                                                 NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 10-2009
                               _____________

                           STEVE ARMBRUSTER,
                                                       Appellant
                                       v.

JOHN C. CAVANAUGH, IN HIS OFFICIAL CAPACITY AS CHANCELLOR
OF THE PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION; F.
JAVIER CEVALLOS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS PRESIDENT OF THE KUTZTOWN UNIVERSITY OF PENNSYLVANIA;
WILLIAM F. MIOSKIE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS CHIEF OF THE KUTZTOWN UNIVERSITY POLICE DEPARTMENT
                          _____________

                On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                       District Court No. 2-09-cv-01006
               District Judge: The Honorable C. Darnell Jones, II


                           Argued: January 27, 2011

           Before: McKEE, Chief Judge, and SMITH, Circuit Judges,
                      and STEARNS, District Judge*

                           (Filed: February 4, 2011)


                                  OPINION


STEARNS, District Judge.

      *
        The Honorable Richard G. Stearns, United States District Judge for the
United States District Court of Massachusetts, sitting by designation.
      Corporal Steve Armbruster is employed by the Pennsylvania State System of

Higher Education as a police officer with the Kutztown University Police

Department. On April 18, 2007, approximately fifteen individuals affiliated with a

group known as ARepent America@demonstrated peacefully at an outdoor location

on the Kutztown University campus.2 During the demonstration, approximately

300 counter-demonstrators, representing several different campus organizations and

clubs, gathered nearby.       The counter-demonstration became increasingly

boisterous, and Armbruster and another officer asked the Repent America

demonstrators to move away from certain University buildings, which they did.

      Some students observing the demonstration became upset and contacted

University personnel, objecting to the demonstrators= anti-gay message.

Defendants William F. Mioskie, the Chief of the Kutztown University Police

Department, and F. Javier Cevallos, the Kutztown University President, came to the

scene, accompanied by a second contingent of campus police. Cevallos asked

Armbruster to Apush@ Repent America off campus. Armbruster did not respond.

      2
         As described in Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir.
2008), Repent America is an organization whose members Abelieve that
homosexuality is sinful and that >it is their duty to God to warn others about the
destructiveness of sin through public proclamation of the gospel of Jesus Christ.=@
Id. at 189. The organization Acommunicate[s] their message through displaying
signs, offering literature, and engaging in >open air preaching,= which includes
praying, singing, playing music, and talking to people about the Scriptures.@ Id.




                                        2
Cevallos then approached Chief Mioskie with the same request.

      Chief Mioskie determined that the crowd was disorderly and ordered

Armbruster to Apush@ the Repent America demonstrators away.             Armbruster

interpreted the order to mean that he should arrest or threaten to arrest the

demonstrators for disorderly conduct. In Armbruster=s view, the Repent America

demonstrators were not disorderly.     Armbruster voiced his objection to Chief

Mioskie=s order, expressing concern that it would violate the demonstrators= civil

rights. In addition, he feared that obeying the order might subject him to personal

liability. After hearing Armbruster out, Chief Mioskie relieved him of his duties

and told him to leave the area, which he did. Meanwhile, another officer arrested

the leader of Repent America, who was charged with disorderly conduct.3

      On April 20, 2007, Armbruster was placed on paid administrative leave for

refusing to obey Chief Mioskie=s order. He was asked not to report for duty or to

set foot   on campus until a Pre-Discipline Conference on April 23, 2007.

Following the disciplinary hearing, Armbruster was suspended without pay for five

working days. As a result of the disciplinary action, Armbruster lost some $600 in

wages. He now has a disciplinary letter in his file that he believes may derail his

future promotion to Sergeant. He has also been warned that should he disobey a

similar order in the future, he risks termination. Armbruster alleges that since the

      3
       According to the Amended Complaint, the leader of Repent America was
Asubsequently found innocent of the charges.@ App. 24.

                                         3
disciplinary action, he has been given only menial job assignments, has been denied

training opportunities, and has received an unfavorable performance evaluation.

On August 28, 2008, Armbruster=s counsel faxed a letter to Chief Mioskie and

President Cevallos requesting the retraction of the disciplinary letter and the threat

of termination. Mioskie and Cevallos did not respond, and the requests were not

granted.

      On March 6, 2009, Armbruster brought suit against Mioskie, Cevallos, and

John C. Cavanaugh, the Chancellor of the Pennsylvania State System of Higher

Education. Armbruster alleged two causes of action under 42 U.S.C. ' 1983: the

first, an alleged violation of his First Amendment rights; the second, an alleged

violation of his Aright@ to refuse to obey an unconstitutional order. Armbruster

requested declaratory relief and damages. In addition, he sought prospective relief

in the form of an injunction barring defendants from terminating or otherwise

disciplining him should he refuse to obey an unconstitutional order in the future.

      On July 16, 2009, defendants filed a motion to dismiss. On March 9, 2010,

the District Court granted the motion, finding that Armbruster had failed to state a

claim as a matter of law.        Judge Jones determined that Armbruster=s First

Amendment retaliation claim did not survive the holding of Garcetti v. Ceballos,

547 U.S. 410 (2006). The District Court reasoned that because Armbruster had

spoken in his capacity as a public employee, and not as a private citizen, his speech

fell Aoutside the ambit of First Amendment protection.@ Armbruster v. Cavanaugh,

                                          4
2010 WL 816385, at *4 (E.D. Pa. Mar. 9, 2010).

      The District Court also rejected Armbruster=s second cause of action based on

Aa purported violation of his >right to refuse to violate others= constitutional rights,=@

noting that Aover the past thirty years, no Court of Appeals has held such a right

exists.@ Id. at *5. As Appellees point out, Harley v. Schuylkill Cnty., 476 F.

Supp. 191 (E.D. Pa. 1979), is the only reported federal court case brought under 42

U.S.C. ' 1983 that explicitly holds that Athe right to refuse to violate another=s

federal constitutional rights is a right secured by the constitution.@ Id. at 194.

Judge Jones found Armbruster=s reliance on Harley unpersuasive because A[i]t

appears the >right= relied upon in Harley was an independent right based upon

substantive due process,@4 and A[s]ince Harley, the U.S. Supreme Court has made

very clear that . . . claims based on generalized notions of substantive due process

are disfavored except in certain explicitly-recognized circumstances.@ Armbruster,

2010 WL 816385, at *5 n.12. The District Court concluded that it found Ano basis

to depart from the wise course of judicial restraint and break ground by finding a

new cause of action based on a fresh liberty interest under the rubric of substantive

due process.@ Id.




      4
        The Harley opinion did not explicitly mention Asubstantive due process@;
rather, it simply stated: Awe hold that the right to refuse to perform an
unconstitutional act is a right >secured by the Constitution= within the meaning of '
1983.@ Harley, 476 F. Supp. at 194.

                                           5
      Armbruster argues that the District Court erred in failing to recognize his

substantive due process right to refuse to violate the constitutional rights of others,

which he also characterizes as the right to refuse an unconstitutional order without

fear of discipline.5   Relying on Harley and decisions of the military courts,

Armbruster contends that the right to refuse an unconstitutional order is an implicit,

fundamental right, upon which any encroachment must be subjected to heightened

scrutiny. He argues that even under a more deferential standard, such as rational

basis or intermediate scrutiny, discipline and threats of termination of the kind that

he received serve to advance no legitimate governmental purpose or interest.6

      Appellees argue that under the Amore-specific-provision rule,@ Armbruster=s

allegations should be analyzed under First Amendment standards to the exclusion of

any separate Fourteenth Amendment claim of a violation of substantive due process,

even if the First Amendment claim is defunct at its inception. Appellees further

argue that Armbruster=s Fourteenth Amendment claim was properly dismissed in any

      5
         The District Court exercised jurisdiction pursuant to 28 U.S.C. '' 1331 and
1343(a)(3), (4). Appellate jurisdiction attaches under 28 U.S.C. '1291. We
exercise plenary review of the District Court=s order granting a motion to dismiss
for failure to state a claim. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d
187, 190 (3d Cir. 2009). We do not consider the Supremacy Clause argument
advanced by amicus American Civil Liberties Union (ACLU) of Pennsylvania, as it
was not raised in the District Court proceeding.
      6
        Armbruster concedes that his First Amendment claim does not survive
Garcetti. Consequently, he has Adropped his First Amendment claim@ on appeal.
Appellant=s Reply Br. at 4-5. This concession was reaffirmed by counsel at oral
argument.

                                          6
event because A[a] public employee, especially a police officer, does not have a

freestanding fundamental right, grounded in the Constitution, to disobey ordinary

supervisory orders, even arguably questionable ones, on an ad hoc basis.@ Appellee

Br. at 11.   Finally, Appellees contend that even if this case did touch upon a

Afundamental@ right implicating substantive due process, the actions of Chief Mioskie

and President Cevallos do not Ashock the judicial conscience.@

      Substantive due process is a doctrine reserved for egregious official conduct

that trenches upon the most fundamental of civil liberties. AAs a general matter, [we

have] always been reluctant to expand the concept of substantive due process because

guideposts for responsible decisionmaking in this uncharted area are scarce and

open-ended.@ Collins v. Harker Heights, 503 U.S. 115, 125 (1992). AWe must

therefore >exercise the utmost care whenever we are asked to break new ground in

this field,= lest the liberty protected by the Due Process Clause be subtly transformed

into the policy preferences of the Members of this Court.@             Washington v.

Glucksberg, 521 U.S. 702, 720 (1997). See also Albright v. Oliver, 510 U.S. 266,

272 (1994) (AThe protections of substantive due process have for the most part been

accorded to matters relating to marriage, family, procreation, and the right to bodily

integrity.@); Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 142 (3d Cir. 2000)

(holding that the denial of a public employee=s asserted property interest in continued




                                          7
employment does not amount to a violation of substantive due process).7 If we were

inclined to undertake an expansion of the doctrine of substantive due process, this

case, which at its heart is an employment dispute, is not the vehicle that we would

choose.    We reserve consideration of the doctrine for cases involving the most

intimate matters of family, privacy, and personal autonomy.8




       7
         Armbruster cites military cases in support of his broad claim of a
constitutional right of a police officer to disobey an illegal order of a superior
officer. See, e.g., Schmidt v. United States, 145 Ct.Cl. 632 (1959) (stating that an
unlawful order Adid not have to be obeyed@ and that Aa refusal to obey it was not
insubordination@); United States. v. Jones, 26 F. Cas. 653, 657 (C.C. Pa. 1813)
(ADisobedience of an unlawful order, must not of course be punishable.@); United
States v. Bright, 24 F. Cas. 1232, 1238 (C.C. Pa. 1809) (recognizing that certain
orders Awere unlawful and void@). The fundamental principle that these cases
reflect derives not from the U.S. Constitution, but from the Law of War and the
Uniform Code of Military Justice.
       8
         It is not that we cannot conceive of a factual scenario involving a
punishment imposed for disobeying a blatantly illegal order for which substantive
due process might appropriately offer redress B for example, an order to shoot to
kill peaceful demonstrators. But that is not this case.

                                         8
      Finally, Armbruster=s proposed remedy B an injunction shielding him from

disciplinary action Ashould he refuse an unconstitutional order in the future@9 B is

patently unworkable. Providing prospective immunity for acts of insubordination

based on an officer=s subjective understanding of what are often complex issues of

law and fact would undermine the order necessary for a paramilitary organization like

a police force to function effectively. In the words of the Supreme Court, A[s]ociety

would be ill-served if its police officers took it upon themselves to determine which

laws are and which are not constitutionally entitled to enforcement.@ Michigan v.

DeFillippo, 443 U.S. 31, 38 (1979). See also United States v. Kisala, 64 M.J. 50,

51-52 (C.A.A.F. 2006) (ALong ago this Court recognized the foundational principle

of military discipline: >Fundamental to an effective armed force is the obligation of

obedience to lawful orders.= Reflecting the authority of this principle, an order is

presumed to be lawful, and a subordinate disobeys an order at his own peril.@).10

      Because we find no error in the District Court=s determination that

Armbruster=s lawsuit failed to state a viable claim, we will affirm its judgment.


       9
           Appellant Br. at 3.
       10
         While a police officer does not have a constitutional right to disobey an
order based on his or her own opinion of law, an officer who is disciplined for
questioning the legality of a superior=s orders is not entirely without a remedy. The
officer typically has recourse to union grievance procedures or other
employment-related legal channels. See, e.g., Homar v. Gilbert, 63 F. Supp. 2d
559, 564, 570 n.11 (M.D. Pa. 1999) (discussing the availability of grievance
procedures in the context of a case brought by a campus police officer alleging due
process violations).
                                          9
