About Us  |  Contact Us

No 1st Amendment claims for police officers told to stop ‘wife swapping’ under code of conduct

By Marjorie Johnson, J.D.

Two sheriff’s deputies who were removed from their offices after refusing to obey a directive to stop cohabitating with each other’s wives and to cease all contact with the other’s spouse until they obtained divorces were not deprived of their First Amendment and Free Exercise Clause, the Fifth Circuit ruled in affirming dismissal of their claims on summary judgment. Sexual decisions between consenting adults “take on a different color when the adults are law enforcement officers” and the Supreme Court’s decision in Obergefell v. Hodges regarding the right to same-sex marriage did not create “rights” based on relationships that “mock marriage” (Coker v. Whittington, May 23, 2017, Jones, E.).

Switching wives violated code of conduct. After the chief deputy sheriff learned that the two officers had each moved into the other’s house and exchanged spouses without first obtaining divorces, they were placed on administrative leave for violating the sheriff’s code of conduct. Amongst other things, the code prohibited officers from engaging in “any illegal, immoral, or indecent conduct” or “any legitimate act which, when performed in view of the public, would reflect unfavorabl[y]” upon the sheriff’s office. They also violated a provision that required them to inform their direct supervisors within 24 hours of a change of address, which was designed to ensure their availability at all times in case of an emergency.

They were then ordered to cease living with their non-spouses and advised that if they refused to do so by a certain date, they would be considered to have voluntarily resigned. They refused to obey the directive and were removed from their offices. They brought the instant action against the sheriff and deputy sheriff in their personal and official capacities, as well as the sheriff’s office, claiming violations of their First Amendment and Free Exercise Clause rights.

District court tosses claims. The district court dismissed their claims on summary judgment, ruling that the code of conduct policies invoked against them were supported by “the rational grounds of preserving a cohesive police force and upholding the public trust and reputation of the Sheriff’s Department.” Several cases, including decisions of this circuit, uniformly approved terminations of law enforcement officers for sexually inappropriate conduct. Moreover, no decisions to the contrary suggested that the deputies, as public employees of law enforcement agencies, had constitutional rights to “associate” with each other’s spouses before formal divorce.

Moreover, the U.S. Supreme Court’s expansion of substantive constitutional rights relating to personal sexual choices in Lawrence v. Texas did not mandate a change in policies relevant to public employment. Rather, the Supreme Court, in Garcetti v. Ceballos, more recently reaffirmed that public employees necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions. The district court also concluded that the code of conduct was not unconstitutionally vague as written or enforced, and did not offend the fair notice requirements of due process, especially with regard to discipline that was not unconstitutional.

Different sexual standards for law enforcement. Affirming, the Fifth Circuit found that sexual decisions between consenting adults “take on a different color when the adults are law enforcement officers.” The court reasoned that, for instance, officers’ enforcement duties include 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 was 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 initially consensual and loving, had “great potential to create internal dissension within the force.” It was also not hard to envision how the existence of the officers’ cohabitation with each other’s wives prior to divorce and remarriage might be adversely used in litigation concerning their official conduct.

Finally, the Supreme Court’s recent decision in Obergefell v. Hodges did not alter applicable law. “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.” The Obergefell decision did not create “rights” based on relationships that “mock marriage.”