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Burnham v. Ianni, No. 95-1962 (8th Cir. 1997) Dissent
McMILLIAN, Circuit Judge, with whom JOHN R. GIBSON, Circuit Judge, joins, dissenting. We respectfully dissent. In our original panel opinion, Burnham v. Ianni, 98 F.3d 1007 (8th Cir.), vacated, 98 F.3d 1028 (1996), we fully set forth our analysis of this case. We therefore rest upon our original panel opinion as providing the reasons why we believe Ianni should be afforded qualified immunity in the present case. The following is a response to the majority opinion. I. We begin by noting the conspicuous absence from the majority opinion of certain undisputed material facts concerning the circumstances in which this controversy arose -- facts which the majority has all but ignored by reducing them to a few obtuse sentences and a footnote. See supra at 6, 7 & n.5. By contrast, the district court appropriately devoted four full paragraphs at the outset of its opinion to these crucial facts aptly described by the district court as the "milieu" of the case. Burnham v. Ianni, 899 F. Supp. at 397. As the district court explained: In June 1991, Sandra Featherman was appointed to the post of vice chancellor for [UMD]. Shortly after her appointment was announced, Featherman began receiving threats. The threats were bizarre, graphic and frightening: The dogs are howling, they want blood. There are footsteps crunching on the forest floor--it's the deer hunters coming. They're after blood, too. It's the same dream over and over. The deer hunters stalking--getting closer and closer, never giving up the hunt, never putting down their rifles. Overwhelmed by their desire to kill.
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Defendant undertook to calm the concerns of the faculty regarding these incidents. Despite his distribution of a memorandum in which he addressed the seriousness with which he was taking the threats and in which he reiterated his commitment to the diversity program, the fears of many in the campus were not alleviated. The investigation of the origin of the threats continued and the threats continued to hang over the campus. It is this background against which the substance of this litigation arose.... Presumably, the majority's assumptions that no milieu of concern existed at the time the photographs were removed, and that campus life continued as normal, have formed the basis for the majority's decision to virtually ignore the facts set forth above. However, according to undisputed evidence in the record, less than two months before the photographs were removed, anonymously-written flyers were left in hallways of various UMD buildings on campus, and those flyers stated the following: She [Professor Trolander] will be a good target for shooting at long range. The house has large windows and the terrain is clear of obstacles in all directions. Shooting from the beach or even from a boat in the bay or lake Superior is feasible. A 30-60 rifle with 20X2 Bushnell scope would be a suitable weapon with dum-dum bullets dipped in poison. Don't forget to put in a couple of clicks in the crosshairs for windage as the wind is usually strong there. It is recommended that the hunter shoot from behind the Surf and Sand Health Center, if there is return fire from the house it will only kill a few old people. She is the only occupant of the house, so it is OK to shoot silhouettes on drawn shades. Get cracking you kill crazy buckaroos. Its OK to kill her, the Imperial Counsel rules UMD, the commission on women is dissolved. Also, all faculty members ordered to participate in Featherman's administrative development project will be sentenced to death along with their pets, children, and spouses if they comply with these orders. Any one who cooperates with Featherman will have their target information published. The deer hunters need target information on Featherman, just mention where she lives in the faculty club and everything will be taken care of. Appellant's Appendix at 38. We certainly agree with the majority's description of the above-quoted death threat as "deranged." Supra at 6. However, viewing the record in the light most favorable to plaintiffs and applying the Rule 56 standard, we would also find plaintiffs' description of campus life as "normal" to be patently inaccurate. Even the district court stated, consistent with the Rule 56 standard, that, despite Ianni's efforts to assuage concerns on campus, "the fears of many in the campus community were not alleviated. The investigation of the origin of the threats continued and the threats continued to hang over the campus." 899 F. Supp. at 397. As the district court concluded, "[i]t is this background against which the substance of this litigation arose." ... We believe, in the present case, that it could not have been apparent to Ianni that the actions he took were unlawful in light of the pre-existing law. Indeed, "the parameters of the protection afforded to a university professor's academic speech were not clearly defined in May 1992 and are not clearly defined today." Scallet v. Rosenblum, No. 96-1138, 1997 WL 33077, at *2 (4th Cir. Jan. 29, 1997) (unpublished) (per curiam) (Scallet) (disposition reported in table at 106 F.3d 391), cert. denied, No. 96-1725 (U.S. June 23, 1997). As we explained in our original panel opinion, the issue of whether the removal of the two photographs violated Burnham's and Marchese's First Amendment right to engage in nonverbal expressive behavior is governed by the Pickering-Connick-Waters line of Supreme Court cases dealing with the First Amendment rights of public employees. The mere fact that the circumstances of this case are unique (at least in terms of the controversies that have actually been litigated in federal court) makes this no less an employment-related case. Thus, the pertinent case law in existence at the time Ianni removed the photographs from the display case included the Supreme Court's decisions in Connick and Pickering, as well as a body of lower federal court decisions which had applied Connick and Pickering -- none of which were factually similar to the present case. Contrary to the majority's assertion, Kincade is not "directly on point and directly contradictory to Ianni's position."... ...in the present case, Ianni presented specific evidence showing that the photographs were already having a disruptive effect on the work environment and that their continued display in the history department display case had the potential to further disrupt the work environment. Before Ianni ever made the decision to have the photographs removed, meetings were held, involving Karon, Ianni, the Kohns, Burnham, Marchese, and other faculty members in the history department, at which the fate of the two photographs was specifically addressed. It is clear from the record that feelings were strong on both sides: some individuals felt that the display of photographs of professors holding weapons was inappropriate in light of the campus-wide death threats against Trolander and others; others felt adamantly opposed to removing the photographs for that reason. See Appellant's Appendix at 50 (internal history department memorandum: "[s]omehow, this ugly trend of History governance by external administrators and bureaucrats must be called into account; if the photo display is our line in the sand, so be it"). With respect to one of the meetings, Karon stated: Chancellor Larry Ianni and I [Karon] met with the history department faculty on one occasion during the first few days of May. Department members offered a variety of reasons for not wanting to take the photos down. Some said the request was an undue interference with the department, or an attempt to blame the department for the threats. Others said it was Judy Trolander's fault. Professor Trolander expressed her concern that no one knew how upsetting the photos were to her. Appellant's Appendix at 12 (Affidavit of Judith Karon, 13). We think it fair to say that Ianni, as the unlucky decisionmaker in this employment-related controversy, was between a rock and a hard place. Regardless of whether he decided to have the photographs removed or left alone, it was reasonable for him to assume that some faculty members would be quite upset.... As we have noted, even today the parameters of the First Amendment protection afforded to university professors' academic speech is not clearly defined -- much less so at the time this controversy arose. See Scallet, 1997 WL 33077, at *2. Moreover, viewing the record in the light most favorable to plaintiffs does not dispel the fact that, no matter what course of action Ianni had followed with respect to the two photographs, the end result would have been the dissatisfaction of some faculty members, and most likely disruption to the work environment -- at least insofar as those who had already taken sides were concerned. Faced with this highly unusual and unenviable predicament, Ianni chose to have the photographs removed, in the hopes of maintaining a positive and efficient working and learning environment. In our opinion, it is not appropriate, given the facts of this case, for this court to now decide the qualified immunity issue on the basis of whether we think Ianni should have dismissed the concerns expressed by Trolander, Karon, and others as irrational or unjustified; that was a matter with which Ianni, as the responsible school administrator, was forced to grapple at that time. The circumstances only permitted him to accommodate one side's interests or the other's, but not both. We believe that the Supreme Court has indicated, as a matter of substantive First Amendment law, that it may not be appropriate for this court to second-guess Ianni's handling of this employment-related matter... We also reiterate a point emphasized in our original panel opinion. In considering the weight to be given Ianni's perceptions and predictions of disruption, the law provides that the disruption need not have been actual, but may have been merely potential.... ...We would therefore hold that Ianni is entitled to qualified immunity with respect to the claims brought by Burnham and Marchese based upon their alleged nonverbal expressive conduct.... We now turn to the forum-related arguments....We believe that Ianni's decision to remove the two photographs was not an unreasonable subject matter restriction in light of the purpose of the forum, which was to disseminate information about the history department, and because his actions were narrowly tailored and left open other channels through which Burnham's and Marchese's interests in classical and American military history could still be publicized.(23) See Perry, 460 U.S. at 53 ("the reasonableness of the limitations . . . is also supported by the substantial alternative channels that remain open"). Moreover, Ianni has demonstrated beyond any dispute that his removal of the photographs had nothing whatsoever to do with any viewpoint which the photographs may have expressed. Contrary to the majority's conclusion, this was not "an effort to suppress expression merely because [Ianni] oppose[d] the speaker[s'] view[s]." Id. at 46. Burnham himself alleges that "Ianni stated that he personally saw nothing wrong with the pictures." Supplemental Appendix of Appellees at 37 (Affidavit of Albert Burnham, 4). Ianni was motivated solely by his desire to address the potential disruptiveness of the photographs, which had already been foreshadowed by the diametrically opposed views expressed at the history department meetings.
The full opinion is available online on the Eighth Circuit Opinion Database or in the LEXIS database available in the Knight Library or the Brainard Lab in the School of Journalism and Communication. You might also consider a walk to the Law Library where the opinion will be available in hard copy.
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