Mikko v. City of Atlanta, Georgia
857 F.3d 1136
| 11th Cir. | 2017Background
- Mikko, director of Atlanta Police Dept. crime lab (Apr 2012–Jun 2013), negotiated a contract permitting outside forensic consulting so long as it did not relate to Atlanta prosecutions or investigations.
- He prepared an expert report and agreed to testify for a criminal defendant in Florida; a Florida prosecutor sent the report to Fulton County DA Paul Howard.
- Fulton County prosecutors (Howard and Senior Asst. Ross) communicated concerns to Atlanta PD leadership; Ross criticized Mikko’s report and said Howard had spoken with Atlanta Chief Turner.
- After internal discussions and a memo Mikko provided, Atlanta PD fired Mikko on June 12, 2013; Mikko sued the City, Chief Turner, DA Howard, and Ross, asserting § 1983 First Amendment retaliation and state-law claims.
- District court dismissed state claims on Georgia official-immunity grounds but denied Howard and Ross judgment on the pleadings as to the § 1983 claim; prosecutors appealed asserting absolute and qualified immunity.
- Eleventh Circuit held prosecutors were not entitled to absolute immunity for trying to prevent Mikko from testifying in another jurisdiction, but reversed the denial of qualified immunity because the law was not clearly established in June 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Absolute prosecutorial immunity for contacting employer to stop testimony in another jurisdiction | Mikko: prosecutors interfered with protected speech; not acting as advocates for a case in their jurisdiction | Howard/Ross: their communications re: a witness fall within prosecutorial advocacy and are absolutely immune | Not entitled to absolute immunity — actions were not within their advocacy role because the Florida matter was outside their prosecution and jurisdiction |
| Qualified immunity for same communications | Mikko: prosecutors violated his clearly established First Amendment right by causing his termination for outside testimony | Howard/Ross: even if discretionary, their conduct was protected by qualified immunity because law was not clearly established | Prosecutors acted within discretionary authority, but entitled to qualified immunity because existing precedent did not give fair warning that their conduct was unconstitutional |
| Whether Rainey or other precedent clearly established right to testify as expert without retaliation | Mikko: Rainey (5th Cir. 1973) clearly protected expert testimony from employment retaliation | Prosecutors: Rainey is distinguishable and did not clearly establish the law here | Rainey was distinguishable and, together with later precedent, did not place the constitutional question beyond debate |
| Effect of Lane v. Franks on clearly established law | Mikko: subsequent First Amendment cases support protection for testimony | Prosecutors: Lane post-dates the conduct; pre-2013 law was not clearly established | Lane (decided after 2013) shows that even in-circuit law was not clearly established at the time of the firing; qualified immunity applies |
Key Cases Cited
- Imbler v. Pachtman, 424 U.S. 409 (prosecutors immune for conduct intimately associated with judicial phase)
- Buckley v. Fitzsimmons, 509 U.S. 259 (absolute immunity is function-related; distinguishes investigative/administrative acts)
- Van de Kamp v. Goldstein, 555 U.S. 335 (supervisory/prosecutorial administrative acts connected to trial advocacy may be immune)
- Lane v. Franks, 134 S. Ct. 2369 (public-employee testimony protected; clarified that Eleventh Circuit precedent did not clearly establish protection pre-2009 for qualified-immunity purposes)
- Forrester v. White, 484 U.S. 219 (employment decisions like hiring/firing assistants are not entitled to absolute judicial immunity)
- Rainey v. Jackson State Coll., 481 F.2d 347 (5th Cir. 1973) (public-employee’s prior expert testimony held protected by First Amendment in different factual posture)