LAW.coLAW.co

David M. GROSS, Appellant, v. Michael NORTON, in his official capacity; City of Minneapolis; Robert John Alfton, individually, Appellees

United States Court of Appeals for the Eighth Circuit1997-07-25No. No. 96-3365
120 F.3d 877

Summary

Holding. The court affirmed the district court's summary judgment, rejecting all of Gross's constitutional claims because he established no deprivation of a protected property or liberty interest in his gun permit, voluntarily terminated his employment, and did not engage in constitutionally protected speech or suffer unlawful First Amendment interference.

David Gross, a former assistant city attorney for Minneapolis, sued the city and his supervisors claiming they violated his constitutional rights by enforcing a workplace weapons prohibition and interfering with his pro-gun advocacy. Gross alleged deprivation of due process rights regarding his gun permit, retaliation for drafting an affidavit opposing a county gun destruction program, and obstruction of his right to testify before the state legislature against an assault weapons ban. The district court granted summary judgment against Gross on all claims.

The court rejected Gross's due process challenge, finding that Minnesota law grants local authorities broad discretion over pistol permits, creating no constitutionally protected property interest that the city could violate. The court also determined that Gross voluntarily quit his job when he refused to return from leave after the city directed him to do so, defeating his retaliation claim. Regarding his First Amendment claims, the court found that drafting an affidavit recording someone else's statements did not constitute protected speech, and that the city did not unlawfully obstruct his legislative testimony—it merely delayed an initial vacation request before ultimately allowing him to testify before the House.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a city employee has a constitutionally protected property interest in a state-issued gun permit
  • Whether enforcing a workplace weapons prohibition violates due process
  • Whether voluntary resignation defeats a retaliation claim
  • Whether drafting an affidavit recording another person's statements constitutes protected First Amendment speech
  • Whether delaying leave to testify before the legislature violates free speech rights

Procedural posture

Gross appealed the district court's grant of summary judgment in favor of the city and its officials on his civil rights claims.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

David M. Gross, a former assistant city attorney for the City of Minneapolis, brought this civil rights action against the City and his former supervisors, Michael Norton and Robert John Alfton (collectively the City), alleging interference with his gun possession in the workplace and pro-gun advocacy outside the work setting. The district court granted summary judgment to the City, and Gross appeals. We affirm.

Gross contends the City deprived him of a property or liberty interest in violation of due process by adopting and enforcing a policy prohibiting City employees other than police officers from carrying dangerous weapons at work. We disagree. The City did not deprive Gross of any property or liberty interest. Because local authorities have broad statutory discretion to withhold a permit to carry a pistol in public, see Minn. Stat. Ann. § 624.714 (1987 & Supp.1997), Gross has no constitutionally protected property interest in his permit under Minnesota law. See Erdelyi v. O’Brien, 680 F.2d 61, 63 (9th Cir.1982) (per curiam) (no property interest in concealed weapons license under California law); Conway v. King, 718 F.Supp. 1059, 1061 (D.N.H.1989) (no property interest created by New Hampshire gun permit statute); In re Young, 521 N.W.2d 865, 869 (Minn.Ct.App.1994) (no vested right to Minnesota gun permit); see also Love v. Pepersack, 47 F.3d 120, 122-23 (4th Cir.1995) (no property right to gun permit when local authorities have discretion to deny). Gross does not assert an interest arises from the Second Amendment, nor could he. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir.1992) (Second Amendment only protects weapon possession reasonably related to preservation of milita). The law does not recognize Gross’s assertion of a “liberty of self-defense” conferring the right to carry a gun at work. See Erdelyi, 680 F.2d at 63 (no absolute liberty to carry concealed weapon). Without any deprivation of a property or liberty interest, the City’s enforcement of the policy did not violate Gross’s due process rights. See Board of Regents v. Roth, 408 U.S. 564, 569, 577, 92 S.Ct. 2701, 2705, 2709, 33 L.Ed.2d 548 (1972). Additionally, there is no substantive due process violation because the policy has a rational basis in the City’s legitimate interest in workplace safety. See Love, 47 F.3d at 123; Baer v. City of Wauwatosa, 716 F.2d 1117, 1123 (7th Cir.1983).

Gross contends the City adopted the policy as part of a conspiracy to drive him from employment and to undermine his state permit to carry. There is no evidence of conspiracy, however. The City adopted the policy without knowledge of Gross’s situation in response to a problem with another public employee. When Gross asked for an exemption from the policy based on a personal safety threat, the City offered to compromise by storing Gross’s weapon in a safe during work. Gross rejected the offer and left his job. Claiming the inability to carry a gun at work caused headaches, Gross used all his accrued vacation and sick days, then went on administrative leave. Eight months after Gross walked off the job, the City informed Gross that his leave had expired and directed him to return. Gross declined. We agree with the district court that Gross voluntarily left his position when he failed to go back to work as instructed, without any legally recognizable medical excuse. No reasonable juror could conclude otherwise. Since Gross voluntarily quit, Gross’s retaliatory discharge claim fails as a matter of law. Because no reasonable person would have deemed the working conditions intolerable, Gross also loses his constructive discharge claim. See Bradford v. Norfolk S. Corp., 54 F.3d 1412, 1420 (8th Cir.1995).

Gross next asserts the City violated the First Amendment during his employment. Gross drafted an affidavit used in a lawsuit to prevent Hennepin County from destroying firearms recovered in the County’s gun turn-in program, which the City supported. The City terminated Gross for drafting the affidavit after giving him notice and a chance to respond. Gross was later reinstated when an arbitrator decided a 30-day suspension without pay was adequate discipline. Gross’s discipline for drafting the affidavit does not implicate the First Amendment. Gross was not the affiant, the plaintiff, or plaintiff’s counsel. Rather than speaking out on a matter of public concern, Gross merely recorded another person’s factual statements. See Mumford v. Godfried, 52 F.3d 756, 761 (8th Cir.1995) (mere conveyance of information for other parties is not protected speech). Contrary to his assertion, Gross received due process given the pretermination notice and hearing, and the meaningful (indeed, mostly successful) post-termination opportunity to be heard. See Winegar v. Des Moines Indep. Community Sch. Dist., 20 F.3d 895, 901 (8th Cir.1994).

Gross also asserts the City infringed on his First Amendment rights by denying him leave to testify before the Minnesota legislature against a bill, drafted by the City Attorney for the City Council, seeking to ban certain assault weapons. Rather than obstructing Gross’s testimony, however, the City merely delayed it. The City Attorney denied Gross’s initial vacation request because Gross did not give the required 24-hours notice and because the City Council had asked the City Attorney’s office to lobby for the bill. After further consideration, the City Attorney changed his mind. Thus, a few days after Gross wanted to testify before the Senate, Gross appeared before the House of Representatives and zealously advocated his views, despite the City’s contrary position. The City did not limit the content of Gross’s speech in any way, and Gross gave the speech before the House voted to defeat the bill. Thus, Gross had a chance to persuade and inform the legislature before the assault weapons issue was shot down. Balancing Gross’s interest as a citizen in conveying the same speech earlier against the City’s interest as a public employer in promoting efficiency in the workplace, we conclude the City did not infringe on Gross’s First Amendment rights. See Tyler v. City of Mountain Home, 72 F.3d 568, 569-70 (8th Cir.1995).

Gross’s remaining claims are meritless. We affirm the district court.