Nixon v. City & County of Denver
2015 U.S. App. LEXIS 7211
| 10th Cir. | 2015Background
- Nixon, a Denver police officer, faced discipline after two publicized incidents; the City suspended him 30 days and terminated him in 2011 for excessive force and allegedly lying.
- The Denver Civil Service Commission reversed the termination; the City appealed that administrative win in state court.
- While administrative and state appeals were pending, Nixon sued Garcia (the Manager of Safety), the City, and others under 42 U.S.C. § 1983 for First Amendment retaliation and for a stigma-plus procedural due-process violation.
- The district court dismissed all claims under Rule 12(b)(6): it held (1) most of Nixon’s statements were not on matters of public concern, (2) Nixon’s 2013 testimony (on proposed rule changes) could not have motivated Garcia’s 2011 termination decision, and (3) Nixon had not shown the City denied constitutionally adequate process.
- On appeal, Nixon’s opening brief largely failed to identify specific protected statements or to meaningfully contest the district court’s reasoning; the court treated several appellate arguments as waived for inadequate briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nixon’s speech was on a matter of public concern | Nixon asserts his speech/expression exposed government wrongdoing and aided public evaluation of officials | Defendants argue statements were personal/part of ongoing personnel dispute, not public concern | Court: Most statements not public concern; Nixon waived challenge by failing to identify specific statements |
| Whether Nixon’s 2013 Civil Service Commission testimony could have motivated 2011 adverse actions | Nixon suggests a temporal/causal nexus: his testimony led to City’s continued prosecution/review | Defendants point out City had already appealed earlier Commission decisions before 2013 testimony; prior plans negate causation | Court: 2013 testimony could not have motivated the 2011 termination or the City’s appeal; no plausible causation shown |
| Whether Nixon stated a stigma-plus procedural due-process claim | Nixon contends his reputation was impaired by the City and he lacked adequate name-clearing process | Defendants argue Nixon received adequate procedures and no defective process shown | Court: Dismissed stigma-plus claim; Nixon failed to challenge the district court’s finding that process was constitutionally adequate |
| Whether appellate briefing preserved issues for review | Nixon’s brief argued broadly and omitted specific legal challenges to district court reasoning | Defendants rely on waiver doctrine and insufficiency of Nixon’s brief | Court: Affirmed dismissal in large part because Nixon’s brief failed to develop arguments; appellate waiver applied |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (speech pursuant to official duties is not protected by First Amendment in employment context)
- Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (balancing public employee speech against employer’s interest in efficiency)
- Connick v. Myers, 461 U.S. 138 (1983) (public-concern inquiry requires evaluating content, form, and context)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for plausible entitlement to relief)
- Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (acts taken along previously planned lines are not evidence of causality for retaliation)
- Trant v. Oklahoma, 754 F.3d 1158 (10th Cir. 2014) (applies Garcetti/Pickering five-element analysis)
- Guttman v. Khalsa, 669 F.3d 1101 (10th Cir. 2012) (stigma-plus requires governmental defamation plus alteration in legal status)
- McDonald v. Wise, 769 F.3d 1202 (10th Cir. 2014) (name-clearing hearing requirements for stigma-plus claims)
- Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192 (10th Cir. 2007) (public-concern test considers whether speech discloses official misconduct)
- Burns v. Bd. of Cnty. Comm’rs, 330 F.3d 1275 (10th Cir. 2003) (topic alone is insufficient; content must meet public-concern threshold)
- Craven v. Univ. of Colo. Hosp. Auth., 260 F.3d 1218 (10th Cir. 2001) (appellant must identify specific instances of speech when alleging First Amendment protection)