The U. S. Court of Appeals for the Third Circuit last week affirmed a lower court ruling that found the constitutional rights of a Kutztown University police officer, who was disciplined after refusing to remove an antigay group from campus, were not violated.
The court, in an opinion filed Feb. 4 by District Judge Richard Stearns, upheld the dismissal of Cpl. Steven Armbruster’s suit by District Court Judge C. Darnell Jones II last year.
Armbruster contended that his constitutional right to free speech and his right to refuse to violate others’ free-speech rights were violated when he was disciplined by his superior for disobeying an order to remove 15 members of Repent America from the campus.
Last year, Jones found that Armbruster had spoken in his official capacity as a police officer, not as a citizen, nullifying his free-speech claim, and that no one has the constitutional right to refuse to violate others’ free-speech rights.
The group, which frequently protests local LGBT community events, was met with a crowd of students and staff during its April 2007 visit to the college. According to Armbruster’s complaint, chief of police William Mioskie told the protestors to leave, as the crowd of 300 counter-demonstrators was becoming increasingly agitated by their rhetoric, and instructed Armbruster to enforce that order.
Armbruster refused Mioskie’s instruction, as well as a request to remove the protesters by Kutztown president F. Javier Cevallos. The officer argued that he thought doing so would violate Repent America’s free-speech rights. Mioskie placed Armbruster on administrative leave, and he was later suspended for five days without pay, which amounted to about $600.
Mioskie, Cevallos and John Cavanaugh, chancellor of the Pennsylvania State System of Higher Education, were named as defendants in the case.
In last week’s opinion, Stearns wrote that there is no case law that would support Armbruster’s claims.
In his appeal, Armbruster cited numerous cases of military servicemembers who disobeyed orders, but Stearns noted those cases centered on the Uniform Code of Military Justice, not the U.S. Constitution.
Armbruster’s appeal also argued that Jones did not take into consideration “Harley v. Schuylkill County,” the only federal court case that found the right to refuse to violate another’s rights.
Stearns said that case applied to constitutional due-process rights, which would not extend to Armbruster’s complaint.
“It is not that we cannot conceive of a factual scenario involving a punishment imposed for disobeying a blatantly illegal order for which substantive due process might appropriately offered redress — for example, an order to shoot to kill peaceful demonstrators,” Stearns wrote. “But that is not this case.”
Armbruster had asked for a court to order an injunction barring disciplinary action should he again refuse an order based on constitutional arguments. Stearns called that request “patently unworkable.”
“Providing prospective immunity for acts of insubordination based on an officer’s subjective understanding of what are often complex issues of law and fact would undermine the order necessary for a paramilitary organization like a police force to function effectively,” he wrote. “In the words of the Supreme Court, ‘society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.’”
Armbruster’s attorney, Randy Wenger, said he and his client are still considering the options about taking the case further and expressed dismay over the court’s decision.
“I think it’s important for everybody when we don’t live in a police state, when police recognize that they have a duty to uphold the constitution, to be able to exercise their own judgment and not be disciplined when they’re actually right that they would be violating others’ constitutional rights. So I’m disappointed with the outcome because it implies that police should follow orders even if those orders are undermining the rights of other citizens.”
Cevallos declined to comment.
Jen Colletta can be reached at [email protected].