United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1726

___________ David C. Singleton, *
* Appellant, *
* Appeal from the Unite d States v. * District Court for the
* Eastern District o f 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.

Af ter the City of Advance, Missouri, terminated th e empl oyment of police officer David Singleton, Singleto n suedthe City of Advance's police chief and members of it s cit ycouncil under 42 U.S.C. § 1983 (1994). Singleto n initi allyclaimed that he was terminated in retaliatio n for his knowledge of the police chief's allegedly imprope r-2-

purchase of an automobile. Af ter discovery revealed that Singleton was dischargedThe Honorable Catherine D. Perry, United States District Judge for the Eastern 1 District of Missouri.
-3- bec ause his wife and daughter had plotted to frame th e polic e chief, Singleton amended his complaint to clai m that his termination infringed on his rights of fre e speec h, association, privacy, and due process. Th e district court granted summary judgment to the d efendants 1
on all claims. Singleton appeals only the grant o f
summa ryjudgment on his claims that the terminatio n infringed on his fundamental right of privacy in th e marital relationship and on his right to intimate familia l association. We affirm.

I.

The City of Advance, Missouri, employed plaintif f Davi d Singleton as a police officer from 1990 until hi s termination in March 1994. Du ring the period relevant to thi s appeal, defendant Don Cecil served as the City o f Advan ce's police chief. Defendants Harley Moyer, Iva n Parke r, Kevin Tidwell, and Della Price were electe d memb ers of the City of Advance's city council. Willia m Bradshaw, the mayor of Advance during this period, was no t
a named d efendant. The City of Advance did not have a written employment agreement with Singleton. Unde r Mis souri law, Singleton's employment was terminable a t will, either by the mayor with approval of a simpl e majorityof the city council, or by a two-thirds vote of the c ity council. See Mo. Ann. Stat. § 79.240 (Wes t 1987); State ex rel. Lupo v. City of Wentzville , 88 6 S.W.2d 727, 730-31 (Mo. Ct. App. 1994).-4-

On the morning of March 8, 1994, Joann S ingleton, the plaintiff's wife, called Sabrina Scaggs, the plaintiff's daugh ter, on a cordless telephone. Their conversatio n turnedto the subject of Police Chief Cecil, who, in Davi d Singleton's view, had purchase d for his own benefit a red 1994 Ford Crown Victoria under an incentiveMayor Bradshaw and the city council members had prior knowledge of Police 2 Chief Cecil's purchase and considere d the car available for use by the city as a backup police vehicle. See Bradshaw Dep. at 30, reprinted inAppellees' App. at 90; Tidwell Aff. at 1 -2, reprinted inAppellees' App. at 132-33; Moyer Aff. at 1, reprinted i n Appellees' App. at 137; Price Aff. at 1, reprinted inAppellees' 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.
-5- prog ramdesigned only for government purchases. At on e 2 point in the conversation, Joann Singleton remarked that she wanted to "set up" Cecil by hiring someone to brib e him. Scaggs Dep. at 57, reprinted in Appellees' App. at 237. Unfortunately for the Singletons, this statement wa s recorded by private investigator David George. Throughou t March 1994, George monitored cordless phone channels i n the City of Advance with his radio scanner, "[m]ore o r less" for entertainment purposes. George Dep. at 37 , reprinted in

Appellees' App. at 228. Geor ge 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 Cec il played the tape f or the city council members individually. Eac h recognized the voices on the tape as Joann Singleton and Sabrina Scaggs. At a special meeting on March 11, 1994, th e city council unanimously voted to terminat e Singleton's employment as a police officer, based on the
recor ding of Joann Singleton plotting to frame Polic e Chief Cecil. See Tidwell Aff. at 3-4, reprinted i n Appellees' App. at 134-35; Moyer Aff. at 3-4, reprinted i n Appellees' App. at 139-40; Parker Aff. at 3-4, reprinted inAppellees' App. at 144-45; Price Aff. at 3-4, reprinte d in A ppellees' App. at 149-50. Singleton received a-6-

discharge letter dated March 11, 1994, which did not stat e a reason for his termination.
Single ton then sued Police Chief Cecil and the cit y council. Singleton's initial complaint alleged wrongful disch arge and a violation of procedural due process

. Singleton later amended this c omplaint to allege that the City of Advance violated hisDue to a n oversight on behalf of Singleton's counsel, the third amende d 3 complaint was never properly served on the defendants.
-7- First Amendment, due process, and privacy rights b y terminating him in retaliation for his knowledge of Polic e Ch ief Cecil's automobile purchase. During discovery , Singl eton learned that the defendants' sole reason fo r their action was the recording of Joann Singleton plottin g to br ibe the chief of police. On November 11, 1996 , Singl eton again amended his complaint to include th e additional claims that the dismissal based on his wife's st atement violated Singleton's rights of free speech , intimate association, privacy, and due process.
Based solely on the second complaint, the defendant s 3 moved for summary judgment. S ingleton did not respond to this motion. The district court ruled on all of th e claims in the third amended co mplaint and granted summary judgment for the defendants. The district court conclude d that Singleton could not show retaliatory discharg e 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 suf ficient to implicate procedural due process rights

. Finally, the district court held that the defendants did not violate Singleton's privacy or associational right s and no ted that the defendants "had a legitimate, goo d faithbelief that plaintiff, with his family, was engagin g in i mproper conduct by conspiring to bribe the Chief o f Police." Mem. and Order (Feb. 20, 1997) at 8, reprinted in Appellant's App. at 95.-8-

Sing leton appeals only the district court' s determinatio n that the city did not violate his substantive due pro cess right of privacy in his martial relationship andhis First Amendmen t right of intimate association.-9- II.

We review the district court's grant of summar y judgment de novo. Morgan v. Rabun , 128 F.3d 694, 696 (8t h Cir. 1997). Summary judgment is appropriate when, viewin g the facts and inferences in the light most favorable t o Singleton, "there is no genuine issue as to any material fact and . . . the moving part y is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). As th e mate rial facts in this case are undisputed, we are lef t solely to determine whether the City of Advance i s entitled to judgment as a matter of law.
Singleton acknowledges that his employment as a polic e 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.2d717, 721 (Mo. Ct. App. 1977) ("The determination o f the adequacy of the grounds for [an employee at will's ] discharge is not subject to judicial review because th e city co uld discharge him for no reason or for an y reason."). Our inquiry is therefore limited to whethe r 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 ) (non tenured public employee may be terminated "provide d the dismissal is not in fact based upon som e const itutionallyimpermissible ground, such as . .

. retaliation for assertion of rights guaranteed by law or the Constitution").
Singl eton claims that his termination violated hi s substantive due process right of privacy in his marita lThe on ly disputed privacy right in this case is located in the substantiv e 4 compo nent

of the Fourteenth Amendment's due process clause. This case does no t concern t he privacy of communications over cordless telephones, which are no t constitutionally protec ted. See Tyler v. Berodt , 877 F.2d 705, 706-07 (8th Cir. 1989) (per curiam) (no justifiable expectation of pr ivacy in oral communication over cordless te lephone). Subsequently, communications over cordless telephones have receive d statutory protection. SeeCommunications Assis tance for Law Enforcement Act, Pub. L. No. 103-414, § 202, 1 8 Stat. 4279, 4290-91 (enacted Oct. 25, 1994) (amending 18 U.S.C. §§ 2510-11).
-10- relationship. The fundamental right of privacy embodies 4 the-11-

"principle that personal decis ions that profoundly affect bodily integrity, identity, an d destiny should be largely beyond the reach of government." Planned Parenthood v

. Casey , 505 U.S. 833, 927 (1992 ) (Blackmun, J., concurring in pa rt, concurring in the judgment in part, an d dis senting in part). The Supreme Court has recognize d "that the right to marry is part of the fundamental 'righ t of pr ivacy' implicit in the Fourteenth Amendment's Du e Process clause." Zablocki v. Redhail , 434 U.S. 374, 384 (1977). This right, however, does not invalidate ever y state action that has some impact on marriage. See Gorri e
v. Bowen , 809 F.2d 508, 522-23 (8th Cir. 1987) ("Not ever y regulationthat involves or somehow regulates on the basi s of family membership is uncons titutional."). Rather, the government is free to impose " reasonable regulations that do no t significantly interfere with decisions to ente r into the marital relationship . . . ." Zablocki , 434 U.S

. at 386. Government action "must interfere 'directly and
su bstantially' with family choices before it i s unconstitutional," Gorrie , 809 F.2d at 523 (quotin g Zablocki , 434 U.S. at 387) (ci tation omitted), but action havin g only a collateral effect on family decision s typically does not violate tha t right. Compare Zablocki , 434 U.S. at 388-91 (striking d own statute that prohibited individuals from marrying until compliance wit h preexisting child support obligations proven) wit h Califano v. Jobst , 434 U.S. 47, 52-54 (1977) (upholdin g statute that terminated Social Security benefits o f dependent children on marriage to individuals not entitle d to benefits).
In this case, the City of Advance did no t directly or substantially interfere with Singleton's right to b e-12-

married when they terminated him on the basis of hi s wife's recorded statement thre atening to frame the police chief

. Singleton presented no evidence that hi s termination "significantly discouraged, let alone mad e 'practicallyimpossible,'" his marriage to Joan n Singleton. Zablocki , 434 U.S. at 387 n.12. Nor is-13-

the re evidence that the City of Advance acted with th e goa l of poisoning Singleton's marriage. Cf. Morfin v

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

. 199 0) ("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 th e scope of substantive due pro cess rights should be viewed narrowly, see Washington v. Glucksberg , 117 S. Ct. 2258, 2267-68 (1997) (extending substantiv e 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 protec t Singleton here.

Si ngleton also alleges that the City of Advanc e infring ed on his intimate association right. As a component of the First Amendment right of association, th e rig ht of intimate association guards against excessiv e government intervention into "the formation an d pre servation of certain kinds of highly persona l

re lationships . . . ." Roberts v. United States Jaycees , 468 U.S. 609 , 61 8 (1984) . The right to marry has thus been cast as a substantive due process right, see Loving v. Virginia , 38 8 U. S. 1, 12 (1967), and as an associational right, se e Roberts , 468 U.S. at 619. The nominal source of thi s right, however, does not alter this Court's analysis o f the c hallenged government action. See Lyng v

. Int ernational Union, United Auto., Aerospace, & Agric

. Implem ent Workers of Am. , 485 U.S. 360, 365-66 (1988 ) (applying direct and substanti al interference standard to First Amendment right of family association); Montgomery
v. Carr , 101 F.3d 1117, 1124 (6th Cir. 1996) ("[T]he leve l of scrutiny to be applied to state action impinging on th e righ t to marry is invariant with respect to the precis e-14-

constitutional provision undergirding that right."). In both instances, the government remains free to act in a fashion that does not directly and substantially interfer e wi th the right to marry. Singleton's assertion of a n intim ate associational right must fail for the sam e reas ons as does his assertion of a fundamental right o f privacy. The City of Advance's termination of Singleton
on the basis of his wife's conduct simply did no t substantially

or directly interfere with Singleton's righ t to enter and maintain his marital relationship.-15-

Accor dingly, 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 fai led 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 additionalargument 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 th e tel ephone. He argues that this "is precisely the kind of arbitrary and capricious logi c thatfails to pass even the most relaxed scrutiny . . . under substantive due process. " Brief for Appellant 15. The Due Process Clause stands as a protection again st all purely

ar bitrary 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 alonefor what B says. Is the situation different when A and B are married? A t
comm on 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 Proces s Clause. Is what happened here a ny more defensible? I think not. In a related context, we have held that a husband's political opinio n cannot be automatically attributed to his wif e. 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. 124 3 (1997).-16-

The District Court's opinion, quoted anteat 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 doub tless make the case quite different. A city is entitled to have policeofficers in its employ who are not conspiring to bribe the Chief. A reasonable belief that a n officer is conniving at such conduct would certainly be a rational, non

arbitrary basis for discharge. But what is the evidence for thisstatement (aside from the ba refact of the marital relationship)? The District Court cited none, this Court cite s none, and I know of none.
I respectfully dissent.
A true copy.

Attest:

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