Defendant's Attorney: Kristina L Gray and R Lawson Vaughn, III

Description: Tulsa, Oklahoma civil rights lawyer represented the Plaintiff sued the Defendants on civil rights violation theories under 42 U.S.C. 1983.


Five years ago, on October 24, 2018, Plaintiff received news from the Tulsa Police Department (“TPD”) that he was selected for the Tulsa Police Academy (“Academy”).

The Academy commenced on January 22, 2019 (at which time Plaintiff began his employment with TPD) and lasted a rigorous twenty-eight weeks. Id. at ¶¶ 19, 22. Prior to and during the Academy, Plaintiff was subject to close scrutiny and background investigations to ensure he had the demeanor, character, and temperament to become a uniformed police officer. Id. at ¶¶ 20, 22. Twenty-eight weeks later, Plaintiff successfully completed the Academy. Id. at ¶ 23. Shortly thereafter, on August 6, 2019, Plaintiff began his field training with TPD Officer Jim Tornberg, which progressed without issue. Id. at ¶¶ 26, 28-31. Defendant Charles W. Jordan was the Chief of Police for the TPD during the relevant timeline of this case. Id. at ¶ 16.

Plaintiff's employment as an officer was short-lived and less than one month later, on September 4, 2019, he was terminated from TPD. Id. at ¶ 32. On the morning of his termination, Plaintiff knew something was brewing behind the scenes. Id. at ¶ 56. This is because around 11:11 a.m., a friend forwarded to Plaintiff a copy of a local political activist's Facebook posts which referred to a number of old posts made by Plaintiff. Id. at ¶ 55. Marq Lewis, “a local, radical, leftwing, political activist and agitator” posted on his Facebook that Plaintiff “has biases towards people who practice Islam and Black Americans.” Id. at ¶¶ 33, 37. Lewis reached this conclusion by referencing “very offensive social media” posts made by Plaintiff, under his Facebook name, “Duke Brown.” Id. at ¶¶ 38. The posts complained of by Lewis are described by him as follows (typographical errors in original):

Image of The president riding a lion with the Confederate flag.

Image of the a first, acknowledging a fight against the religious faith, Islam.

Image of the punisher with crosshairs. The image originated from the American sniper Chris Kyle who was very controversial with killing Iraqi citizens along with killing American citizens during Katrina.”

Marq Lewis then made a complaint to Defendants regarding these old Facebook posts. Id. at ¶ 34. With a hunch that something was brewing, at approximately 2:05 p.m., Plaintiff was told by Captain Thom Bell to come in the meeting room where Captain Luke Sherman and Internal Affairs officers were waiting. Id. at ¶ 40. Plaintiff entered the room, the door was closed behind him, and he was instructed to remove his gun belt. Id. at ¶ 41. Plaintiff complied and handed his gun belt to the Internal Affairs officer to his immediate left, who then laid it on the table. Id. at ¶ 42. Plaintiff was told to sit down, which he did. Id. at ¶ 43. He was then handed an Interoffice Correspondence from Defendant Jordan dated September 4, 2019, with the subject line, “Personnel Order #19-257 Termination,” and was told to read it. Id.[3] The Interoffice Correspondence stated Plaintiff's employment was “hereby terminated effective immediately,” because the TPD “was made aware of social media postings made by [Plaintiff] that violate Department Rules & Regulations and Policies and Procedures.” Id.

The relevant TPD policy is “Policy and Procedure 31-324 (Social Media and Networking) Procedures C.6.,” which states,

Department personnel should be mindful that their speech, when using social media, is public and becomes part of the worldwide electronic domain, Therefore, adherence to the department's code of conduct is required in the personal use of social media. In particular, department personnel are prohibited from posting speech containing obscene or sexually explicit language, images, acts, and statements or other forms of speech that ridicule, malign, disparage, or otherwise express bias against any race, religion, or protected class of individuals.


During the meeting on September 4, and consistent with the Interoffice Correspondence, Plaintiff was told that his employment was being terminated because he violated the TPD Social
Media Policy via his Facebook posts complained of by a citizen. Id. at ¶¶ 48-49. “Within one hour and fifteen minutes of receiving the complaint the officer was terminated,” TPD Sergeant Shan Tuell told reporters. Id. at ¶ 35. After receiving his termination, Plaintiff asked if they were going to give him a chance to explain “his side of it,” to which Captain Bell and an Internal Affairs officer said they were not there to listen to anything Plaintiff had to say and that he needed to sign the termination paper. Id. at ¶ 50. Plaintiff stated that this was not right and that he had done nothing wrong. Id. at ¶ 51. Plaintiff told them that the posts were three to six years-old and that termination was complete “BS.” Id. at ¶ 54. Nevertheless, Plaintiff asked if there was any way that he could talk to Chief Jordan about this termination decision. Id. at ¶ 52. The officers would not say exactly but did say they would relay his message to Chief Jordan. Id.

To avoid further embarrassment, Plaintiff asked the officers to please not make him do a “shame walk” in front of everyone as he left, and they agreed. Id. at ¶ 57. Plaintiff signed the Interoffice Correspondence, though he did not want to. Id. at ¶ 58. His patrol car was cleaned out and Plaintiff was then led out of the meeting room and out the back door. Id. at ¶¶ 59-60. At this point, Plaintiff was “totally dejected, embarrassed, and humiliated.” Id. at ¶ 61.

The next day, September 5, 2019, at around 1:00 p.m., Plaintiff returned to TPD to bring the rest of his TPD property he still had and to retrieve personal headphones he had left. Id. at ¶ 63. Upon giving him his personal headphones, Captain Bell told Plaintiff, “On a personal note I didn't want to do this . . . and I think [it's] BS, but understand I have a job to do as well and best of luck to you in the future,” or words to that effect. Id. at ¶ 64.

Then the media got a hold of the story. Shortly after the firing, news reports began circulating and social media erupted, condemning Plaintiff and labeling him as a racist and an Islamophobe. Id. at ¶ 66. In response to a media inquiry, Sgt. Tuell, TPD's Public Information Officer, wrote: “Early yesterday morning the police department was notified of some questionable social media posts by one of our officers. The Chief . . . immediately ordered internal affairs to open an investigation, and within one hour and 15 minutes of receiving the complaint the officer was terminated.” Id. at ¶ 68. Defendants confirmed with the media that Plaintiff was terminated because Defendants believed that Plaintiff violated the TPD Social Media Policy prohibiting personnel “from posting forms of speech that express bias against any race, religion, or protected class of individuals.” Id. at ¶ 69. Below is a table of three social media posts that Plaintiff alleges “served as Defendants' basis for terminating Plaintiff,” along with Plaintiff's description of the posts. Id. at ¶ 72.[4] All of the posts that potentially served as the basis for terminating Plaintiff were made years before Plaintiff's employment with TPD.

Table 1

⁋



Facebook Post



Plaintiff's Description

72.A.



(Image Omitted)



“An image of yet-to-be-president Donald Trump (‘Trump Post'), which was posted on or about August 6, 2015:”

72.B.



(Image Omitted)



“An image making the point that Americans (particularly Christians, such as Plaintiff, who will not convert or submit to Islam as a matter of religious conviction) will not surrender or submit to sharia-supremacism, which is a tyrannical form of government prevalent in countries such as Iran and a form of governance demanded by terrorist organizations such as ISIS and Al Qaeda. The image was posted on or about November 15, 2015:”

72.C.



(Image Omitted)



“An image created by the famous American sniper and decorated war hero Chris Kyle superimposed over the American flag with a thin blue line-the flag image is associated with the ‘blue lives matter' movement. This image (‘Blue Lives Matter Post') was posted on or about March 24, 2016.”

Plaintiff alleges that the termination has caused him public humiliation, embarrassment, anger, and stress. Id. at ¶ 85. He alleges that this termination has undermined the trust and confidence that the TPD police officers have in their leadership, in that Defendants' will “throw them under the bus” to promote political correctness and appease political activists. Id. at ¶ 86.

Because of his termination, Plaintiff requested unemployment benefits, which were initially denied. Id. at ¶ 89. Deputy Chief Eric Dalgliesh, who was testifying for the City, stated
that Plaintiff was terminated for posting only two images on his Facebook page: the Trump Post and the Blue Lives Matter Post. Id. at ¶ 90. On September 26, 2019, Plaintiff submitted to the City Clerk a Notice of Tort Claim, seeking recovery for wrongful termination under state law. Id. at ¶ 92.

Plaintiff filed this action in federal court on October 9, 2019, against Defendant City of Tulsa and Defendant Charles W. Jordan, in his official and individual capacities. See Docs. 2, 6. In his First Amended Complaint, Plaintiff alleges that the Defendants violated his First Amendment rights by retaliating against his speech, Defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment, and Defendants wrongfully discharged Plaintiff under Oklahoma common law (Burk claim). Doc. 6 at ¶¶ 94-110. Plaintiff seeks declaratory relief, injunctive relief, and damages. Id. at Prayer for Relief. Defendants then filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

Outcome:
IT IS THEREFORE ORDERED that Defendant City of Tulsa's Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 13) is GRANTED. Plaintiff Wayne Brown's section

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1983 claims (First Amendment and equal protection claims) against Defendant City of Tulsa are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Defendant Charles W. Jordan's Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 14) is GRANTED. Plaintiff Wayne Brown's section 1983 claims (First Amendment and equal protection claims), in his official and individual capacities, are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff Wayne Brown's state law Burk claim against Defendant City of Tulsa and Defendant Charles W. Jordan is DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.
Brown v. City of Tulsa, 19-cv-00538-WPJ-FHM (N.D. Okla. Nov 21, 2023)

12/14/2023 37 CLERK'S RECORD on Appeal Sent to Circuit Court (Re: 32 Notice of Appeal to Circuit Court, ) (lmt, Dpty Clk) (Entered: 12/14/2023)

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