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Glenn v. Bachand

March 20, 2007

HAROLD GLENN PLAINTIFF
v.
MICHAEL BACHAND, INDIVIDUALLY AND OFFICIALLY AS CHIEF OF POLICE FOR THE WYNNE POLICE DEPARTMENT; PAUL NICHOLS, INDIVIDUALLY AND OFFICIALLY AS MAYOR FOR THE CITY OF WYNNE; ERVIN DOBBINS, CHARLES HAMRICK, MONROE FUTRELL, AND GLENN HIRONS, INDIVIDUALLY AND OFFICIALLY AS ALDERMEN FOR THE CITY OF WYNNE, ARKANSAS; THE CITY OF WYNNE, ARKANSAS DEFENDANTS



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending is Defendants' Motion for Summary Judgment.*fn1 Plaintiff responded,*fn2 and Defendants replied.*fn3 This is a claim brought under 42 U.S.C. § 1983 by a police officer against the City of Wynne, Arkansas, the Chief of Police, the Mayor, and the City Council. Plaintiff alleges that his constitutional rights under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments were violated. Plaintiff further alleges that Defendants violated the Arkansas Civil Rights Act.*fn4

I. Background

Plaintiff Harold Glenn ("Glenn") worked for the City of Wynne, Arkansas as a police officer from 1999 to 2004. He was fired by Chief of Police Michael Bachand ("Chief Bachand") for behavior unbecoming a police officer. The termination followed the discovery that Glenn had an affair with a woman living in Wynne -- Heather Grady ("Grady"). Glenn admits this extra-marital affair, which came to light when Grady accused him of sexual assault.

The rape accusation was investigated by an Arkansas State Police officer -- Dale Arnold ("Arnold"). At the close of the investigation, Glenn was cleared of the criminal charge, but Arnold reported to Chief Bachand that Glenn met Grady while Glenn was driving a patrol car and wearing his uniform.

After his termination, Glenn appealed to the Mayor and the City Counsel, and denied that Grady saw him in uniform and in his patrol care. Despite his denial of misconduct, the Mayor and Counsel upheld the termination.

Glenn alleges that he was fired in violation of his constitutional rights to privacy, association, and due process. Glenn also contends that his termination was the result of gender discrimination in violation of the Arkansas Civil Rights Act, and the Equal Protection Clause of the Fourteenth Amendment. Glenn produced evidence that a female animal control officer -- Teena Hawley -- engaged in the same kind of conduct and was not disciplined.

Defendants argue for Summary Judgment because: (1) Glenn does not offer evidence that his Fourth and Fifth Amendment rights were violated; (2) he does not produce sufficient evidence that his rights to intimate association or privacy were violated; (3) there is insufficient evidence of an intentional equal protection violation; (4) he fails to make a prima facie case of gender discrimination; (5) the individual Defendants are entitled to qualified immunity; the City Council is entitled to absolute immunity; and (6) there is no proof that an unconstitutional municipal policy caused the termination.

II. Summary Judgment Standard

Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds.*fn5 The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:

The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.*fn6

The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an extreme remedy that should only be granted when the movant has established a right to the judgment beyond controversy.*fn7 Nevertheless, summary judgment promotes judicial economy by preventing trial when no genuine issue of fact remains.*fn8 I must view the facts in the light most favorable to the party opposing the motion.*fn9 The Eighth Circuit has also set out the burden of the parties in connection with a summary judgment motion:

[T]he burden on the party moving for summary judgment is only to demonstrate, i.e.,"[to point] out to the District Court," that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.*fn10

Only disputes over facts that may affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.*fn11

III. Authority

A. Section 1983 and ACRA

Under § 1983, a plaintiff must demonstrate a violation of a right secured by the Constitution and laws of the United States, and the violation must have been committed by a person acting under the color of state law.*fn12 The Arkansas Civil Rights Act ("ACRA") prohibits persons, acting under color of state law, from depriving any person of "any rights, privileges, or immunities secured by the Arkansas Constitution."*fn13 ACRA expressly requires that courts look to federal civil rights law for guidance: "When construing this section, a court may look for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871."*fn14

B. Fourth and Fifth Amendment

The Fourth Amendment secures the right of the people to be free from unreasonable searches and seizures.*fn15 But, the Fourth Amendment cannot be interpreted as creating a general constitutional right to privacy.*fn16 While the Amendment protects individual privacy against certain kinds of governmental intrusion, its protections often have nothing to do with privacy. ...


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