A district court judge last month dismissed a lawsuit filed by a Kutztown University police officer who alleged his rights were violated when he refused to remove anti-LGBT protesters from the campus.
Judge C. Darnell Jones II dismissed Cpl. Steve Armbruster’s suit March 9, just about a year after the officer filed the motion. Armbruster has since filed an appeal with the United States Court of Appeals for the Third Circuit.
Named as defendants in the suit and the appeal are chancellor of the Pennsylvania State System of Higher Education John C. Cavanaugh, Kutztown president F. Javier Cevallos and Kutztown Chief of Police William F. Mioskie.
Armbruster’s suit alleged that he was unjustly disciplined when he disobeyed a superior’s orders to remove members of antigay group Repent America from the campus of the Berks County university during a demonstration three years ago.
Armbruster contended his free-speech rights were violated, as was his right to “refuse to violate others’ constitutional rights.”
After lawyers for the defendants filed a motion to dismiss last May, Armbruster filed an amended complaint in July, and the defendants filed another dismissal motion before the court heard oral arguments in the fall.
In last month’s opinion, Jones wrote that he was dismissing the case because he found both of Armbruster’s claims to be tenuous. The judge wrote that the free-speech claim was erroneous, as Armbruster disobeyed his supervisor’s order in his official role as a police officer, not in his position as a private citizen.
“Armbruster only ‘spoke’ in insubordinate response to a direct order issued to him during the conduct of official police business,” Jones wrote, further noting that “Armbruster’s speech was made to the superior who was directing Armbruster’s official duties, not to any private citizens or in any public context related to the demonstration.”
Likewise, Jones ruled that no court of appeals in the past three decades has upheld an individual’s right to refuse to violate others’ constitutional rights, and while there was one such precedent set in a district court case in Pennsylvania in 1979, that principle was never cited by another court decision.
According to the suit, Armbruster, a 17-year veteran of the force, was on duty April 18, 2007, when approximately 20 members of Repent America arrived on campus to protest the university’s annual Day of Silence, which commemorates victims of anti-LGBT hate crimes and harassment. Some 300 counter-demonstrators from the university gathered in response, and Armbruster and another officer asked Repent America to move away from certain buildings.
Several students contacted university police to lodge complaints about the antigay rhetoric being communicated by Repent America, and Mioskie, other officers and Cevallos arrived at the protest.
Cevallos allegedly asked Armbruster to “push” the Repent America members off campus, which Armbruster did not do. The suit states that Cevallos then took this request to Mioskie, who, according to the suit, saw the situation becoming disorderly, as the counter-demonstrators were growing increasingly agitated with Repent America’s presence.
Mioskie instructed Repent America president Michael Marcavage to leave campus and told Armbruster to enforce that directive. But Armbruster refused, saying he felt it would be a violation of the Repent America members’ right to free speech and could subject him to liability.
Mioskie relieved Armbruster of his duties and ordered him to leave the scene. Two days later, Armbruster was placed on paid administrative leave and at a pre-discipline conference April 23, was placed on suspension without pay for five days, which amounted to a loss of approximately $600 in wages for Armbruster.
Randall Wenger, Armbruster’s attorney, said his client is not appealing because of money, but rather wants to secure his job and argue for the “general principle” involved.
“We’re very disappointed [in the dismissal] because we believe it sends the wrong signal to police officers,” Wenger said. “It essentially tells them that a safe thing to do is violate constitutional rights when they’re told to do so and if they don’t, they have no recourse in federal court to protect themselves.”
The appeal was filed April 8, and attorneys will have about 12 weeks to file briefs, Wenger said, before oral arguments are scheduled.
Cevallos said he could not comment on the case because of the pending appeal.
Jen Colletta can be reached at [email protected].