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Coker v. Whittington

United States Court of Appeals, Fifth Circuit

May 23, 2017

BRANDON COKER; MICHAEL GOLDEN, Plaintiffs - Appellants
v.
JULIAN WHITTINGTON; CHARLES OWENS, Defendants-Appellees

         Appeal from the United States District Court for the Western District of Louisiana

          Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge. [*]

          EDITH H. JONES, Circuit Judge.

         The appellants are two former sheriff's deputies in Bossier Parish, Louisiana, who chose not to obey a directive from the Sheriff and were removed from their offices. Their disobedience arose from their decisions to move in with each other's wife and family before getting divorced from their current wives. Whether these decisions, which violated the Sheriff's Code of Conduct, infringed on appellants' constitutional rights, and whether the Code's policies conform to the Constitution were decided against them. We AFFIRM.

         The material facts are undisputed.[1] When Chief Deputy Sheriff Owens learned in late October 2014 that Coker and Golden had each taken up residence in the other's house, exchanging spouses without having divorced their current wives, they were placed on administrative leave for violating the Sheriff's Code of Conduct. The Code includes the following standards:

Conduct yourselves at all times in such a manner as to reflect the high standards of the Bossier Sheriff's Office . . . [and] Do not engage in any illegal, immoral, or indecent conduct, nor engage in any legitimate act which, when performed in view of the public, would reflect unfavorabl[y] upon the Bossier Sheriff's Office.

         They had also violated a provision that required them to inform their direct supervisors within 24 hours of a change of address, a measure designed to ensure their availability at all times in case of an emergency.

         Matters moved swiftly. Coker and Golden were informed that each must cease living with a woman not his spouse. If the deputies refused to do so, they were told, then as of November 24 they would be considered to have terminated employment voluntarily. The deadline passed, their living situations did not change, and they filed suit shortly thereafter.

         Defendants in the lawsuit were Sheriff Whittington and Deputy Sheriff Owens, in their personal and official capacities, and the Bossier Parish Sheriff's Office. Following evidentiary jousting, the district court ruled in favor of the defendants. The court held first that the Code policies invoked against Coker and Golden are supported by the rational grounds of preserving a cohesive police force and upholding the public trust and reputation of the Sheriff's Department. Case law, including decisions of this circuit, has uniformly approved terminations of law enforcement officers for sexually inappropriate conduct.[2] There are no decisions to the contrary suggesting that the deputies, as public employees of law enforcement agencies, have constitutional rights to "associate" with each other's spouses before formal divorce. That Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472 (2003), expanded substantive constitutional rights relating to personal sexual choices does not mandate a change in policies relevant to public employment, where it was more recently reaffirmed that public employees necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions. Garcetti v. Ceballos, 547 U.S. 410, 426, 126 S.Ct. 1951, 1962 (2006). The district court also concluded that the Code of Conduct is not unconstitutionally vague as written or enforced. It does not offend the fair notice requirements of due process, especially with regard to discipline that was not itself unconstitutional. Shawgo, 701 F.2d at 477-79.

         We find no reversible error of fact or law in the district court's decision. Sexual decisions between consenting adults take on a different color when the adults are law enforcement officers. Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public. Their involvement in relations that openly and "notoriously" violate the legally sanctioned relationships of marriage and family is likely to besmirch the reputation of the Sheriff's Department and hinder its ability to maintain public credibility. Moreover, these officers' extramarital relationships, even if consensual and loving at the outset, have great potential to create internal dissension within the force. Finally, it is not hard to envision how the existence of Coker's and Golden's cohabitation with each other's wives prior to divorce and remarriage might be adversely used in litigation concerning the deputies' official conduct.

         The Supreme Court's recent decision in Obergefell v. Hodges does not alter applicable law. 135 S.Ct. 2584, 2598 (2015). Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best, but Obergefell is expressly premised on the unique and special bond created by the formal marital relationship and children of that relationship. Id. at 2594-95. Obergefell does not create "rights" based on relationships that mock marriage, and no court has so held.[3]

         The district court's judgment is AFFIRMED.

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