Branton v. City of Dallas

DENNIS, POLITZ, Before SMITH Judges. Circuit DENNIS, Judge: Circuit officer investigative An internal affairs this Department Dallas Police filed § re- employment 1983 suit for U.S.C. Amend- in violation of her First taliation The officer was right speech. to free ment rating, re- performance in downgraded investigative supervisory and moved from duties, pro- for effectively disqualified and pay because of her motions and overtime communication alleged improper parte ex officer, city an hearing a assistant with case in manager, police disciplinary in a The in- investigator. which as she served from the appealed affairs officer ternal summary judg- grant district court’s and in favor of the Chief of Police ment Department. Police We conclude af- made internal the statements officer addressed matter of fairs concern; statements are entitled that the protection; Amendment and to First right speak to the internal affairs officer’s at the time the clearly established affairs acted. the internal Whether subjected employ- adverse officer was action because of the exercise ment her of her or because content form improperly made speech was genuine- parte of an ex communication is material fact. We ly disputed issue of summary judgment therefore reverse proceed- for further and remand the case Gorsky (argued), Michael Bob Michael Baskett, Gorsky, ings. Cronig, Lyon, Lawrence According investigation; AND PROCEDURAL to Branton’s

I. FACTUAL and Popken apparently HISTORY Thomas had devel- oped animosity some towards each other case, before us for the second this stemming from their common ambition to Branton, time,1 Plaintiff, Deborah A. has become certified International In- by the Police De- employed been Dallas baton, in police structor of which there has been a ser- partment since She only thirty-five were Popken the world. geant the Office of Professional Stan- Monadnock, had been invited the baton (“LAD”), dards, Internal Affairs Division vendor who certified officers accord- decades, nearly 1989. After two her since ing to their level of knowledge profi- twenty- resume contained departmental baton, ciency the use of the try out one commendations no indication for applied city certification. He to the any reprimands for misconduct. Prior to funds to finance his travel to Colorado for action, leading up the events to this purpose. in charge officer denied investigation included the of inter- duties however, Popken’s application, because nal complaints and external filed Thomas had earlier been turned down for employees sworn and non-sworn of the request a similar after she claimed she had Department, supervising Dallas Police de- been apply invited to for certification. The IAD, assigned appear- tectives to the officer said that it would unfair be for the appeal hearings. at administrative At pay Popken’s way after it refused to hearings duty such it was her as an inter- Popken do so for Thomas. called Monad- investigator present nal affairs the find- nock and was told Thomas had never ease, ings investigation of her been invited or told that she would be investigative pre- turn over her file recommended for certification. Subse- officer, siding city manager, an assistant quently, Popken traveled to Colorado and to observe and ensure that no false or expense his own and became certified as inaccurate information was offered. Popken’s an International Instructor. new 1995, July Branton was to assigned recertify status authorized him to Interme- a investigate complaint filed Officer Hattaway diate Instructors such as and against DeLois Thomas Officers Thomas give Thomas to baton instructions to re- Popken Billy Hattaway. In her com- beginners. cruits or plaint, alleged Popken, Thomas that an “International Instructor” in Thomas’s internal affairs complaint the use batons, had a improperly accepted Popken apparently arose out of Hattaway animosity fee of from for baton in- their mutual and her perception $125 structions and training, partially Popken unduly delayed while on that had her recer- duty. investigation report Branton’s tification. Thomas told Branton When Popken accepting indicated that admitted had she been Lieutenant invited Hattaway Sapp check from but claimed Art to become an International In- $125 structor, up; only that he later tore it he said Sapp he Branton called to confirm however, check accepted story. Sapp, the so that he could hon- denied “invit- this estly ing” inform the international baton associ- Thomas to an International become Instructor, complied ation that he had with what he he responded but said had thought was its rule when inquiry expressing he certified to her interest be- Hattaway completed had the coming replied course. one and that she would Dallas, 97-11352, Dec.10, 1998). 1. See Branton v. No. 166 F.3d 339 Cir. to Davis’s brought this matter when she training additional complete to

first have City At- hearing, the during the nominating her. attention consider he would before upset. to be disturbed torney appeared and re- investigation Based on Therefore, her other intended to raise she suspended Popken port, Click testimony after Thomas’s concerns about discipline the appealed day. Popken one the stand and asked Thomas left a hear- November On imposed. be excused Thomas would Attorney when an As- before appeal was held ing on the City Attorney, ap- from the stand. Davis, ulti- Levi City Manager, sistant had that Branton still “irritated” parently matter; in the his mate decision-maker testimony, Thomas’s once before corrected final and unappealable. decision was Branton that such dismissively informed (not testified hearing, Thomas At the problem” but [her] concern was “not oath) her to Sapp had invited under attorney. Popken’s problem International Instructor. become excused, Thomas was Immediately after Branton, hearing as the attended the who hearing. As those Davis closed the officer, IAD considered investigating leave, Branton, in the to began attendance to be false testimony of Thomas City Attorney, requested presence of the departmen- of Chief Click’s contravention with Davis. speak opportunity regarding policy tal statement ethical City Attorney, and Davis excused had, in Although Branton truthfulness. inconsistency him of the Branton informed sub- responsibilities, her accordance with and Lieuten- Thomas’s statement between Davis, report investigative mitted her belief that ant disclosures and her Sapp’s knowledge that personal had Branton had testimony on matter Thomas’s hear- prior to reports Davis did not read attempt Branton made no been false. therefore, and, unaware that would be ings hearing or to influence the outcome falsely. Because one Thomas testified had appropriateness persuade Davis investigator was to as an IAD of her duties made no Popken’s punishment. Davis testimony given at an offi- ensure that inap- was their conversation indication that truthful, Branton said she hearing cial propriate. integrity of protect obliged felt report process and investigative Davis issued Mr. On December testimony. Thomas’s concern about one-day Popken’s reducing his decision In counseling.” suspension a “letter of to her that it was intent Branton testified addition, Popken be ordered that Davis with Davis about her concerns to tell out-of-pocket expenses his reimbursed for during hearing, testimony Thomas’s International Instructor related to his a confron- reluctant to but she was create continued to training, Department if the already had tation Thomas. Branton with certify baton request that he Intermediate testimony on a differ- Thomas’s corrected received the Shortly after he instructors. hearing after point during ent Thomas decision, Branton Click informed Chief some sort of impression created the that IAD out of being transferred she investigation involved collusion was she post-hearing because of the statement testified Popken’s misconduct. Thomas Although the Chief had made to Davis. Manuel Assistant Chief Executive conferring transfer rescinded the after allegations reduced one Vasquez had Bran- Attorney, stripped he City with the Branton against Popken. of misconduct an responsibilities and as ton of her duties stating that impression, corrected this her supervisor, rescinded investigator and change had her to Chief Click instructed other and authority supervise to detectives testified that allegation. Branton personnel, assigned city and her to handle the sistant managers after the conclusion complaints, job by “walk-in” IAD of a hearing viewed and outside the presence of investigators highly appellant as undesirable. More and his attorney. Sergeant placed Cunningham and importantly, perhaps, Corporal Senior Wallace testified that after an disciplinary report appeal administrative her hearing be- Davis, fore he open public, jeopardizes city file which is to the invited them and a attorney to his office for ability question- to further promotion her receive a or recov- ing. Crista Walker testified that investigator er status for at least Assistant three City Manager Mary Suhm had years, prevents initiated earning from over- such a post-hearing conversation with her.2 pay. time Branton also contends that she thought Branton claimed she had never been duty was her IAD officer on the policy advised of a against reporting case to inform the Assistant Manager city witness’s misconduct to an assistant any discrepancies in witnesses’ testimo- manager, produced and she deposition tes- ny and that it duty City, was her timony Corporal Nancy from Senior Wal- Department, and the to do so. Investigator lace and IAD Crista Walker Again, the testimony of other IAD investi- they knowledge too had no and were gators supports Branton’s claim. IAD In- fact, given training policy. no on such a vestigator Walker testified that it was both Chief Click Assistant Man- “part of responsibility” bring [her] false rule, ager Davis testified that there was no testimony light; Corporal Senior Wal- regulation, policy of the Dallas Police lace similarly. testified Department prohibited Moreover, post-hearing communication. she, times, Branton testified that at all post-hearing communication IAD between believed she was carrying goals out the investigators and assistant managers Click, and policies of Chief as outlined does not appear have been an unknown the Chief in his honesty and truthfulness practice in Corporal Dallas. Both Senior policy January statement on long Walker, Investigator Wallace and IAD in before this case arose. Chief Click’s mem- addition Sergeant Margie Cunningham subject orandum on the of “Ethical Stan- IAD, they testified that too had had dards of Conduct” was sent to all person- communications and conversations with unequivocal.3 as- nel and was clear and After Walker, however, examples testified that the honesty integrity extent of Be lives, professional question personal the conversation was one their Suhm thereby earning public trust. long as to how an officer had been in the The ethical standards of truthfulness and department. Further discussion was inter- honesty form the basis of confidence. rupted by City Attorney Assistant Prema Velu. Eveiy sworn officer not takes an oath "faithfully” office execute the duties of 3. Chief Click's on the memorandum ethical the office of Police Officer for the of standards of conduct states as follows: Dallas, we, but this oath is reaffirmed when officers, Department police The testify any Dallas Police Code of Con- are called to in duct, VIII, 8.3, 8.4, Chapter case we Section and swear tell whole truth and 8.5 nothing and but the truth. This specifically standard employees' address standards of aspects applies for truthfulness to all of our regards behavior and ethical conduct in duties, only testimony, not courtroom but honesty and truthfulness. The mission preparation of offense and arrest re- Department statement of the Dallas Police statements, ports, administrative internal prepared being which is for distribution everything say and in we and write while display specifically employ- and states that performing duties. This standard will our ees will: by be adhered all members of the De- at the appeared bottom: printed A motto of the Dallas sections pertinent

citing I Is You And Are Here Only Reason re- “The of Conduct Code Department Police of Dallas.” truthfulness, The Citizens To Serve honesty and garding that the mis- personnel all informed Chief deposition in his described Chief Click Department being of sion statement Ethical him to issue the what had caused will: employees state would prepared to all statement policy Conduct Standards honesty integrity and of examples “Be I of became chief personnel: “[After of his lives, personal and professional their ... that I saw too I was police,] concerned trust.” To this the earning public thereby that, I were officers what felt frequently stress- of his own added statements Chief during investigations, internal particularly honesty by police officers as complete evasive, truthful, than either were less confidence and earning public of a means remember, know, there wasn’t don’t don’t trust: lying just out and out in some or cases happened.” what about truthful-

(1) of ethical standards “The the basis of honesty form filed suit February and Branton ness On of § confidence.” under U.S.C. Click, alleging that Chief Dallas (2) [set truthfulness for “This standard First Amendment had her Click violated of office officer’s oath forth in each her for the exercise rights by punishing aspects to all testimony] applies court concerning speech free and content testimony, duties, not courtroom our police officer. testimony the false ar- offense and preparation in the but granted Chief Click’s The district court internal reports, administrative rest Rule motion to dismiss under partial statements, everything say and and in 12(b)(6) A immunity grounds. qualified on (em- our duties.” performing write while reversed and remanded. panel of this court added). phasis the district court issued discovery, After (3) be adhered “This standard will in favor of the defen- summary judgment Department, both all members dants, was Branton’s holding that employees.” and non-sworn sworn by the First Amendment. protected followed. present appeal (4) responsibility all must take “We professional this standard protecting II. OF REVIEW STANDARD dishonesty or conduct. Untruthfulness de novo the district There- We review will not tolerated. cannot and be summary judgment court’s conclusion fore, to be untruthful any employee found McElveen, will, cases, proper. be termi- Victor most or dishonest Cir.1998). reviewing 453-54 nated.” dishonesty cannot non-sworn em- Untruthfulness parlment, both sworn and Therefore, any em- ployees. will not be tolerated. overwhelming recognize majority I that an ployee be untruthful or dishonest found to Department are hon- will, cases, of the members this be terminated. in most this, hardworking. As a result of est Department will remain Dallas Police pride the De- should take each member providing the finest in committed integ- outstanding reputation for partment’s service. internally honesty, both rity and R. Bennie Click /s/ throughout community. Bennie R. Click protect- responsibility for We all take must Chief of Police professional of conduct. this standard

739 146, summary judg can, at grant the district court’s of 461 U.S. 103 S.Ct. 1684. If it ment, disputed we must view all the facts employee’s we must then balance the in- light in a and reasonable most terest, inferences citizen, as a in commenting upon non-movant, Branton, to the favorable public matters of concern against “the in- whether she has set forth suffi determine State, terest of the an employer, as cient evidence to demonstrate promoting efficiency of public ser- im speech public concerned matter of performs through employees.” vice[s] its and, so, if port whether Branton’s interest Rankin, 388, 483 U.S. at 107 S.Ct. 2891 in speaking outweighed city’s interest (citing 568, Pickering, 391 at U.S. 88 S.Ct. efficiency. Id. Summary judgment is 1731). if the appropriate movant shows there genuine no fact

is issue of material It jury is for a any resolve re 56(c). trial. To Fed.R.Civ.P. withstand maining disputes factual as to whether show, summary judgment, Branton must plaintiffs protected speech was a substan affidavits, depositions, answers to inter tial or motivating factor in the adverse file, rogatories, and on admissions decision, employment or whether the em specific genu there are facts that create a ployer would have made employ the same Corp. ine issue for trial. Celotex v. Ca ment decision in the pro absence of the trett, 317, 324, 2548, 477 U.S. 106 S.Ct. 91 Mason, speech. tected Gardetto v. 100 (1986). L.Ed.2d 265 (10th 803, Cir.1996). F.3d 811 III. FIRST AMENDMENT CLAIM A Public Concern It is well that a gov established employer ernmental “cannot condition of public Matters concern are public employment on a in basis those which can fairly “be considered as fringes the employee’s constitutionally pro relating any social, political, matter of tected interest expression.” freedom of other concern community.” Con 138, 142, Myers, Connick v. 461 U.S. 103 nick, 146, 461 at U.S. 103 S.Ct. 1684. (1983). 1684, S.Ct. 75 L.Ed.2d 708 We speech pertaining While per internal plaintiffs review the First Amendment re disputes sonnel working or conditions taliation claim four-step under the de test dinarily concern, will not public involve id. rived from Connick and Pickering v. 148, 1684, at 103 S.Ct. “eom Education, 563, Board 391 U.S. 88 S.Ct. plain[ing] of misconduct within the (1968). 1731, 20 Teague L.Ed.2d 811 v. ... department speech addressing [is] Mound, 377, Flower 179 F.3d 380 public Thompson matter of concern.” v. (5th Cir.1999)(quoting Harris v. Victoria Starkville, Mississippi, 901 F.2d Dist., (5th 216, Indep. Sch. 168 F.3d 220 (5th 456, Cir.1990); 463 Wallace Texas Cir.1999)). Univ., (5th Tech. 80 F.3d 1051 Cir. 1992). “Speech any which discloses evi questions

The first two legal are corruption, dence of impropriety, or other nature and are for the court to resolve. part malfeasance on the ... officials Connick, 147-48, See 461 U.S. at n. 103 1684; import.” concerns matter 380; Teague, S.Ct. 179 F.3d at Lee, (5th Thompson, (quoting Cona Coughlin v. 946 F.2d Cir.1991). Smith, way v. 853 F.2d Initially, we must determine Cir.1998) curiam)). employee’s speech (per making whether can this be determination, “fairly “content, constituting speech characterized as consider Connick, form, on a statement, matter of concern.” given and context of a 740 taken, by acts Connick, improper to speech related record.” by the whole

revealed matter of as a 147-48, 103 qualified officers public S.Ct. at 461 U.S. Wood, 27 F.3d v. concern. Schulte a public em public of a content Cir.1994) (“No (5th reasonable 1112, 1120 con public relate to may speech ployee’s assumed in 1992 could have public official First Amendment of purposes cern employee an could retaliate that he solely per involve if it does analysis of disclosure employee’s of the because a discussion of strictly matters sonal offi public of misconduct instances interest that is policies management 47 cial.”), grounds, on other superseded manager’s of a by virtue public ing to (1995)(en banc); see also Ben F.3d 1427 Connick, government. arm of status as an Wilson, 375-77; 973 F.3d at ningfield, 157 1684; Kennedy 147, 103 S.Ct. at 461 U.S. at 463. 1270; 901 F.2d Thompson, F.2d at Bd. Library Con Parish Tangipahoa v. of misconduct, especially of official (5th Exposure Cir.2000)(citing 359, trol, 372 224 F.3d 1263, generally Ctr., department, is within the 973 F.2d Health v. UT Wilson Cir.1992); public. (5th Terrell v. Univ. to great consequence 1269 of of 1360, Police, Richardson, n. 5 F.2d 1362 792 855 F.2d Sys. Texas v. Brawner of (5th Cir.1986)). speech to releasing Cir.1988). “If (5th per is 187, “There 191-92 populace of inform the public would con public of of matters haps no subset em employee’s an fact of more than the of purposes important, [for more cern’ the content grievance, ployment speech of protection First Amendment Kenne in nature.” may public be bringing official than public employees,] Thompson, 901 (citing 372 dy, 224 F.3d at Davis v. Ector light.” to misconduct 5). employees “Public F.2d at 463 n. (5th Cir.1995); 777, 40 F.3d 782 County, may employment, public of their virtue 1038, Morgan, 136 F.3d also Denton v. see de contributions make valuable (5th Cir.1998); F.2d Thompson, 901 1043 Benavides, F.2d 774 v. bate.” Gonzalez at 463. Cir.1985). (5th 1295, The nature of 1299 principles of the relevant Applying does not exclude employment their con reasonable law the evidence with concern private issue possibility that inferences in favor of drawn an issue of structions may also be employee non-mover, Branton, we conclude Id. at 1305. “Nei public. concern content, form, our of her state nor and context Amendment itself [First] ther ... City Manager, [of freedom re decisions indicate the Assistant ments to who employee the public is speech] lost to be dishonest perceived what she porting with privately to communicate arranges at a police officer testimony of another spread than to his rather employer his hearing, was a matter disciplinary v. Givhan West public.” views before the speech oc Although concern. Dist., 439 U.S. Line Sch. ern Consolid. work, job required at because her curred 415-16, 619 58 L.Ed.2d S.Ct. 99 testimony at official report false her to 374; (1979); 224 Kennedy, F.3d see also only an invita Branton had not hearings, Wilson, 467; F.2d at Thompson, 901 Thus, con speak. “the duty tion but a 1265; v. Benningfield F.2d at favor.” Victor weighs h[er] text factor (5th Houston, Cir. 157 F.3d 373-74 (5th McElveen, F.3d Univ., 1998); A&M v. Texas Brown Burkhart, 632 Cir.1998)(citing Bickel v. Cir.1986). (5th 327, 337 F.2d Cir.1980)). According 1251, 1252 statement Click’s own written that, to Chief at the undisputed It is extremely it is Department policy was Police employment action time the adverse

741 public public the important police employer’s officers the enterprise.” Ran- duties, kin, in all aspects 388, be truthful their 483 U.S. at 107 S.Ct. 2891. “In- courtroom, “every in the but not in work, terference with personnel relation- thing [they] say,” including “administrative ships, or the speaker’s job performance internal statements.” In the words of can detract from the public employer’s (cid:127) Click, honesty Chief and “[TJruthfulness function; avoiding such interference can public form basis of confidence.” The the strong “[R]eal, be a state interest.” Id. policy important is admirable and Chiefs imagined, disruption is required, and itself, because officers who are con the working ‘close relationship’ exception stantly trained and reminded to truthful be cannot pretext serve stifling legiti- as ” [they] say” in “everything will less like be speech.... mate McKinley ly give false evidence court or fabri Cir.1983). Eloy, 705 F.2d 1115 might cate endanger statements respect, this the defendants fail to dem- of innocent citizens. liberty onstrate, dispute without as to material facts, a state interest that outweighs Bran- Pickering B. Balancing Test ton’s First rights. Although Amendment Because Branton’s statement Branton’s statement was made at concern, a matter of addressed workplace, genuine there is a dispute as to Pickering next requires that balance whether it interfered with the efficient in making Branton’s interest state functioning of police department. State, ment “the interest of the as promoting efficiency employer, Viewed in the light most favor performs through Branton, services its able to the evidence of record Pickering, employees.” 391 at U.S. shows that Branton’s statement caused no employee’s 88 1731. The S.Ct. statement unanticipated delays disruption or or inter vacuum, is not considered in a however. ference with disciplinary proceedings Rankin, 483 at U.S. 107 S.Ct. functioning or the police depart “In performing balancing, ... the ment. Chief Click deposi admitted his time, manner, place employee’s of the tion that he had no evidence and could cite relevant, expression are as is the context no facts which showed that Branton’s dispute which the arose.” (citing Id. adversely efficiency statement affected the Connick, 152-53, U.S. 103 S.Ct. or morale of police department. 1684; Givhan, 439 U.S. at n. City Manager Click and Assistant Davis 693). Supreme S.Ct. “The has Court rec rules, regula testified that there were no ognized pertinent as considerations ‘wheth tions, operating procedures or standard impairs discipline by er the statement su prohibited investigating IAD officers co-workers, periors harmony among has from reporting misconduct or false testi a detrimental on impact working close re mony to an City Manager Assistant lationships personal loyalty for which Moreover, they Branton had done. testi necessary, confidence are or impedes the fied that there had been no effort to train performance speaker’s of the in duties or IAD or instruct the officers on what was regular with the operation terferes expected of them in connection with disci ” Victor, enterprise.’ 150 F.3d at 457 plinary hearings. Although Chief Click 570-73, (quoting Pickering, 391 U.S. at 88 said he had not been aware of other such 1731). S.Ct. between IAD communications officers assistant city managers, state interest consider there was evi ations focus on functioning city managers the “effective of dence that the assistant IAD the conduct of authority regulate communi- allowed such attorneys had or re- during disciplinary appeals a reason- officers Consequently, to occur.

cations conferences, no evidence find or infer lated he offered facts could trier of the able not why lack of as to he could that, explanation claim of or the Chiefs despite practice perceived the the actual custom have remedied institutional knowledge, by the IAD officers permitted post-hearing shortcoming providing department of the instructions, and the training, regulations IAD officers or between with conferences was no city managers. There There was no evidence subject. assistant on the efficiency or morale of that the or have evidence that the IAD officers knew should had been contrary or its officers department practice the the was known that prac- adversely by rules, affected that custom or regulations, or department police Bran- tice. was no evidence that policy. There inor bad knowingly improperly acted ton that, Further, in addition Davis testified Consequently, a reasonable trier faith. Pop- hearing the officer in Officer being imposition fact find that the Chiefs could case, primarily responsible ken’s he was on Branton individu- punishment of severe day-to-day opera- the administering recommending or ally, adopting instead of police departments; and fire tions of the instruction, rule, op- or regulation, a new delegated been execu- that in effect he had investigator- erating governing procedure department authority police over the tive in disciplin- city manager communications Thus, city manager. by and its chief the cases, against in fact ary retaliation the chief does not establish that record and content of Branton for the exercise au- had exclusive or autonomous police may that have contributed to her for their con- thority discipline officers suspension the reduction of the Chiefs acting investiga- witnesses or duct while discipline than for the Popken, rather city managers assisting the assistant tors post-hearing time and manner of her if the especially disciplinary appeals, city manager. to the assistant statements innocently acting accord officers were by the assis- procedures with established any not Although Branton did violate managers. city tant rule, regulation, police department known that policy, or Chief Click testified professed to have Although Chief Click against her action taken was warranted knowledge previous post-hearing no through have because she should known investiga- communications between IAD experience her her common sense and at disci- city managers tors assistant city manag- IAD parte ex officer/assistant inquire into plinary appeals, he did would lead to unfair er communications procedures or practices established of confidence and morale hearings loss city ascertain managers assistant to all of among police officers. addition modify authority he had the whether factors recited above tend to the other record procedures unilaterally.4 their The argument, assumption undermine this city he consulted the attor- reflects that i.e., based, police upon which is Branton ney only he had ordered after disciplinary appeal internal IAD; department’s sanction he out of the transferred appeal a trial or an closely replicates receiving legal after advice. As- modified law, not borne out the rec- court of is suming the Chief had been allocated manager regulations, city provides and orders as the City Charter that the Dallas Charter, depart- police's may prescribe....” "control of Dallas Ch. chief ment, city XII, added). subject supervision to the of the (emphasis [is] § 2 rules, subject manager also [is] IAD Testimony disciplinary present ord. at the hear- officer to such information IAD ings is not taken under oath. The to the Assistant Manager during the investigating presents officer to the assis- disciplinary hearing. The Chief and the city manager, investigative tant total city attempt justify the severe adverse in support disciplinary charges file against actions taken by arguing Branton The IAD appellant. officer’s parte ex communications from the investigative file consists of summaries of IAD investigators to the assistant having with persons her interviews various managers may affect the integrity of the knowledge relevant to the case. The ap- disciplinary hearings and the morale of the pellant, with or without the assistance of police agree goals force. We that their are counsel, opportunity is offered an to re- laudatory, objectives but these doubtlessly hearing, At end of spond. the the could be achieved more constructively and un- manager assistant takes the case effectively by adopting rules and regula- advisement, investigative der considers the tions, or by providing the IAD officers heard, in testimony file and the and due with training, instructions and instead decision, fur- course renders which is not imposing employment harsh sanctions that appealable. ther The police department’s violate the First rights Amendment of an disciplinary appeal a resembles less than innocent, well-intentioned gov- individual hearing formal administrative more than a employee. ernment fully formal proceeding. adversarial court Moreover, maintaining concerns about in light Construed most favorable to harmony eliminating disruption and cannot Branton, the record contains no evidence of government be the sole measure inter- that Branton made statements in bad faith employee’s speech est when the furthers or with disrupt an intent to hearing important other state For interests. ex- department’s operations improp- for an Center, in ample, Wilson v. UT Health 973 er reason. Branton’s remarks were made Cir.1992), the defen- in response to what she considered her argued police dant that a officer’s interest officer, duty police as a pursuant in reporting sexual harassment within the urging Chiefs memo responsi- individual department outweighed police bility for honest law enforcement and force’s in eliminating interest dissension special IAD capacity investigat- as the providing police protection. and efficient assigned officer to the case to assist in concluded, however, This court if that a seeking the truth. jury determines that the officer “re- Viewing the facts from the ported faith,” summary in good sexual harassment judgment then the record and therefrom maintaining state’s “interest inferences Branton, police force that is free intimi- in a light of sexual most favorable to we dation, good reports [her] which faith speech conclude not that Branton’s serve, would outweighs any interest in de- addressed a matter of concern but partmental efficiency harmony.” Id. Pickering balancing also that under the test, Branton’s in speaking interest out-

Similarly, good faith com- weighs the defendants’ interest efficien- very important ments serve a state inter- cy. Consequently, her conduct falls under prevention per- est—the or elimination of protective aegis of the First Amend- jury, testimony, corruption other false Accordingly, ment. the district court within law municipal depart- enforcement fact, in granting summary judgment ments. erred agrees Chief Click that it would be entirely proper salutary grounds. for Click on these Chief right clearly is estab- mining whether a IMMUNITY QUALIFIED

IV. it would be clear to is whether lished has established Branton Because that his conduct was reasonable officer practice summary judgment purposes of he confronted.” unlawful the situation Amend- her First violated that Click Layne, 526 U.S. (citing Id. Wilson under current to free right ment L.Ed.2d 119 S.Ct. law, argument next turn to Click’s (1999)). immunity be- qualified entitled he is his conduct was governing law cause the require not This does when the conduct clearly established upon precise agreed must have courts was, and, occurred; alternatively, if Id. “Assum of the standard. formulation believed, in could have officer a reasonable instance, courts various have ing, for law, that his clearly light of the established a constitu certain conduct is agreed that was lawful. conduct distinguish facts not tional violation under presented the facts way in a fair from able upon required to rule A court hand, the officer would not in the ease at immunity issue must consider qualified the immunity qualified based be entitled to “Taken in the question: this threshold that courts had simply argument on the asserting party the most favorable to light formulation of on one verbal agreed alleged show the injury, do the facts Id. at 2157. controlling standard.” a constitutional conduct violated officer’s initial inquiry.” right? This must be just determined Although have Katz, 194, 121 533 U.S. S.Ct. v. Saucier law present that under Chief Click’s above (2001) 2151, 2156, (citing 272 150 L.Ed.2d action Bran- punitive employment 232, 226, 111 Gilley, v. 500 U.S. Siegert speech pointing of her out ton because (1991)); 1789, see 114 277 L.Ed.2d S.Ct. another officer violat dishonest conduct (5th Roark, 364, 256 F.3d 369 also Price v. Amendment, question re ed the First Cir.2001). right “If no constitutional clearly was established mains whether this allega were the have been violated would 1997, decided to January of when Click established, necessity for there is no tions investigative affairs strip her of all internal concerning qualified im inquiries further taking and to her to down relegate duties Saucier, 121 S.Ct. at 2156. “On munity.” that, at complaints. We conclude walk-in hand, made if a could be the other violation time, right had been de parties’ a favorable view of the out on specificity of fined at the level appropriate submissions, next, sequential step is that a could determine that was so court clearly estab right whether the ask and that its contours clearly established Price, Id.; 256 F.3d at see also lished.” a sufficiently clear so that had become emphasized Supreme has 369. “ Court situated, official, identically reasonable alleged to right the official is ‘that the doing he understand that what was would clearly been es have violated must have right. violated that particularized, in a tablished more thirty-four years, it has For at least relevant, sense: The contours hence more state cannot condition been settled a sufficiently clear that must be right in a basis that public employment on understand that official reasonable would ” constitutionally pro employee’s fringes the right.’ doing what he is violates expression. of tected interest freedom Saucier, (quoting at 2156 121 S.Ct. Regents, 385 U.S. 640, Keyishian v. Bd. 635, See Creighton, v. 483 U.S. Anderson of (1967). 675, (1987)). 589, 17 L.Ed.2d 629 3034, 87 S.Ct. 97 L.Ed.2d 523 107 S.Ct. 573-75, 88 Pickering, In 391 U.S. S.Ct. relevant, inquiry in deter- dispositive “The

745 1731, member), held that council Supreme superseded Court on other having (1995)(en banc). free debate on public interest grounds, 47 1427 F.3d In core value public matters of concern—the Brawner, 191, 855 F.2d at we held that a of the First Speech of the Free Clause police officer’s communication in his attor great public so Amendment —is ney’s accusing letter police department on right speak school teacher’s matters of non-criminal investigations journal public may not furnish the importance ists, citizens, and candidates for coun public employ for his dismissal from basis cil addressed matters of public concern. following ment. The Court’s cases Picker “The by public disclosure of misbehavior protecting speech gov also involved officials is a matter of public interest and employees ernment on matters of therefore deserves constitutional protec Sindermann, Perry v. 408 concern. U.S. tion, especially when it concerns opera (1972) 593, 2694, 92 33 S.Ct. L.Ed.2d 570 police department.” tion of a Id. at 191-92 (state college right testify teacher’s be Benavides, (citing Gonzalez 712 F.2d legislative fore committees debate (5th Cir.1983); 142 Royal Solomon v. Oak regarding college whether should be ele Cir.1988); (6th 862, Township, 842 F.2d 865 status); four-year Mt. Healthy vated Caledonia, rien v. Town 748 O'B Bd. Doyle, Sch. Dist. Educ. v. (7th 403, Cir.1984); Brockell v. U.S. 97 S.Ct. 50 L.Ed.2d Norton, 732 F.2d (1977) (public right school teacher’s to leak Cir.1984))(footnotes omitted). administration’s bond issue related dress station); code teachers to radio Denton, 136 F.3d at we held Givhan, 410, 693, 439 U.S. 99 S.Ct. 58 that in September January of 1991 and of (1979) (public L.Ed.2d employee’s 619 1992, juvenile probation when officers were right private to expression employer to of by fired a going school district for over its policies). views on school district’s racial report perceived heads to wrongdoing by Connick, 147, In 461 U.S. at 103 S.Ct. agency, the district to the state education found that improper pres the Court they right had a constitutional to address attorneys sure on assistant district to work that public “[Sjpeech matter of concern. political campaigns in a public is matter of misconduct, reporting wrongdoing, official public concern but concluded that when a part public or malfeasance on the of offi- employee speaks per on matters of cials involves matters of public concern.” interest, employee’s griev sonal such as an Wilson, (citing Id. at 1043 973 F.2d at job ance on a transfer a and not on matter 1269; Schultea, 1120; Brawner, 27 F.3d at concern, unprotect of that is 192). 855 F.2d at ed, absent the most unusual circumstances. Texas, County, Warnock v. Pecos 116 This Court of Appeals has further clari (5th Cir.1997), F.3d 781-82 we held public employees’ fied the contours of judges’ that state decision not to reappoint rights First Amendment free speech county auditor violated the First report employees misconduct fellow Amendment, that relevant First officers. have held that public employ We Amendment clearly law was established misconduct, speech reporting ees’ official judges when the made their decision wrongdoing, part or malfeasance on the of firing county a auditor for public employees pub involves matters of reporting objective of violations the law is Wilson, lic concern. 973 F.2d at 1269 And, in ly King, unreasonable. Frazier v. (reporting by superiors); sexual harassment Cir.1989), a, 873 F.2d 827 we denied (report ulte 27 F.3d at 1119-20 Sch ,a ing suspected activity city qualified immunity criminal the warden state factor in the adverse motivating registered a was fired center who correctional suffered, action she the deter- employment established clearly in violation of nurse a nursing prac genuine that issue turns on mination of report violations right fact, Thomp proper infirmary. See also material and is a dispute in the tices son., (denying qualified trial, at 468-70 for resolution sum- for issue who terminated police opinion officials no immunity to intimate mary judgment. We filing grievances written officer for police litigation. ultimate merits on the promotion poli department’s to the in- related simply hold that the district court We about making complaints oral cy for at summary judgment correctly granted Harris, misbehavior); 168 F.3d the record before us. this time on immunity (denying qualified 223-24 reasons, summary judg- For these reprimanding superintendent school RE- and the is ment is REVERSED case remarks who made critical two teachers proceedings. for further MANDED and stat principal the school’s 1995 about are not insulat Defendants ing “[t]he SMITH, E. Circuit Judge, JERRY conduct their unconstitutional ed from dissenting: involved balancing is merely because test and the district court argue, Defendants analysis”); Amendment] [First our found, Davis report was Berger & Ivan E. Bodensteiner Rosalie with public. Agreeing of no concern Levinson, Civil & Local Government State assessment, respectfully I dissent and (2000) (cit § 1A:05 n. Rights Liability affirm. would circuits). from all cases opin merely communicated her Branton cases, foregoing reviewing After regarding had lied an ion that Thomas that, spoke at the Branton conclude time In invitation to become International out, under facts clearly established matter, that independent As an structor. way in a fair from the distinguishable “not obviously public import, content no is hand,” case at that Branton’s facts not concerned with Thom for the is testimony by a fel- speech revealing false regarding baton instruction. as’s ambitions that protected and police low officer was po involved If the communication serious quali- “the would not be entitled officer however, corruption, it lice misconduct immunity simply argu- fied based on Thus, concern. public would of be agreed had not on one ment courts Richardson, F.2d Brawner v. 855 of controlling stan- formulation of the verbal (5th Cir.1988), this court stat 191-92 Saucier, 121 S.Ct. at 2157. Conse- dard.” by of misbehavior ed that disclosure “[t]he reasonably objective public offi- quently, a public is a matter of inter public officials cial, identically Click’s situated deserves est and therefore constitutional would have known that adverse position, especially when it concerns the protection, employee employment action department.” a testimony operation police of concerning for false speech clearly a fellow officer would violate an al- correctly urge that Defendants right. There- established constitutional testimony at an adminis- leged during lie fore, are entitled the defendants here not concerning purely inter- hearing trative on their claim of summary judgment (i.e., matter a matter that did police nal immunity. qualified safety mission of public not concern public is not police department) of ultimately While Branton must if point out even concern. Defendants content of her prove that the exercise and manner, hearing be potentially a lie at such a could rather than its time and speech, concern, Thompson it is of no such concern The court went on public to note that completely tangential it is and irrele- when allegations the case involved of widespread purpose hearing. vant to the police misbehavior within the force “which potentially could public safety,” affect such if an officer lied about his example, For allegation fact that it at a as the that certain age, police might occurred officers hearing administrative would not elevate respond to a request backup of a that content a matter of concern. public black officer. Id. at 466. Thompson’s Here, requested whether Thomas was to recognition that the facts of Brawner were ir- become an International Instructor is different, and its potential discussion of the Popken’s wrongdoing. relevant to public interest in specific speech under Branton, court, citing language of this consideration, demonstrate that any during counters that falsehood testi- broad reading of Brawner is not the law of mony police hearing, at a administrative this circuit. relevance, regardless police is miscon- Branton’s contention that every breach public duct and therefore is of concern. of internal employee public rules is of con- majority apparently agrees, emphasiz- merely place cern because it takes within a ing who are “because officers police department supported is neither constantly trained and reminded to be precedent by logic. our nor accept- Even [they] truthful in ‘everything say’ will be likely give less false evidence court or all of Branton’s factual assertions— that might endanger fabricate statements namely, that truly thought she Thomas liberty of innocent citizens.” lied, had that she no specific breached department guidelines by speaking when Brawner, In speech this court held that did, she in good she acted faith regarding illegal police investigations of politicians public citizens and was of con and out of no ill motive-—-the content of her Brawner, cern. F.2d at See 189-90. concern, speech was not of speech complained “Because the at issue fails, therefore her First Amendment claim police department, misconduct within the without need to address the issue of speech addressing should be classified as the interests of employer quali- or of a matter of concern.” Id. immunity. fied Starkville, Thompson judgment This court should not sit in 456, 463, Cir.1990), we held personnel actions that do not violate the that there a fact issue whether respectfully Constitution. I dissent. alleging property theft of confiscated police depart- racial discrimination

ment constituted a matter of con-

cern: held,

This court has albeit under differ- facts, “complained

ent that where speech police depart-

of misconduct within the

ment, it should be classified as

addressing a matter of concern” If

[citing Brawner released to the ]. ex-

public, Thompson’s affidavit would

pose possible corruption City.

force of the

Case Details

Case Name: Branton v. City of Dallas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 9, 2001

Citation: 272 F.3d 730

Docket Number: 99-11206

Court Abbreviation: 5th Cir.