Dible v. City of Chandler

515 F.3d 918

Ronald DIBLE; Megan Dible, husband and wife, Plaintiffs-Appellants v. CITY OF CHANDLER, a municipality in the State of Arizona; Chandler Police Department, a law enforcement agency of the City of Chandler; Bobby Joe Harris, Chandler Police Chief and husband; Judy Harris, wife, Defendants-Appellees.

No. 05-16577.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 2007.

Filed September 5, 2007.

Amended February 1, 2008.

Keith M. Knowlton, Keith M. Knowlton, L.L.C., Mesa, AZ, for the plaintiffs-appellants.

Katherine E. Baker, Green & Baker, Scottsdale, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; James A. Teilborg, District Judge, Presiding. D.C. No. CV-03-00249-JAT.

Before: MARY M. SCHROEDER, WILLIAM C. CANBY, JR., and FERDINAND F. FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ; Concurrence by Judge CANBY.

ORDER AMENDING OPINION AND CONCURRING OPINION AND DENYING APPELLANT'S PETITION FOR REHEARING AND FOR REHEARING EN BANC AND AMENDED OPINION

ORDER

The opinion which appears at slip op. 11501, 502 F.3d 1040 (9th Cir. Sept. 5, 2007) is amended as follows:.

(1) The first full paragraph at slip op. 11506 is hereby revoked and the following is substituted in its place:

Ronald Dible believed, indeed most likely knew, that his position in the disreputable sexually explicit website business was not compatible with his position as a police officer and risked violating the City and Police Department rule against engaging "in conduct which might bring discredit to the City service." So he took steps to cover up his participation, and in so doing violated the rule that he could not engage in outside employment unless he first filled out and filed a request to engage in employment outside the department. He did not inform any Department officials about it.¹ He did, however, tell a few people about it, including a fellow police officer, whom he urged to start his own website. The officer eventually did.

(2) The first full paragraph at slip op. 11511 is revoked and the following is substituted in its place:

Of course, as the Court noted, Roe had gone out of his way to identify himself with police work. See id. at 81, 125 S.Ct. at 524. Perhaps that alone would have sufficed to make his activity related to his employment. If that were the case, it must be said that Ronald Dible did not do what Roe did. Ronald Dible took some pains to keep the police out of the pictures, but because of other clues and information, it became publicly known that he was involved and that he was a police officer. In any event, Ronald Dible's attempts to conceal his activity came to nought and do not distinguish the underlying situation in Roe. Many a rule breaker does so clandestinely in the hope that his violations will not come to light and have untoward consequences. When that hope is dashed, the results and consequences for him are the same as they would have been if he had broken the rules overtly. Roe overtly broke his employer's rules (outside employment and immoral conduct) and he properly suffered the consequences by losing his job. Ronald Dible's discovered clandestine activity also broke his employer's rules (outside employment and conduct that brought disrepute) and he properly suffered the consequences by losing his job. In addition, it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors. Whether overt or temporarily hidden, Ronald Dible's activity had the same practical effect—it "brought the mission of the employer and the professionalism of its officers into serious disrepute." Id. at 81, 125 S.Ct. at 524.

That said, the Court has never explicitly defined what is or is not related, and we need not do so here. As in Roe, the result would be the same "under either line of cases." Id. at 80, 125 S.Ct. at 524. The Dibles cannot prevail. We will explain.

(3) The concurring opinion is amended as follows: Footnote 2 at slip op. 11527 is amended to add the word "of" after the phrase "In light."

With, the above amendments, the panel has voted unanimously to deny the petition for rehearing. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration.

The petition for rehearing and the petition for rehearing en banc are DENIED.

No subsequent petition for rehearing or rehearing en banc may be filed.

OPINION

FERNANDEZ, Circuit Judge:

Ronald and Megan Dible appeal from the district court's grant of summary judgment against them in their action against the City of Chandler, Arizona, the Chandler Police Department, and the Chandler Police Chief Bobby Joe Harris (collectively the City). Principally, the Dibles assert that Ronald Dible was a police officer whose rights under the First Amendment to the United States Constitution were violated when he was terminated for participating in (performing in, recording and purveying) a sexually explicit website with his wife. We affirm.

BACKGROUND

In January of 2002, the Chandler Police Department learned that one of its officers, Ronald Dible, was running a website featuring sexually explicit photographs and videos of his wife. After initially placing Ronald Dible on administrative leave and conducting an internal investigation into his involvement with the website, the City terminated his employment as a police officer.

Ronald Dible and his wife Megan Dible began running the website in September of 2000, after Megan Bible signed a contract with CDM Networks, which operated the website. The Dibles then posted pictures of Megan Dible on the website, under the pseudonym "Katelynn." Those photographs portrayed Megan Dible in various sexual poses and activities with Ronald Dible, another woman, and inanimate objects. The Dibles also posted, among other things, a videotape of Megan Dible masturbating that had been filmed by Ronald Dible. The Dibles did not intend to express any kind of message or engage in social or political commentary through the material they posted on their website. They participated in those activities to make money; it was as simple as that.

The website operated as follows: Any computer user with internet capability could access the website's home page without charge. The home page featured partially nude pictures of Megan Dible in order to entice customers. If the user wanted to view more pictures of Megan Dible, a fee was required, but before the pictures could be reviewed, the user had to enter into a purported contract with CDM Networks. Once the user accepted the terms of the contract and paid the fee, he was free to view the website's sexually explicit photographs and videos.

The Dibles also offered a CD-ROM for sale on the website. Like the website itself, the, CD-ROM featured photographs of Megan Dible having sex with Ronald Dible, other women, and inanimate objects. Although the photographs on the website and the CD-ROM generally did not show Ronald Dible's face, one of the photographs did.

The Dibles also promoted their website by attending "barmeets." The purpose of the bar-meets was to have fans of the website meet Megan Dible, although Ronald Dible also attended. The bar-meets, which took place at local bars, were open to the public, and attendees were free to take photographs. They did, and sometimes posted those on their own websites. Although some attendees knew Megan Dible only as Katelynn, others knew her true identity. At those barmeets, both Megan Dible and Ronald Dible posed in sexually suggestive ways with each other and with other `people, some of whom were partially nude. The Dibles' photographs from the bar-meets were compiled on a CD-ROM and were then sold through their website.

Ronald Dible believed, indeed most likely knew, that his position in the disreputable sexually explicit website business was not compatible with his position as a police officer and risked violating the City and Police Department rule against engaging "in conduct which might bring discredit to the City service." So he took steps to cover up his participation, and in so doing violated the rule that he could not engage in outside employment unless he first filled out and filed a request to engage in employment outside the department. He did not inform any Department officials about it.¹ He did, however, tell a few people about it, including a fellow police officer, whom he urged to start his own website. The officer eventually did.

Sometime in the later part of 2001, rumors about the Dibles' website began circulating among members of the department, and eventually the news of the website filtered up to department officials. Upon learning about it, the police chief on January 25, 2002, ordered Ronald Dible to cease all activity with the website and placed him on administrative leave. The chief then opened an investigation into Ronald Dible's involvement with the website. The investigators questioned Ronald Dible about it, and, in response, he provided several misleading answers. After establishing that he was, in fact, involved in the website, the investigators questioned him about, among other things, whether he and Megan Dible had earned money from the site, and asked to see the contract between Megan Dible and CDM Networks.

By January 25, 2002, the press had also learned about the website and began reporting on it in an unflattering manner. The press reported that the website was run by the Dibles and that he was employed as a city police officer. The record contains no evidence identifying the person who alerted the press to the website's existence or to the Dibles' involvement in it, but, of course, a lot of people already knew. The result of that publicity was disquieting to say the...