Kansas State Council of Firefighters First Amendment Suit Continues

The Kansas State Council of Fire Fighters and former Hays Firefighters IAFF Local 2119 President Aaron Ditter have survived a motion to dismiss their federal lawsuit against the City of Hays, Fire Chief Gary Brown and Assistant City Manager Paul Briseno.

The suit accuses Chief Brown and Briseno of violating the First Amendment by prohibiting Ditter from continuing to be a member Kansas State Council of Fire Fighters after his promotion to captain. Ditter, who resigned as IAFF 2119 president upon being promoted, also served as a district vice president for the state association. Local 2119 represents firefighters below the rank of captain.

According to the decision:

Brown and Briseno threatened Ditter that if he did not resign his position as Vice President with the KSCFF, he would face demotion and other disciplinary action. Ditter resigned from the KSCFF in February 2014 out of fear of demotion or other discipline.”

The city sought to have the case dismissed on several grounds. First, it alleged that the state association was not a “person” and thus not entitled to bring suit under 42 U.S.C. § 1983 to enforce a 1st Amendment violation.

Defendants argue that KSCFF’s injury cannot be redressed by 42 U.S.C. § 1983 since KSCFF is not a “person” entitled to relief. Instead, Defendants urge that KSCFF should be characterized an unincorporated association that is not entitled to bring suit under Tenth Circuit precedent. Plaintiff responds that it is a labor organization that is entitled to bring suit as a person under § 1983.”

The city acknowledged that labor unions have long been recognized as a person for §1983 purposes, but argued that the state association is not a labor union. The City characterized the KSCFF as an unincorporated association without legal standing, and pointed to its never having been designated as an exclusive bargaining representative as proof it is not a “labor union” per se. US District Court Judge Julie A. Robinson dispensed with the city’s argument finding KSCFF’s pleadings adequate to survive the motion to dismiss.

The city next argued that there was no interference with Ditter’s or KSCFF’s freedom of association, and even if there was it would be a conflict of interest for Ditter to serve as a captain and as a member of KSCFF. Judge Robinson disagreed with the city, finding that even the threat of a demotion would be sufficiently retaliatory as to trigger a 1st Amendment violation. She continued:

if Plaintiff’s allegations are true, they may plausibly state a claim for retaliation for the exercise of their First Amendment rights to association because the KSCFF does not represent the rank and file firefighters, thus negating any possible conflict of interest.

The last argument made was by Chief Brown and Briseno who sought qualified immunity, which would have dismissed them from the suit. In summarizing the law, Judge Robinson stated:

“qualified immunity shields government officials from liability for money damages unless the plaintiff shows (1) the defendant’s violation of a constitutional right; and (2) that the right the official violated was “clearly established” at the time of the challenged conduct

the Court finds that the Complaint plausibly alleges that Defendants violated Plaintiffs’ constitutional right to associate under the First Amendment. The Court must therefore proceed to consider whether the right violated was clearly established at the time of the challenged conduct in 2014

The Court finds that at this stage of the litigation, Plaintiffs have sufficiently alleged that the individual defendants were on notice that requiring Plaintiff to resign from the KSCFF infringed on their associational rights.

Here is a copy of the ruling: Ditter v City of Hays

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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