     Case: 16-30679        Document: 00514004049          Page: 1     Date Filed: 05/23/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                        No. 16-30679                                 FILED
                                                                                 May 23, 2017

BRANDON COKER; MICHAEL GOLDEN,                                                  Lyle W. Cayce
                                                                                     Clerk
                       Plaintiffs - Appellants

v.

JULIAN WHITTINGTON; CHARLES OWENS,

                       Defendants - Appellees



                     Appeal from the United States District Court
                        for the Western District of Louisiana


Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District
Judge. ∗

EDITH H. JONES, Circuit Judge:
          The appellants are two former sheriff’s deputies in Bossier Parish,
Louisiana, who chose not to obey a directive from the Sheriff and were removed
from their offices. Their disobedience arose from their decisions to move in
with each other’s wife and family before getting divorced from their current
wives. Whether these decisions, which violated the Sheriff’s Code of Conduct,
infringed on appellants’ constitutional rights, and whether the Code’s policies
conform to the Constitution were decided against them. We AFFIRM.



      ∗
          Chief District Judge of the Eastern District of Louisiana, sitting by designation.
     Case: 16-30679       Document: 00514004049          Page: 2     Date Filed: 05/23/2017



                                       No. 16-30679
       The material facts are undisputed. 1 When Chief Deputy Sheriff Owens
learned in late October 2014 that Coker and Golden had each taken up
residence in the other’s house, exchanging spouses without having divorced
their current wives, they were placed on administrative leave for violating the
Sheriff’s Code of Conduct. The Code includes the following standards:
       Conduct yourselves at all times in such a manner as to reflect the
       high standards of the Bossier Sheriff’s Office . . . [and]
       Do not engage in any illegal, immoral, or indecent conduct, nor
       engage in any legitimate act which, when performed in view of the
       public, would reflect unfavorabl[y] upon the Bossier Sheriff’s
       Office.

They had also violated a provision that required them to inform their direct
supervisors within 24 hours of a change of address, a measure designed to
ensure their availability at all times in case of an emergency.
       Matters moved swiftly. Coker and Golden were informed that each must
cease living with a woman not his spouse. If the deputies refused to do so, they
were told, then as of November 24 they would be considered to have terminated
employment voluntarily. The deadline passed, their living situations did not
change, and they filed suit shortly thereafter.
       Defendants in the lawsuit were Sheriff Whittington and Deputy Sheriff
Owens, in their personal and official capacities, and the Bossier Parish
Sheriff’s Office. Following evidentiary jousting, the district court ruled in favor



       1The alleged fact dispute does not exist, nor would it be material if it did. While Coker
and Golden maintain they were ordered to “cease all contact” with the other man’s spouse in
a meeting with Owens, the district court found that counsel for the sheriff’s department
subsequently made clear in two letters that not “having contact with each other” was not a
condition for employment, and that the sole condition necessary for Coker and Golden to
return to work was to cease cohabitation with a married woman not his wife. See Scott v.
Harris, 550 U.S. 372, 380 (2007). Regardless whether “no contact” was a condition, there is
no dispute Coker and Golden failed to meet the condition of changing their living
arrangements.

                                               2
     Case: 16-30679       Document: 00514004049          Page: 3     Date Filed: 05/23/2017



                                       No. 16-30679
of the defendants. The court held first that the Code policies invoked against
Coker and Golden are supported by the rational grounds of preserving a
cohesive police force and upholding the public trust and reputation of the
Sheriff’s Department.         Case law, including decisions of this circuit, has
uniformly approved terminations of law enforcement officers for sexually
inappropriate conduct. 2 There are no decisions to the contrary suggesting that
the deputies, as public employees of law enforcement agencies, have
constitutional rights to “associate” with each other’s spouses before formal
divorce.    That Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003),
expanded substantive constitutional rights relating to personal sexual choices
does not mandate a change in policies relevant to public employment, where it
was more recently reaffirmed that public employees necessarily shed some of
their constitutional rights as a legitimate exchange for the privilege of their
positions. Garcetti v. Ceballos, 547 U.S. 410, 426, 126 S. Ct. 1951, 1962 (2006).
The district court also concluded that the Code of Conduct is not
unconstitutionally vague as written or enforced. It does not offend the fair



       2 See Shumpert v. City of Fulton, 77 F.3d 474 (5th Cir. 1995) (when relationships
outside of marriage occur “between government employees, any right to such relations that
might normally exist may be properly tempered by a state’s heightened interest in regulating
the conduct of its employees.”); Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir. 1983) (“we
can ascertain a rational connection between the exigencies of Department discipline and
forbidding members of a quasi-military unit, especially those different in rank, to share an
apartment or to cohabit”); Mercure v. Van Buren Twp., 81 F. Supp. 2d 814, 827 (E.D. Mich.
2000) (holding that discharge of a police officer for the “choice to enter into a relationship
with the wife of his superior officer on the force” was rational). See also Hughes v. City of N.
Olmsted, 93 F.3d 238, 242 (6th Cir. 1996) (police department investigation of an officer
“because of claims that he had committed acts of sexual misconduct while on duty, an
accusation which certainly related to whether [the officer] was conducting himself
appropriately as a police officer,” was not unreasonable); Fugate v. Phoenix Civil Serv. Bd.,
791 F.2d 736, 741 (9th Cir. 1986) (holding that the right of privacy does not extend "to sexual
behavior that is not purely private, that compromises a police officer's performance, and that
threatens to undermine a police department's internal morale and community reputation”);
Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008) (holding that “governmental
actions restricting police officers' sexual conduct” of an extramarital affair were reasonable).
                                               3
     Case: 16-30679       Document: 00514004049         Page: 4    Date Filed: 05/23/2017



                                      No. 16-30679
notice requirements of due process, especially with regard to discipline that
was not itself unconstitutional. Shawgo, 701 F.2d at 477–79.
       We find no reversible error of fact or law in the district court’s decision.
Sexual decisions between consenting adults take on a different color when the
adults are law enforcement officers. Their enforcement duties include, for
instance, crimes of human trafficking and spousal abuse that place them in
sensitive positions with members of the public. Their involvement in relations
that openly and “notoriously” violate the legally sanctioned relationships of
marriage and family is likely to besmirch the reputation of the Sheriff’s
Department and hinder its ability to maintain public credibility. Moreover,
these officers’ extramarital relationships, even if consensual and loving at the
outset, have great potential to create internal dissension within the force.
Finally, it is not hard to envision how the existence of Coker’s and Golden’s
cohabitation with each other’s wives prior to divorce and remarriage might be
adversely used in litigation concerning the deputies’ official conduct.
       The Supreme Court’s recent decision in Obergefell v. Hodges does not
alter applicable law. 135 S. Ct. 2584, 2598 (2015). Whatever ramifications
Obergefell may have for sexual relations beyond the approval of same-sex
marriage are unstated at best, but Obergefell is expressly premised on the
unique and special bond created by the formal marital relationship and
children of that relationship.        Id. at 2594–95.       Obergefell does not create
“rights” based on relationships that mock marriage, and no court has so held. 3
       The district court’s judgment is AFFIRMED.




       3 Of course, even if such rights existed and were violated by the Sheriff and Chief
Deputy, they would have qualified immunity in their individual capacities because no “clearly
established law” prevented warning Coker and Golden that the consequences of their
personal relationships would be dismissal from the force. Ashcroft v. al-Kidd, 563 U.S. 731,
735, 131 S. Ct. 2074, 2080 (2011).
                                             4
