IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No.96-60643
(Summary Calender)
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TONY TILLMAN,
Plaintiff-Appellant,
versus
CITY OF WEST POINT,
MISSISSIPPI
Defendant-Appellee.
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Appeal From the United States District Court
for the Northern District of Mississippi
(No. 1:95-CV-198-S-D)
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February 17, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This is an appeal by a former city policeman who challenges
the district court’s grant of summary judgment in favor of
Defendant-Appellee City of West Point, Mississippi (the City).
Plaintiff-Appellant Tony Tillman claims that he was deprived of his
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
constitutional right to a name-clearing hearing under the Due
Process Clauses of the Fifth and Fourteenth Amendments and that he
was deprived of his First Amendment right of association. With
regard to the first constitutional claim, the district court found
that Tillman had failed to establish entitlement to a name-clearing
hearing under the Due Process Clauses on two grounds: (1) The
newspaper article that reported that Tillman had been charged with
violating the City police department’s procedures by associating
with a known criminal and by refusing a polygraph was not false
because the City had in fact asserted such charges; and (2) the
questions posed to citizens by law enforcement officers
investigating whether Tillman was involved in drug trafficking or
in a local murder were not rhetorically defamatory in nature, but
rather were properly interrogatory and at most implied a
professional opinion or belief that Tillman could have been engaged
in criminal conduct. The court found that Tillman’s First
Amendment claim failed because his association with one Robert
Rupert, an old friend who had fallen into a life of crime, was not
an association protected by the First Amendment.
In conducting our de novo review, we carefully combed the
record on appeal, evaluated the arguments of counsel for both
parties as set forth in their respective briefs to this court, and
considered the relevant facts and the applicable law; and reached
the firm conclusion that the district court correctly analyzed the
issues, applied the appropriate law, and reached the correct result
2
in dismissing both of Tillman’s constitutional claims. We add,
however, that the district court’s grant of summary judgment on
Tillman’s due process claim is bolstered by another central fact,
perhaps not fully articulated by the district court.
As the City points out in its brief, Tillman admits explicitly
that he did maintain a long-standing relationship with one Robert
Rupert, an individual who was a known criminal, even though such an
association was strictly prohibited by the City police department’s
own rules. Indeed, much of Tillman’s argument in this case is
devoted not to denying his rather blatant association with Rupert
but to attempting to explain why this continuing relationship was
justified in this particular instance, and even to asserting that
the association was protected by the First Amendment. In so doing,
however, Tillman demonstrates that he cannot satisfy one of the
fundamental elements necessary to state an actionable claim that he
was deprived of his limited constitutional right to a name-clearing
hearing, i.e., that the charges brought against him were false.1
Although we acknowledge that Tillman might possibly show that the
City’s other charge —— that he refused a polygraph —— was false,2
1
See Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir.
1993); Arrington v. City of Dallas, 970 F.2d 1441, 1447 (5th Cir.
1992); Rosenstein v. City of Dallas, 876 F.2d 392, 396 (5th Cir.
1989).
2
Tillman apparently only refused to take a City administered
polygraph, but he was willing and in fact did submit to a
polygraph administered by a third party, which he eventually
failed.
3
Tillman still is not entitled to relief on this fact alone because
the other and far more important charge of consorting with a known
criminal is, as we have explained above, admittedly true.
We sense that Tillman and his counsel have either
misunderstood or mischaracterized the interplay between the
important constitutional protections he claims to assert in this
action and the solemn responsibilities he undertook in accepting a
position as a police officer, a guardian of the public’s safety and
security. When an individual accepts the privilege and
responsibility of a position of public authority, such as that of
a police officer, he will enjoy new associations with his fellow
citizens that he did not enjoy before; at the same time, however,
he also must relinquish some associations he previously enjoyed,
particularly when those associations involve individuals who are
the subject of law enforcement scrutiny. This trade-off is in no
way unique to police officers. Others who assume important public
roles find their associational rights properly altered and in some
respects curtailed. To cite just one obvious example, lawyers who
become judges can no longer associate with other lawyers with the
same freedom they enjoyed before they assumed their privileges and
duties on the bench. In short, Tillman implicitly but knowingly
waived his right of free association, to the extent such right
might have allowed association with police characters like Rupert,
when Tillman commenced a career in law enforcement. In so doing he
agreed to abide by the rules and regulations of the police force,
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and is held to have understood that he had to change or curtail the
exercise of some rights of ordinary, private citizens, including
aspects of free association.
Finally, we note that the City adduced ample evidence of the
serious harm Tillman’s association with Rupert inflicted on its
police department’s internal functioning and integrity as well as
its public reputation in the community. This clearly demonstrates
why the City established its rules limiting police officer’s
association with criminals in the first place and why its interests
in enforcing such restrictions far outweigh any limited
associational rights Tillman could possibly assert here. This is
not diminished by Tillman’s lame rationale that his association
with Rupert sprang from a lofty motive of rehabilitating Rupert and
influencing him to turn from a life of crime —— none of which was
communicated to or approved by Tillman’s superiors in advance.
For all these reasons and for those set forth in the district
court’s thoughtful and well-reasoned Memorandum Opinion, the
district court’s grant of summary judgment dismissing Tillman’s
claims is
AFFIRMED.
5