Wayne Brown, a former Tulsa, Oklahoma police officer, brought a Section 1983 action against the City of Tulsa and Tulsa Police Chief Charles Jordan, alleging he was terminated in retaliation for exercising his First Amendment free speech rights and in violation of his equal protection rights.
In September 2019, a local activist named Marq Lewis posted commentary on Facebook concerning Brown’s social media activity. Lewis’s post included screenshots from Brown’s Facebook page and labeled them as “offensive social media images.” The posts included an image of President Trump astride a lion, bearing the Confederate flag; an image of a fist declaring a fight against Islam; an image of “The Punisher” logo with crosshairs; and an oath stating that police will protect all citizens. Lewis’s post charged that Brown held bias against Muslims and Black people and accused the Tulsa Police Department of not doing its due diligence by failing to verify a potential police officer’s social media account. Many other posts of a similar nature were included.
The day Brown received a copy of the Facebook post, he was called into a meeting with supervisors. Brown was instructed to remove his gun belt and was given a termination notice effective immediately citing that Brown had violated “Department Rules & Regulations and Policies and Procedures.” When Brown asked to speak to Jordan, he was told that the officers would pass the message along and was subsequently escorted out of the back door. The following day, Brown returned to retrieve some property; while he was there, a captain told Brown that he didn’t want to terminate him, but did not give Brown a chance to discuss his termination. The posts and Brown’s termination were picked up by the media.
Brown brought suit in the district court, which dismissed Brown’s First Amendment claim against the City of Tulsa for failure to state a claim, concluding that the City’s interest in maintaining a police force that instills public confidence and discourages partisanship outweighed Brown’s free speech rights. The Court dismissed the same claim against Jordan in his individual capacity, holding that he is entitled to qualified immunity. The Court likewise dismissed Brown’s equal protection claim against both the City and Jordan for failure to state a claim, determining that Brown alleged a “class-of-one” theory of equal protection foreclosed by Supreme Court precedent. After dismissing the federal claims, the Court declined to exercise supplemental jurisdiction over Brown’s state law claim. Brown appealed.
The 10th Circuit Court of Appeals affirmed the dismissal of Brown’s equal protection claims and reversed the dismissal of his First Amendment claims.
The Court explained that “public employees do not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Before assessing Brown’s statements under the Pickering test, the Court found that the test should not have been conducted prior to discovery at the motion-to-dismiss stage before the district court. “Practically speaking, the plaintiff will not know what interest the government will assert, how it will assert it, or what disruption the government claims the speech caused, making it impossible for the plaintiff to (1) allege facts sufficient to show that the defendant ‘plausibly violated their constitutional rights,’ and (2) identify a materially similar case where the employee prevailed to demonstrate that their First Amendment right was clearly established.
“The City of Tulsa, in its motion to dismiss, introduced several facts not pled by Brown in the operative complaint. By relying on these facts in balancing the parties’ interests, which were not alleged within the four corners of Brown’s complaint nor fall under a recognized exception, the district court clearly erred. City contends – uncontroverted by Brown – that the posts ‘created such a public disruption that Jordan and the Tulsa Police Department received numerous inquiries from concerned citizens,’ and the posts ‘caused public outrage and disruption, harmed the public’s trust in Brown as a Tulsa Police Officer’ and set back the efforts to build trust between the Department and the community.’
“Contrary to the district court’s suggestion, Brown was not required to controvert any facts alleged by the City of Tulsa at the 12(b)(6) stage. In fact, no plaintiff is required to controvert facts offered by any defendant in the first instance at the 12(b)(6) stage. Consequently, Brown successfully stated a claim for First Amendment retaliation, and the district court erred in dismissing this claim against the City of Tulsa. For similar reasons, the district court also erred in granting Jordan qualified immunity and dismissing the claim against him in his personal capacity.”
The Court did agree with the lower court’s holding on Brown’s equal protection claim. It found that Brown asserted that the defendants were engaged in viewpoint discrimination, or that “he is being singled out and intentionally treated differently by defendants without a rational basis.” While recognizing that a plaintiff can bring an equal protection claim by asserting that they were “intentionally treated differently from others similarly situated” without a rational basis under the class-of-one theory, the Court also pointed out that a class-of-one theory is not cognizable in the public employment context. Thus, the Court affirmed the dismissal of this claim.
Brown v. City of Tulsa, 2025 U.S. App. LEXIS 348 (10th Cir. 2025).