Amy VELEZ, Plaintiff-Appellant, v. Harold O. LEVY, Chancellor of the City School District of the City of New York, individually and in his official capacity, Jacob Goldman, individually and in his official capacity as a member of New York City Community School District # 1, Nancy Ortiz, individually and in her official capacity as a member of New York City Community School District Board # 1, Joyce Early, individually and in her official capacity as a member of New York City Community School District # 1, Thomas Hyland, individually and in his official capacity as Deputy Director of the Chancellor‘s Office of Special Investigations, Anthony DeLeo, individually and in his official capacity as Confidential Investigator in the Chancellor‘s Office of Special Investigations, Robert Colon, individually and in his official capacity as an Investigator in the Chancellor‘s Office of Special Investigations, Defendants-Appellees.
No. 03-7875.
United States Court of Appeals, Second Circuit.
Argued: April 12, 2004. Decided: March 11, 2005.
401 F.3d 75
Stacy Laine Francolla, Assistant Corporation Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York (Francis F. Caputo, of counsel), New York, NY, for Defendants-Appellants.
Before: OAKES, WINTER, and CALABRESI, Circuit Judges.
CALABRESI, Circuit Judge.
We are faced today with the question of whether plaintiff, an elected New York City community school board member, may properly state a claim under the United States Constitution for injuries suffered in connection with her forced removal from office based on allegedly trumped-up charges of criminal behavior. Plaintiff-appellant Amy Velez, a member of Community School District Board # 1, has filed a suit pursuant to
On the basis of these allegations, Velez proffers several potential constitutional causes of action. She asserts: (1) that her removal constituted the denial of a property right in violation of the procedural requirements of the due process clause of the Fourteenth Amendment; (2) that her removal and the attendant stigma also deprived her of liberty without due process of law; (3) that the actions of the various defendants constituted violations of substantive due process; (4) that her removal was in retaliation for her stated political views and consequently in violation of the First Amendment; and (5) that her removal constituted an unlawful “seizure” under the Fourth Amendment. The district court, finding no colorable constitutional claim and declining to exercise supplemental jurisdiction over Velez‘s various state law claims, dismissed her complaint pursuant to
While we agree with the lower court that Velez lacks a constitutional property interest, and that her allegations are insufficient to make out a Fourth Amendment violation or a substantive due process violation, we conclude that her First Amendment and рrocedural due process liberty interest claims are viable, though not against all of the defendants. We further find that qualified immunity cannot, at this stage, bar these claims. We therefore affirm in part and vacate in part the judgment of the district court and remand the case for further proceedings.
In reviewing a dismissal pursuant to
A. The structure of the community school board
Amy Velez, a resident of the Lower East Side of Manhattan, was an elected member and treasurer of New York City Community School District Board # 1 (“Board # 1“).1 She was elected to a three-year term in May of 1999, and the state legislature later extended her term by one year.2 Pursuant to Article 52-A of the New York Education Law, the City School District of the City of New York (“the District“) is divided into 32 community school districts, each of which is governed by a community school district board. See Warden v. Pataki, 35 F.Supp.2d 354, 358 (S.D.N.Y.1999);
Although community board members are publicly elected officials, the Chancellor has unilateral statutоry authority to suspend or remove them under certain circumstances. Specifically,
Velez served on Board # 1 alongside board members defendants Early, Goldman, and Ortiz. According to her, the three defendants were part of a four-person minority on the board that opposed Velez‘s majority voting bloc on several key issues. Among these were (1) the retention of Helen Santiago as the Superintendent of District # 1, and (2) admission criteria for a new K-12 school known as the New Explorations in Science and Technology (NEST) school. Additionally, Velez had earlier opposed the vacancy-filling appointment of Ortiz to Board # 1. The board‘s subsequent failure to reach a consensus on Ortiz‘s nomination led the Chancellor to “step in” and appoint Ortiz over Velez‘s objections. As a general matter, both sides agree that the plaintiff frequently engaged in political conflict with the defendant board members and Chancellor Levy.
A community board meeting held at P.S. # 137 on January 23, 2002, exemplified that conflict. During that session, the board considered various aspects of Chancellor Levy‘s diversity policy, including the selection criteria for the NEST school. Velez clashed with Ortiz, Goldman, and Early, all three of whom opposed her alternative diversity proposal. But it was a dispute over what happened after the meeting that ultimately led to Velez‘s removal and subsequent reinstatement. According to defendant Ortiz, Velez left the meeting and proceeded to the office of Acting Superintendent Santiago, which was located inside the school. There, on Ortiz‘s account, she sprinkled a suspicious, pink, powder-like substance in front of the office door and also dropped a plastic bag containing additional powder.3 Velez vehemеntly denies having done this, on that or any other occasion.
The following day, January 24, the three board member defendants wrote a letter to Levy accusing Velez of the conduct Ortiz allegedly had witnessed. The letter characterized Velez‘s actions as harassment and criminal conduct, and concluded with a request that Levy remove her from the board. The allegations also found their way to the New York Daily News, which published an article on January 25 recounting the alleged sprinkling of “foul smelling” and “voodoo” powder by Velez. That same day, the substance of the Daily News report was repeated on various radio and television programs. In her complaint, Velez asserts that the defendants provided the information for all of these news accounts, and did so despite the fact that they knew the charges were utterly false.
C. The investigation and removal
On January 28, five days after the alleged incident, an investigation was begun by the Chancellor‘s Office of Special Investigations and conducted by defendants Thomas Hyland, Anthony DeLeo, and Robert Colon. These investigators interviewed sixteen witnesses — including all nine board members, Acting Superintendent Santiago, Santiago‘s assistant, a custodian and security guard at P.S. # 137, and two parents — and acquired a sample оf the pink powder from defendant Goldman.4 Goldman told them that he had received the sample from Ortiz, who allegedly retrieved it from its location in front of the Superintendent‘s office door after Velez had ostensibly placed it there.5 Upon completing the interviews, the Office of Special Investigations submitted a report to the Chancellor dated February 11, 2002. The report concluded that “the allegation that Amy Velez, a member of Community School Board # 1, placed a suspicious powder in front of [the Acting Superintendent‘s] door on January 23, 2003 is substantiated with corroboration from Nancy Ortiz.”6
D. Reinstatement
On March 27, 2002, the plaintiff appealed Levy‘s decision to the Board of Education of the City School District of the City of New York, seeking both a stay of her removal and a reinstatement to her board position. A three-member panel of the Board of Education issued a stay, and ultimately reversed “in all respects” the Chancellor‘s March 15 removal order. In June, 2002, the full Board of Education unanimously ratified and adopted the panel‘s decision, including all of its factual and legal findings, which were, among other things, that:
Such as it is ... the record is replete with indications that the investigation upon which the Chancellor relied was incomplete in its conduct and illogical in its conclusions....
[T]he most cursory scrutiny shows that the OSI Report is grossly flawed and could not rationally be relied upon by anyone to support the finding contained in the Chancellor‘s order....
The admission that conversations with political figures played a role in the process, the indications throughout that the official “record” contained yawning gaps, the undue reliance on Ms. Ortiz‘s position as proof of her credibility and the lack of evenhandedness in weighing the testimony of the two principal witnesses all compel the conclusion that the Chancellor‘s order was arbitrary and capricious....
The Chancellor‘s authority to remove Ms. Velez, were she properly found to have committed the act alleged, rests on the finding that the act was criminal in nature. But that finding too is irrational.
Based on the Board of Education‘s decision, Velez was reinstated to her position effective June 15, 2002.
E. Proceedings below
On August 12, 2002, Velez filed a complaint in the United States District Court for the Southern District of New York, alleging various federal and state causes of action. The gravamen of her claims was that the defendant board members invented the pink powder allegation, that the investigators confirmed it, and that the Chancellor accepted it as fact and removed Velez, all in an effort “to silence her and to serve [their] own personal interests and ulterior motives.” Or, as the district court put it, the investigation and removal were allegedly conducted in pursuit of the defendants’ “personal and political ends.” 274 F.Supp.2d at 449. As a result of the defendants’ actions, plaintiff alleged that she suffered embarrassment, mental anguish, humiliation, fear and other emotional distress. What is more, she claimed that she was stigmatized in both her professional and personal life.
In a lengthy opinion, the district court (Koeltl, J.) considered the constitutional claims in turn and determined that the plaintiff had failed in each instance to statе a colorable cause of action. In the alternative, the court concluded that all of the defendants were entitled to qualified immunity. Finally, the court declined to exercise supplemental jurisdiction over the state law claims. The case was dismissed — the state law claims without prejudice — and plaintiff appeals that dismissal.
II. DISCUSSION
On appeal, the plaintiff challenges both of the district court‘s broad findings: (1) that she has failed to state a federal constitutional claim upon which relief may be granted; and (2) that defendants are entitled to qualified immunity. In assessing her challenge, we will consider her constitutional claims seriatim, and then take up the issue of qualified immunity.
A. Standard of review
We review dismissals pursuant to Rule 12(b)(6) de novo, and we will only affirm if we are satisfied that the plaintiff can prove no set of facts that would entitle her to relief on her claims. See Wynder v. McMahon, 360 F.3d 73, 78 n. 8 (2d Cir.2004) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In the course of our analysis, as we have stated earlier in this opinion, we will accept all of the plaintiff‘s allegations as true and focus on their legal sufficiency. Goldman, 754 F.2d at 1067.
To prevail on a claim under
With respect to qualified immunity, we also review the district court‘s rulings de novo. See Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir.2001). In so doing, we apply the two-step test set forth in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First, in our analysis of the district court‘s Rule 12(b)(6) dismissal, we ordinarily answer the question of whether “‘the officer‘s conduct violated a constitutional right[.] This must be the initial inquiry.‘” Ehrlich v. Town of Glastonbury, 348 F.3d 48, 55 (2d Cir.2003) (quoting Saucier, 533 U.S. at 201). Then, if we conclude that a right has been violated, “‘the next, sequential step is to ask whether the right was clearly established.‘” Id. (quoting Saucier, 533 U.S. at 201). And in applying this test, we once again review the facts in the light most favorable to the plaintiff and draw all permissible inferences in the plaintiff‘s favor. See, e.g., McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). With these standards of review in mind, we turn to the merits.
Velez asserts that she was deprived, without due process of law, of a constitutionally cognizable property interest in her elected community school board position. The district court concluded that she possessed no such property interest, and therefore cannot state a claim to this effect. We agree, although for different reasons than those given by the district court.8
In order to establish a due process violation of this sort, plaintiff must show that state action deprived her of a property interest protected by the Fourteenth Amеndment. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1062 (2d Cir.1993). While property interests are constitutionally protected, they are not generally constitutionally established; rather, “they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, only where a plaintiff can demonstrate that state law confers “a legitimate claim of entitlement” to a particular position will a property interest in that position arise. Id.
Velez asserts a property interest in her community school board position based on the state legislation that created it. On her view, she enjoyed a “real, non abstract objective expectation that she would continue to function in her elected position for her full term ... absent some established cause” and appropriate process, and submits that this amounts to a legitimate claim of entitlement.9 Her assertions are supported by the statutory scheme creating the community school board system. Under New York‘s statutory framework, elected school board officials are entitled to serve during their elected terms, and can only be removed by the Chancellor for cause.
Nevertheless, in light of the Supreme Court‘s pronouncements in Taylor and Marshall v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (1900) and Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944), we conclude that Velez lacks a constitutionally cognizable property interest in her elected office. In Taylor, the governor of Kentucky claimed to have been deprived of property — namely, his political position — without due process of law, since, he averred, the recount election ousting him from office was marred by voter fraud. The Court rejected his claim in short order:
The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such.... [G]enerally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right.
Id. at 577 (emphasis added). The Court therefore concluded that the official had been “denied no right secured by the 14th Amendment.” Id. at 578.
More than forty years ago this Court determined that an unlawful denial by state action of a right to state political office is not a denial of a right of property ... secured by the due process clause. Taylor and Marshall v. Beckham, 178 U.S. 548, 20 S.Ct. 1009 [44 L.Ed. 1187]. Only once since has this Court had occasion to consider the question and it then reaffirmed that conclusion, Cave v. State of Missouri ex rel. Newell, 246 U.S. 650, 38 S.Ct. 334, 62 L.Ed. 921, as we reaffirm it now.
Snowden, 321 U.S. at 7 (emphasis added).
The Court‘s pronouncements in Taylor and Snowden have since been echoed in numerous decisions. See, e.g., Burks v. Perk, 470 F.2d 163, 165 (6th Cir.1972) (per curiam) (“Public office is not property within the meaning of the Fourteenth Amendment.“) (citing Taylor); Rabkin v. Dean, 856 F.Supp. 543, 549 (N.D.Cal.1994) (asserting that elected officials are not “employees” in the traditional sense, and hence do not hold a property interest in their positions); Sweeney v. Tucker, 473 Pa. 493, 524, 375 A.2d 698 (1977) (rejecting legislator‘s property interest claim, and noting that, because an elected official “holds office for the benefit of his constituents and cannot justifiably rely on a private need or expectation in holding office,” an elected office “is a public trust, not the private domain of the officeholder.“). See also Guzman Flores v. College of Optometrists, 106 F.Supp.2d 212, 214 (D.Puerto Rico 2000) (relying on Taylor and Snowden to dismiss a property interest claim put forth by a candidate for public office, and stating, “the Supreme Court squarely addressed the issue now before the Court and held that there was no due process right to seek election to public office.... Therefore, Guzman does not have a valid due process claim in the instant case.“).
We are mindful that, since Taylor and Snowden were decided, the Court has adopted a more expansive approach to identifying “property” within the meaning of the 14th Amendment. See, e.g., Roth, 408 U.S. at 577. But while intervening cases may cast a shadow over Taylor and Snowden, “it is [the Supreme] Court‘s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). Accordingly, we follow the Court‘s pronouncements on this issue, and are bound to conclude that Velez lacks a constitutionally cognizable property interest in her employment as an elected official. And finding, as the district court did, that the plaintiff lacks a constitutionally protected property interest in her elected position sufficient to support a due process claim, we affirm the district court‘s dismissal of this cause of action.10
C. Plaintiff‘s liberty interest claim
Adverting again to the Due Process Clause, the plaintiff asserts that the stigma she suffered from public accusations of criminal behavior, combined with the tangible loss of her position as a community board member, amounted to a constitutionally cognizable deprivation of liberty without sufficient process.11 To state a valid claim for such an injury, Velez‘s complaint must assert (1) that she possessed a cognizable liberty interest, and (2) that the defendants deprived her of that same liberty without providing process adequate to justify their actions. See DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.2003); Vega v. Miller, 273 F.3d 460, 470 (2d Cir.2001).
A
In a typical “stigma-plus” case, the stigmatizing statement originates from the same state actor who imposes the “plus,” such as when a government employer defames an employee in the course of terminating that employee. See, e.g., Donato, 96 F.3d at 630; Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). But Velez complains of a less single-sourced injury. She alleges that the board member defendants, by making false charges of harassment and terrorism against Velez, created a significant public “stigma.” (Indeed, Velez asserts that the board member defendants caused their fabricated claims to appear in local newspapers, as well as in assorted radio and television programs.) It is undisputed, however, that the board members did not themselves directly impose the “plus” asserted by Velez — namely, her removal from office, which only Levy had the power to bring about. Velez‘s “stigma-plus” claim, therefore, involves a “stigma” that did not originate from the same party who inflicted the “plus.” Given our clear holdings that “stigma” without “plus” is insufficient to support a “stigma-plus” claim, and vice versa, see, e.g., Donato, 96 F.3d at 630, it might seem to follow that Velez‘s complaint is fatally flawed.
That is not, however, required by the precedents on this issue. Though we have never directly addressed the question, other circuits have approved of “stigma-plus” claims in which the “plus” was imposed separately from any explicit stigmatizing statement. For example, in McGhee v. Draper, 639 F.2d 639 (10th Cir.1981), the Tenth Circuit found a liberty deprivation where a number of parents and students made stigmatizing statements at school board meetings and asked for a specific “plus,” which the defendant school board eventually imposed by terminating the plaintiff. See id. at 643; McGhee v. Draper, 564 F.2d 902, 906-07 (10th Cir.1977) (earlier opinion giving factual background). In so doing, the Tenth Circuit noted that “[t]ypically, when one‘s liberty interest is allegedly infringed upon by a discharge from employment, the termination or non-renewal will either explicitly state the stigmatizing factors or implicitly ratify some other stigmatizing allegations. Thus, the discharge will either cause or contribute to the alleged defamation. In either case, the defamed‘s liberty ‘to engage in any of the common occupations of life’ is diminished, and the defamation has occurred ‘in the course of the termination of employment.‘” McGhee, 639 F.2d at 643 (emphasis added) (quoting Roth, 408 U.S. at 572, and Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). See also Bishop v. Tice, 622 F.2d 349, 352-54 (8th Cir.1980) (holding that the stigmatizing statements of two defendants, made at the direction of a third defendant, in conjunction with the imposition of a “plus” — the denial of administrative remedies — by the third defendant, stated a valid claim for deprivation of plaintiff‘s liberty interest); Marrero v. City of Hialeah, 625 F.2d 499, 519-20 (5th Cir.1980) (holding, where stigma and plus were imposed by the same actors, that “the defamatory communication need not cause the loss of the protected right, or more tangible interest, in order to satisfy the stigma-plus requirement,” because “it is sufficient that the defamation occur in connection with, and be reasonably related to, the alteration of the right or interest“) (emphasis added). Thus, it would seem that, even where a “stigma” and “plus” are not imposed by the same actor, a stigma-plus claim may be valid if the “stigma” and “plus” were connected. See id. (concluding that plaintiff presented a valid
Here, the pleadings allege that the board member defendants, together with the Chancellor and the investigators, intentionally and maliciously fabricated and disseminated falsehoods in a common effort to deprive the plaintiff of her job — and of her opportunity to represent her constituents. It is further asserted that they did this for no reasоn other than to “oppress” her and to “cause her injury,” and that their project had no legitimate purpose. If these purported facts are proven, the defendants’ conduct might well be sufficiently “arbitrary” and “outrageous,” in a constitutional sense, to make out a valid substantive due process claim. See Natale, 170 F.3d at 262.
But the context that is relied upon to make the alleged actions by the defendants potentially shocking enough to sound in substantive due process, also entails, under our cases, that no such cause of action can survive defendant‘s motion to dismiss. What is allegedly shocking about what the defendants’ did is either their intent to violate plaintiff‘s fundamental First Amendment rights, or their motive to deprive her of liberty without procedural due process. In other words, what would serve to raise defendant‘s actions beyond the wrongful to the unconscionable and shocking are facts which, if proven, would constitute, in themselves, specific constitutional violations. And we have held that where a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a
E. Plaintiff‘s First Amendment Claim
Velez asserts that her removal from the community school board, and the defamation to which she was subjected, were carried out in retaliation for the political positions she took in opposition to Levy and the three board member defendants. This political retaliation, she submits, is a violation of her First Amendment rights. In articulating a First Amendment claim, Velez relies on a series of public employee cases, which hold, in substance, that а government employee‘s right to free speech is violated if “(1) [her] speech addressed a matter of public concern, (2)[s]he suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action, so that it can be said that [her] speech was a motivating factor in the determination.” Feingold v. New York, 366 F.3d 138, 160 (2d Cir. 2004) (internal quotation marks omitted).19 See also Rankin v. McPherson, 483 U.S. 378, 383-84 (1987); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1057-58 (2d Cir. 1993).
The district court dismissed Velez‘s First Amendment claim on the ground that her speech as a community school board member was not constitutionally protected. In reaching this result, the court believed that the case was controlled (1) by cases holding that the political affiliations and the expressions of “policymakers” are not constitutionally protected from government retaliation, see, e.g., Elrod v. Burns, 427 U.S. 347, 367-68 (1976); Branti v. Finkel, 445 U.S. 507, 517-18 (1980), and (2) by this Court‘s recent holding in Camacho v. Brandon, 317 F.3d 153, 161-62 (2d Cir. 2003), that elected officials are such “policymakers.” Defendants make the same argument on appeal.
For the reasons that follow, we find that Camacho and the Supreme Court‘s “policymaker” cases do not apply to the circumstance of this case, and that, as a result, Velez has properly stated a First Amendment claim. Because of our holding in X-Men, however, the First Amendment claim — which does lie against Chancellor Levy — cannot be brought against the defendant sсhool board members. For other reasons, also discussed infra, the First Amendment claim also fails with respect to the investigators.
Elrod and Branti established the principle that policymaking staffers may permissibly be fired by elected officials based on the staffers’ political views and associations. This exception to our First Amendment retaliation doctrine derives from a political imperative: the people‘s chosen representatives must be allowed to select aides who share their political views, and hence to fire — on political grounds — the aides of a previous incumbent. See Elrod, 427 U.S. at 367, Branti, 445 U.S. at 518. Put another way, we recognize this exception to ensure that “representative government [is] not ... undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Elrod, 427 U.S. at 367.
In Camacho, we faced the question of whether legislators themselves count as “policymakers” within the meaning of Elrod and Branti. The plaintiff, a legislative aide to a Yonkers city council member, was fired by the city council, with the blessing of the mayor. He brought a First Amendment retaliation claim alleging that his termination was in retaliation for the First Amendment activity of his boss, who had cast dissenting votes on the council and who had invoked the political ire of the mayor and of the majority coalition in the council. See 317 F.3d at 156-58. In considering the aide‘s claim, we began from the premise that the plaintiff‘s asserted right was derived from — and therefore contingent upon — the free speech right of the council member for whom he worked. Id. at 160.20 In such circumstances, we deemed the council member to be a “quintessential policymaker,” subject to the Elrod/Branti exception. We noted that council members are perceived as policymakers by the public; that they are elected officials; that they are subject to political and partisan pressure; and that their votes influence government programs. Id. at 162.21 Because the council member “was a policymaker, [his aide‘s] First Amendment claim could not succeed” even if the defendants “retaliated against [him, and through him against his boss] for his [boss‘s] political associations as well as his votes.” Id.
As noted above, the district court found the instant case to be governed by Camacho and said:
The plaintiff has alleged that the defendants retaliated against the plaintiff for actions and positions that the plaintiff took as a policymaker, namely votes that she cast or positions that she took in oрposition to the actions of other policymakers such as Levy or the other members of School Board # 1. Under these circumstances, the plaintiff acted as a policymaker and was subject to retaliation for that activity without violating her First Amendment rights, and thus the First Amendment claims must be dismissed. See Camacho, 317 F.3d at 153.
Velez, 274 F. Supp. 2d at 455.22
Velez contends, however, that it was error for the district court to find that she was a “policymaker” like the legislator in Camacho. On Velez‘s account, community board members (a) have no “real power,” but exercise only an “advisory and advocacy role” as opposed to a “policymaking role“; and (b) possess no actual or required “political affiliation,” being instead “ideologically and politically independent.” Because Camacho is inapposite for another, more fundamental, reason, we need not decide the validity of Velez‘s argument.
Camacho deals with the firing of an employee of a city council member, not the stripping of the elected official‘s own office. The official in Camacho remained free to express his political views in the council chamber, to cast votes, and to serve his constituents in his capacity as a member of the council even after his assistant was terminated. By contrast, thе case before us involves the outright removal of the board member, and her attendant preclusion from participating in board debates, voting, or serving her constituents. As such, Velez represents neither an Elrod/Branti plaintiff — a policymaking staffer fired for his or her allegiances to a previous administration — nor a Camacho plaintiff — a policymaking staffer let go for his or her boss‘s political affiliations and allegiances. See Camacho, 317 F.3d at 155. She falls instead into a category — an elected officeholder removed from her office, allegedly in retaliation for her (presumably faithful) representation of her constituents — as to which no exception from general First Amendment protections has heretofore been made.
Thus, while the parties’ appellate papers — like those filed in the court below — characterize this cause of action, against all defendants, as a straightforward employment retaliation suit, it is far better understood as a more basic sort of retaliation claim: adverse action by state officials — whether in or out of the employment context — against a plaintiff based on her exercise of constitutionally protected speech rights. “There is no question,” the Supreme Court has said, “that speech critical of the exercise of the State‘s power lies at the very center of the First Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991). As a result, “a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed” by the First Amendment. Friedl v. City of New York, 210 F.3d 79, 86-87 (2d Cir. 2000); see also Greenwich Citizens Comm., Inc. v. Counties of Warren & Washington Indus. Dev. Agency, 77 F.3d 26, 31-32 (2d Cir. 1996) (distinguishing between “retaliatory First Amendment claims” and “affirmative” First Amendment claims, such as “facial challenges to statutes [and] challenges to prior restraints“). In order to state a claim for this sort of retaliation under
The case before us readily fits in the Friedl line of cases. And with respect to Levy, the plaintiff‘s pleadings clearly make out a colorable First Amendment retaliation claim. We cannot permit a state official to oust an elected representative of the people on the bald ground that she voices unsympathetic political views — that is, that she engages in an activity that is at the core of what is protected by the First Amendment.23 Such an action by a state official, if аllowed, would offend the basic purposes of the Free Speech clause — the facilitation of full and frank discussion in the shaping of policy and the unobstructed transmission of the people‘s views to those charged with decision making. See, e.g., Bond v. Floyd, 385 U.S. 116, 135-36 (1966) (“The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.“).
Moreover, the very structure of the community board system at issue in this case supposes a striving toward these democratic ends. Members are elected to provide additional voices — to oppose, critique, supplement, modify, and suggest policies — so that the Chancellor and the City Board can more effectively deliver education to the students of New York City. That being so, extending the policymaker exception to this case, and thereby allowing the Chancellor to remove board members on political grounds, would undermine the very object of the position Velez occupies. The inapplicability of Elrod to a plaintiff such as Velez is therefore manifest: In Elrod, the Court was concerned with protecting elected officials’ right to choose their advisors; here, the people of New York asserted their own right to choose those advisors themselves. We hold that to apply Elrod or Camacho here would be fundamentally inconsistent with the underlying principles at play in the “policymaker” cases.
In his concurrence in Camacho, Chief Judge Walker opposed the attachment of a “policymaker” label to the city council member, and in so doing he discussed a hypothetical that closely resembles the situation before us: “[Imagine if] a majority of the Council barred [the council member] from Council meetings, or otherwise prevented him from voting, in retaliation for his political associations.... I have no doubt that, were that case before us, we would find that [the council member] retained the right of free association under the First Amendment and that such retaliatory measures violated that right.” Camacho, 317 F.3d at 166 (Walker, C.J., concurring). Significantly, the majority in Camacho did not disagree with the Chief Judge‘s conclusion. It noted instead, “[w]e are not presented with a case remotely like that. This case involves the termination of a staffer by the Council‘s Minority Leader in retaliation for a fellow legislator‘s political affiliation and vote.” Id. at 162 n. 9.
Here, where we are squarely presented with such a case, we find ourselves in full agreement with Chief Judge Walker and hold that the First Amendment bars state officials from stripping elected representatives of their office based on the political views of such representatives. We therefore reinstate Velez‘s First Amendment claims as to Levy — the state actor directly responsible for her ouster from the board. In the light most favorable to the plaintiff, her basic allegation, that Levy took concrete actions to effectuate her removal from the board in retaliation for her political positions, suffices to state a constitutional claim of this sort.
With respect to the investigators and the board member defendants, however, we affirm the dismissal of the plaintiff‘s First Amendment claim. The investigators were responsible for the investigation, and their lack of care in conducting that investigation was undoubtedly a significant contributing factor in Levy‘s decision to remove the plaintiff. But the complaint does not allege that the investigators, when they botched their analysis of the board members’ false charges, were motivated by a particular animus towards Velez‘s politics. In fact, Velez asserts just the opposite — she claims that the investigators were negligent to the point of indifference. Because Velez does not plead a “causal connection” sufficient to show that her speech “was a motivating factor” in the investigator‘s actions, Feingold, 366 F.3d at 160, her complaint doеs not allege actionable retaliation by the investigators.
Under our controlling precedent, X-Men Security, Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999), Velez‘s First Amendment claim also fails as to the board members. In that case, a private security firm and its employees, contracting with the state, alleged that their First Amendment rights were violated by defendant legislators when, out of racial and religious animus, and in an effort to deprive it of public contracts, the legislators made false defamatory statements. In assessing the defendants’ assertion of qualified immunity, we first considered whether the plaintiffs had properly articulated a violation of their constitutional rights. We noted that the First Amendment protects legislators’ rights to state publicly their criticism of public contractors and to urge that awarding a particular contract would contravene public policy. Moreover, we observed that cases “holding that a decisionmaker may not take action for impermissible reasons do not provide the proper analytical framework for claims against persons who are not decisionmakers but merely advocates.” Id. at 70. It was imperative instead to measure the need to preserve “breathing space,” id. at 69, for public officials freely to voice their concerns, against the speech and association rights of the public contractors. In weighing those competing interests, we found “no basis on which X-Men could properly be found to have a constitutional right to prevent the legislators from exercising their own rights to speak.” Id. at 70. As the legislators were “retaliating” against the plaintiffs by voicing their political opinions, rather than exercising some sort of legal authority, we concluded that, however outrageous the legislators’ statements were, no valid federal retaliation claim existed.
X-Men controls Velez‘s First Amendment claims against the board members. Velez concedes that the board members had no legal authority over the Chancellor‘s removal decision and that they acted in a legislative capacity. Accordingly, though the actions of the board member defendants undoubtedly set into motion Velez‘s ouster, those actions cannot, consistent with X-Men, support a First Amendment retaliation claim. We therefore affirm the dismissal of this claim against defendants Ortiz, Goldman, and Early, as well as defendants Hyland, DeLeo, and Colon, though we reinstate it against defendant Levy.24
F. Qualified Immunity
Our determination that the plaintiff has stated constitutional claims upon which relief can be granted does not end the matter, however. There is still the question of immunity.
The district court, after holding that the plaintiff had failed to state a constitutional claim upon which relief might be granted, nonetheless undertook a brief qualified immunity inquiry:
As explained above, the defendants’ conduct, as alleged, did not constitute a violation of either the First or Fourth Amendments, or procedural or substantive due process. Consequently, with respect to these claims, the defendants could not have violated the clearly established constitutional rights of the plaintiff, and they are entitled to qualified immunity. Moreover, it could hardly be said in view of the analysis explained above that reasonable officials would have understood that their conduct violated the plaintiff‘s constitutional rights. Therefore, the defendants are entitled to qualified immunity for any constitutional claim against them in their personal capacities.
Velez, 274 F. Supp. 2d at 456.
When considering qualified immunity on a motion to dismiss, we review the district court‘s determination de novo, accept as true all of the material allegations of the complaint, and draw all reasonable inferences in favor of the plaintiff. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001). It is well-established that defendants are shielded by qualified immunity as long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is clearly established if its “contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (“clearly established” means that “(1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) ‘a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful‘“) (quoting Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)). Ultimately, “[t]he question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in the defendant‘s position should know about the constitutionality of the conduct.” McCullough v. Wyandanch Union Free Sch., 187 F.3d 272, 278 (2d Cir. 1999).
Because we have dismissed plaintiff‘s property interest, Fourth Amendment, and substantive due process claims, we need not consider the defendants’ qualified immunity assertion as to them. The same is true as to all of Velez‘s claims against the investigators and the board members, which, for a variety of different reasons, we have held were properly dismissed by the district court. That leaves us only with Chancellor Levy‘s claim of qualified immunity with regard to his asserted violations of the plaintiff‘s First Amendment and “stigma-plus” procedural due process rights. We conclude that qualified immunity does not, at this time, shiеld him from these causes of action.
i. Procedural Due Process
Chancellor Levy asserts that we cannot reasonably expect him to have understood that his actions impermissibly abridged the plaintiff‘s liberty interest. He contends that, given the availability of ex post proceedings, he provided all of the process that he perceived to be “due” Velez in connection with her removal. And it is true that DiBlasio, which recognizes, beyond peradventure, the plaintiff‘s stigma-plus liberty interest in this context, was not decided until well after the investigation had been conducted and the removal effectuated. Nevertheless, it has long been settled that due process generally requires a state to afford its citizens “some kind of hearing” prior to depriving them of liberty. See, e.g., Hodel v. Virginia Surface Mining Reclamation Assoc., 452 U.S. 264, 299 (1981). And our circuit has also repeatedly held that the “random and unauthorized” exception referred to in our earlier analysis does not apply where the actor in question is an official with “final authority over significant matters.” See, e.g., Burtnieks v. City of New York, 716 F.2d 982, 988 (1983); Dwyer v. Regan, 777 F.2d 825, 832 (2d Cir. 1985). It follows that a reasonable official in Levy‘s position should have been aware that the failure to give an adequate pre-termination hearing violated the Fourteenth Amendment.25
We emphasize that this qualified immunity determination is made in view of the procedurаl posture of this case. Though Levy is not, as a matter of law, entitled to qualified immunity at this stage of the proceedings, a factual basis for qualified immunity may arise as the proceedings develop. It may be, after discovery, that Velez cannot adduce the facts necessary to show that Levy based his actions “on irrational and non legitimate considerations and pressures and having no rational [connection] to a legitimate state purpose,” as she alleges in her complaint. But the plaintiff‘s assertions that they were so based are not merely conclusory, as can be seen from the Board of Education‘s findings, attached to the complaint, which state that the Chancellor‘s decision was “arbitrary and capricious” and “irrational,” given that the investigation was “grossly flawed” and “could not rationally be relied upon.” At this stage of the case, we therefore cannot say that, as to the procedural due process claim, qualified immunity based on the Chancellor‘s good faith is appropriate. See Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 255 (2d Cir. 2001) (finding, at the motion to dismiss stage, that defendants could not establish as a matter of law that they were entitled to qualified immunity).
ii. First Amendment
Levy also presses a qualified immunity defense to Velez‘s First Amendment claim. He bases his argument on the existence of Camacho. While he concedes that Camacho was decided after the investigation and removal, Levy contends that the case validates his “objectively reasonable” view that removal of an elected official on political grounds is not constitutionally infirm. As we have stated, however, Camacho does not in any way govern this case, for it was specifically concerned with the firing of employees of elected officials, not the ouster of the officials themselves. Bond, on the other hand, established nearly forty years ago that the exclusion of an officeholder from her office in retaliation for her political views is a violation of the First Amendment. See Bond, 385 U.S. at 137. Chief Judge Walker‘s concurrence in Camacho took note of this principle, 317 F.3d at 166, and the majority in Camacho did not at all contest it. Moreover, Friedl, decided in 2000 — two years before the events in the instant case — made clear that government officials may not take adverse, punitive action against individuals in retaliation for the exercise of their constitutional rights (here, Velez‘s right as an elected official to voice her positions). 210 F.3d at 85-86. Accordingly, if it is true, as asserted by Velez, that Levy acted deliberately to bring about Velez‘s removal in retaliation for her political views, he cannot avail himself of qualified immunity.26
III. CONCLUSION
We find that the behavior alleged in Velez‘s complaint — an intentional effort, born of pоlitical animus, to deprive an elected officeholder of her good reputation and her right to represent her constituents — gives rise to two causes of action under the Constitution. The district court properly dismissed, for failure to state a claim, the plaintiff‘s due process property interest, substantive due process, and Fourth Amendment claims. It also properly dismissed all claims against the investigators and the board members. But the court erred in dismissing Velez‘s stigma-plus liberty interest and First Amendment claims against Chancellor Levy, and in finding that Levy was entitled to qualified immunity on these claims. Since federal causes of action remain sub judice, it follows that any dismissal of Velez‘s state law claims for want of supplemental jurisdiction is at the least premature, and these claims must be reinstated. The judgment below is therefore AFFIRMED in part, and VACATED in part, and the case is REMANDED for further proceedings consistent with this opinion. Costs will abide the ultimate result.
Notes
We stated:
[Plaintiff] is not claiming that he was fired from his position as a public employee in retaliation for exercising his own First Amendment freedoms. Nor is he claiming that he was fired because of his affiliation or association with a particular political party. Rather, he claims that he was fired in retaliation for [his boss, the city council member‘s] activities. Thus, his claim must succeed or fail based on whether [his boss‘s] activities enjoyed the protection of the First Amendment.
Camacho, 317 F.3d at 160.