NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 22-2865
FRANK DIMARCO,
Appellant,
v.
BOROUGH OF SAINT CLAIR; RICHARD TOMKO; WILLIAM DEMPSEY
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-20-cv-01335)
District Judge: Honorable Jennifer P. Wilson
Submitted Under Third Circuit LAR 34.1(a)
on September 29, 2023
Before: KRAUSE, AMBRO, and SMITH, Circuit Judges
(Opinion Filed October 3, 2023)
OPINION*
AMBRO, Circuit Judge
Appellant Frank DiMarco appeals the District Court’s grant of summary judgment
disposing of his claim for First Amendment retaliation. We affirm because we agree with
the District Court that the St. Clair Police Department’s interest in maintaining order and
discipline outweighed any speech interest that DiMarco might have had.
I.
DiMarco is a police officer with the Borough of St. Clair Police Department (“St.
Clair Police”) in Pennsylvania. He also works part time as the Chief of Police for the
Police Department in Schuylkill Township (“Schuylkill Police”). In summer 2018, a
local restaurant owner, Michael Hoti, approached DiMarco about hosting a fundraising
event for the Schuylkill Police, during which people would pay to watch Hoti get tased.
DiMarco admits having a broader conversation with Hoti about a fundraiser but
otherwise claims that he was not involved.
The restaurant posted on its Facebook account that “[a]nyone that [d]onates will
be invited to watch Frank D[i]Marco [t]ase Mike.” App. 1170. Ultimately DiMarco did
not attend the event, but a local newspaper still credited him for coming up with the idea.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
See id. at 1172 (“The idea for . . . the event was borne out of a talk between Hoti and
Police Chief Frank DiMarco.”).
After the event, Chief of St. Clair Police William Dempsey and Mayor Richard
Tomko read about it in the local paper. They were concerned that their officer endorsed
the use of a taser on a civilian unnecessarily and thought that this “reflected poorly” on
the St. Clair Police. Id. at 1002. They also suspected that DiMarco’s role in the event
violated the Saint Clair Police Department General Order that prohibits “[c]onduct
[u]nbecoming an [o]fficer”—defined, inter alia, as acts that “ha[ve] the potential for
endangering . . . another person” and “[u]nsafe acts that endanger . . . another.” Id. at
1177. After investigating, Dempsey and Tomko met with DiMarco to notify him that
they were contemplating disciplinary action. The parties negotiated a five-day
suspension, which DiMarco accepted.
DiMarco later realized that, because of the suspension, he was ineligible for a
promotion for another three years. He sued Dempsey and Tomko in the Middle District
of Pennsylvania for retaliation under the First Amendment. The Magistrate Judge issued
a report and recommendation (“R&R”) that the Court grant summary judgment for the
defendants because they (1) did not violate DiMarco’s First Amendment rights and (2)
are entitled to qualified immunity. DiMarco objected, but the District Court adopted the
R&R. DiMarco then timely appealed.
II.
Public employers may regulate, in some cases, employees’ speech without
violating the First Amendment. Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d
3
Cir. 2015). The government “has a freer hand in regulating the speech of its employees
than it has in regulating the speech of the public at large, but that hand is not
uncontrolled.” Fenico v. City of Philadelphia, 70 F.4th 151, 166 (3d Cir. 2023) (citation
omitted). To determine which restrictions are allowed, we apply the balancing test laid
out in Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968).
Under this test, we weigh (1) the interest of the employee, as a citizen, in commenting on
matters of public concern against (2) the interest of the public employer in promoting
workplace efficiency and avoiding disruption. Id.
DiMarco argues the District Court did not conduct a Pickering balancing test at
all, DiMarco Br. at 10, and also that the results of the balancing test the Court did use
were wrong, id. at 13. Neither argument warrants vacating the order of the District
Court, as it properly applied the Pickering test, see App. 21-28, 33-34, and determined
there was no First Amendment violation.
Under the first part of the test, the Court concluded that DiMarco’s perceived
speech1 (i.e., his alleged participation in the taser fundraiser) was made as a private
citizen on a matter of public concern. That said, “the manner, time, place, and entire
context of the expression are relevant.” Swartzwelder v. McNeilly, 297 F.3d 228, 235 (3d
Cir. 2002) (citing Connick v. Myers, 461 U.S. 138, 152 (1983)). And here, the manner in
which DiMarco was perceived to have raised funds—by endorsing the use of a taser on
1
Perceived speech, even where the perception stems from a mistake of fact, suffices as the
basis for a First Amendment retaliation claim. Heffernan v. City of Paterson, 578 U.S.
266, 273 (2016).
4
an innocent civilian—rather than the content of the fundraiser—supporting a police
department—decreases his interest in the speech because he could have expressed the
content through less dangerous and disruptive means.
Under the second part of the test, the Court decided the employer’s interest in
disciplining the speech outweighed the interests of DiMarco. DiMarco violated a Saint
Clair Police Department General Order, and law enforcement agencies have a strong
“need for discipline.” Kelley v. Johnson, 425 U.S. 238, 246 (1976); see also Oladeinde v.
City of Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000) (explaining that law
enforcement agencies have a “heightened need for order, loyalty, morale[,] and
harmony”). The District Court concluded that police departments must be able to
discipline their officers for speech that involves breaking department rules and, more
importantly, endangering civilians. We agree with the Court’s analysis.
DiMarco asserts on appeal that the defendants “did not even argue or offer
evidence that [his] perceived participation in the fundraiser actually disrupted or could
have disrupted the efficient and effective operation of the St. Clair [P]olice
[D]epartment.” DiMarco Br. at 14. But the defendants did not have to prove actual
disruption; a reasonable prediction of disruption is sufficient. See Waters v. Churchill,
511 U.S. 661, 673 (1994). In any case, there is ample evidence in the record that
demonstrates the Department’s concerns about potential disruption. See, e.g., App. 164
(“Defendant Tomko was concerned about discharging a [t]aser in a bar as that seemed
unreasonable . . . [and] reflected poorly on the Saint Clair Borough Police Department.”);
id. at 164-65 (“Defendant Dempsey also found the event concerning because ‘it was
5
sadistic in order to obtain needed funds’ as the event ‘[e]xposed someone to an
electromagnetic device . . . .’”); id. at 166 (“[B]oth Defendant Tomko and Defendant
Dempsey felt disciplinary action was warranted.”); id. at 10-11. And disruption itself is
just one “weight[] on the scales” alongside many other interests. Zamboni v. Stamler,
847 F.2d 73, 79 (3d Cir. 1988) (citation omitted). The Department’s interests in
disciplining officers who endanger civilians and promoting order and loyalty outweigh
DiMarco’s interest in tasing a civilian, even if we take possible disruption out of the
equation.2
* * *
We thus affirm the judgment of the District Court.
2
Because the District Court properly determined that there was no First Amendment
violation, we do not review its decision on qualified immunity.
6