Case: 4:13-cv-00465-RWS Doc.

#: 11 Filed: 04/19/13 Page: 1 of 11 PageID #: 58

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GARY WIEGERT Plaintiff, v. ST. LOUIS BOARD OF POLICE COMMISSIONERS, et al. Defendants. ) ) ) ) ) ) ) ) ) )

Cause No.: 4:13-cv-465

PLAINTIFF GARY WIEGERTS RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMES NOW Plaintiff Gary Wiegert, by and through his undersigned counsel, for his Response to Defendants Motion to Dismiss states to the Court as follows: INTRODUCTION Children are unpredictable. You never know what inconsistency theyre going to catch you in next. Franklin P. Jones The First Amendment protects speech and speaker, and the ideas that flow from each. Citizens United v. Federal Election Comn, 558 U.S. 310, 130 S.Ct. 876, 898 (2010). This kind of speech is often provocative and challenging [But it] is nevertheless protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. City of Houston v. Hill, 482 U.S. 451, 461 (1987). Within the context of a public employee, a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. Connick v. Myers, 461 U.S. 138, 140 (1983) (citing Pickering

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v. Board of Education, 391 U.S. 563 (1968)). The government cannot condition public employment on a basis that infringes the employees constitutionally protected interest in freedom of expression. Id. at 142 (citations omitted). The government, and police departments in particular, may have an interest in limiting employees speech, however, where such speech is found to be contrary to [police] regulations and harmful to the proper functioning of the police force. City of San Diego, Cal. v. Roe, 543 U.S. 77, 81 (2004). Yet, a [d]iscussion of public issues [is] integral to the operation of the system of government established by our Constitution and this [s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. Citizens United, 130 S.Ct. at 898. In this regard, political speech must prevail against laws that would suppress it by design or inadvertence. Id. Plaintiff Gary Wiegert applied for and was approved by the St. Louis Metropolitan Police Department (the Department) to engage in political speech by and through his secondary employment as a lobbyist in Jefferson City, Missouri. Thereafter, Defendants informed Plaintiff that his application for secondary employment was being revoked, not because his actions as a lobbyist somehow violated Defendants regulations or was harmful to the proper functioning of the police force, but because he failed to immediately produce a valid City of St. Louis issued business license, a requirement not found within Defendants secondary employment regulations and despite the lobbyist undertakings being conducted in Jefferson City. Defendants actions in this regard have caused Plaintiff to incur injuries to his constitutionally protected interests as well as to his financial interests. As such, Defendants Motion to

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Dismiss is without merit, as this matter is justiciable; Plaintiff has standing to bring this suit and the issues that Plaintiff seeks to be addressed are ripe for adjudication. ARGUMENT I. Plaintiff has standing to assert his claims against Defendants as Defendants actions have resulted in an injury in fact inuring to the detriment of Plaintiff as a result of Defendants violation of Plaintiffs First Amendment rights.

Article III of the Constitution grants courts jurisdiction over only cases and controversies. [Doc. 7, page 3]; U.S. Const. art. III, 2, cl. 1. A plaintiff must show an injury in factan invasion of a legally protected interest that is both concrete, and actual or immediate. [Doc. 7, page 3-4]; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). To that end, a plaintiff must show that he or she sustained or is immediately in danger of sustaining some direct injury as a result of the challenged conduct and that the injury or threat of injury is both real and immediate, which requires the plaintiff to show a perceptible harm. Eckles v. City of Corydon, 341 F.3d 762, 767 (8th Cir. 2003) (citing Lujan, at 566). Yet, contrary to Defendants assertions, [i]t has been recognized by federal courts at all levels that a violation of constitutional rights constitutes irreparable harm as a matter of law. Cohen v. Cohama County, Miss., 805 F.Supp. 398, 406 (N.D.Miss. 1992). The 8th Circuit has noted that in order to show that a plaintiffs constitutional rights were violated, the plaintiff must present more than allegations of a subjective chill. There must be a claim of specific present objective harm or a threat of specific future harm. Eckles, at 767. In this case, although Plaintiff acknowledges he was told his application for secondary employment was being revoked because he was lobbying on behalf of Show-

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Me Cannabis, [Doc. 1, 26], Defendants have failed to recognize that there exists no basis for such action within Order No. 2001-S-7 or Order No. SO 3-07 (collectively referred to as the Orders), which contain the applicable secondary employment provisions relative to the Department. The Orders state that an application for secondary employment may be revoked once approved by the Chief of Police if it is determined that the employment may or does interfere with departmental duties. A true and correct copy of the Orders is attached hereto, incorporated herein by referenced and marked Exhibit A. No provision within the Orders permits Defendants to revoke an individuals application for secondary employment absent a determination that the employment does or may interfere with departmental duties. Further, the Orders do not require a prospective secondary employment employer to produce a valid business license as a prerequisite to approving an individuals application for secondary employment. What is more, in this instance, Defendants have not claimed that Plaintiffs failure to immediately produce a valid business license has a potential to interfere with departmental duties. [Doc. 1, 15, 29]. Instead, Defendants reliance upon Plaintiffs failure to immediately produce a valid business license as the basis for denying Plaintiff an opportunity to engage in protected free speech is merely a pretext to thwart his undertakings in this regard, particularly in light of the fact that Plaintiff does in fact possess a valid business license, a true and accurate copy of which is attached hereto, incorporated herein by referenced and marked as Exhibit B. Defendants now claim, in reliance upon the reasons set forth in the letter dated March 27, 2013 from Col. D. Samuel Dotson III, Chief of Police (the March 27 Letter), [Doc. 8], that Plaintiffs application for secondary employment was denied, [Doc. 7,

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page 4]. Notably, however, the March 27 Letter was prepared more than a month after Plaintiffs application for secondary employment was approved, which occurred on or about February 25, 2013. [Doc. 1 18]. Further, the March 27 Letter was issued after Plaintiff began engaging in lobbying activities, [Doc. 1 19], after a March 8, 2013 article appeared in the St. Louis Post-Dispatch describing Plaintiffs lobbying activities, [Doc. 1 25], after Plaintiffs March 12, 2013 meeting with Colonel OToole in which he was informed that his application would be revoked solely as a result of his inability to immediately produce a valid business license, [Doc. 1 29], and after the filing of the present action [Doc 1]. It is clear from this timeline of events that Defendants concerns with respect to Plaintiffs lobbying activities and his possession of a valid business license only arose after the publication of the March 8, 2013 St. Louis Post-Dispatch column in which Plaintiffs lobbying activities were described. Presumably, if Defendants had legitimate concerns with respect to Plaintiffs lobbying activities and/or licensing, those concerns would have been addressed by Defendants prior to authorizing Plaintiff to engage in lobbying activities contemplated by his application. However, this was not the case, and instead Defendants have now, more than a month after Plaintiffs application was signed by his Watch Commander, District Commander, Acting Division Commander, and Bureau Commander, determined to formally notify Plaintiff that his application for secondary employment could not be approved, [Doc. 8, page 1], even though, again, Plaintiff had already received written approval to engage in lobbying and had commenced same on behalf of Show-Me Cannabis. Further, if it is the Defendants intent to ensure that its employees have a valid business license prior to engaging in business ventures, the Orders would presumably

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reflect this desire. The Orders, however, do not provide as a prerequisite for approval of an application for secondary employment that the applicant produce a valid business license, nor do the Orders require an individuals employer to produce same. Notably, with respect to whether Plaintiffs application was revoked versus merely not approved, it is telling that the March 27 Letter fails to discuss Plaintiffs engagement in lobbying related activities. If in fact Plaintiff had impermissibly engaged in secondary employment activities without first obtaining proper approval he would be subject to formal reprimand for his failure to follow proper protocols prior to engaging in lobbying activities on behalf of Show-Me Cannabis. However, Plaintiff has at no point been subjected to a reprimand for his unapproved engagement in lobbying activities. Therefore, the only conclusion that can be drawn is that Plaintiffs application was approved on February 25, 2013, and is now being revoked. As a result, even if we assume, arguendo, that the revocation is premised upon the grounds set forth in the March 27 Letter, none of those stated grounds fall within the scope of the revocation provisions of the Orders, and thus act as a pretext for denying Plaintiff an opportunity to engage in protected free speech. Similarly, the pretextual no business license basis for revocation noted at the March 12, 2013 meeting between Plaintiff and Colonel OToole is also outside of the scope of the revocation provisions of the Order and thereby acts an unlawful restraint upon Plaintiffs freedom of expression. Importantly, no member of the St. Louis Metropolitan Police Department has represented to Plaintiff that Plaintiffs failure to produce a valid business license may interfere with his departmental duties. In addition, the March 27 Letter failed to claim that any of the alleged additional deficiencies relative to Plaintiffs application for secondary employment or his engagement as a lobbyist may interfere with his

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departmental duties. Surely, if there were the potential for such interference, Defendants would have expressed same by now. It must therefore be concluded that Defendants acknowledge that Plaintiffs failure to provide proof of a business license does not and will not interfere with his departmental duties. In short, Defendants revocation of Plaintiffs application for secondary employment is an impermissible restraint upon Plaintiffs First Amendment rights, and thereby constitutes an injury as a matter of law. Cohen, 805 F.Supp., at 406. In addition to injuries arising out of Defendants presumed First Amendment violations, Defendants actions have caused Plaintiff to suffer actual financial injury. As discussed above, Plaintiffs application for secondary employment was approved, he had begun his employment with Show-Me Cannabis as a lobbyist, and had received compensation from Show-Me Cannabis for same. Thereafter, and as a direct and proximate result of Defendants subsequent impermissible revocation of Plaintiffs application for secondary employment, Plaintiff was compelled to cease performing as a paid lobbyist for Show-Me Cannabis, thereby causing Plaintiff to suffer an injury in terms of current and future financial gain reasonably expected from that position of employment. Therefore, Plaintiff has an injury in fact resulting from Defendants violation of his right to engage in free speech as well as a result of Defendants having impermissibly revoked his secondary employment application. As a result, Plaintiff has standing to bring this suit, and Defendants Motion to Dismiss should be denied.

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II.

Plaintiffs claims against Defendants are justiciable as the issues presented in this matter are ripe for adjudication.

As Defendants state in their Memorandum in Support of Motion to Dismiss, in order for a claim to be justiciable, it must be ripe. [Doc. 7, page 6]; 281 Car Comm. V. Arneson, 638 F.3d 621, 631 (8th Cir. 2011). Defendants also note that in assessing ripeness, the court focuses on whether the case involves contingent future events that may not occur as anticipated, or indeed may not occur at all and the court must examine important prudential limitations that may require the court to stay our hand until the issues in the case have become more fully developed. [Doc. 7, page 6]; Missouri Roundtable for Life v. Carnahan, 676 F.3d 665, 674 (8th Cir. 2012). "'Ripeness is peculiarly a question of timing and is governed by the situation at the time of review, rather than the situation at the time of the events under review. Neb. Pub. Power Dist. v. MidAm. Energy Co., 234 F.3d 1032, 1039 (8th Cir. 2000) (quoting Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam)). A party seeking review must show both "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Pub. Water Supply Dist. No. 10 of Cass Cnty. v. City of Peculiar, 345 F.3d 570, 572-73 (8th Cir. 2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). Both of these factors are weighed on a sliding scale, and each must be satisfied to at least a minimal degree. Iowa League of Cities v. Envtl. Prot. Agency, No. 11-3412 at 23-24 (8th Cir. 2013) (internal quotes omitted) (quoting Neb. Pub. Power Dist., 234 F.3d at 1039). The 8th Circuit has noted that [f]itness rests primarily on whether a case would benefit from further factual development. Id. at 24. With respect to the hardship factor the 8th Circuit has noted that this factor looks to the harm parties would suffer,

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both financially and as a result of uncertainty-induced behavior modification in the absence of judicial review. Id. The immediacy and the size of the threatened harm will also affect the interplay of these factors. Id. (quoting Neb. Pub. Power Dist., 234 F.3d at 1038) (internal quotations omitted). In this instance, although Defendants wish to rely upon the March 27 Letter as grounds for the non-approval of Plaintiffs application, [Doc. 8, page 1], the March 27 Letter fails to recognize that Plaintiffs application was approved on or about February 25, 2013, and that he had already begun engaging in lobbying related activities when he was informed on March 12, 2013 that his application was being revoked due to the absence of a business license. Further, because this revocation was outside of the scope of the revocation provisions contained within the Orders, and occurred only after publication of Bill McClellans column in the St. Louis Post-Dispatch that colorfully noted Plaintiffs lobbying activities, there is no need for speculation as to uncertain future events as the factual issues in this case are fully developed and ripe for adjudication. In light of the foregoing, it is clear that the Court will not have to weigh in on matters that may or may not occur in the future, and to the extent that future injury will be addressed at all, it will be in the context of determining the amount of damages to be awarded to Plaintiff, rather than within the context of deciding on the ripeness of these issues. Based on the contents of the March 27 Letter, it is apparent that the true cause for speculation in this case is what rationale Defendants will employ to attempt to reconcile their February 25, 2013 approval of Plaintiffs application with their March 27, 2013 written assertion that the approval of that which had been approved could not be effectuated. The uncertainty of Defendants future conduct in matters such as this is

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only furthered by the fact that Plaintiffs prior lobbying activities for the Tea Party were allowed to move forward. Thus, contrary to Defendants assertions, this matter is not based upon some contingent future event, but is instead premised upon Defendants revocation of Plaintiffs secondary employment application, the grounds for which are outside of the scope of the revocation provisions of the Orders and in violation of the First Amendment. In this regard, and as noted above, has and will continue to be injured by Defendants pretextual restrain upon his constitutionally protected rights. In addition, and also as discussed above, Plaintiff has and will continue to suffer economic harm has a result of Defendants actions as he was already engaged by and acting on behalf of Show-Me Cannabis as its lobbyist at the time of the post-approval revocation of his application for secondary employment. Therefore, this matter, like a hamper, is ripe for adjudication by virtue of the fact that the factual issues relative to this matter are fully developed, and Plaintiff has and will continue to experience harm in the absence of court intervention. Thus, there is a real and current dispute as to whether Defendants post-approval revocation of Plaintiffs application for secondary employment constitutes an unconstitutional denial of Plaintiffs First Amendment rights. As a result, Defendants Motion to Dismiss this suit should be denied. WHEREFORE, Plaintiff Gary Wiegert prays this Court deny Defendants Motion to Dismiss and to the extent any provision of Plaintiffs Complaint is dismissed, grant Plaintiff leave to amend and for such other and further relief this Court deems just and appropriate under the circumstances.

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Case: 4:13-cv-00465-RWS Doc. #: 11 Filed: 04/19/13 Page: 11 of 11 PageID #: 68

KODNER WATKINS & KLOECKER L.C. By: _ /s/ Albert S. Watkins _________ ALBERT WATKINS, LC, # MO34553 NATHAN R. HOWARD, #MO62061 Attorneys for Plaintiff Bank of America Building 7800 Forsyth, Suite 700 St. Louis, Missouri 63105 (314) 727-9111 (314) 727-9110 Facsimile E-mail: albertswatkins@kwklaw.net nhoward@kwklaw.net

CERTFICATE OF SERVICE Signature above is also certification that a true and correct copy of the above and foregoing document has been filed utilizing the CM/ECF system this 19th day of April, 2013, which will automatically delivery a copy to: Philip Sholtz Assistant Attorneys General P.O. Box 861 St. Louis, MO 63188

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