ARNDT v. KOBY, BECKNER
FILED
United States Court of Appeals
Tenth Circuit
OCT 31 2002
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
LINDA ARNDT,
Plaintiff - Appellant,
v. No. 01-1356
THOMAS KOBY and MARK BECKNER, individually and in their official capacity; THE
CITY OF BOULDER, a municipal corporation,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 98-WY-1198-WD)
A. Bruce Jones, Holland & Hart, Denver, Colorado (Conor F. Farley, Holland &
Hart, Denver, Colorado, and Judith A. Biggs, Holland & Hart, Boulder, Colorado,
with him on the briefs), for Plaintiff-Appellant.
Leslie L. Schluter (Sue Ann Haskell with her on the brief), Brooks & Schluter,
Denver, Colorado, for Defendants-Appellees.
Before BRISCOE, ANDERSON, and O'BRIEN, Circuit Judges.
ANDERSON, Circuit Judge.
Plaintiff Linda Arndt filed suit against her employer, the City of Boulder,
Colorado, its police chief and his successor, asserting a violation of her First
Amendment free speech rights, as well as violations of Colorado state law. The
district court granted summary judgment to the defendants on the Colorado state
law claims, and granted judgment as a matter of law on her 28 U.S.C. 1983 First
Amendment claim. She appeals those rulings, which we affirm.
BACKGROUND
Six-year-old JonBenet Ramsey was murdered inside her home in Boulder,
Colorado, on December 26, 1996. Ms. Arndt, at that time a detective with the
Boulder Police Department, was one of the first officers to arrive at the crime
scene, the Ramsey home, and was the only officer present when the child's body
was found. Ms. Arndt was involved in the murder investigation until she was
removed from the case in May 1997 by defendant Thomas Koby, then the Boulder
Police Chief.
While she was involved in the investigation, and continuing for some
period of time following her removal from the case, Ms. Arndt and other officers
involved in the Ramsey murder investigation were widely criticized in the media.
The criticisms generally alleged that Ms. Arndt and others had made mistakes and
otherwise mishandled the investigation, which contributed to the police
department's inability to identify and apprehend a suspect. She asserts that these
criticisms were false and harmed her reputation. She alleges that she discussed
these criticisms with Chief Koby and others. Neither Chief Koby nor anyone else
in the police department took any action regarding these alleged criticisms.
Additionally, Chief Koby imposed a gag order prohibiting anyone in the Boulder
police department from speaking to the media about the Ramsey investigation.
Ms. Arndt then retained an attorney, R. Brooke Jackson, who, in October
1997, wrote a letter to Chief Koby listing eight allegedly false statements made
about Ms. Arndt. In particular, the letter stated that:
[N]o one within the Department has made any effort of which we are
aware to stand behind Linda publicly, to correct the factual errors
being made, or otherwise to support her. Her reputation has been
harmed and continues to be harmed. She has been allowed to become
a scapegoat, if not the primary scapegoat, by a continuous series of
statements about one thing or another that she supposedly did that are
simply false.
Def.'s Ex. B, Appellant's App. Vol. I at 124. In a subsequent telephone
conversation, Mr. Jackson asked Chief Koby to either defend Ms. Arndt or allow
her to speak out herself to respond to the criticism. Chief Koby declined.
Ms. Arndt filed her complaint on May 19, 1998, while still employed by the
police department. She asserted a violation of her First Amendment right to
speak out on a matter of public concern, based on the fact that she was prevented
by the gag order from publicly responding to the allegedly false and harmful
media statements about her. She also alleged a Colorado constitutional claim as
well as a state law claim for false light invasion of privacy.(1)
She quit the department on May 1, 1999. Defendants(2) filed motions to
dismiss and for summary judgment, which the district court denied on November
30, 2000, concluding that Ms. Arndt's complaint sufficiently stated a claim for
relief such that "[it] would be inappropriate for the Court to engage in the
applicable balancing test at this stage of the proceedings." Appellant's App. Vol.
1 at 52-53.
In March 2001, defendants filed a second motion for summary judgment
which the court granted in part and denied in part. The court granted summary
judgment to defendants on Ms. Arndt's state law claims. The case proceeded to
trial on May 29, 2001, on the First Amendment claim. On June 4, defendants
filed a motion for judgment as a matter of law. On June 11, the court heard
arguments on the motion and on June 12, at the close of Ms. Arndt's case-in-
chief, it granted the motion, concluding that the speech Ms. Arndt alleged she was
prevented from making was not on a matter of public concern, as required for Ms.
Arndt's claim to succeed under applicable case law.
Ms. Arndt appeals, arguing (1) the district court erred in holding that her
proposed speech was not on a matter of public concern; (2) the balancing required
under United States v. Nat'l Treas. Employees Union, 513 U.S. 454 (1995)
("NTEU") and Pickering v. Bd. of Educ., 391 U.S. 563 (1968) must be conducted
by a jury on remand; and (3) the district court erred in dismissing her claim under
the Colorado Constitution.
DISCUSSION
"We review the district court's grant of judgment as a matter of law de
novo, using the same standard as the district court." Lantec, Inc. v. Novell, Inc.,
No. 01-4109, 2002 WL 31087822, at *15 (10th Cir. Sept. 19, 2002). Accordingly,
"[j]udgment as a matter of law `is warranted only if the evidence points but one
way and is susceptible to no reasonable inferences supporting the party opposing
the motion.'" Id. (quoting Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241
(10th Cir. 1999) (further quotation and citation omitted)). Further, "`if there is no
legally sufficient evidentiary basis with respect to a claim . . . under the
controlling law,'" we must affirm the grant of judgment as a matter of law to the
(1) At oral argument of this appeal, Ms. Arndt's attorney conceded that a
recent decision by the Colorado Supreme Court in The Denver Publ'g Co. v.
Bueno, No. 01SC386, 2002 WL 31097976 (Colo. Sept. 16, 2002), eliminated
Ms.Arndt's state law false light invasion of privacy claim.
(2) Mark Beckner was added as a defendant when he succeeded Chief Koby as
Chief of the Boulder Police Department.
party prevailing below. Id. (quoting Baty, 172 F.3d at 1241) (further quotation
and citation omitted)).
We review the grant of summary judgment de novo, applying the same
standard as did the district court. PeTA, People for the Ethical Treatment of
Animals v. Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002). Summary
judgment is proper when the "pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). "In cases involving the First
Amendment, the de novo standard is `appropriate . . . for the further reason that
. . . [i]n cases raising First Amendment issues . . . an appellate court has an
obligation to make an independent examination of the whole record in order to
make sure that the judgment does not constitute a forbidden intrusion on the field
of free expression.'" Horstkoetter v. Dep't of Pub. Safety, 159 F.3d 1265, 1270
(10th Cir. 1998) (quoting Lytle v. City of Haysville, 138 F.3d 857, 862 (10th Cir.
1998) (further quotation omitted)).
It is well established that "a state cannot condition public employment on a
basis that infringes the employee's constitutionally protected interest in freedom
of expression." Connick v. Myers, 461 U.S. 138, 142 (1983) (citations omitted);
see also NTEU, 513 U.S. at 465; Bass v. Richards, No. 01-1202, 2002 WL
1859034, at *5 (10th Cir. Aug. 14, 2002); Koch v. City of Hutchinson, 847 F.2d
1436, 1440 (10th Cir. 1988) (en banc). However, when the government acts as an
employer, "the First Amendment does not apply with full force." Horstkoetter,
159 F.3d at 1271. Thus, the government as employer "may impose restraints on
the job-related speech of public employees that would be plainly unconstitutional
if applied to the public at large." NTEU, 513 U.S. at 465. If the government
restrains the free speech rights of its employees, we assess the validity of that
restraint by balancing "the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through
its employees." Pickering, 391 U.S. at 568. Accordingly, "private speech that
involves nothing more than a complaint about a change in the employee's own
duties may give rise to discipline without imposing any special burden of
justification on the government employer." NTEU, 513 U.S. at 466. Restrictions
or sanctions on employee speech on matters of public concern, by contrast,
impose upon the government "the burden of justifying its adverse employment
action." Id.; see also Rankin v. McPherson, 483 U.S. 378, 388 (1987).
Pickering and Connick and subsequent cases applying their balancing test
involved an employee challenge to the constitutionality of an adverse employment
action previously taken in response to speech already made. NTEU, on the other
hand, involved a prior restraint imposed by the government upon employee
speech: "unlike an adverse action taken in response to actual speech, this ban
chills potential speech before it happens." NTEU, 513 U.S. at 468. This case too
involves a prior restraint, although it involves a restraint of far less breadth and
involves far fewer employees than the restraint at issue in NTEU. In such a case
involving a prior restraint of employee speech, while the Pickering/Connick
balancing test applies, it is modified:
[T]he government's burden is greater with respect to this statutory
restriction on expression than with respect to an isolated disciplinary
action. The Government must show that the interests of both
potential audiences and a vast group of present and future employees
in a broad range of present and future expression are outweighed by
that expression's "necessary impact on the actual operation" of the
Government.
NTEU, 513 U.S. at 468 (quoting Pickering, 391 U.S. at 571).(3)
In any event, under the Pickering balancing test, whether modified or not,
the threshold inquiry in analyzing the constitutionality of a governmental
restriction on employee speech is whether the particular speech at issue was on a
matter of public concern. That is a question of law for the court to determine.
Bass, 2002 WL 1859034, at *5. "A matter is of public concern . . . if it is `of
interest to the community, whether for social, political, or other reasons.'"
Horstkoetter, 159 F.3d at 1271 (quoting Lytle, 138 F.3d at 863). By contrast,
speech of purely personal interest, or involving internal personnel disputes, is not
of public concern. See id.; see also Bass, 2002 WL 1859034, at *5.
In determining whether employee speech addresses matters of public
concern we examine "the content, form and context of a given statement, as
revealed by the whole record," bearing in mind that our object is to distinguish
(3) NTEU addressed the constitutionality of a federal law prohibiting federal
employees from accepting honoraria for speeches or articles. The Supreme Court
acknowledged that the breadth of the ban on speech, and the fact that it
constituted a prior restraint of such speech, distinguished it from the Court's prior
applications of Pickering's balancing test: "The honoraria ban as applied to
respondents burdens speech far more than our past applications of Pickering
because the ban deters an enormous quantity of speech before it is uttered, based
only on speculation that the speech might threaten the Government's interests."
NTEU, 513 U.S. at 467 n.11.
Given our disposition of this case, we need not determine whether NTEU's
imposition of a greater burden on the government to justify its restraint of
employee speech depends upon all of the factors present in that case-a broad
statutory ban which operated as a prior restraint applicable to a very large group of
employees-or whether any of those factors, or some combination thereof,
justify the greater burden. Cf. Latino Officers Assoc. v. City of New York, 196
F.3d 458, 464 (2d Cir. 1999) ("Application of the NTEU standard turns on
whether a government employee's expression is restricted `through a generally
applicable statute or regulation, as opposed to a particularized disciplinary
action.'") (quoting Weaver v. United States Info. Agency, 87 F.3d 1429, 1439
(D.C. Cir. 1996)); see also Swartzwelder v. McNeilly, 297 F.3d 228, 236-37 (3d
Cir. 2002) (discussing NTEU and Pickering and following the Second Circuit
analysis in Latino Officers Assoc.); Shelton Police Union, Inc. v. Voccola, 125 F.
Supp. 2d 604, 623 (D. Conn. 2001) ("[T]he government's burden of
demonstrating that its interests outweigh the interests of the speakers is greater in
cases involving a prior restraint as opposed to cases involving isolated
disciplinary action.").
between "when a public employee speaks not as a citizen upon matters of public
concern, but instead as an employee upon matters only of personal interest."
Connick, 461 U.S. at 147-48. We turn, therefore, to the content, form and context
of Ms. Arndt's proposed speech in this case.
As indicated, Ms. Arndt, as well as various other members of the Ramsey
investigative team, had been criticized by the media for the way in which the
Ramsey investigation proceeded. Ms. Arndt sought to either have Chief Koby
issue a brief statement refuting alleged inaccuracies concerning Ms. Arndt's
conduct in the Ramsey investigation, or, if he refused, she sought permission to
make such a statement, despite the gag order barring any statements to the media.
Thus, the content of Ms. Arndt's proposed speech was a refutation of allegations
impugning her reputation.
After carefully reviewing the entire record in this case, we conclude that
the content of Ms. Arndt's speech supports the conclusion that her proposed
speech addressed purely personal concerns, not matters of public concern.
Beginning with her complaint, and continuing through depositions and her trial
testimony, Ms. Arndt's own averments, statements and testimony indicate she
sought, through her proposed speech, to clear her personal reputation and restore
her personal good name.
Her complaint avers the following:
13. A number of purported facts about Detective Arndt's actions
have been published, often more than once, and often after she
stopped working on the case, in the print and/or broadcast
media.
. . .
16. The publication and broadcast of such false statements sullied
the reputation Detective Arndt had earned as a police officer
and detective.
17. These publications and broadcasts have either stated or implied
that Detective Arndt "bungled" the investigation in its early
stages and is partly, if not largely, responsible for the problems
that have plagued the investigation of the Ramsey murder.
18. The Boulder Police Department, and Defendant Koby in
particular, were aware, during the entire period of time when
such media publications and broadcasts were being made and
re-made, that these statements about Detective Arndt were
untrue and were creating an unfair and damaging public
perception about Detective Arndt's role in the Ramsey
investigation.
First Am. and Supp. Compl. at 13-18, Appellant's App. Vol. I at 34-36
(emphasis added). The complaint continues to emphasize that Ms. Arndt's
concern, and the speech in which she sought to engage to alleviate that concern,
was about the alleged harm to her alone.
Chief Koby's testimony supports this view of Ms. Arndt's proposed speech.
He testified that "Linda never, to my knowledge, expressed concern about the
other members of the team. It was always what her concern is, her this, and her
that." Dep. of Chief Koby at 127, id. at 147. Ms. Arndt testified that when her
attorney, Mr. Jackson, contacted Chief Koby to inquire about making a statement
on Ms. Arndt's behalf, she wanted "[a] brief statement saying that the statements
about me were false." Dep. of Ms. Arndt at 268, id. at 325 (emphasis added).
When asked, "[i]t was your reputation you were concerned with, right?" Ms.
Arndt responded, "[s]ure was." Id. at 269.(4) Moreover, Ms. Arndt testified
repeatedly that she simply wanted Chief Koby to deny the eight specific instances
of alleged misconduct by Ms. Arndt detailed in Mr. Jackson's letter, or, if Chief
Koby refused to so deny them, she wanted the opportunity to deny them herself.(5)
Each of those eight allegations related solely and specifically to Ms. Arndt, not
the Boulder police department in general or other participants in the Ramsey investigation.
All of this evidence indicates, therefore, that her proposed speech
was that of "an employee [seeking to speak] upon matters only of personal
interest," not a "citizen upon matters of public concern." Connick, 461 U.S. at
147.
Ms. Arndt argues that, even if the content of her speech primarily sought to
restore her personal reputation, "the performance and integrity of a highly visible
public official" necessarily is a matter of public concern. Appellant's Opening
Br. at 23. While we agree that the performance and integrity of a public official
could be a matter of public concern, that is not always so. See Koch, 847 F.2d at
1447 (noting that a public employee's "own competence to perform his job could
be a matter of public concern.") (emphasis added). "To presume that all matters
which transpire within a government office are of public concern would mean that
virtually every remarkand certainly every criticism directed at a public
official would plant the seed of a constitutional case." Connick, 461 U.S. at 149;
see also Hesse v. Bd. of Educ. of Township High Sch. Dist. No. 211, 848 F.2d
748, 751-52 (7th Cir. 1988) ("While it cannot be gainsaid that educational
policies in a public school are matters of public concern, all but one of the
plaintiff's memoranda and statements were directed to the defense of his personal
teaching methods and his resentment of the evaluations and criticisms of those
methods."). The fact that Ms. Arndt was a police detective working on a murder
(4) For example, in explaining why she discussed with a television news show
producer the possibility of appearing on a national morning news program, Ms.
Arndt testified it was because "[t]here was no, no attempt[] by the Boulder Police
Department to ever clear my name." Dep. of Ms. Arndt at 17, Appellant's App.
Vol. I at 261 (emphasis added).
(5) At trial the following interchange occurred during cross-examination of
Ms. Arndt:
Q. . . There were eight points listed in the Brooke Jackson letter,
correct?
AYes.
QBrooke Jackson just wanted Chief Koby to deny those eight
allegations, correct?
AYes.
QAnd if Chief Koby wasn't willing to do that, he wanted the
opportunity for you to deny those with allegations, correct?
AYes.
Tr. at 1230-31, Appellant's App. Vol. X.
investigation which had garnered tremendous media attention does not alone
transform her speech designed to refute media criticisms of her personal,
individual competence in that particular investigation into speech on a matter of
public concern.
Ms. Arndt also argues that the form and context of her proposed speecha
public response to media coverage of a sensational murder investigation
somehow transforms her personal and specific desire to restore her reputation into
a matter of public concern. We disagree.
While it is true that the Ramsey investigation was the subject of intense
media interest, that alone will not convert speech in some way connected to such
an investigation into speech of public concern. See Lancaster v. Indep. Sch. Dist.
No. 5, 149 F.3d 1228, 1233 (10th Cir. 1998) ("Media publicity of a dispute is not
determinative of whether a public employee's speech was a matter of public
concern."); Koch, 847 F.2d at 1445 (noting that "what is of general interest to the
public is not necessarily of public concern for First Amendment purposes").
Further, the fact that she wished to respond publicly to media criticisms does not
necessarily indicate that her speech touched a matter of public concern. See
Lancaster, 149 F.3d at 1233 (holding that an employee's comments made to a
newspaper were not on a matter of public concern). Thus, neither the form nor
the context of her proposed speech compel the conclusion that her proposed
speech was on a matter of public concern for First Amendment purposes. They do
not overcome the fact that the content of her speech overwhelmingly supports the
conclusion that her speech was purely personal.
Finally, Ms. Arndt argues that the district court improperly gave, and
defendants urge us to improperly give, decisive weight to her motive in speaking.
She argues that our court has held that motive is not determinative. We agree that
an employee's subjective motivation, standing alone, is not determinative.
Rather, we look at motive as a way to help us assess the content of the speech "to
determine whether the speech was calculated to redress personal grievances or
whether it had a broader public purpose." Gardetto v. Mason, 100 F.3d 803, 812
(10th Cir. 1996); see also Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th
Cir. 2000). Ms. Arndt's proposed speech was clearly "calculated to redress
personal grievances." Gardetto, 100 F.3d at 812. Thus, the fact that Ms. Arndt
was motivated to salvage her personal reputation, and that her proposed speech
was tailored to achieve that goal, supports our assessment that her proposed
speech addressed purely personal and individual concerns.
In sum, we conclude that the district court correctly held that Ms. Arndt's
proposed speech did not address matters of public concern and was accordingly
not protected by the First Amendment. We therefore need not address the
Pickering/NTEU balancing inquiry.
Ms. Arndt also argues the district court erred in granting summary
judgment on her state law claims, of which only one remains on appeal. Ms.
Arndt's remaining claim invokes the Colorado Constitution's free speech clause.
See Colo. Const. art. II, 10. The district court granted summary judgment to
defendants on the claim, concluding that the existence of Ms. Arndt's 1983
claim provided an adequate remedy such that a separate Colorado constitutional
claim was "unnecessary." Tr. of Tel. Oral Ruling on Defs.' Second Mot. for
Summ. J. at 5, Appellant's App. Vol. I at 353. We agree.
In Bd. of County Comm'rs v. Sundheim, 926 P.2d 545 (Colo. 1996) (en
banc), the Colorado Supreme Court held that "[w]hile it may be appropriate to
recognize an implied state constitutional cause of action when there is no other
adequate remedy . . . where other adequate remedies exist, no implied remedy is
necessary." Id. at 553. Section 1983 provides such an adequate remedy. The fact
that Ms. Arndt ultimately has not prevailed on her section 1983 claim does not
make it any less "available" as a legal remedy under Sundheim. See Brammer-
Hoelter v. Twin Peaks Charter Acad., 81 F. Supp. 2d 1090, 1097-98 (D. Colo.
2000).
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.