Mississippi Police Captain Wins Jury Verdict On Retaliation Claim

Cliff Hardy was a captain in the Tupelo, Mississippi Police Department and headed the Department’s internal affairs unit. Robert Hall, an African-American deputy chief, was facing charges for assisting a drunk driving suspect. When the Tupelo City Council held a “town hall” meeting to discuss the issue of race relations with the Police Department, Hardy spoke up in support of Hall, and suggested that Hall had been targeted for investigation because of his race.

The Police Chief removed Hardy from his position in internal affairs, citing what he believed to be a lack of objectivity, and reassigned Hardy to the Tupelo Apartment/Housing Authority Patrol. Four days later, Hardy resigned and subsequently sued the City. Hardy claimed that he had been “constructively discharged” in violation of his First Amendment free speech rights.

The jury agreed with Hardy, and awarded him $100,000 in lost wages and $200,000 for mental anxiety. The City challenged the jury’s verdict, arguing that the evidence was insufficient to establish that Hardy’s speech was protected by the First Amendment.

A federal court judge upheld the jury’s verdict. Key to the Court’s decision was its conclusion that Hardy’s comments at the town hall meeting were about a matter of public interest, and therefore within the purview of the First Amendment. The Court found that “Hardy’s speech did not address a mere private grievance. He spoke at a town hall meeting called for the express purpose of discussing racial reconciliation in the Tupelo community. Hardy stated that he wished to address ‘the persecution of Robert Hall,’ and he compared the Department’s handling of the Robert Hall matter to ‘times past when anyone of color challenged authority and went too far.’ Further, Hardy testified that his purpose in speaking at the meeting was to let the public know that there were, in his opinion, racial problems in the Department that needed to be addressed.

“Hardy’s speech concerned information relevant to the public’s evaluation of the performance of governmental entities, rather than a mere private grievance. Speech related to racial discrimination almost always involves matters of public concern. Therefore, if Hardy was motivated, at least in part, by a desire to remedy racial discrimination his ‘speech involved a matter of public concern.’”

The City also argued that, even if Hardy’s speech concerned a matter of public interest, the damage to it from the speech overrode any First Amendment rights possessed by Hardy. The Court disagreed, finding the City’s evidence to be insufficient: “The public concern implicated by Hardy’s speech outweighs the City’s concern for potential disruption to the operation of the Department. The evidence presented at trial did not show any actual disruption to the operation of the Department, and the evidence supporting a concern for potential disruption was limited to vague testimony about overheard comments from unspecified officers. The exposure of official misconduct within a police department is of great consequence to the public. There is perhaps no subset of public concern more important. Concerns about maintaining harmony and eliminating disruption cannot be the sole measure of governmental interest when the employee’s speech furthers other important state interests. Hardy’s comments served an important state interest, and his interest in speaking outweighs the City’s interest in efficiency.”

The Court did agree with the City that the jury’s back pay award should be reduced by Hardy’s earnings after his constructive discharge, and ordered the $100,000 portion of the damages reduced to $85,415.64.

Hardy v. City of Tupelo, Miss., 2009 WL 3678262 (N.D. Miss. 2009).

This article appears in the February 2010 issue