HAMILTON, Circuit Judge.
Brian is a police detective in Manitowoc, Wisconsin. Swetlik sued the Manitowoc, City of mayor, its and mem- Council, bers of alleging its Common his violated First rights Amendment by voting to file a charge termination the Manitowoc Police and Fire Commission. The after an voted out- already had tak- Swetlik and other officers investigation recommended side county jail finding suspect termination for book- based on its that.he en the had untruthful been discovered ing. When argues that chief. this, jail spoke he called the his actually in retaliation for charges were Swetlik. chief, which he made criticism the telephone This call is at heart of this support- member a union capacity great Swetlik said a deal about dispute. chiefs union’s ing the demands call, publicly pri- both and Fire Commis- resignation. Police eventually that it vately, before he learned charges against sion later dismissed *4 of had been recorded. The actual contents peri- he after a and was reinstated Swetlik longer disputed. no the conversation are In the paid od administrative leave. of call, During Kingsbury explained the Chief end, the chief who lost actually it was get the suspect that he wanted to the job. meal, but Swetlik said the home-cooked summary granted The district court jail permit not outside After food. would finding for judgment the suspect’s learned that the book- Kingsbury protected speech be- not already begun, ing process had the conver- of did address matter cause proceeded sation as follows: and, the alternatively, that public concern Okay. process, bring the Stop Chief: bringing charge justified the back, ques- some more got him we’ve the recommendation against him based on to do. tions investigation. agree the with the I him if he Okay. Swetlik: Should ask ground and court the second district to, not? might wants to—if he wants that basis. affirm on Well, just just—why—why Chief: — Background I. Factual and Procedural just hey, sor- say can’t we we—I’m grant reviewing forgot, got Because we are more ry, we we’ve a few judgment, the summary we must view you— is to ask and there —do questions fa reasonably in the most light evidence the you coming mind back over to do non-moving par to Swetlik as vorable question? department to answer him the ty, give we must benefit and if he suspect then asked the [Swetlik in his inferences favor. See reasonable to station wanted come back Trent, Hanners mother; said suspect food from his Cir.2012). In November the Manito food; got not want he did man police brought custody into woc Kings- on the Chief back police stabbing officer. suspected bury] controversy begins in this central case The you do what I asked So didn’t Chief: involving this sus with an odd incident talking to do. started about you You custody. suspect The pect’s appar you say What I asked to do is the food. eat, police refusing officers ently back and ask hey, you coming mind over For mentally he was unstable. believed forgot some- questions, a few we unclear, Per that are Police reasons Chief you okay, And went about thing. that’s ry arranged suspect’s for the way, now he doesn’t your it but—and bring him a meal mother to home-cooked just get him anything so let want at But the chiefs police station. booked— relayed to the officers wishes were get ... let him booked and whatev- Just suspect jail, including Swet taking the Okay? arrived, happens. happens, meal er—whatever lik. Before home-cooked Okay. jail staff suppose[d] He’ll—he’11—he’ll visit tell the the chief Swetlik: later, just—he say with her told him to lie and there were more questions be asked. The officer re- Whatever. Chief: said, “I fused the chief will deal don’t don’t—he want to eat Swetlik:—he you done. Nothing later[.]” anything. Well, I understand that but Chief: we— city hall pres- union marched to might get have been able to we—we grievances ent of 37 its list to demand meal, okay. okay, But that’s might we Kingsbury. resignation They not have been. presented grievances and demand to Okay. Swetlik: Council, mayor, the Common ya Chief: We’ll catch later. members of Police and Fire Commis- sion. Kingsbury responded by arranging Okay. Bye. Swetlik: session mediation between union and interpreted the chiefs words as deputies. one of his After mediation jailers by telling to lie to the instruction failed, Kingsbury sought to have an out- to question them that wanted *5 investigation veracity side into the of the suspect further. He also misunderstood complaints. union’s He private and his at- the chiefs final to be “I words will deal torney possibility discussed the with the you later” them and took as a threat. mayor, the agreed and three that an inves- upset. Swetlik was He told the tigation the purpose getting “to the who officers were with him that Chief complaints heart of the from the view of an Kingsbury had told him to lie and had investigator” outside appropriate. would be him doing threatened for not so. Later Kingsbury sent a mayor letter to the for- day reported he the same to a deputy mally requesting investigation into the police, chief of apparently who took no complaints union’s him against and the complaint. action on Swetlik’s department. mayor agreed The and the only Swetlik was not the one who had city attorney hired an investigator, outside complaints about Kingsbury. Chief the law firm of Stevens, DeWitt Ross & police union took a no vote of confidence in S.C.1 early and a compiled ‘ In authorizing investigation, the the grievances list of and the gen- mayor explained purpose that its was to eral operation of the police department “bring long-debated this in our issue com- regard public safety depart- munity by close” investigating ment morale. Swetlik added the griev- this “alleged complaints ance to list: the accusations Perry Chief Kingsbury and his Chief has told to lie officers to other administration, (Golden Attack)[.] and all related issues and agencies A suspect incidents.” Swetlik maintains that the stabbing was taken to MTSO after the purpose investigation of the was to an officer silence being [of] and while booked union, the pointing an officer to statements bring called and told him to suspect private attorney back PD represented to the for a who home- Chief meal suspect[’]s Kingsbury throughout cooked from the investigation. moth- er. When the officer attorney asked what he was The investigators: told the city The evidence investigation. indicates that selected ner was not involved in the on this firm dispute pri- recommendation of the Swetlik does chief's private attorney, attorney chief's only private who recommended vate served as his attor- specific partner senior part- ney. at the firm. That is no lied to [Swetlik] that much doubt you got [union] [T]here have “When on, every- allegedly officers the Chief you bopping other going can’t noise instructing him to lie to the sheriffs wouldn’t have body. [the Chief] He one, who, threatening department deputies and how? Which department. failing Perhaps do so. more guys reason are in here is him for you of the Part second, however, first, is that importantly, Detective help us sort out [who’s] enough just running Sergeant Swetlik allowed those lies to be It’s hard and third. figure brought all forth to the trying perpetuated out the PD let alone Commission, attorney chiefs also Police and Fire the Com- intrigue.” The investigation exempli- mon Council and this in an investigators that Swetlik told the removal union’s and that he had effort to seek the of Chief agenda fied the only It after Kingsbury. was he learned “poisoned” attitude. the entire conversation record- was next the law firm con- year, Over copy through ed and obtained more than 80 interviews. Swetlik ducted process, that he forced open records interviewed three times about allegations. of the part to retract allegations that call and his Nonetheless, clung still to the him for not Kingsbury threatened Chief allegation that the instructed him jail- to lie following his instructions deputies despite to the to lie Sheriffs interviews, he had though, Before his ers. convincing evidence to con- clear and of the recording to the conversa- listened trary recording. contained on interview, During first tion. *6 investigators presented report The the not Kingsbury that did conceded Chief to the and recommendations Common actually say the that he had earlier words (“I unanimously The to Council. council voted will with claimed were threat deal to termi- later”). bring the recommendation adopt Still, that you Swetlik maintained charges Kingsbury both and nation had him to lie to the Kingsbury directed vote, (The investigators After the Swetlik. this jailers suspect. rather than to the The charges. to formal prepare were told assumption by parties all is that shared presented formal investigators accepted part of is an deception suspects charge statement to the Common Council law interrogation, of but that enforcement other.) meeting on November at a second council must be officers honest each council, 5, includ- majority A of the rec- investigators’ report ultimately The charges. mayor, to file the ing the voted mayor to and the council ommended the aldermen, end, Brey and the In two that both Swetlik and Kingsbury Chief Tittl, file the not to agree did (as officer). terminated well as another though they initially had voted charges, regard report to the ad- Kingsbury, With later Brey Alderman testified: favor. allegations against over a dressed dozen re- you time went reread the found most valid. As on him and that were Stevens, DeWitt, Ross & and it from findings, port on those recommended Based recollection, my is my own—this for “inefficien- even that be removed it, misconduct,” me it you more read more to cy,” “malfea- “official and Swetlik, at- start regard When we sance in office.” With to became frivolous..... inci- for little tacking people’s characters report recommended termination be- to the that seem to be irrelevant had call den[ts] cause he lied about just thought I this became big thing, a de- Kingsbury, lying and violated report witch hunt. partment rule. The said:
824 by granted that “witch hunt” he activities. district court
Brey clarified sum- brought defendants, that the concerns to the mary meant judgment by the union members Common Council appeals. investigation the main “focus this Immunity II. Absolute DeWitt, Stevens.” He did not Ross & because, rereading sign charges “after Defendants raise a threshold de report, I rereading determined case, arguing they fense the entire are allegations just Lot that the that. prosecutorial entitled to absolute immuni were allegations them and not based on ty. reject this defense. Prosecutorial
fact
of law.”
or violations
immunity applies
prosecutorial
actions
Alderman Tittl
later testified
he
“intimately
are
associated with the
thought
charge
Swetlik was
judicial phase
process.”
the criminal
trying
“ridiculous” and “felt that the Chief
Goldstein,
335,
de
v.
555
Kamp
Van
U.S.
get
guy
a home cooked meal and 341,
855,
(2009),
825 (1) speech his was consti- prove do not af- must that: fer, terminate —and and (2) he a tutionally has suffered protected, any particular role prosecutor’s fect the (3) deprivation likely speech, to deter sufficiently relat- generally are not matter a factor speech motivating was at least prose- conduct of ed to the initiation and Burch, employer’s in the action. Peele v. role as an court of law or their cution in a (7th Cir.2013). 956, Only the 722 F.3d 959 qualify for abso- of the state to advocate disputed in case.2 first element is v. immunity.”); also Forrester lute see 219, 229, 538, White, S.Ct. 98 108 484 U.S. public employee’s speech For (state (1988) “was judge act- L.Ed.2d 555 protected to be under First Amend when capacity he ing in an administrative (1) ment, employee must show that offi- discharged” probation demoted and (2) citizen, private made the as a speech to abso- cer therefore was not entitled speech public matter of addressed immunity). To for a different argue lute (3) concern, in expressing his interest our result, point only to deci- defendants by the speech outweighed Bank, Henry City v. Farmer State sion in “pro as an employer state’s interests (7th Cir.1986), 1228, but the 1238 808 F.2d ser moting public effective and efficient extended prosecutorial immunity we Sheahan, v. vice.” Houskins attorney for the attor- state’s there was Cir.2008). This element is 490 last for civil ney’s filing petition actions Pickering balancing, after Pick known support The case does not contempt. Education, ering Board 391 U.S. a decision to prosecutorial immunity for (1968). Un 88 S.Ct. 20 L.Ed.2d an em- charges termination bring if progeny, and its an em Pickering der ployee. employee ployer takes action an speech employer, based on III. Amendment Retaliation First investigation, reasonably believes adequate false, To out employer’s turn the merits. es interests weigh Wright in violation the speaker’s a claim for retaliation interests. See tablish Family Amendment, employee Dep’t v. Illinois Children & First Illinois, Party U.S. disputed Republican is not Rutan 2. Because the second element here, deciding we assume without n. L.Ed.2d formal, public bringing actions in (1990) (“the defendants' already ... First Amendment (a) plaintiff’s charges caused immediate pa- employees only protects from state (b) pay suspension with could have led to tronage also 'even an act but from dismissals pro- to deter his termination sufficient *8 failing as to hold of retaliation as trivial public employees’ speech. In First tected birthday public employee ... party for a cases, recognized that Amendment we have exercising punish her for when intended fact-specific question and that is often ’’), v. rights’ quoting Rutan speech her free deprivations even or sometimes modest 943, Illinois, Republican Party F.2d 868 of protected can be sufficient to deter threats Cir.1989). (7th Judge 4 Easterbrook's 954 n. See, Hull, speech. e.g., Spiegla 371 v. F.3d opinion this of concurring shows that line (unwelcome 928, (7th Cir.2004) transfer 941 First cases is in Amendment tension duties); demanding job Power to more the Noerr- First doctrine under Amendment Summers, 815, (7th Cir.2000) 226 F.3d 820 Pennington applied to might as it doctrine be (harassment ridicule); Pieczynski v. Duf- government rights officials of individual Cir.1989) (7th fy, 875 F.2d 1333 employee public who action take (harassment political public employee of speech. We leave protected based on his First Amendment unless the beliefs violates conflicting questions First interesting of these person of is so trivial that ordi- harassment they rights day where for another Amendment deterred from nary firmness would not be beliefs); may of generally outcome the case. expressing see affect the holding or Servs., (7th 1505-06 required report F.3d was call Cir.1994). superiors. theory, On this when gave his version of to the the call
Applying legal principles, these we re chief deputy investigators, and to the grant de novo the view district court’s of pursuant acted to his official duties. summary judgment. City Cloe v. India (7th Cir.2013). 1171, 1176 napolis, 712 F.3d only If the basis for the defendants’ summary will affirm grant judg taking action state- Swetlik were if, viewing light ment the facts in the rea ments he had part made as of his official Swetlik, sonably most favorable to there is duties, Garcetti would bar indeed genuine no material dispute as to fact. claim, and we purposes assume for of ar- Id.; 56(a). genuine Fed.R.CivJP. A issue gument that the theory ap- defense would only if of material fact exists there is ply depu- to to Swetlik’s statements to the enough upon evidence reasonable ty and investigators. chief But Swetlik in jury could return a verdict has also offered evidence that defendants Cloe, favor. 1176. Viewing F.3d at acting on were the basis of state- his other light, the facts find that we matter, ments including griev- on spoken could deemed to have as a presented ances that the union to the private public citizen about a matter of Common Council and the Police and Fire concern when he made statements about Commission. Those statements part as of his union activi member, made in his capacity as a union find, however, ties. We also that undisput part police as his official duties as ed facts show that the defendants reason ably investigation’s Nagle relied on detective. See Calu- report Village untruthful, Park, (7th that Swetlik had been and thus met F.3d 1123-24 justified bringing Cir.2009) termination (police officer’s statements made charges against those based state meeting at a capac- union were made in his ments. ity representative, a union not as a officer, police summary but judgment for
A. Speaking Citizen as Private employer was affirmed because statements argue Defendants first that Swet concern). did not address matter of lik’s statements are not entitled to the Thus, regard to his statements at the protection Amendment be First meeting union and in the list of grievances, speak private cause he did not aas citizen. deprive Garcetti “does not his comments of They argue that the comments leading to protection.” First Amendment Id. at alleged pursuant retaliation were made 1123; Jones, see also Morales v. to Swetlik’s official duties therefore Cir.2007) 597-98 (applying Gar- protected by were not First Amend reversing cetti and for new trial because Ceballos, ment. See Garcetti v. 547 U.S. speech attorney officer’s to district 410, 421-22, 164 L.Ed.2d protected, speech while same (2006) (a public employee’s deposition made protected). made pursuant duties *9 official are not private made as a purposes citizen for the B. Matter Public Concern of Amendment); the of First also see Vose v. The district court decide did not Kliment, (7th Cir.2007) 565, 506 F.3d 569 applied. whether Garcetti The court Garcetti). (applying According to defen dants, speech pro found that Swetlik’s was not claiming because Swetlik was the chief had tected it did department policy by violated because not address a matter ordering him to jailers, public lie to the of concern. disagree. Swetlik’s
827
Pickering Balancing
impli
Kingsbury
C.-
Chief
allegations
integrity of the
and
the effectiveness
cated
Although
purposes
for
of sum
to his han
chief,
regard
specifically
judgment
mary
Swetlik’s statements about
trans
procedures such as
dling
police
of
Kingsbury
made as a citizen
(in
case,
booking suspects
porting and
concern,
a
public
addressed matter of
officer),
police
had
suspect
who
stabbed
to be
speech
protected
for
under the First
“ ‘[i]t
would be
and we have observed
Amendment,
satisfy
'it must
another re
greater public
find a
of
difficult to
matter
quirement:
the
in
employee’s interest
protection
...
than
concern
speech
must
em
making
outweigh the
Jones,
v.
290
public safety,”’ Gustafson
“promoting
interest in
ployer’s
the efficien
Cir.2002)
(7th
895,
(affirming de
907
F.3d
cy
public
services it performs
jury
for
nial
new trial after
verdict
its
v.
through
employees.” Hernandez
publicly
who had
criticized
de
officers
906,
County
Office, 634
Cook
F.3d
Sheriff’s
partment
limiting follow-up
order
investi
(7th Cir.2011) (internal
914
quotations
Rice,
gations), quoting Auriemma v.
910
omitted),
563,
citing Pickering, 391 U.S.
88
Cir.1990) (en banc).
(7th
1449, 1460
F.2d
hot,
If
is
employer’s
action
S.Ct.
in
those
we
.. This case differs from
which
justified
considered
and does
speech
to ad
found
previously
have
violate the First Amendment.
Garcet
See
concern
it
public
a matter
because
dress
(“The
ti,
418,
at
officer’s
“an
and we have since held that
offi-
tion that Chief
directed an
speech
protected
is not
where
employee’s
agencies”
cer
“he to other
was a serious
for
disregard
it
made with a reckless
]
is[
integ-
implicated
accusation
chiefs
Brown,
...,”
F.3d
truth
Brenner
ability
fulfill his duties as the
rity and
Cir.1994).
(7th
18, 20-21
Moreover,
police department.
of the
head
employee
an
reck
Whether
along
Swetlik raised the concern
making
truth in
lessly disregarded the
by union
concerns raised
members
other
present
disputed
will
statement
often
to the
bring public
problems
attention
cannot avoid
employer
factual issue. An
department,
they perceived
Amendment retaliation
liability
First
grievances to the
by bringing
did
by asserting
employee’s
simply
Council,
the Po-
mayor,
Common
false or
.protected speech otherwise
Fire
Commission. Swetlik’s
lice
v. Os
recklessly.
made
See McGreal
in at
speech
concern
was matter
Cir.2004)
trov,
F.3d
673-74
it was
of the contexts which
least some
employ
(reversing summary judgment for
*10
raised,
summary judgment
so
cannot be
on
they
no evidence
presented
affirmed on this
ers where
basis.
strongest
is not
employee’s
reading.
statements or their
even if it
the truth of
determine, then,
be
believing statements
to
must
reason for
whether the defen-
false).
may
a
employer
bring
charges
But
defeat
dants voted to
termination
First
retaliation claim if “su-
they
Amendment
Swetlik
genuinely
because
believed,
reasonably
after an ad-
pervisors
reasonably believed,
based on an ade-
investigation,
employee’s]
[the
that
equate
investigation,
quate
that Swetlik
lied
had
false,
actually
if it
testimony was
even
was
about his
conversation with
Dep’t
Wright
Waters,
v. Illinois
Children
true.”
Kingsbury. See
colleagues who sued did not reason- police department, of the ably believe that Swetlik had lied about members *12 830 experiencing internal discord. grievances Under for redress of that’s what —and law, to power discharge state did, rests defendants petitioning the Commis-
with the Police and Fire Commission. So sion to
employees
remove
who in defen-
put
the elected officials
their
case
dants’ view were harming
public
weal.
Commission,
evidence,
which took
deliber- Third, under the Noerr-Pennington
doc-
ated, and concluded that Detective Kevin
petitions
trine
bodies cannot be
job,
keep
Perry
Swetlik should
his
but that
penalized
unless
are frivolous. See
Police,
Kingsbury, the Chief
should be BE
NLRB,
& K Construction Co. v.
536
expect
You might
by Kings-
sacked.
a suit
122
U.S.
S.Ct.
Today the court holds that the filing of
officials.
agree.
Other circuits
See
charges
justified.
Mira
Because we rule
Rochester,
cle Mile Associates v.
ground,
Swetlik on this
617
with which
F.2d
(2d Cir.1980);
I agree,
Fisher,
the court does
18
not consider
Mariana v.
other
(3d
subjects including the
Cir.2003);
fact that
F.3d 189
elected
Manistee Town
—
officials have a
right
Glendale,
constitutional
to Center v.
The court mentions this possibility at lishes that Swetlik cannot collect damages page 825 note 2 but leaves the matter for § under 1983 for defendants’ day. proposal decision another Seems to me that fire him. if charges Even straightforward. First, answer is" defendants (defendants, elected made officials for example) were false and libel- ous, have the matter, same first rights amendment would not because Paul appointed (Swetlik, Davis, ones example). U.S.
Second, everyone has the right petition (1976), L.Ed.2d 405 holds that defamation Williams, Appeal person unemployable Bax make a that does not Saltzman, & P.C. not violate Constitution. does *13 13-2434, Nos. 13-2818. in new era open we would Otherwise state prevail who before litigants Appeals, United States Court of agencies could or administrative courts Seventh Circuit. damages in fed- turn around and demand all, fee-shifting at eral If is to occur court. Submitted Nov. 2013. in state original be done
this should Decided Dec. in suit. proceeding, separate federal Rule, must litigants Under the American in legal expenses their own the ab-
bear requiring pay. losers to sence of statute Illinois law Swetlik does contend that costs compensation him to for the entitles defeating proposal; defendants’ incurred he such an didn’t even seek award Maybe repre- proceeding. state he by a union and not incur sented did first legal expenses. Yet sees from amendment an entitlement to collect second, pro- adversary via federal just It isn’t there. ceeding. GOESEL, al., Plaintiffs, et Andrew (H.K.) BOLEY INTERNATIONAL LTD., al., et Defendants-
Appellees. Massuda, Plaintiff-Appellant, Fortunee al., Express, Inc., Panda et Defendants-Appellees.