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O'Brien v. Town of Caledonia

November 8, 1984


Author: Campbell

Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*

WILLIAM J. CAMPBELL, Senior District Judge.

Terrance O'Brien, plaintiff below, appeals the District Court's denial of his Motion for a Preliminary Injunction. The underlying suit alleges that the defendants, the Town of Caledonia, its Fire and Police Committee, and its Chief of Police, Gerd Hodermann, unlawfully retaliated against the plaintiff for his exercise of his First Amendment rights. The alleged retaliation took the form of incommunicado interrogations of the plaintiff, institution of disciplinary proceedings against him, and other forms of harassment. The complaint requested declaratory and injunctive relief as well as damages. Plaintiff also sought a preliminary injunction to restrain the defendants from pursuing the disciplinary action and engaging in any other form of harassment. After a lengthy evidentiary hearing the District Court declined to enter a preliminary injunction, concluding that the plaintiff had failed to demonstrate irreparable harm. For the reasons stated below, we reverse.

O'Brien is a police officer employed by the Town of Caledonia. During the summer of 1981 he was involved in two controversial incidents. In one he arrested a Peter Mark and charged him with disorderly conduct and resisting an officer. Thereafter, defendant Hodermann concluded that the latter charge was inappropriate and, after speaking to the Town Attorney, had it dismissed. The disorderly conduct charge was pursued, however, and a fine was imposed on Mark. The other incident involved Paul Garr, the Supervisor for the Town of Caledonia. O'Brien conducted an investigation regarding an altercation involving Garr and decided to issue citations against him for battery and obstruction. Chief Hodermann, however, believed that the investigation was incomplete and ordered O'Brien not to issue the citations. Nonetheless, the plaintiff did issue the citations but they were subsequently dismissed by the police department.

Concerned that the dismissals of the citations in those situations were motivated by political considerations and fearing for his job, O'Brien spoke with his attorney. Thereafter, he also discussed the incidents with the local District Attorney, the Chief Judge of the Racine County Circuit Court, and the FBI office. He also responded to certain questions from the media. The FBI conducted an investigation which did not reveal any criminal misconduct. Thereafter, Chief Hodermann initiated an internal investigation into O'Brien's conduct. A major focus of the inquiry was whether O'Brien had violated Section X of the Department Manual of the Caledonia Police Department which provides in pertinent part:


4. CONFIDENTIAL INFORMATION. Members and employees of the Department shall treat as confidential the official business of the Department. They shall not impart it to anyone except those with an official need to know, or as directed by their commanding officer, or under due process of law; and they shall not make known to any persons, whether or not a member or an employee of the Department, any special order which they may receive, unless required by the nature of the order. The Chief of Police shall establish policies concerning dissemination of information to representatives of the media.


Whenever a complaint is made by a citizen, no member or employee of this Department shall reveal the name of the complainant except under due process of law when it is absolutely necessary to do so in the performance of his duty.*fn1

Another area of concern involved Section V of the Manual which provides in pertinent part:



1. RESPECT. No member or employee shall, on or off duty, by word or deed, evince disrespect, discourtesy or criticism of a supervisory officer or fellow personal [sic].

5. CRITICISM. Members and employees of the Department shall not speak in a critical or derogatory manner to any person outside of the Department, regarding the orders or instructions issued by supervisory officers.

Pursuant to this investigation, the plaintiff was interrogated on four occasions for a total of approximately six hours. The questioning occurred in Chief Hodermann's office and was conducted by him with assistance from Sergeants Knoll and Stanton, O'Brien was not permitted to have his attorney attend the sessions, however, a union representative was present. Thereafter, Chief Hodermann filed charges against O'Brien before the Police & Fire Committee of the Town of Caledonia alleging, inter alia, violations of Section V and X. (The charging document is reproduced in the Appendix).

In support of his Motion for a Preliminary Injunction, plaintiff argued that Section X was unconstitutional on its face and as applied, and that the interrogations and disciplinary charges were intended to punish him for his exercise of his First Amendment Rights.

The District Court received numerous affidavits and heard extensive testimony on the factual background of the case. The court's memorandum decision contains detailed findings of facts, none of which are challenged on this appeal. In analyzing the case the court noted the four relevant factors to be considered in determining the propriety of issuing a preliminary injunction:

(1) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue;

(2) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant;

(3) whether the plaintiff has at least a reasonable likelihood of success on the merits; and

(4) whether the granting of a preliminary injunction will disserve the public interest.

O'Connor v. Board of Education, 645 F.2d 578, 580 (7th Cir.1981), cert. den. 454 U.S. 1084, 102 S. Ct. 641, 70 L. Ed. 2d 619 (1981).

All those factors were not discussed in the decision, however, as the district judge determined that plaintiff's failure to demonstrate irreparable injury mandated denial of the motion:

The plaintiff asserts that unless the injunction issues in this case his First Amendment rights will continue to be chilled by further intimidating conduct of the police department and by disciplinary action taken before the Fire and Police Committee for his alleged violations of Section X of the police manual. The record, however, does not indicate that, upon his return to work, Terrance O'Brien is threatened with demotions of further interrogations as a result of incidents involved in this case. Rather, it is urged that the Caledonia Fire and Police Committee at any time may begin its hearing on the O'Brien charges; this hearing then could lead to the disciplining or termination of the plaintiff for activities protected under the First Amendment.

Past irreparable harm will not sustain a preliminary injunction. The plaintiff simply has failed to demonstrate in the record that he is presently suffering or is about to suffer further irreparable harm. It may be that Mr. O'Brien is entitled to compensation for injuries allegedly caused by the defendants. Nevertheless, past injury is not a substitute for imminent ...

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