Police captain who refused order to go to “Law Enforcement Appreciation Day” at mosque — or send his subordinates there — loses his lawsuit

Yesterday’s Tenth Circuit opinion in Fields v. City of Tulsa (10th Cir. May 22, 2014), involves a lawsuit brought by Tulsa Police Department Captain Paul Fields. A local mosque had organized an event to thank the Tulsa Police Department for its help dealing with a reported threat against the mosque. The department regularly sent officers to such events — it had “accepted requests to attend about 3,500 community events between 2004 and 2011,” and “[s]ome 327 of those events were at religious venues or institutions affiliated with religious faiths.”

When it looked like there wouldn’t be enough turnout, the department “order[ed] each shift to send two officers and a supervisor or commander to the event.” But Captain Fields refused, sending an e-mail to more than a dozen people, including both superiors and subordinates:

Major,

I’m a little confused in reference to DCOP Webster’s directive to send 2 officers and at least 1 supervisor or shift commander from 2nd, 3rd, and 4th, [sic] shifts to the Islamic Society of Tulsa Law Enforcement Appreciation Day. Initially, this was to be on a voluntary basis, however now it is a directive. What has changed?

I have no problem with officers attending on a voluntary basis; however, I take exception to requiring officers to attend this event. Past invitations to religious/non-religious institutions for similar purposes have always been voluntary. I believe this directive to be an unlawful order, as it is in direct conflict with my personal religious convictions, as well as to be conscience shocking.

This event is not a police “call for service”, [sic] which I would readily respond to, as required by my Oath of Office. Instead, it is an invitation to, [sic] tour a Mosque, meet Muslim Leadership, watch a congregational prayer service, and receive “presentations on beliefs, human rights, and women.” It is my opinion and that of my legal counsel, that forcing me to enter a Mosque when it is not directly related to a police call for service is a violation of my Civil Rights.

Please consider this email my official notification to the Tulsa Police Department and the City of Tulsa that I intend not to follow this directive, nor require any of my subordinates to do so if they share similar religious convictions.

 

Deputy Police Chief Alvin Webster responded (paragraph break added):

He wrote that the Islamic Society was going to considerable pains to prepare a meal and tours for the event; that it would be unnecessary to order officers to attend if there were an adequate number of volunteers; that there would be an issue of disparate treatment and possible legal repercussions if TPD failed to attend; and that community policing events such as this one were as much a part of TPD’s mission as direct calls for service.

He wrote that officers were “not required to participate in any religious ceremony, make any profession of faith, or express opinions on or sympathy with any religious belief system. They are simply expected to meet with members of the public who have expressed a desire to meet with them at a place of lawful assembly.” He repeated that Fields himself was not required to “participate or assist in any religious observance, make any expression of belief, or adopt any belief system.” And he urged Fields to reconsider and reminded him of the consequences of refusing to obey a lawful order, emphasizing that “refusal on the part of a leader, including extending that refusal to subordinate personnel, is particularly serious and injurious to good discipline.”

Fields continued to refuse to attend, or designate officers to attend; eventually, it turned out that many officers did attend, and no more had to be assigned, though “Of the nine shifts that had been asked to provide officers, Fields’s former shift was the only one that did not send anyone.” Fields was eventually suspended and reassigned to less desirable duties. He sued, and here is the Tenth Circuit’s analysis of his claims, which I think is generally quite sound (some paragraph breaks added):

1. Free Exercise of Religion …

To establish a free-exercise claim, Fields must show that the government has placed a burden on the exercise of his religious beliefs or practices. “A plaintiff states a claim [that his] exercise of religion is burdened if the challenged action is coercive or compulsory in nature.”

The Attendance Order created no improper burden. Webster ordered Fields to “arrange for 2 officers and a supervisor or commander” from his shift to attend the Islamic Society event. Fields responded that the order “requir[ed] officers to attend this event,” and, “forc[ed him] to enter a Mosque.” But his view of the order was wrong, not even a reasonable construction of the order.

As the district court pointed out, the order did not require him to attend because he could assign others to do so. And he has not claimed on appeal that he ever told his superiors that ordering others to attend (possibly in violation of their beliefs) would violate his religious beliefs. Although he made clear that he thought that ordering others to attend would be unconstitutional, that is a legal objection, not a religious one. The Attendance Order did not burden Fields’s free exercise of religion….

2. Establishment of Religion …

Fields claims that TPD violated the Establishment Clause because the Attendance Order and the conduct of the event conveyed an official endorsement of Islam. But given the history, purpose, and context of the order, it would be unreasonable to conclude that the order or TPD’s attendance at the event was such an endorsement.

TPD had engaged in community policing for more than two decades, participating in about 3,500 community events between 2004 and 2011. Of those events, more than 350 were held at religious venues or institutions or were sponsored by religious organizations of various faiths. After TPD spent months protecting the Islamic Society and the school next door from a terrorist threat, the Society decided to hold the “Law Enforcement Appreciation Day” event to thank TPD for its help.

During the planning stages Webster advised the Society that officers might not be interested in or willing to tour the mosque or discuss Islam and that the invitation should make discussion of any topic discretionary. The flyer for the event announced a “Casual Come and Go Atmosphere” and offered attendees refreshments and an opportunity to meet the mosque’s leadership, tour the mosque, watch a prayer service, and learn about Islamic observance and beliefs — but only upon request….

Fields insists, however, that this event was unique because it involved Islamic proselytizing. He points to evidence that the event was intentionally held on Friday, which is Islam’s holy day, and that during the event Islamic Society members discussed their religious beliefs and encouraged the officers to buy Islamic books and pamphlets on display. At least one officer was photographed at prayer services and the Islamic Society website later posted a photograph of officers at a table with mosque members with the caption “Discover Islam Classes for Non–Muslims.”

We are not persuaded. No informed reasonable person could view the purpose or effect of TPD’s attendance at the event as suggesting that Islam is a preferred religion. Officers attending the event were not required to attend a religious service (and the timing of visits ensured that no officer would be required to be there during a service), read Islamic literature, or even discuss Islam.

Those who wished to learn more about Islam could do so. The Establishment Clause does not prohibit governmental efforts to promote tolerance, understanding, and neighborliness. There is no evidence in the record of any attempts to convert officers to Islam, as opposed to providing information. And in any event, if perhaps some representatives of the Center crossed the line, there is nothing that would suggest to a reasonable observer that such conduct had received governmental endorsement….

3. Freedom of Association

Fields contends that the City, Jordan, and Webster violated his right to freedom of association by punishing him for objecting to the Attendance Order, which, he claims, compelled an association contrary to his religious beliefs. This claim fails because there was no interference with his freedom of association….

[Fields] does not assert that he has been prevented from engaging in any association. His complaint is that he was being forced to associate with the Islamic Society. But the Attendance Order did not require him to attend the event, much less join the Islamic Society or endorse its faith or message in any way.

In Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006), the Supreme Court held that requiring law schools to allow military recruiters on campus did not violate the schools’ freedom of association because they were not being required to accept recruiters as “members” — but merely as “outsiders” whose presence served only “the limited purpose of trying to hire students.” Here, Fields was never required to be anything more than an outsider with respect to the Islamic Society….

[4.] Oklahoma Religious Freedom Act

Fields contends that the district court should have allowed him to amend his complaint to include a claim under the Oklahoma Religious Freedom Act (ORFA)…. [Fields] does not argue that he can prevail under ORFA if he loses his free-exercise claim. Because we have affirmed the district court’s denial of Fields’s free-exercise claim, we also affirm the denial of his motion to amend his complaint to add an ORFA claim. The ORFA claim was doomed to failure, so an amendment to add it would have been futile.

[5.] Free-Speech Retaliation

Fields argues that the district court should have allowed him to amend his complaint to include a claim that Defendants retaliated against him for filing this lawsuit, in violation of his First Amendment right to freedom of speech. We disagree.

Ordinarily, “[t]he First Amendment prohibits the government from punishing a person for exercising the right to free speech.” [Footnote: Perhaps Fields could have framed his claim as a violation of his right to petition. But our analysis would be the same.] “When the government is [a] person’s employer, however, the right to free speech is limited in ways that would otherwise be unconstitutional.” “Speech, for example, can be insubordinate, disruptive, or demoralizing; and government employers are not required to let such misconduct pass.” “‘Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.’” …

Fields’s claim cannot survive the balancing of interests [under the Board of Ed. Pickering test announced by the Supreme Court for government employee speech cases]. “In balancing the employee’s interest in expression against the government’s interest in efficiency, a court must consider ‘the manner, time, and place of the employee’s expression,’ as well as the events leading up to it.”

Relevant considerations include “whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” “These considerations … make apparent that the state interest element of the test focuses on the effective functioning of the public employer’s enterprise. Interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function; avoiding such interference can be a strong state interest.”

“[T]he State’s burden in justifying a particular [employment action] varies depending upon the nature of the employee’s expression.” “[T]he employer’s burden to justify its restriction on speech increases in proportion to the value of that speech in the public debate.” Similarly, “‘[t]he burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.’” “The employee’s burden of caution is greater when the employee serves in a ‘confidential, policymaking, or public contact role,’ rather than, for example, a clerical role, because of the higher likelihood the employee’s speech will cause disruption to the agency’s successful functioning.”

We begin with Fields’s interests. He contends that he filed his lawsuit “seeking vindication of fundamental constitutional rights,” and that allowing a government employer to punish an employee for filing a civil-rights lawsuit will chill civil-rights litigation. To be sure, we have recognized that “[s]peech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials, in terms of content, clearly concerns matters of public import,” and that “an employee’s First Amendment interest is entitled to greater weight where he is acting as a whistle blower in exposing government corruption.”

But, as we have already explained, Fields’s free-exercise claim was based on an unreasonable construction of the Attendance Order, his Establishment Clause claim failed because no informed, reasonable observer would have perceived that TPD was endorsing Islam, and there was also no merit to his other claims. “[A] government employee’s interest in whistleblowing is entitled to little weight if a reasonable person in his shoes would not have believed that there was government corruption or wrongdoing.” His claims are therefore “less important and less valuable to the public than is the speech often at issue in public employee speech cases.”

TPD’s interests, on the other hand, are compelling. We have long recognized that law-enforcement agencies have a “heightened interest … in maintaining discipline … among employees.” Fields was a commanding officer. His challenge to a superior’s order, by disobedience or by litigation, sets a powerful example. It would likely undermine not just his superiors’ confidence in his loyalty and willingness to implement orders, but also his own authority as a commander.

In addition, TPD must maintain public confidence that “police protection will be available to the public … and that the police will deal impartially with all.” In particular, the inclusion in the complaint of numerous largely irrelevant paragraphs attacking “shariah-adherent” Islam would inevitably create the perception of hostility to a component of the community. Cf. Locurto v. Giuliani, 447 F.3d 159, 178-79 (2d Cir.2006) (“Police officers … are quintessentially public servants. As such, part of their job is to safeguard the public’s opinion of them, particularly with regard to a community’s view of the respect that police officers … accord the members of that community.”)….

As I mentioned, this sounds right to me: Religious exemption regimes (see here for more on such regimes) generally require the government to make a strong showing of need before substantially burdening a person’s religious practices — but the plaintiff has to state that the government action actually barred him from doing something religious that he felt compelled or at least motivated to do, or required him to do something he felt religiously prohibited from doing. Simple disapproval of a proposed action that touches religion would not qualify.

And given these facts, I have no sympathy for Fields. Part of his job as a police officer, and especially as a police captain, is to strengthen the police department’s relationship with the community, and with its various subcommunities.

The police department, of course, wants citizens to comply with the law and with the lawful orders of the police, which is easier if the citizens perceive that the police respect them and their subcommunity. But the police department also want citizens to go beyond what is legally required to affirmatively help the police, for instance by providing information about crimes that the police are investigating, or about crimes that the police don’t even know about. That’s much more likely when the police are seen as respectful and welcoming to the subcommunity, and when the police and community members are personally acquainted.

Don’t like some group, for religious or ideological reasons? Put on a good face and pretend; certainly don’t spurn their amicable invitations. And if you think the community harbors some dangerous terrorists (which seems to be part of the claim in Fields’ Complaint), then that’s all the more reason for you to have a relationship with the community that might get you more tips about such terrorists, or more opportunities to spot such terrorists.

To be sure, the court’s legal analysis leaves open the question of what would have happened if the order had indeed required Fields to go to the mosque personally, and he had sincerely claimed that his religion forbade his going inside a mosque. (Some Jews, for instance, apparently believe that they generally may not go into a church.) If that were so, a substantial burden on religious practice would indeed be present.

The question then would be whether the government has to show that requiring the police officer to go to the event is necessary to serve a compelling government interest, as the Oklahoma Religious Freedom Act seems to be mandate for all sorts of government action, or whether the statute should be read as implicitly incorporating the lower Title VII standard when the government acts as employer. (Under that Title VII standard, the government may prevail simply by showing that exempting the police officer from the policy would impose an “undue hardship” on it, which has been read as meaning a more than de minimis hardship.) For more on this question, see this section of my Intermediate Questions of Religious Exemptions — A Research Agenda with Test Suites (1999).

If in such a hypothetical situation of a police officer feeling religiously forbidden to enter another faith’s house of worship — again, not the situation here — the Title VII standard would be used, either under the state religious exemption statute or because the plaintiff sued under Title VII itself, I suspect the government would easily win. As I mentioned, maintaining good relations between the police and various parts of community is very important. A publicly known refusal of a welcoming gesture from community leaders would substantially undermine the police department’s mission.

And even a quiet refusal by a police captain might have the same effect, because the captain would lose the opportunity to build potentially helpful public confidence and public-police connections; so would a refusal to order subordinates to go to the event, because even though higher police officers could instead issue such an order themselves, the refusal would send a message to police officers that may discourage them from enthusiastically participating in the event. (Whether a high-rank officer would be entitled under Title VII to quietly decline to go such an event for religious reasons, for instance in a context where lots of other officers weren’t going there for other reasons, and the reason of his absence wouldn’t be known to others except his superiors, is a different matter; see this discussion for references to some related cases.)

If in such a hypothetical situation the “necessary to a compelling government interest” standard would be used, the matter would be less clear. But again, this is all hypothetical, since Fields did not claim that he thought it was against his religious beliefs to send officers to the event (or even to go to the event himself).

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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