetary, injunctive and declaratory relief for alleged violations of their first amendment rights. The plaintiffs seek partial summary judgment on the issue of whether or not the enforcement of certain Fire Department regulations against the individual plaintiffs violated the First and Fifth Amendments of the United States Constitution. The defendants oppose plaintiffs' motion and have filed a cross-motion for summary judgment, claiming that application of these regulations to the plaintiffs did not result in any constitutional deprivation.

 Upon consideration of the plaintiffs' motion and statement in support, defendant's opposition and cross-motion, plaintiffs' reply, both parties statements of material facts, supplemental filings, oral argument, the entire record, and for the reasons set forth below, the Court grants in part the plaintiffs' motion for partial summary judgment and denies the defendants' cross-motion for summary judgment.

 I. Factual Background

 The backdrop to this litigation paints a scene of continuing negative publicity about the District of Columbia's Fire Department. Early in 1985 several news stories described brewing controversy in the D.C. Fire Department. *fn1" Much of the controversy centered on Fire Chief Theodore R. Coleman. But articles and press coverage focusing on the effectiveness of the Department's emergency and ambulance services, its affirmative action program, the safety of the Department's equipment, as well as general concerns over the Department's efficiency, discipline and morale continued to occupy the news through 1987 when the incidents at issue occurred. (See P.Ex. 16).

 In response to the "negative news coverage", Chief Coleman organized the "Community Action Team" ("CAT"), a group of top-level managers in the Fire Department, to handle public information. P.Ex. 17; See also Defendants' Response to the Plaintiffs' Statement of Material Facts in Support of their Motion for Partial Summary Judgment ("Defendants' Response") at 8. Several top-level Fire Department and city officials also wrote to various TV and radio stations complaining of unjustified criticism of the Department and lack of professional standards in reporting about Fire Department controversies. P.Ex's 19-25.

 It was in the context of this surrounding strife that the plaintiffs ran afoul of department regulations.

 A. Incident Involving Individual Firefighters

 1. Captain Dowey, Firefighter Darmstead, Firefighter Dypsky, and the Bumper Sticker Incidents

 In August 1987, plaintiff Clifton Dowey, Jr. *fn2" had specialized bumper stickers printed which bore the message, "D.C. Fire Department -- It's Not Just a Job, It's a Joke Too!" Dowey sold the bumper stickers for $ 1.00 each and donated the proceeds of the sale to the Washington Hospital Burn Center Unit. Captain Dowey and firefighters William G. Darmstead and Gregory C. Dypsky each displayed one of the stickers on their privately owned vehicles.

 The following day, the same incident was repeated with Captain Dowey. He parked his automobile on Department property with the bumper sticker attached. Dowey was ordered by defendant Jackson to remove either the bumper sticker or his vehicle. Jackson told Dowey that he found the bumper sticker "offensive". Defendants' Response to Plaintiffs' Statement of Material Facts ("Defendants' Response") at 19, para. 79. Dowey followed Jackson's order and removed his vehicle.

 Defendant Assistant Fire Chief Dixon discussed the incidents involving Darmstead and Dowey with defendant Chief Coleman. Both Dixon and Coleman were angry about the incidents. Coleman felt that the content of the message embarrassed and harassed members of the Department. P.Ex. 1 at 88. It was agreed that defendant Jackson would place both men on charges for violating Article VI, Section 3 (the "Bumper Sticker Regulation") of the Fire Department Order Book. *fn3"

 The charges against both Darmstead and Dowey were referred to the Disciplinary Investigation Board ("DIB"). *fn4" Following a review of the charges, the DIB recommended no further action be taken against either firefighter. However, defendant Dixon rejected this recommendation and ordered the charges be pursued. A hearing examiner found both men guilty of violating the department's Bumper Sticker regulation. Darmstead and Dowey were issued official reprimands by Dixon's successor, defendant Assistant Fire Chief Rayfield Alfred.

 Captain Dowey also was transferred to a different post and his name removed from the list of captains able to serve as an Acting Battalion Fire Chief as a direct result of the bumper sticker incident. *fn5"

 On August 26, 1987, plaintiff Gregory C. Dypsky parked his truck with one of Captain Dowey's bumper stickers affixed to the rear window, on public property behind a Fire Department building. That morning, Dypsky was ordered by defendant, Acting Captain Raymond D. Thomas, to remove his vehicle or remove the bumper sticker. Dypsky refused, pointing out that his truck was parked on public property. However, two days later when Captain William Hopkins ordered plaintiff Dypsky to remove the bumper sticker, Dypsky complied.

 Thereafter, the Fire Department independently sought to determine whether the parking space used by plaintiff Dypsky was public or Fire Department property. In reports to Chief Coleman, both Captain Hopkins and Battalion Fire Chief Donald A. Scalise indicated that the area was, in fact, public space and both recommended that plaintiff Dypsky should not be charged with a violation of the Department's Bumper Sticker regulation.

 Despite the recommendations, charges were brought against plaintiff Dypsky and the matter was referred to the DIB. The DIB concluded unanimously that Dypsky's truck was not parked on Fire Department property; therefore, he should not be charged under Article VI, Section 3 of the Order Book.

 After receiving the DIB recommendation, defendant Dixon ordered that plaintiff Dypsky be charged instead with a violation of Article VI, Section 4 *fn6" of the Fire Department Order Book ("the Department Reputation Rule"), on the ground that Dypsky had engaged in conduct "prejudicial to the Department's reputation, order or discipline", by displaying the bumper sticker. Plaintiffs' Statement at 21; Defendants' Response at 21. The charges were dated August 26, 1987, the date of the incident, and again referred to the DIB. The DIB once again recommended unanimously that the charge against plaintiff Dypsky be dropped. However, defendant Dixon also rejected this recommendation and ordered the charge be pursued. The disciplinary action against plaintiff Dypsky remains pending.

 2. Firefighter Ricker

 On August 25, 1987, while on duty, plaintiff Gregory A. Ricker telephoned a television reporter for WJLA-TV from a public phone located in the fire station. Ricker agreed to be interviewed about his opinions on the safety of the Latex gloves worn by firefighters treating trauma victims. *fn7" Ricker informed the reporter, however, that pursuant to Department policy, she would need to obtain permission from the Department's Public Affairs Officer, defendant Rayfield Alfred, before he could be interviewed on camera. Defendants' Response at 11.

 Defendant Alfred denied permission for the televised interview. Later that day, Assistant Fire Chief Howard E. Dixon, on the order of defendant Coleman, suspended Ricker without pay until further notice, *fn8" on the ground that Ricker had violated Memorandum No. 38 *fn9" of the Department Regulations by granting an interview while on duty without receiving prior permission.

 The next day, while on suspension and out of uniform, plaintiff Ricker visited the Fire Department Training Academy. He had read a report in The Washington Post newspaper that the Department had conducted safety tests on the Latex gloves, and he desired to inquire as to the results of those tests. *fn10" When Ricker arrived in the office of the Department Safety Officer, he found a television reporter and camera man from WJLA-TV interviewing the Officer about the outcome of the glove tests. The reporter approached Ricker and asked him to comment on the safety of the Latex gloves. Ricker agreed to be interviewed and arranged to meet the reporter off Fire Department property. The interview was conducted a short while later at a bus stop nearby.

 Upon learning that plaintiff Ricker had participated in this interview, defendant Howard E. Dixon, the Assistant Fire Chief, ordered a "special report" be written about the incident. *fn11" Ricker was cited for a second violation of Memorandum 38. The charges against plaintiff Ricker, outlined in the "special report", have now been referred to the DIB and remain pending.

 3. Firefighter Lee

 On September 3, 1987, one week after the incident involving plaintiff Ricker, plaintiff Brian K. Lee, dressed in jogging clothes, went, during his off-duty hours, to the Department's Training Academy. A television crew from station WUSA-TV was there, with the Department's permission, filming a segment on the Fire Department's Cadet Program. Lee spoke to a station representative about the program. He expressed his personal opinion that the program was excellent in theory but was discriminatory in practice because only students from local public high schools were eligible.

 Defendant Lieutenant Philip Proctor is responsible for administering the Fire Department Cadet Program. He was participating in the interview by WUSA-TV, and overheard some of Lee's comments. On orders from Deputy Chief Dixon, defendant Proctor prepared a "special report" on plaintiff Lee's statements. *fn12" Defendant Matthews endorsed the report and cited plaintiff Lee with violation of Article III, Section 7 of the Department's Rules and Regulations. *fn13" Defendant Dixon referred the charge against Lee to the DIB; the matter is still pending.

 DISCUSSION

 I. Summary ...


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