Date: 09-03-2007

Case Style: Sergeant Christopher D. Foraker, et al. v. Colonel L. Arron Chaffinch, et al.

Case Number: 06-4086

Judge: Smith

Court: United States Court of Appeals for the Third Circuit on appeal from the District of Delaware, New Castle County

Plaintiff's Attorney:

Martin D. Haverly, Thomas S. Neuberger and Stephen J. Neuberger (argued), The Neuberger Firm, Wilmington, Delaware

Defendant's Attorney:

Edward T. Ellis and Carmon M. Harvey of Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pennsylvania

Description:

Appellants Corporal B. Kurt Price and Corporal Wayne Warren, both former Delaware State Troopers and instructors in the Delaware State Police Firearms Training Unit, appeal from the District Court's grant of judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). Price and Warren present two principal issues for review: (1) whether the activities they engaged in were protected by the Petition Clause, and (2) whether their speech is protected after the Supreme Court's decision in Garcetti v. Ceballos, --- U.S. ---, 126 S. Ct. 1951 (2006). We will affirm the judgment of the District Court.

I

The origins of this case date to September 1998, when the Delaware State Police ("DSP") opened an indoor firing range in Smyrna, Delaware. The range became the locus of operations for the Firearms Training Unit ("FTU"), the unit to which Price and Warren were assigned as instructors during the time period relevant to this case. The range and those who used it encountered a number of difficulties from the outset, including problems with the heating, ventilation, and air conditioning ("HVAC") system.

Price and Warren were long-term members of the DSP at the time of the events giving rise to this case. Price had been part of the FTU since 1996 and Warren had been assigned to the unit in 2001. Sergeant Christopher Foraker was the Section Chief of the FTU from August 1, 2001 through April 8, 2002, at which point he was moved to another unit. Foraker sued Colonel L. Aaron Chaffinch on April 24, 2002 for First Amendment retaliation, and won a jury verdict in his favor. The parties later agreed that Foraker would be reinstated to his position with the FTU and that the monetary judgment against Chaffinch would be vacated. Foraker returned to the firing range on December 1, 2003.

Price, Warren, and Foraker considered the range conditions intolerable, and were specifically concerned with health and safety issues there. The HVAC system did not work properly, the bullet trap was malfunctioning, and officers and students at the range were suffering the physical manifestations of contamination, including elevated levels of heavy metals in their blood. Foraker sent a number of e-mails regarding the deteriorating conditions at the range to his superiors, including Lieutenant Colonel Thomas F. MacLeish, Captain Greg Warren, and Lieutenant Ralph Davis. In an e-mail dated December 19, 2003 he explained that, due to a broken drive chain and damaged sprocket on the conveyor, the dredging system had been brought to a complete stop. He also outlined concerns about Price's and Warren's elevated blood levels.

In early December, Price, Warren, and Foraker decided to suspend certain bullet trap maintenance because they considered carrying it out to be unsafe. At trial, Warren explained that their objective was to limit their exposure to lead and other unsafe metals. They continued to perform other forms of range maintenance, including removal of spent casings and trash. The three men had meetings to discuss the range with MacLeish, Captain Greg Warren, and the Division of Facilities Management. In March 2004, the DSP closed the range.

Following the closing of the range, the State Auditor reviewed the issues surrounding the closing. Price, Warren, and Foraker met with the Auditor on May 12, 2004. Their attorney later read their statements to the Auditor, verbatim, to the Delaware State News, a local newspaper. As troopers, Price, Warren, and Foraker were not permitted to speak to the press without the approval of superior officers. On May 13, 2004, they were ordered to submit to a hearing examination to determine whether they were fit for duty. On June 25, 2004, Price and Warren were placed on light duty. On August 19, 2004, Price, Warren, and Foraker filed this action.1 Price, Warren, and Foraker amended their complaint on October 14, 2005 to include the two counts at issue here. Count One of the amended complaint alleged a violation of the plaintiffs' Free Speech rights, and Count Two alleged Petition Clause violations. Price and Warren retired from the DSP on April 7, 2006.

During discovery, Price, Warren, and Foraker sought to discover e-mail messages stored on Chaffinch's hard drive. Chaffinch retired in May 2005. Pursuant to routine DSP procedure, a technician at the DSP re-imaged the hard drive, destroying any messages saved there. The plaintiffs requested default judgment or an adverse inference instruction on the basis of spoliation of evidence. The District Court denied both motions.

Trial began on May 15, 2006. The District Court charged the jury on May 30, 2006, the same day that the Supreme Court decided Garcetti v. Ceballos. The next day, the jury returned a verdict for Price, Warren, and Foraker.

After the District Court entered judgment on the verdict for Price, Warren, and Foraker, appellees Chaffinch, MacLeish, David Mitchell, and the DSP ("DSP defendants") moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). On August 14, 2006, the District Court granted the motion. The Court held that the First Amendment Speech and Petition Clauses did not protect Price and Warren because their reports up the DSP chain of command and statements to the Auditor were part of their official duties as Troopers and they had been ordered to cooperate. The Court denied the motion of Price, Warren, and Foraker to amend the complaint to conform to the evidence at trial under Rule 15(b). Foraker settled with the DSP defendants shortly after the filing of this appeal, and the District Court entered an order of dismissal of his claims on October 11, 2006.

* * *

Outcome: We will affirm the judgment of the District Court.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None