N O T FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C UIT

R ONALD GODW IN,

Pla i ntiff-Appe lla

nt,
v. R OGUE VALLEY YOUTH C OR R EC TIONAL FAC ILITY, (R VYC F); e t a l., De fe nda

n ts-Appe lle e s. No. 14-35042 D.C . No. 1:12-c v-00478-C L
M EM O R ANDUM *

Appe a l from

the Unite d

Sta t e s Distric t C ourt for the Distric t of Ore gon Owe n M
. Pa nne r, Distric t Judge , Pre siding Argue d a nd Subm itte d July

5, 2016 Portla nd, Ore gon B e fore : PR EGER SON, B E A, a nd OW ENS, C irc uit Judge s. Pla intiff-Appe lla

nt R ona ld Godwin a

ppe a ls from

the distric t c ourt’ s gra

nt of
sum m a ry judgm e nt in fa

vor of De fe nda

nts-Appe lle e s R ogue Va l le y Youth 

# FIL ED
AUG 10 2016 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

* This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by Ninth C irc uit R

ule 36-3.C orre c tiona l Fa c ility (“ R VYC F” ), the Ore g on Youth Authority (“ OYA” ), 1 Supe rinte nde nt Ke n

Je rin, Dire c tor C olle tte Pe te rs, a nd Assista

nt Dire c tor Je a n Stra ight 2 (c olle c tive ly , “ De fe nda nts” ). The distric t

c o urt de te rm ine d tha

t Godwin
wa s not wrongfully te rm inate d in viola t ion of his First Am

e n dm e nt rights to

a ssoc ia tion a

nd fre e spe e c h . W e re ve rse the distric t c ourt’ s gra nt of sum m a ry judgm e nt a

nd re m a nd for furthe r proc e e dings. B e c a use the pa rtie s a re fa m ilia r with the fa c ts of this c a se , we do not re p e a t the m he re . To sta te a prim a fa c ie c a se for his hy

brid spe e c h/a s soc ia tion c l a im , Godwin

m ust show tha

t: (1) he e nga ge d in prote c te d spe e c h a nd/or a ssoc ia tion, (2) De fe nda

nts “ took a

n a dve rse e m

ploy m e nt a c tion” a ga inst him , a nd (3) his spe e c h a nd/or a ssoc ia tion wa s “ a

substa ntia l or m otiva

t ing fa c tor for the a dve rse
e m ploy m e nt a c tion.” Hudson v . C rav e n , 403 F.3d 691, 695 (9th C i r. 2005) (quoting Thomas v . C

ity of Be a v e rton , 379 F.3d 802, 808 (9th C ir. 2004)). It is undispute d tha

t De fe n da nts te rm inate d

Godwin be c a

use of his e x pre ssive c onduc t
a nd a ssoc ia tion with the Va g os m otorc y c le c lub. Thus, the que stion be fore us is

1 The OYA ope ra te s R

VYC F a nd is a

de pa rtm e nt of the Sta te of Ore gon. 2 Though De fe nda

nts a ppe a r to ha

ve a s se rte d

the de fe nse of qua lifie d im m unity in the ir a nswe r to the c om

pla int, the issue wa s not ra ise d on a ppe a l, so we do not a ddre ss it he re . Nor do we a ddre s s whe the r the Ele ve nth Am e ndm e nt ha s a ny a pplic a tion he re . 2whe the r Godwin’ s we a ring of Va gos insignia (“ c olors” ) 3 a nd a ssoc ia tion with Va gos is prote c te d unde r the First Am e ndm e nt, whic h in this c onte xt re quire s tha t his e xpre ssion/a ssoc ia tion re la te s to a m a tte r of public c o nc e rn. Se e C onnic k v . My e rs , 461 U.S. 138, 149 (1983) (holding tha t a public e m

ploy e e is prote c te d

a ga inst a d ve rse e m ploy m e nt a c tion only

a s to e xpre s sion tha

t c a n be sa id to “ touc h upon a m a tte r of public c onc e rn” ). Godwin’ s e xpre ssion/a ssoc ia tion wa s re la te d to a m a tte r of public c onc e rn, the s c ope of whic h we c onstrue “ broa dly .” Ulric h v . C ity & C o unty of San Franc isc o , 308 F.3d 968, 978 (9th C ir. 2002). “ Spe e c h involve s a m a tte r of public
c onc e rn whe n it c a

n fa irly be c onside re d to re la te to ‘ a ny m a tte r of politic a l , soc ia l, or othe r c onc e rn to the c o m m unity .’ ” J

ohnson v . Multnomah C

ounty , 48 F.3d 420, 422 (9th C i r. 1995) (quoting C onnic k , 461 U.S. a

t 146). “ [P] ublic c onc e rn is
som e thing tha

t is a subje c t of le gitim a te ne ws inte re st; tha t is, a subje c t of ge ne ra l inte re s t a n d of va lue and c onc e rn to the public a t the tim e of public a tion.” C ity of San Die go v . Roe , 543 U.S. 77, 83-84 (2004) (pe r c uriam ). He re , Godwin’ s
we a ring of the Va g os insignia and a ssoc ia ting with Va gos m e m be rs c ould be

3 W e a ring m otorc y c le c lub insignia is e xpre ssive c onduc t be c a use it c onve y s a m e ssa ge tha

t the we a re r supports or is proud to be a ffilia t e d with the orga niz a tion. Se e

, e .g. , Sammartano v . First J udic ial Dist. C

ourt , 303 F.3d 959, 966-67 (9th C ir. 2002), a brogate d on othe r grounds by W inte r v . N at. Re s. De f. C ounc il, Inc

. , 55 U.S. 7, 21 (2008). 3pe rc e ive d a s public support of Va gos— i.e ., a pproving of the

a c tivitie s of a pe rc e ive d c rim ina l orga

niz a tion. This is a

m a tte r of inte re st to the c om m unity

. Furthe r, the c rim ina lity

of m otorc y c le c lubs is a

topic of “ le gitim a te ne ws inte re st.” Id. ; s e e also Roe

v . C ity & C o unty of San Franc isc o , 109 F.3d 578, 585 (9th C ir. 1997) (“ To de se rve First Am e ndm e nt prote c tion, it is suffic ie nt tha t the spe e c h
c onc e rn m a tte rs in whic h e ve n a re la tive l y sm a ll se gm e nt of the ge n e ra l public

m ight be inte re ste d.” ); a c c ord Pisc ottano v . Murphy , 511 F.3d 247, 274-76 (2d C ir. 2007). As Godwin e sta

blishe d a prim a fa c ie c a se of re t a lia

tory te rm ination, the burde n shifts to the

gove rnm e nt to de m onstra te tha t its le gitim a t e inte re s t “ in prom oting the e ffic ie n c y

of the public se rvic e s it pe rform s through its e m ploy e e s” outwe ighs Godwin’ s First Am e ndm e nt right. Rank in v . Mc Phe rson , 483 U.S. 378, 388 (1987) (quoting P ic k e ring v . Bd. of Educ

. , 391 U.S. 563, 568 (1968)); s e e also Hudson , 403 F.3d a

t 695. He re , the P ic k

e ring ba la nc ing te st doe s not fa

v or the gove rnm e nt a s a

m a t te r of la w. W ith re spe c t to the func tioning of a public e nte rprise , “ [a ] n e m ploy e r m a y not inte rfe re with a

n e m ploy e e ’ s First Am e ndm e n t rights unle ss the re is e vide nc e that the e m ploy e e ’ s a c tions ha

ve a c tua lly

disrupte d the workpla c e or are
re a s ona bly like ly to do so in the

future .” N

ic hols v . Danc e r , 657 F.3d 929, 931

4(9th C ir. 2011). C ritic a lly , “ [s] im ply sa y ing tha t the re ha s be e n or will be disruption, without supporting e vide nc e , is not e n ough.” Id. To show a c tua l or pote ntia l disruption, pe rtine nt c onside ra tions inc lude whe the r the spe a ke r’ s
e xpre s sion im

pe de d his job pe rform a nc e , im p a i re d pe rsonne l re l a tionships (inc luding “ disc ipline by

supe riors or ha

rm ony a m ong c o-worke rs” ), or othe rwise inte rfe re d with “ the re gula r ope ra tion of the e nte rprise .” Rank in , 483 U.S. a

t 388. Nothing in the re c ord on sum m a ry judgm e nt indic a te s tha

t Godwin’ s
e xpre s sion im

pe de d the pe rform a nc e of his job dutie s, a dve rse ly a ffe c te d disc ipline or pe rsonne l re la tionships, or inte rfe re d with the work of the OYA. Nor doe s the
re c o rd indic a te that his e xpre ssion would be re a sona bly like ly to disrupt the workings of the

OYA in the future

. Godwin ha d be e n a ffilia te d with Va g os for his
e ntire fourte e n-y e a r te n

ure with the OYA, whic h wa s known to se ve ra l of his c oworke rs, inc luding supe rvisors. Inde e d, Godwin ha d a rra nge d “ m otorc y c l e shows” for the OYA y outh, to whic h he would invite m e m be rs of m otorc y c le c l ubs to spe a k. The re are n o c o m

pla ints in the

re c ord re ga

rding Godwin inviting the se
m otorc y c le c lub m e m

be rs to spe a k to the y outh. Inste a d , he ha s offe re d e v ide nc e that he use d “ his pa st e xpe rie nc e s a nd involve m e nt in Va gos . . . to he lp the y outh unde rsta nd, no m a tte r who the y

a re a nd wha

t the y have done [,] the y c a n turn the ir life a round a

nd be positive pe ople .” Additiona lly , Godwin wa s vie w e d a s a n
5e xe m

pla ry e m ploy e e ; he re c e i ve d a

n a wa rd for his “ outsta

nding se rvic e ” four

m onths prior to his te

rm inat ion, a nd his c o-worke rs a ffirm e d his va lue to the OYA through a le tte r of support. De fe nda nts’ purporte d fe a rs of future disruption a re
a lso unsupporte d in light of the fa c t tha t , upon be ing inform e d of De fe nda nts’
c onc e rns a

bout his a ssoc i a tion with Va g os, Godwin im m e diate ly offe re d to ne ve r
a ga in we a r his Va gos c olors or a

tte nd Va gos e ve n ts. On this re c ord, whe re the re is no e vide nc e of a c tua l disruption a nd De fe nda nts’ pre dic tions of future disruption a re pure ly spe c u la tive , the distric t
c ourt e rre d in gra

nting sum m a ry judgm e nt in fa

vor of De fe nda

nts. 4 Se e N

ic hols , 657 F.3d a

t 933-34 (“ [A] n e m

ploy e r c a nnot pre va il unde r Pic k e ring ba se d on m e re spe c ulation tha

t a n e m ploy e e ’ s c onduc t will c a

use disruption.” ). RE V E RSE D AND RE M ANDE D.

4 In light of this holding, we ne e d not re a c h the que stion of whe the r Godwin wa ive d his pure a ssoc ia tion c la im

. 61

Godwin v. Rogue Valley Youth Correctional Facility , No. 14

- 35042 Bea, Circuit Judge, Dissenting ,
I agree that an expression of support for the “Vagos,” an organization classified by the Federal Bureau of Investigation (“FBI”) as an “outlaw motorcycle gang , ” “touches on” a matter of public concern, Connick v. Myers , 461 U.S. 138, 149 (1983)

. I disagree with the majority’s requirement that actual evidence of disruption is essential bef ore a law enforcement agency can fire an employee for his affiliation with, or expression in support of, the “Vagos.” Such affiliation or expression is contrary to his governmental employer’s mission, as reflected in its important law enforcement interest s. I would find that the government employer has a strong safety interest in maintaini ng public respect for its law enforcement agencies and officials, and that this interest is necessarily undermined when a law enforcement employee engages in conduct or speech antithetical to his employer’s legitimate law enforcement mission. Under these circumstances , the employer is justified in terminating the aberrant employee as a matter of law. For this and the reasons set forth below, I would uphold the district court’s grant of summary judgment in defendants’ favor. We have previously recognized (in the Fourth Amendment context) that law enforcement agencies’ unique character as “paramilitary” organization s justifies 

# FILED
AUG 10 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

greater curtailment of their employees ’ constitutional rights, given the employer’ s
— as well as the public’ s
— strong i nterest in the provision of safe and eff ective law enforcement services

. Aguilera v. Baca , 510 F.3d 1161, 1168 (9th Cir. 2007) (“While ‘policemen, like teachers and lawyers, are not relegated to a watered

- down version of constitutional rights,’ . . . . society has an equally important interest in ensuring the highest integrity by those entrusted with discharging the duties of a peace officer.” (quoting Garrity v. New Jersey , 385 U .S. 493, 500 (1967)) )

. This principle applies with equal force in the First Amendment context. See Locurto v. Giuliani , 447 F.3d 159, 179 (2d Cir. 2006) (Calabresi, J.) (“Because police departments function as paramilitary organizations charged with mai ntaining public safety and order, they are given more latitude in their decisions regarding discipline and personnel regulations than an ordinary government employer.” (quoting Tindle v. Caudell , 56 F.3d 966, 971 (8th Cir. 1995) ) ) ; Jurgensen v. Fairfax Cty

. , 745 F.2d 868, 880 (4th Cir. 1984) ( I n applying Pickering , “courts must give weight to the nature of the employee’s job in assessing the possible effect of his action on employee morale, discipline or efficiency. . . . [with] university professors [falli ng] at one end [of the spectrum] to policemen at the other. State inhibition of academic freedom is strongly disfavored. In polar contrast is the discipline demanded of, and freedom3

correspondingly denied to policemen.” (citing Wieman v. Updegraff , 344 U .S. 183, 195 (1952) ( Frankfurter, J., concurring))). Indeed, we recognized as much in Dible v. City of Chandler , 515 F.3d 918 (9th Cir. 2007), where we affirmed a grant of summary judg ment in favor of the Chandler, Arizona Police Department and other gove rnment defendants on cl aims that the termination of a police officer for operating a for

- profit pornography website violated the officer’ s freedom of speech, i d. at 922, 924, 931. In concluding that the government reasonably predicted that the plaintiff

- employee’s operation of a pornography website would disrupt the provision of law enforcement services, we reasoned: Police departments, and those who work for them, are engaged in a dangerous calling and have significant powers. The public expects officers to behave with a high level of propriety , and, unsurprisingly, is outraged when they do not do so. The law and their own safety demands that they be given a degree of respect , and the sleazy activities of Ronald and Megan Dible could not help but undermin e that respect. Nor is this mere speculation. Id. at 928 (emphasis added). Nor are we alone in our recognition that law enforcement agencies require public respect to perform their jobs safely and eff ectively

. In Locurto v. Giuliani , 447 F.3d 159 (2d Cir . 2006) (Calabresi, J.) , a police officer and two firefighters sued various New York state defendants, alleging that they were unlawful ly terminated in retaliation for their participation in a Labor Day parade float that4

“featured mocking stereotypes of Af rican

– Americans” in violation of the First Amendment. Id. at 163. The day following the incident, New York Mayor Rudolph Giuliani was quoted as stating, “I’m not going to take the responsibility of keeping [Locurto] on the police force and then three yea rs from now he hurts somebody and somebody wants to know why he wasn’t removed.” Id. at 165 (quoting Kit. R. Roane, Suspended Police Officer Apologizes, Calling Float “a Big Mistake , ” N.Y. Times 51 (Sept. 13, 1998) ). The Second Circuit “conclude[d] that the defendants fired the plaintiffs out of a reasonable c oncern for disruption, and that this concern outweighed the plaintiffs’ individual expressive interests.” Id. In so holding, the Second Circuit reasoned that defendants “legitimately regard[ed] as ‘disruptive’ expressive activities that instantiate or perpetuate a widespread public perception of police officers and firefighters as racist.” Id. at 178
. This was so, the court explained, because: Police officer s and firefighters alike 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 and firefighters accord the members of that community. . . . Where a Government employee ’ s job quintessentially involves public contact, the Government may take into acc ount the public’ s perception of that employee ’ s expressive acts in determining whether those acts a re disruptive to the Gov ernment’ s operations. Id. at 178

– 79. Accordingly, the Second Circuit reversed the district court’s grant of summary judgment in favor of the plaintiffs and remanded with instructions to
en ter judgment for the defendants instead. Id. at 163.5

Just as public respect for law enforcement is inherently undermined when a police officer engages in “sleazy” a ctivities like pornography, or racist exp ression which alienates communities the officer may be called upon to protect, so too is public respect fundamen tally undercut when a spiritual lead er for crime

- prone youth offenders proudly and publicly associates with an organization classification by the FBI as a criminal organization. Here, the following is undisputed: P laintiff Ronald Godwin (“Godwin”) was terminated because he associated with Vagos motorcycle club members and was seen around town wearing Vagos “colors” and paraphernalia . The Oregon Youth Authority’s (“OYA”) mission “is to protect the public and reduce crime by holding youth offenders accou ntable and providing opportunities for reformation in saf e environments.” Regardless whether Godwin’s association with Vagos actually interfered with OYA’s mission, OYA senior management reasonably predicted that the conflict between his employer’s missio n and Godwin’s activities would undermine public respect for OYA , and thereby impair OYA’s ability effectively to rehabilitate youth offenders. Dible and Locurto hold that this is enough to justify a grant of judgment in the government’s favor. The late J ustice Scalia put it well: “[N]o law enforcement agency is required by the First Amendment to permit one of its employees to ‘ride with the cops and6

cheer for the robbers.’” Rankin v. McPherson , 483 U.S. 378, 394 (1987) (Scalia, J., dissenting). To the extent the majority suggests to the contrary, I respectfully dissent.