United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1726

___________

David C. Singleton, *

*

Appellant, *

* Appeal from the United

States

v. * District Court for the

* Eastern District of

Missouri.

Don Cecil, Individually and in his *

official capacity as Chief of Police; *

Harley Moyer; Ivan Parker; Kevin *

Tidwell; Della Price; City of Advance, *

*

Appellees. *

___________

Submitted: November 18, 1997

 Filed: January 8,

1998

___________

Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN and

MAGILL, Circuit Judges.

___________

MAGILL, Circuit Judge.

After the City of Advance, Missouri, terminated the

employment of police officer David Singleton, Singleton

sued the City of Advance's police chief and members of its

city council under 42 U.S.C. § 1983 (1994). Singleton

initially claimed that he was terminated in retaliation

for his knowledge of the police chief's allegedly improper
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purchase of an automobile. After discovery revealed that

Singleton was discharged
The Honorable Catherine D. Perry, United States District Judge for the Eastern 1

District of Missouri.

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because his wife and daughter had plotted to frame the

police chief, Singleton amended his complaint to claim

that his termination infringed on his rights of free

speech, association, privacy, and due process. The

district court granted summary judgment to the defendants 1

on all claims. Singleton appeals only the grant of

summary judgment on his claims that the termination

infringed on his fundamental right of privacy in the

marital relationship and on his right to intimate familial

association. We affirm.

I.

The City of Advance, Missouri, employed plaintiff

David Singleton as a police officer from 1990 until his

termination in March 1994. During the period relevant to

this appeal, defendant Don Cecil served as the City of

Advance's police chief. Defendants Harley Moyer, Ivan

Parker, Kevin Tidwell, and Della Price were elected

members of the City of Advance's city council. William

Bradshaw, the mayor of Advance during this period, was not

a named defendant. The City of Advance did not have a

written employment agreement with Singleton. Under

Missouri law, Singleton's employment was terminable at

will, either by the mayor with approval of a simple

majority of the city council, or by a two-thirds vote of

the city council. See Mo. Ann. Stat. § 79.240 (West

1987); State ex rel. Lupo v. City of Wentzville, 886

S.W.2d 727, 730-31 (Mo. Ct. App. 1994). 
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On the morning of March 8, 1994, Joann Singleton, the

plaintiff's wife, called Sabrina Scaggs, the plaintiff's

daughter, on a cordless telephone. Their conversation

turned to the subject of Police Chief Cecil, who, in David

Singleton's view, had purchased for his own benefit a red

1994 Ford Crown Victoria under an incentive
Mayor Bradshaw and the city council members had prior knowledge of Police 2

Chief Cecil's purchase and considered the car available for use by the city as a backup

police vehicle. See Bradshaw Dep. at 30, reprinted in Appellees' App. at 90; Tidwell

Aff. at 1-2, reprinted in Appellees' App. at 132-33; Moyer Aff. at 1, reprinted in

Appellees' App. at 137; Price Aff. at 1, reprinted in Appellees' App. at 147. Despite

David Singleton's belief that Police Chief Cecil had engaged in illegal activity,

Singleton never notified any law enforcement officials, the mayor, or the city council

of his concerns.

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program designed only for government purchases. At one

2

point in the conversation, Joann Singleton remarked that

she wanted to "set up" Cecil by hiring someone to bribe

him. Scaggs Dep. at 57, reprinted in Appellees' App. at

237. Unfortunately for the Singletons, this statement was

recorded by private investigator David George. Throughout

March 1994, George monitored cordless phone channels in

the City of Advance with his radio scanner, "[m]ore or

less" for entertainment purposes. George Dep. at 37,

reprinted in Appellees' App. at 228. George played the tape for Police

Chief Cecil and the mayor and later gave Cecil a copy of

the tape.

Over the next few days, Police Chief Cecil played the

tape for the city council members individually. Each

recognized the voices on the tape as Joann Singleton and

Sabrina Scaggs. At a special meeting on March 11, 1994,

the city council unanimously voted to terminate

Singleton's employment as a police officer, based on the

recording of Joann Singleton plotting to frame Police

Chief Cecil. See Tidwell Aff. at 3-4, reprinted in

Appellees' App. at 134-35; Moyer Aff. at 3-4, reprinted in

Appellees' App. at 139-40; Parker Aff. at 3-4, reprinted

in Appellees' App. at 144-45; Price Aff. at 3-4, reprinted

in Appellees' App. at 149-50. Singleton received a
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discharge letter dated March 11, 1994, which did not state

a reason for his termination. 

Singleton then sued Police Chief Cecil and the city

council. Singleton's initial complaint alleged wrongful

discharge and a violation of procedural due process.

Singleton later amended this complaint to allege that the

City of Advance violated his
Due to an oversight on behalf of Singleton's counsel, the third amended

3

complaint was never properly served on the defendants.

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First Amendment, due process, and privacy rights by

terminating him in retaliation for his knowledge of Police

Chief Cecil's automobile purchase. During discovery,

Singleton learned that the defendants' sole reason for

their action was the recording of Joann Singleton plotting

to bribe the chief of police. On November 11, 1996,

Singleton again amended his complaint to include the

additional claims that the dismissal based on his wife's

statement violated Singleton's rights of free speech,

intimate association, privacy, and due process. 

 Based solely on the second complaint, the defendants

3

moved for summary judgment. Singleton did not respond to

this motion. The district court ruled on all of the

claims in the third amended complaint and granted summary

judgment for the defendants. The district court concluded

that Singleton could not show retaliatory discharge

because insufficient evidence connected Singleton's

allegedly protected conduct (the intended whistle-blowing)

and his termination. The district court also held that,

as an employee at will under Missouri law, Singleton did

not have a liberty or property interest in his employment

sufficient to implicate procedural due process rights.

Finally, the district court held that the defendants did

not violate Singleton's privacy or associational rights

and noted that the defendants "had a legitimate, good

faith belief that plaintiff, with his family, was engaging

in improper conduct by conspiring to bribe the Chief of

Police." Mem. and Order (Feb. 20, 1997) at 8, reprinted

in Appellant's App. at 95.
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 Singleton appeals only the district court's

determination that the city did not violate his substantive due

process right of privacy in his martial relationship and his First Amendment

right of intimate association.
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II.

We review the district court's grant of summary

judgment de novo. Morgan v. Rabun, 128 F.3d 694, 696 (8th

Cir. 1997). Summary judgment is appropriate when, viewing

the facts and inferences in the light most favorable to

Singleton, "there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). As the

material facts in this case are undisputed, we are left

solely to determine whether the City of Advance is

entitled to judgment as a matter of law.

Singleton acknowledges that his employment as a police

officer was terminable at the will of the City of Advance.

 Advance could thus terminate Singleton for any reason or

no reason at all. See Cooper v. City of Creve Coeur, 556

S.W.2d 717, 721 (Mo. Ct. App. 1977) ("The determination of

the adequacy of the grounds for [an employee at will's]

discharge is not subject to judicial review because the

city could discharge him for no reason or for any

reason."). Our inquiry is therefore limited to whether

the City of Advance's termination of Singleton infringed

on his constitutional rights. See Frazier v. Curators of

the Univ. of Mo., 495 F.2d 1149, 1153 (8th Cir. 1974)

(nontenured public employee may be terminated "provided

the dismissal is not in fact based upon some

constitutionally impermissible ground, such as . . .

retaliation for assertion of rights guaranteed by law or

the Constitution").

Singleton claims that his termination violated his

substantive due process right of privacy in his marital
The only disputed privacy right in this case is located in the substantive

4

component of the Fourteenth Amendment's due process clause. This case does not

concern the privacy of communications over cordless telephones, which are not

constitutionally protected. See Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989)

(per curiam) (no justifiable expectation of privacy in oral communication over cordless

telephone). Subsequently, communications over cordless telephones have received

statutory protection. See Communications Assistance for Law Enforcement Act, Pub.

L. No. 103-414, § 202, 18 Stat. 4279, 4290-91 (enacted Oct. 25, 1994) (amending 18

U.S.C. §§ 2510-11).

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relationship. The fundamental right of privacy embodies 4

the
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"principle that personal decisions that profoundly affect

bodily integrity, identity, and destiny should be largely

beyond the reach of government." Planned Parenthood v.

Casey, 505 U.S. 833, 927 (1992) (Blackmun, J., concurring

in part, concurring in the judgment in part, and

dissenting in part). The Supreme Court has recognized

"that the right to marry is part of the fundamental 'right

of privacy' implicit in the Fourteenth Amendment's Due

Process clause." Zablocki v. Redhail, 434 U.S. 374, 384

(1977). This right, however, does not invalidate every

state action that has some impact on marriage. See Gorrie

v. Bowen, 809 F.2d 508, 522-23 (8th Cir. 1987) ("Not every

regulation that involves or somehow regulates on the basis

of family membership is unconstitutional."). Rather, the

government is free to impose "reasonable regulations that

do not significantly interfere with decisions to enter

into the marital relationship . . . ." Zablocki, 434 U.S.

at 386. Government action "must interfere 'directly and

substantially' with family choices before it is

unconstitutional," Gorrie, 809 F.2d at 523 (quoting

Zablocki, 434 U.S. at 387) (citation omitted), but action

having only a collateral effect on family decisions

typically does not violate that right. Compare Zablocki,

434 U.S. at 388-91 (striking down statute that prohibited

individuals from marrying until compliance with

preexisting child support obligations proven) with

Califano v. Jobst, 434 U.S. 47, 52-54 (1977) (upholding

statute that terminated Social Security benefits of

dependent children on marriage to individuals not entitled

to benefits). 

In this case, the City of Advance did not directly or

substantially interfere with Singleton's right to be
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married when they terminated him on the basis of his

wife's recorded statement threatening to frame the police

chief. Singleton presented no evidence that his

termination "significantly discouraged, let alone made

'practically impossible,'" his marriage to Joann

Singleton. Zablocki, 434 U.S. at 387 n.12. Nor is
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there evidence that the City of Advance acted with the

goal of poisoning Singleton's marriage. Cf. Morfin v.

Albuquerque Pub. Sch., 906 F.2d 1434, 1440 (10th Cir.

1990) ("A defendant can be held liable for violating a

right of intimate association only if the plaintiff shows

an intent to interfere with the relationship."). As the

scope of substantive due process rights should be viewed narrowly, see Washington v.

Glucksberg, 117 S. Ct. 2258, 2267-68 (1997) (extending substantive due process rights,

"to a great extent, place[s] the matter outside the arena of public debate and legislative

action"), we do not expand the right of marriage to protect

Singleton here.

Singleton also alleges that the City of Advance

infringed on his intimate association right. As a

component of the First Amendment right of association, the

right of intimate association guards against excessive

government intervention into "the formation and

preservation of certain kinds of highly personal

relationships . . . ." Roberts v. United States Jaycees, 468 U.S. 609,

618 (1984). The right to marry has thus been cast as a

substantive due process right, see Loving v. Virginia, 388

U.S. 1, 12 (1967), and as an associational right, see

Roberts, 468 U.S. at 619. The nominal source of this

right, however, does not alter this Court's analysis of

the challenged government action. See Lyng v.

International Union, United Auto., Aerospace, & Agric.

Implement Workers of Am., 485 U.S. 360, 365-66 (1988)

(applying direct and substantial interference standard to

First Amendment right of family association); Montgomery

v. Carr, 101 F.3d 1117, 1124 (6th Cir. 1996) ("[T]he level

of scrutiny to be applied to state action impinging on the

right to marry is invariant with respect to the precise
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constitutional provision undergirding that right."). In

both instances, the government remains free to act in a

fashion that does not directly and substantially interfere

with the right to marry. Singleton's assertion of an

intimate associational right must fail for the same

reasons as does his assertion of a fundamental right of

privacy. The City of Advance's termination of Singleton

on the basis of his wife's conduct simply did not

substantially or directly interfere with Singleton's right

to enter and maintain his marital relationship.
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Accordingly, we affirm the district court's grant of

summary judgment in favor of the defendants.

RICHARD S. ARNOLD, Chief Judge, dissenting.

I can agree that plaintiff has failed to establish a violation of those aspects of the

Due Process Clause of the Fourteenth Amendment that have been particularized as the

rights of intimate association and marital privacy. But Mr. Singleton makes an

additional argument that the Court's opinion fails to address. He claims (and the City

admits) that he was fired solely because of what his wife said to his daughter on the

telephone. He argues that this "is precisely the kind of arbitrary and capricious logic

that fails to pass even the most relaxed scrutiny . . . under substantive due process."

Brief for Appellant 15. The Due Process Clause stands as a protection against all purely

arbitrary governmental action - for example, a rule against hiring anyone whose name

begins with "A." In my view, it is this more general aspect of substantive due process

that provides plaintiff with a winning argument.

In our legal tradition, fault is individual. A is not punished for what B does, let

alone for what B says. Is the situation different when A and B are married? At

common law, it was. If a wife committed a crime in the presence of her husband, she

was presumed to have acted at his direction, and he was held responsible. Presumably

any such rule would be constitutionally condemned today under the Due Process

Clause. Is what happened here any more defensible? I think not. In a related context,

we have held that a husband's political opinion cannot be automatically attributed to his

wife. Forbes v. Arkansas Educational Television Comm'n, 93 F.3d 497, 501-02 (8th

Cir. 1996) ("We do not think any general inference can be drawn from the opinion of

one spouse to that of the other."), cert. granted on other grounds, 117 S. Ct. 1243

(1997).
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The District Court's opinion, quoted ante at 4, says that the City had "a legitimate,

good faith belief that plaintiff, with his family, was . . . conspiring to bribe the Chief of

Police." This would doubtless make the case quite different. A city is entitled to have

police officers in its employ who are not conspiring to bribe the Chief. A reasonable

belief that an officer is conniving at such conduct would certainly be a rational, nonarbitrary basis for discharge. But what is the evidence for this statement (aside from the

bare fact of the marital relationship)? The District Court cited none, this Court cites

none, and I know of none.

I respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.