DENVER (CN) - A Colorado fire chief on Wednesday asked the 10th Circuit to reverse a lower court's denial of qualified immunity to shield him from a firefighter's suit claiming violations of his rights to free association and due process.
The Mountain View Fire Protection District, which covers six Colorado Front Range towns, hired Benjamin Carter in 2009. The events leading to his termination date back to January 2023, shortly after he was elected president of his union. When Carter learned a new fire recruit had requested their gear to be stripped of American flags, he considered it worth looking into, even though most of the equipment was flag-free by default.
According to the district's human resources manager, Carter appeared agitated over the request, which had been approved as a religious accommodation. After receiving a harassment complaint against Carter, the district placed him on administrative leave and investigated the incident.
After meeting with Carter on March 21, 2023, former fire chief David Beebe sent him a formal letter of termination. Carter sued Beebe and the district on Sept 12, 2023, claiming retaliation for his union activities and violation of due process rights since he wasn't given a post-termination hearing where he could present his side of events.
In September 2025, George W. Bush-appointed Chief U.S. District Judge Philip Brimmer rejected Beebe's bid for qualified immunity.
On appeal, Beebe argued Carter had agreed to waive his right to post-termination proceedings in the collective bargaining agreement he helped negotiate.
"Mr. Carter negotiated this contract and signed for it as well," said Beebe's attorney, Ashley Hernandez-Schlagel. "There is explicit language that is afforded, granted it doesn't say 'you waived the post-termination hearing.'"
U.S. Circuit Judge Harris Hartz pushed back on both sides.
"Your argument is cast in terms of waiver, but it strikes me it's more about the scope of the agreement," the George W. Bush appointee said. "Is it really a matter of waiver or is this something negotiated collective bargaining agreements can do?"
Hernandez-Schlagel, who practices with Collins Cole in Lakewood, Colorado, said due process rights can and have been waived.
On behalf of Carter, attorney Mark Murphy argued the 1985 U.S. Supreme Court decision in Cleveland Board of Education v. Loudermill left no doubt about Carter's right to a hearing.
"Loudermill has been around for 40 years," said Murphy, who practices with Nathan Dumm in Denver. "This is a right that has been established for years, so for the fire chief can't say he didn't know."
While Hartz agreed that Loudermill was relevant, he questioned whether it could be applied to a collective bargaining agreement.
"It's your burden on qualified immunity to show clearly established law," the judge pressed. "There are a lot of Supreme Court cases that say 'this is a right,' and there are a lot of Supreme Court cases that say 'you can waive that right.'"
Barack Obama-appointed U.S. Circuit Judge Scott Matheson and Joe Biden-appointed U.S. Circuit Judge Veronica Rossman rounded out the panel. The court did not indicate when or how it would decide the case.
Source: Courthouse News Service
