David C. Singleton v. Don Cecil

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 97-1726
___________

David C. Singleton, *
*
Appellant, *
* Appeal from the United
States
v. * District Court for the
* Eastern District of
Missouri.
Don Cecil, Individually and in his *
official capacity as Chief of Police; *
Harley Moyer; Ivan Parker; Kevin *
Tidwell; Della Price; City of Advance, *
*
Appellees. *
___________

Submitted: November 18, 1997
Filed: January 8,
1998
___________

Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and
MAGILL, Circuit Judges.
___________

MAGILL, Circuit Judge.

After the City of Advance, Missouri, terminated the
employment of police officer David Singleton, Singleton
sued the City of Advance's police chief and members of its
city council under 42 U.S.C. § 1983 (1994). Singleton
initially claimed that he was terminated in retaliation
for his knowledge of the police chief's allegedly improper
purchase of an automobile. After discovery revealed that
Singleton was discharged

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because his wife and daughter had plotted to frame the
police chief, Singleton amended his complaint to claim
that his termination infringed on his rights of free
speech, association, privacy, and due process. The
district court1 granted summary judgment to the defendants
on all claims. Singleton appeals only the grant of
summary judgment on his claims that the termination
infringed on his fundamental right of privacy in the
marital relationship and on his right to intimate familial
association. We affirm.

I.

The City of Advance, Missouri, employed plaintiff
David Singleton as a police officer from 1990 until his
termination in March 1994. During the period relevant to
this appeal, defendant Don Cecil served as the City of
Advance's police chief. Defendants Harley Moyer, Ivan
Parker, Kevin Tidwell, and Della Price were elected
members of the City of Advance's city council. William
Bradshaw, the mayor of Advance during this period, was not
a named defendant. The City of Advance did not have a
written employment agreement with Singleton. Under
Missouri law, Singleton's employment was terminable at
will, either by the mayor with approval of a simple
majority of the city council, or by a two-thirds vote of
the city council. See Mo. Ann. Stat. § 79.240 (West
1987); State ex rel. Lupo v. City of Wentzville, 886
S.W.2d 727, 730-31 (Mo. Ct. App. 1994).

1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.

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 On the morning of March 8, 1994, Joann Singleton, the
plaintiff's wife, called Sabrina Scaggs, the plaintiff's
daughter, on a cordless telephone. Their conversation
turned to the subject of Police Chief Cecil, who, in David
Singleton's view, had purchased for his own benefit a red
1994 Ford Crown Victoria under an incentive

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program designed only for government purchases.2 At one
point in the conversation, Joann Singleton remarked that
she wanted to "set up" Cecil by hiring someone to bribe
him. Scaggs Dep. at 57, reprinted in Appellees' App. at
237. Unfortunately for the Singletons, this statement was
recorded by private investigator David George. Throughout
March 1994, George monitored cordless phone channels in
the City of Advance with his radio scanner, "[m]ore or
less" for entertainment purposes. George Dep. at 37,
reprinted in Appellees' App. at 228. George played the tape for Police
Chief Cecil and the mayor and later gave Cecil a copy of
the tape.

Over the next few days, Police Chief Cecil played the
tape for the city council members individually. Each
recognized the voices on the tape as Joann Singleton and
Sabrina Scaggs. At a special meeting on March 11, 1994,
the city council unanimously voted to terminate
Singleton's employment as a police officer, based on the
recording of Joann Singleton plotting to frame Police
Chief Cecil. See Tidwell Aff. at 3-4, reprinted in
Appellees' App. at 134-35; Moyer Aff. at 3-4, reprinted in
Appellees' App. at 139-40; Parker Aff. at 3-4, reprinted
in Appellees' App. at 144-45; Price Aff. at 3-4, reprinted
in Appellees' App. at 149-50. Singleton received a

2
Mayor Bradshaw and the city council members had prior knowledge of Police
Chief Cecil's purchase and considered the car available for use by the city as a backup
police vehicle. See Bradshaw Dep. at 30, reprinted in Appellees' App. at 90; Tidwell
Aff. at 1-2, reprinted in Appellees' App. at 132-33; Moyer Aff. at 1, reprinted in
Appellees' App. at 137; Price Aff. at 1, reprinted in Appellees' App. at 147. Despite
David Singleton's belief that Police Chief Cecil had engaged in illegal activity,
Singleton never notified any law enforcement officials, the mayor, or the city council
of his concerns.

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discharge letter dated March 11, 1994, which did not state
a reason for his termination.

Singleton then sued Police Chief Cecil and the city
council. Singleton's initial complaint alleged wrongful
discharge and a violation of procedural due process.
Singleton later amended this complaint to allege that the
City of Advance violated his

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First Amendment, due process, and privacy rights by
terminating him in retaliation for his knowledge of Police
Chief Cecil's automobile purchase. During discovery,
Singleton learned that the defendants' sole reason for
their action was the recording of Joann Singleton plotting
to bribe the chief of police. On November 11, 1996,
Singleton again amended his complaint to include the
additional claims that the dismissal based on his wife's
statement violated Singleton's rights of free speech,
intimate association, privacy, and due process.

Based solely on the second complaint,3 the defendants
moved for summary judgment. Singleton did not respond to
this motion. The district court ruled on all of the
claims in the third amended complaint and granted summary
judgment for the defendants. The district court concluded
that Singleton could not show retaliatory discharge
because insufficient evidence connected Singleton's
allegedly protected conduct (the intended whistle-blowing)
and his termination. The district court also held that,
as an employee at will under Missouri law, Singleton did
not have a liberty or property interest in his employment
sufficient to implicate procedural due process rights.
Finally, the district court held that the defendants did
not violate Singleton's privacy or associational rights
and noted that the defendants "had a legitimate, good
faith belief that plaintiff, with his family, was engaging
in improper conduct by conspiring to bribe the Chief of
Police." Mem. and Order (Feb. 20, 1997) at 8, reprinted
in Appellant's App. at 95.

3
Due to an oversight on behalf of Singleton's counsel, the third amended
complaint was never properly served on the defendants.

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 Singleton appeals only the district court's
determination that the city did not violate his substantive due
process right of privacy in his martial relationship and his First Amendment
right of intimate association.

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 II.

We review the district court's grant of summary
judgment de novo. Morgan v. Rabun, 128 F.3d 694, 696 (8th
Cir. 1997). Summary judgment is appropriate when, viewing
the facts and inferences in the light most favorable to
Singleton, "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). As the
material facts in this case are undisputed, we are left
solely to determine whether the City of Advance is
entitled to judgment as a matter of law.

Singleton acknowledges that his employment as a police
officer was terminable at the will of the City of Advance.
Advance could thus terminate Singleton for any reason or
no reason at all. See Cooper v. City of Creve Coeur, 556
S.W.2d 717, 721 (Mo. Ct. App. 1977) ("The determination of
the adequacy of the grounds for [an employee at will's]
discharge is not subject to judicial review because the
city could discharge him for no reason or for any
reason."). Our inquiry is therefore limited to whether
the City of Advance's termination of Singleton infringed
on his constitutional rights. See Frazier v. Curators of
the Univ. of Mo., 495 F.2d 1149, 1153 (8th Cir. 1974)
(nontenured public employee may be terminated "provided
the dismissal is not in fact based upon some
constitutionally impermissible ground, such as . . .
retaliation for assertion of rights guaranteed by law or
the Constitution").

Singleton claims that his termination violated his
substantive due process right of privacy in his marital

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relationship.4 The fundamental right of privacy embodies
the

4
The only disputed privacy right in this case is located in the substantive
component of the Fourteenth Amendment's due process clause. This case does not
concern the privacy of communications over cordless telephones, which are not
constitutionally protected. See Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989)
(per curiam) (no justifiable expectation of privacy in oral communication over cordless
telephone). Subsequently, communications over cordless telephones have received
statutory protection. See Communications Assistance for Law Enforcement Act, Pub.
L. No. 103-414, § 202, 18 Stat. 4279, 4290-91 (enacted Oct. 25, 1994) (amending 18
U.S.C. §§ 2510-11).

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"principle that personal decisions that profoundly affect
bodily integrity, identity, and destiny should be largely
beyond the reach of government." Planned Parenthood v.
Casey, 505 U.S. 833, 927 (1992) (Blackmun, J., concurring
in part, concurring in the judgment in part, and
dissenting in part). The Supreme Court has recognized
"that the right to marry is part of the fundamental 'right
of privacy' implicit in the Fourteenth Amendment's Due
Process clause." Zablocki v. Redhail, 434 U.S. 374, 384
(1977). This right, however, does not invalidate every
state action that has some impact on marriage. See Gorrie
v. Bowen, 809 F.2d 508, 522-23 (8th Cir. 1987) ("Not every
regulation that involves or somehow regulates on the basis
of family membership is unconstitutional."). Rather, the
government is free to impose "reasonable regulations that
do not significantly interfere with decisions to enter
into the marital relationship . . . ." Zablocki, 434 U.S.
at 386. Government action "must interfere 'directly and
substantially' with family choices before it is
unconstitutional," Gorrie, 809 F.2d at 523 (quoting
Zablocki, 434 U.S. at 387) (citation omitted), but action
having only a collateral effect on family decisions
typically does not violate that right. Compare Zablocki,
434 U.S. at 388-91 (striking down statute that prohibited
individuals from marrying until compliance with
preexisting child support obligations proven) with
Califano v. Jobst, 434 U.S. 47, 52-54 (1977) (upholding
statute that terminated Social Security benefits of
dependent children on marriage to individuals not entitled
to benefits).

In this case, the City of Advance did not directly or
substantially interfere with Singleton's right to be

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married when they terminated him on the basis of his
wife's recorded statement threatening to frame the police
chief. Singleton presented no evidence that his
termination "significantly discouraged, let alone made
'practically impossible,'" his marriage to Joann
Singleton. Zablocki, 434 U.S. at 387 n.12. Nor is

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there evidence that the City of Advance acted with the
goal of poisoning Singleton's marriage. Cf. Morfin v.
Albuquerque Pub. Sch., 906 F.2d 1434, 1440 (10th Cir.
1990) ("A defendant can be held liable for violating a
right of intimate association only if the plaintiff shows
an intent to interfere with the relationship."). As the
scope of substantive due process rights should be viewed narrowly, see Washington v.
Glucksberg, 117 S. Ct. 2258, 2267-68 (1997) (extending substantive due process rights,
"to a great extent, place[s] the matter outside the arena of public debate and legislative
action"), we do not expand the right of marriage to protect
Singleton here.

Singleton also alleges that the City of Advance
infringed on his intimate association right. As a
component of the First Amendment right of association, the
right of intimate association guards against excessive
government intervention into "the formation and
preservation of certain kinds of highly personal
relationships . . . ." Roberts v. United States Jaycees, 468 U.S. 609,
618 (1984). The right to marry has thus been cast as a
substantive due process right, see Loving v. Virginia, 388
U.S. 1, 12 (1967), and as an associational right, see
Roberts, 468 U.S. at 619. The nominal source of this
right, however, does not alter this Court's analysis of
the challenged government action. See Lyng v.
International Union, United Auto., Aerospace, & Agric.
Implement Workers of Am., 485 U.S. 360, 365-66 (1988)
(applying direct and substantial interference standard to
First Amendment right of family association); Montgomery
v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996) ("[T]he level
of scrutiny to be applied to state action impinging on the
right to marry is invariant with respect to the precise

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constitutional provision undergirding that right."). In
both instances, the government remains free to act in a
fashion that does not directly and substantially interfere
with the right to marry. Singleton's assertion of an
intimate associational right must fail for the same
reasons as does his assertion of a fundamental right of
privacy. The City of Advance's termination of Singleton
on the basis of his wife's conduct simply did not
substantially or directly interfere with Singleton's right
to enter and maintain his marital relationship.

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 Accordingly, we affirm the district court's grant of
summary judgment in favor of the defendants.

RICHARD S. ARNOLD, Chief Judge, dissenting.

I can agree that plaintiff has failed to establish a violation of those aspects of the
Due Process Clause of the Fourteenth Amendment that have been particularized as the
rights of intimate association and marital privacy. But Mr. Singleton makes an
additional argument that the Court's opinion fails to address. He claims (and the City
admits) that he was fired solely because of what his wife said to his daughter on the
telephone. He argues that this "is precisely the kind of arbitrary and capricious logic
that fails to pass even the most relaxed scrutiny . . . under substantive due process."
Brief for Appellant 15. The Due Process Clause stands as a protection against all purely
arbitrary governmental action - for example, a rule against hiring anyone whose name
begins with "A." In my view, it is this more general aspect of substantive due process
that provides plaintiff with a winning argument.

In our legal tradition, fault is individual. A is not punished for what B does, let
alone for what B says. Is the situation different when A and B are married? At
common law, it was. If a wife committed a crime in the presence of her husband, she
was presumed to have acted at his direction, and he was held responsible. Presumably
any such rule would be constitutionally condemned today under the Due Process
Clause. Is what happened here any more defensible? I think not. In a related context,
we have held that a husband's political opinion cannot be automatically attributed to his
wife. Forbes v. Arkansas Educational Television Comm'n, 93 F.3d 497, 501-02 (8th
Cir. 1996) ("We do not think any general inference can be drawn from the opinion of
one spouse to that of the other."), cert. granted on other grounds, 117 S. Ct. 1243
(1997).

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 The District Court's opinion, quoted ante at 4, says that the City had "a legitimate,
good faith belief that plaintiff, with his family, was . . . conspiring to bribe the Chief of
Police." This would doubtless make the case quite different. A city is entitled to have
police officers in its employ who are not conspiring to bribe the Chief. A reasonable
belief that an officer is conniving at such conduct would certainly be a rational, non-
arbitrary basis for discharge. But what is the evidence for this statement (aside from the
bare fact of the marital relationship)? The District Court cited none, this Court cites
none, and I know of none.

I respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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