Kenneth Craig Brady v. Fort Bend County, R. George Molina
58 F.3d 173
5th Cir.
1995
Check Treatment

*1 al., BRADY, Craig et Kenneth

Plaintiffs-Appellees,

v COUNTY, BEND

FORT Defendants, al.,

et Defendant-Appellant. Molina, George

R. 94-20057.

No. States

July En Rehearing Granting

Order

Banc T. Jeremi- Helfand and Charles

William S. Sheiness, Glover, Hirsch, ah, Robinson Houston, TX, P.C., appellant. Zavitsanos, Joseph Y. Ahmad John Houston, TX, Zavitsanos, Ahmad & pellees. STEWART, JONES, DUHÉ and JONES, Judge: H.

EDITH Bend Coun Molina of Fort denial of court’s ty appeals a district liabili personal immunity defense to rehiring decisions. deputy sheriff ty for his designed to qualified immunity Because plainly liability but the “all civil shield from knowingly violate or those who incompetent Briggs, law,” Malley v. 89 L.Ed.2d only judgment can affirm (alleged) actions the sheriffs convinced intentionally incompetent or patently were offi- executive Hence “[f]or law.1 flouted the 101 L.Ed.2d qualified im- denial of This court reviews Underwood, munity Pierce v. de novo. *2 174 general,

cers immunity rep- Nonetheless, this court has consis resents the norm.” Harlow v. tently imposed First Amendment fetters on 2727, 457 2732, 102 S.Ct. 73 discretion of the sheriff.2 sug Molina (1982). Here, however, L.Ed.2d gests 396 two means for circumventing these con First, Molina’s pled by plaintiffs actions as straints. argues vio- he that he did not lated law that has been held deputy have been sheriffs but mere fire transfer ly established” in the Fifth decided not to reappoint Circuit at expiration the time he after the acted. of Notwithstanding their terms office.3 persuasive suggests He legal points makes, he because no specifically case are prohibited reject constrained to failing sheriff from sheriffs deputy sheriffs and because of activity thus to dismiss (versus affiliation) pro he must be § merits of this 1983 action concern by qualified immunity.4 tected Logically, he Sheriff Molina’s not to rehire seven posits that the Fifth Circuit’s failure to rec victory sheriffs after his in the 1992 ognize a distinction between a termination general plaintiffs election. These contend— (or transfer) and reap the decision not and accept purpose of appeal that point to a term expires office by they it is true —that were not rehired be- operation of state law renders the state law they cause supported opponent. automatic nullity. termination a They reason that the First Amendment Next, Sheriff Molina calls our attention to tects them from the employing sheriffs the Seventh opinion Circuit’s in Upton v. appointment factor decisions. (7th Thompson, Cir.1991), 930 F.2d 1209 cert. Superficially, deputy appear denied, sheriffs would 906, 503 1262, 112 S.Ct. 117 to have such entitlement. Texas state law L.Ed.2d 491 expressly which autho specifically “Deputy declares that shall serve exactly rized what Sheriff alleged Molina is pleasure of the sheriff.” Tex.Loc. to have done here. Surveying the constitu 85.003(c) (Vernon § 1988). Gov’t Code And landscape demarked state routinely courts have refused Court’s Elrod5 —Branti6—Rutan7 any to interpose restrictions on the sheriffs “patronage” trilogy, the court of personnel policy: appointment “[B]oth “political concluded that consider and tenure of a deputy depend sheriffs upon ations are for determining the the sheriffs sole discretion.” qualifications Commission position of deputy sher ers Shelby Ross, County v. 809 iff.” Id. at notably, 1210. Most the court 754, S.W.2d (Tex.App —Tyler1991, no held that a sheriff could not have a clear . writ) (citation omitted). Simply, Texas has understanding that deputy “any had adopted public policy “that officers elected protection constitutional from politically people discharge public trusts ... discharge.” based Id. at 1214. Other cir should be persons free to select agree their own cuits reasoning in Upton. See choice to assist them Cagle Gilley, (6th v. F.2d duties their Harris, offices.” Murray Cir.1992); v. Cook, Terry v. (11th S.W.2d (Tex.App. Cir.1989). Molina asserts that it is — Amarillo dismissed). writ purposes irrelevant for 2. Our scope often considered the 'legitimate there question’ “[I]f as to protections whether an official's accorded conduct sher constitutes consti- violation, tutional Texas, iffs. the official is Hogg See McBee v. entitled to County, Jim immunity." Wiley Doory, v. (5th (en Cir.1984) banc); F.2d 1009 v. Matherne (4th Cir.1994) (Powell, J.) (citation omitted). Wilson, (5th Cir.1988); 851 F.2d 752 Garcia v. Texas, County, Reeves Cir.1994); 32 F.3d 200 Burns, 5. Elrod v. 96 S.Ct. Vojvodich Lopez, (5th Cir.1995). (1976) (plurality opinion). L.Ed.2d Finkel, Branti 3. When a expires sheriff's term so does the term (1980). 63 L.Ed.2d 574 deputies. each of his El Paso v. Hill, S.W.2d Illinois, Republican Party Rutan v. denied). Garcia, January Quoting the law on 1993.” agree.8 that our court does Circuit, “firing” “failing 204. Both to hire” argues [cir- that “such a are he Seventh “triggering personnel Id. decision[s]”. of the fact that the split is indicative cuit] deputy sheriffs equivalent, If both of these “acts” are unsettled, of constitu- currently as a matter *3 latest, “[B]y January 1992 the the law was law and therefore were that, equally regardless clear of whether an ” Upton, established.’ employee policymaker, public employer a against employee attacks not without cannot act an Both of employee’s support anomalies the of a rival force and cause us concern about Unfortunately, candidate unless the into Fifth Circuit law. activities built way adversely government’s or a shift affect the re-examination en banc without Court, ability provide Vojvodich, Supreme application to services.” triggered requires approve Although to F.3d at 887. the defense of prior precedent our us “give[] holding. ample is intended to district court’s judgments,”10 in

room for mistaken this cir- “grey cuit there was no area” of constitution- II. advantage al law left for Molina to take of. Turning proposed first to Molina’s distinc- reap- between termination and failure tion III. meaningless

point, rendering the Texas law’s Furthermore, Fifth does not automatic termination Nevertheless, permit Molina to refer to views of prompt pause.9 term does circuits to that sitting en banc in McBee an- the other establish between “failure hibitions were not established.” nounced the difference clearly inquiry what is established deputies [into to rehire” and a “dismissal” was “Our ends, analysis. examining law] First Amendment we find from irrelevant to the McBee, Moreover, Supreme of the and our our decisions own significance was recently grant refused to decisions the law established Columbus, City circuit.” Boddie v. department fact that the sheriff em- (5th Cir.1993).11 Miss., unemployed by operation ployees “were confronting the established law in The Court has avoided the issue at 8. “As far back as public employer can- this circuit has been that least twice. See Harlow v. 457 U.S. expression not retaliate an n. 818 n. be- (1981) ("As L.Ed.2d 396 in Procunier v. Navar policymak- employee's cause of that ette, 555, 565, S.Ct. Vojvodich, 48 F.3d at 887. er.” L.Ed.2d 24 we need not define here the circumstances under which ‘the state of the law' 9. “If the had failed to have been reelected sheriff opinions should be 'evaluated reference to the perceived performance poor because the voters Court, the Courts of or of this inefficiency by deputies, it would be unrea Nevertheless, ") Court.' the Su local District contemplate successor sheriff sonable to that his preme Court has advised the court of would the former who were "clearly that the measure of what is established” unqualified eyes public.” El Paso "objective.” law is See Anderson v. in American Deputies Samaniego, Sheriffs 635, 640, Creighton, S.W.2d denied). explained: the Seventh Circuit Or as While it seems (and dependency "Given the of the sheriff peculiar to consider an official action held lawful survival) political mance, deputies' job perfor on his "clearly” by one federal circuit court to be un why might a sheriff it is understandable criteria, "objective” by any such a party loyalty an con believe that finality albeit result reinforces for a sideration sheriff.” expense in some cases. Per ultimately haps Supreme Court will find Bryant, 10. See Hunter v. (i.e., Teague-like jurists measure reasonable (1991) (quota- S.Ct. L.Ed.2d 589 disagree) apt comport concept with the more omitted). "clearly Cir established law." Eleventh already adopted a similar may cuit en banc has stan whether this is the 11. It be wondered University, ultimately adopt. proach dard. See Lassiter v. Alabama A M Court will Although analyze other depu POLITZ, circuits Judge, KING, Chief ty sheriffs as a class and conclude that they GARWOOD, JOLLY, HIGGINBOTHAM, “operate with a sufficient level autonomy DAVIS, JONES, SMITH, DUHÉ, discretionary justify a sher WIENER, BARKSDALE, EMILIO M. iffs use of considerations when de GARZA, DeMOSS, BENAVIDES, termining who will deputies,”12 serve as PARKER, STEWART and circuit, public employee cannot be ter minated for exercise of his First Amendment ON SUGGESTION FOR REHEARING the sheriff alleges unless a “disruption EN BANC governmental Vojvodich, functions.” (citing F.3d at 887 Copeland, Click v. (5th Cir.1992) (Sheriffs 112-113 *4 allege disruption failure to fatal to his claim qualified immunity)). Indeed, “[a]s far back as established law this circuit has public been that a employer can BY THE COURT: retaliate an employee expres for A member of the court in active service sion the First Amendment having requested poll suggestion on the rehearing en banc majority and a policymaker.” Id. at Accordingly, judges in having active service voted in favor panel authority has no to revisit question granting rehearing banc, en whether activi ty proper can ever be personnel factors in a IT IS ORDERED that this cause shall be concerning deputy sheriffs sans an reheard the court en argu- banc with oral allegation disruption. importantly, More ment on a date hereafter to be fixed. The apply Vojvodich’s are left to conclusion Clerk specify will a briefing schedule for the that our circuit has established this filing supplemental briefs. principle early as as 1985.

But the limits of this decision should be Noyola made clear. In Dept. Resources,

Human Cir. 1988), this approved granting immunity government to a official who was alleged to have fired an employee in defiance of First Amendment Tony standards. The court C. Eiland, EILAND and Darlene recognized that in such areas constitution Plaintiffs-Appellees-Cross- al case-by-case where balancing tests Appellants, apply, consequence “one implica [the] balancing] [of public officials whose actions are [chal WESTINGHOUSE ELECTRIC lenged].” Noyola com CORPORATION, Defendant- mented: rarely “There will be a basis for a Appellant-Cross-Appellee. priori judgment that the termination or dis No. 93-7706. cipline public violated established’ rights.” Id. Ex States Court of cept to the line developed, ill, good regard ing deputy sheriffs, Noyola July 14, 1995. compelling. remains Thus, because the denial of im- munity by correct, the district court was DISMISS the (11th Cir.1994) (en banc) government agent able that what defendant is ("For qualified surrendered, pre- to be doing circumstances.") violates federal law in the dictate, existing is, truly law must compel like-situated, every ... the conclusion for Upton, reason-