Lead Opinion
Plaintiffs-Appellees Dean Kinney and David Hall brought suit against seven law enforcement officials, the seven cities or counties that employ these officials, and the East Texas Police Chiefs Association, asserting four claims: (1) a 42 U.S.C. § 1985(2) claim alleging conspiracy against Kinney and Hall because of their testimony in judicial proceedings, (2) a 42 U.S.C. § 1983 claim alleging violations of their rights to freedom of speech under the First Amendment, (3) a § 1983 claim alleging violations of their Fourteenth Amendment rights to due process of law, and (4) a state law claim alleging tortious interference with business relations. The law enforcement officials now bring an interlocutory appeal of the district court’s order denying their motion for summary judgment, in which they asserted qualified immunity against the federal claims and state official immunity against the tort claim. A panel of this court affirmed in part and reversed in part. Kinney v. Weaver,
I. FACTUAL AND PROCEDURAL BACKGROUND
While many of the basic facts in this case are uncontested, a number of the legally relevant facts are still disputed at this stage. In Parts II and III of this opinion, we elaborate the appellate prism through which we must view the facts in this interlocutory appeal from the district court’s decision denying qualified immunity. As we explain there, we are required to accept the truth of the plaintiffs’ summary judgment evidence, and we lack jurisdiction to review the genuineness of those factual disputes that precluded summary judgment in the district court. Nonetheless, for ease of understanding and later discussion, our recitation of the facts will note both sides’ assertions with respect to the material points of disagreement.
At the time of the events giving rise to this case, Kinney and Hall were instructors at the East Texas Police Academy (“ETPA”), a division of Kilgore College in Kilgore, Texas. Founded by the East Texas Police Chiefs Association in 1966, the ETPA provides basic and advanced training for law enforcement officers in the greater East Texas area. Kinney and Hall had been working at the ETPA for seventeen years and six years, respectively, under renewable one-year employment contracts. The seven law enforcement officials (collectively “the Police Officials”) asserting qualified immunity in this case are police chiefs or sheriffs who possess final authority over the training of the officers employed by their respective agencies.
In August 1998, Kinney and Hall testified as expert witnesses for the family of Edward Gonzales, a teenager who was fatally shot by a police sniper employed by the city of Kerrville, Texas. The Kerrville case did not involve officers who had trained at the ETPA or police agencies that sent trainees to the ETPA, as Kerr-ville lies several hundred miles from Kil-gore, outside the region from which the ETPA draws its students.
Based on their knowledge and experience as law enforcement instructors specializing in the use of force and firearms, Kinney and Hall testified that the Kerr-ville police officer had used excessive force and that the Kerrville police department had failed to implement the proper policies
Soon after Kinney and Hall testified in the Kerrville case, William Holda, the president of Kilgore College, received letters from some of the Police Officials threatening to stop using the ETPA for officer training. In a letter dated September 15, 1998, Kilgore Director of Public Safety Ronnie Moore told Holda that he was concerned about the instructors’ recent inquiries regarding a gun confiscated by the Kilgore police, because “[i]t is a well known fact within this agency that these instructors had previously testified in another matter, against other Officers.”
In a letter dated September 29, 1998, Charles Williams, the chief of the city of Marshall’s police department, also complained to Holda about the instructors’ expert testimony. He wrote, “I think it is deplorable ... that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies.” Williams stated further that “[t]he Marshall Police Department will not attend any courses taught by Mr. David Hall or Mr. Dean Kinney due to the liability they place on this Police Department.” Williams attached three newspaper articles that mentioned Kinney’s and Hall’s roles as expert witnesses for the plaintiffs in the Kerrville case.
The summary judgment evidence submitted by Kinney and Hall includes Williams’s deposition, in which he testified that he learned of Kinney’s and Hall’s involvement in the Kerrville case when he received, probably in August 1998, an anonymous package containing the three newspaper articles that he attached to his letter to Holda. In addition to the articles, the package contained a note telling Williams to contact Moore for more information, which Williams did shortly after receiving the package.
Young sent a letter to Holda on September 30, 1998, the day after he received the letters and articles from Williams. Young wrote that he was “greatly disturbed by the recent news that [Hall and Kinney] have acted in the capacity of ‘Expert Witnesses’ to testify against another law enforcement agency and it’s [sic] officers.” He emphasized he was writing “not only as Chief of Police of an agency that is one of your largest customers, but also as President of the East Texas Police Chiefs [sic] Association.” Noting that “[i]t is not our preference to have these two instructors teach our officers and also engage in legal combat with them in the judicial system,” Young stated that “[t]his matter will force us to consider alternative methods to achieve our training needs if not resolved as soon as possible.”
In an attempt to address the defendants’ complaints, Holda met with Moore, Williams, and Young on September 30, 1998. Also in attendance were three other law enforcement officers to whom Williams had forwarded copies of his letter to Holda, including Defendant Green. In his affidavit, Holda gave an account of this meeting that was largely confirmed by Moore, Williams, Young, and Green in their depositions. According to Holda, all four men “made it clear” (1) that “they wanted Mr. Hall and Mr. Kinney removed from the [ETPA] faculty because their testimony in the Kerrville trial created a conflict of interest with their [ETPA] responsibilities” and (2) “that they would no longer send officers and recruits to the [ETPA] for training if Mr. Hall and Mr. Kinney remained on the Academy faculty.”
Defendants Moore, Williams, and Green later agreed to send students to the ETPA on the condition that their officers not be instructed by Kinney and Hall, but Holda’s affidavit reports that Young continued to insist that Kinney and Hall also be removed from the ETPA faculty completely. According to Holda, “the stated reason for [the attendees’] refusals to send their officers and recruits for training by Mr. Hall and Mr. Kinney was that their testimony in the Kerrville trial criticized the law enforcement officer on trial.” Testifying in Kerrville had, in the view of the defendants, “created a conflict of interest between [the plaintiffs] and law enforcement officers and the law enforcement community.”
The defendants repeatedly expressed a concern that Kinney’s and Hall’s testimony created “conflicts of interest” and violated principles of “cooperative responsibility,” but their letters and affidavits do not elaborate upon the import of those phrases. In their depositions, some of the Police Officials admitted that, in their view, an unacceptable conflict of interest exists whenever a police instructor testifies against a police officer, regardless of location and regardless of whether the instructor had trained the officer. Such a conflict does not exist, in their view, when an instructor testifies for police officers.
Shortly after the September 30 meeting, Holda met with Kinney and Hall to apprise them of the situation. Kinney and Hall assured Holda that they would never testify as experts against any officer who had
On October 22, 1998, the East Texas Police Chiefs Association held its quarterly meeting in Kilgore. The attendance was unusually large. All of the Police Officials were present, except for Smith, who later spoke to a deputy who had attended the meeting. The minutes of this meeting reflect that Kinney’s and Hall’s involvement in the Kerrville case was prominent on the agenda. Defendants Young (who was president of the East Texas Police Chiefs Association at the time), Williams, Moore, Gibson, and Weaver voiced their disapproval of Kinney’s and Hall’s work on behalf of the plaintiffs in the Kerrville case, and all five officials stated their intention to ensure that Kinney and Hall did not train their officers. Subsequently, the minutes state that “it was agreed that none of the Chiefs or Sheriffs present would send their officers to any classes taught by either [Kinney or Hall].” The minutes do not reflect discussion of any other complaints concerning Kinney and Hall, nor do they reflect any mention of the substance of the instructors’ testimony in Kerrville. Some of the defendants admitted in their depositions that they did not know what Kinney and Hall had said in the Kerrville trial, only that they had testified against the police.
Several local media organizations reported on the controversy that had arisen between the ETPA and some of the area police agencies. On television and in print, several defendants are documented announcing their intention either to use a training institution other than the ETPA or to bar their officers from taking Kinney’s and Hall’s courses. Smith was quoted as stating that Kinney and Hall had “prostituted themselves” by testifying against another officer. Young was shown on television stating that he would not send officers to the ETPA until Kinney and Hall were reassigned or fired. A newspaper article quoted Holda as saying that Young was “asking me to do something he wouldn’t do.” According to Hol-da, the instructors had received excellent evaluations and their testimony was “freedom of speech.” Weaver told a television
The Police Officials followed through on their threats both by cancelling enrollments in the plaintiffs’ classes and by barring their officers from enrolling in the plaintiffs’ courses in the future. The summary judgment evidence indicates that this boycott was quite effective. Holda stated that Kinney’s and Hall’s courses “were boycotted by a sufficient number of law enforcement agencies so that enrollment was insufficient to make their classes and, therefore, could not be economically continued.” The boycott began in October 1998, and by November 10, 1998, all of Kinney’s and Hall’s basic classes had been dropped from the ETPA schedule, and many of their off-campus classes had been cancelled.
Aware that the enrollment in his courses was down and concerned that he would not be able to withstand a cut in pay, Hall resigned from the ETPA effective January 3, 1999, because he anticipated that his ETPA contract would not be renewed. He was hired as a patrol officer at the Carroll-ton Police Department, the job he had left to work at the ETPA six years earlier.
Kinney’s ETPA teaching contract extended through the 1998-1999 academic year, and he continued to teach during that time. The boycott remained in effect, however, and the ETPA provided alternate instructors for all of Kinney’s classes to ensure that the law enforcement agencies that refused to enroll their officers in Kinney’s courses could still send trainees to the ETPA. Kinney stated in his affidavit that he “had minimal class time during the first few months of the 1999 calendar year” — specifically, he “had no time in the basic police academy and very little in the in-service classes.” In their depositions taken in August 1999, the Police Officials stated that they continued to prohibit enrollment either in Kinney’s courses or in all ETPA courses because Kinney remained on the ETPA faculty.
Kilgore College did not renew Kinney’s 1998-1999 contract for his position as an ETPA instructor, but rather offered him a contract as a lecturer in the Criminal Justice Department of Kilgore College for the following academic year. The salary for this position was $15,000 less than Kinney earned as an ETPA instructor. He had not taught in the Criminal Justice Department previously, but rather had been an ETPA instructor for the entire seventeen-year period that he had been working for Kilgore College. According to Holda, “Kilgore College did not anticipate a change in the teaching assignment for either Mr. Kinney or Mr. Hall prior to the decisions by certain law enforcement agencies to boycott classes taught by Mr. Hall and Mr. Kinney.”
On April 7, 1999, Kinney and Hall filed a complaint in federal district court against the seven Police Officials, their respective cities or counties of employment, and the East Texas Police Chiefs Association, alleging that the defendants had “blackballed” Kinney and Hall “in retaliation for their truthful testimony on behalf of the victim of a police shooting.”
The Police Officials brought an interlocutory appeal of the district court’s order denying summary judgment on their immunity defenses. A divided panel of this court affirmed ;the district court’s order denying immunity with respect to the plaintiffs’ claims under § 1985, the First Amendment, and state law, but we reversed the district court with respect to the due process claim. Kinney,
II. JURISDICTION
We must first address our jurisdiction to hear this appeal. This court has jurisdiction over appeals of “final decisions” of the district courts. See 28 U.S.C. § 1291 (2000). Although a denial of a defendant’s motion for summary judgment is ordinarily not immediately appealable, the Supreme Court has held that the denial of a motion for summary judgment based upon qualified immunity is a collateral order capable of immediate review. See Mitchell v. Forsyth,
As will be explained in greater detail below, officials enjoy qualified immunity to the extent that their conduct is objectively reasonable in light of clearly established law. See Harlow v. Fitzgerald,
We do, however, have jurisdiction to the review the first type of determination, the purely legal question whether a given course of conduct would be objectively unreasonable in light of clearly established law. See Behrens v. Pelletier,
Given the above, the plaintiffs’ suggestion before the panel that we lack jurisdiction over this appeal is incorrect. We do have jurisdiction, but only to the extent that the appeal concerns the purely legal question whether the defendants are entitled to qualified immunity on the facts that the district court found sufficiently supported in the summary judgment record. See Behrens,
III. STANDARD OF REVIEW
The standard of review that we apply in an interlocutory appeal asserting qualified immunity differs from the standard employed in most appeals of summary judgment rulings. Ordinarily, we would review the district court’s denial of summary judgment de novo, applying the
Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts as true. Wagner,
The plaintiffs contend that the record reflects that the defendants “blackballed” or boycotted the plaintiffs’ classes at the Academy because the plaintiffs broke the “code of silence.” ...
The defendants, on the other hand, have maintained that they refused to send their officers to classes taught by*349 Kinney and Hall because of potential conflicts of interests....
... The record is full of evidence, both circumstantial and direct, backing each of the respective party’s positions. After reviewing the record and the arguments of the parties, the court concludes that summary judgment is not appropriate and this case may proceed to trial.
Kinney,
There is ample evidence currently in the record for a jury to conclude that the defendants’ actions were intended to suppress the plaintiffs’ rights to free speech.
Id. at 839.
There is ample evidence in the record for a jury to conclude that the defendants conspired to deter the plaintiffs from testifying in court by boycotting their business.
Id. at 840.
There are genuine issues of fact remaining in this case as to whether the plaintiffs’ expert testimony could legitimately cause any disruptions in the defendants’ operations. Moreover, it must be determined whether these disruptions, if any, were the result of a perceived “conflict of interest” or the “blackballing” of plaintiffs for turning against one of their own.
Id. at 843.
Plaintiffs’ evidence reflects a dogged determination by the defendants to rid Kil-gore College of the plaintiffs as instructors in retaliation for speaking out about excessive force by police officers. The court concludes that the acts alleged in the complaint and found in the record, if proven at trial, would violate “clearly established” law.
Id. at 845.
In reviewing the district court’s conclusions concerning the legal consequences— the materiality — of the facts, our review is of course de novo. See Lemoine,
IV. QUALIFIED IMMUNITY
The doctrine of qualified immunity seeks to strike a balance between competing social objectives, providing breathing space for the “vigorous exercise of official authority” while at the same time allowing a possibility of redress for victims of officials’ abuses. See Butz v. Economou,
The Supreme Court has recently provided us with additional guidance regarding the nature of “clearly established” law. It had already been known since Anderson that the “clearly established” standard does not mean that officials’ conduct is protected by qualified immunity unless “the very action in question has previously been held unlawful.”
Yet, at the same time, an official does not lose qualified immunity merely because a certain right is clearly established in the abstract. It is clearly established that the government may not deny due process or inflict cruel and unusual punishments, for example, but those abstract rules give officials little practical guidance as to the legality of particular conduct. Qualified immunity should not be denied unless the law is clear in the more particularized sense that reasonable officials should be “on notice that their conduct is unlawful.” Saucier v. Katz,
“A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley,
V. CLAIM UNDER 42 U.S.C. § 1985
Section 1985 provides, in relevant part:
(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his*351 person or property on account of his having so attended or testified ...
(3) ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985 (2000).
According to Kinney and Hall, the Police Officials violated the statute by conspiring to mount a campaign of economic retaliation — -which took the form of boycotting Kinney’s and Hall’s classes and attempting to have them terminated — on account of the instructors’ testimony against a police officer in the Kerrville case. The district court denied the defendants’ motion for summary judgment, finding that the plaintiffs had produced sufficient evidence of an illegal conspiracy and that the plaintiffs’ rights under § 1985 were clearly established at the time. Kinney,
Much of the argument in the district court concerned the issue of whether the plaintiffs adduced sufficient evidence of a conspiracy. The district court’s determination that there was sufficient evidence of a conspiracy is not at issue in this interlocutory appeal. Instead, the Police Officials’ main argument on appeal has been the legal argument that § 1985 offers no protection to expert witnesses, but instead reaches only fact witnesses. This argument faces an immediate textual impediment, inasmuch as the statute says “any party or witness.” Nonetheless, the defendants would draw a distinction between the two kinds of witnesses based upon the assertion that expert testimony, unlike fact testimony, is “readily accessible” and can easily be replaced with the testimony of another expert. Expert witnesses, in the defendants’ view, therefore need less protection from intimidation. The Police Officials contend, moreover, that the enacting Congress could not have meant to protect expert witnesses because the practice of calling expert witnesses did not exist at the time that § 1985 was enacted, in the aftermath of the Civil War.
Based upon the statute’s plain language, we have little difficulty in concluding that “any party or witness” includes expert witnesses. Since the language is clear on this point, there is little room for the defendants’ extra-textual arguments for excluding experts. In any case, to the extent that their arguments are relevant, they fail to persuade. The defendants are simply incorrect when they claim that the enacting Congress could not have been familiar with expert witnesses. Expert witnesses have been known for hundreds of years. See Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Hajrv. L. Rev. 40, 45-50 (1901). Leaving that to one side, the defendants are also incorrect in assuming that the statute’s reach is restricted to those factual scenarios that the enacting legislature could have specifically contemplated. On the contrary, the Supreme Court has instructed that Reconstruction-era civil rights statutes are to be given “ ‘a sweep as broad as [their] language,’ ” Griffin v. Breckenridge,
In answer to the defendants’ argument that expert testimony is easily replaceable and therefore less worthy of protection than fact testimony, we would point out that expert testimony on police procedures will not be “readily accessible” if, as happened here, police officials can prevent the persons with the relevant expertise from testifying, even in cases hundreds of miles away.
We further conclude that the statute’s coverage of expert witnesses was “clearly established” for purposes of qualified immunity. No reasonable official would find the terms “any ... witness” ambiguous on this point. Although a body of cases is typically required in order to give clear shape to vague constitutional provisions referring to “due process of law” or “cruel and unusual punishments,” we believe that the text is itself sufficient to put reasonable officials on notice that the word “witness” includes expert witnesses.
Regarding the question whether the plaintiffs have set forth a violation of the statute under current law, the Police Officials’ argument is foreclosed by Haddle v. Garrison,
Although a precedent so commanding as Haddle is not necessary to establish that a reasonably competent official would
The Police Officials and Judge Barks-dale argue that Haddle is irrelevant to this case because it was issued on December 14, 1998, after the events of September and October 1998, when the conspiracy began. They are mistaken in believing that the conduct that forms the basis of the plaintiffs’ statutory claim took place solely in or before October 1998. Subsection 1985(3)’s cause of action specifically extends liability to any persons who “do, or cause to be done, any act in furtherance of the object of [a] conspiracy [to injure a witness in retaliation for his or her testimony].” (emphasis added).
Viewing the facts in the light most favorable to Kinney and Hall, the conduct at issue in this case falls within the core of § 1985’s post-Haddle meaning. There was sufficient evidence to show that the defendants agreed to retaliate against Kinney and Hall on account of the instructors’ testimony against police officers in a federal case, and, as in Haddle, the retaliation took the form of interference with the instructors’ employment relationship, namely by boycotting their classes and pressuring the ETPA to fire them. We thus conclude that the Police Officials’ conduct was objectively unreasonable in light of clearly established law, and the district court properly denied their motion for summary judgment with respect to the § 1985 claim.
We emphasize that the statute does not create liability for every adverse action taken against a witness after the witness testifies in a federal case. In addition to the requirement that there be a cognizable injury to the,witness or his property (discussed above), the statute itself contains another limiting principle: the conspirator must threaten or injure the witness “on account of his having so attended or testified” — that is, because of, and by reason of, a person’s participation as a witness. See WebsteR’s Third New International DiCtionary 13 (1963) (defining the phrase “on account of’ to mean “for the sake of: by reason of: because of’).
VI. FIRST AMENDMENT CLAIM
Kinney and Hall claim that the defendants unlawfully retaliated against them for exercising their rights to free speech guaranteed by the First Amendment and made applicable to state actors by the Fourteenth Amendment. The district court evaluated the plaintiffs’ claim according to the law governing First
As the district court recognized, a First Amendment retaliation claim in the employment context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiffs speech involved a matter of public concern, (3) the plaintiffs interest in speaking outweighed the governmental defendant’s interest in promoting efficiency, and (4) the protected speech motivated the defendant’s conduct. See Lukan v. N. Forest ISD,
As we noted in our analysis of the plaintiffs’ § 1985 claims, the threshold issue in a qualified immunity inquiry is whether, taken in the light most favorable to the party asserting the injury, Kinney and Hall have shown that the Police Officials’ conduct violated their constitutional rights. See Saucier,
A. What is the applicable First Amendment analysis?
The First Amendment shields speech “not only [from] direct limitations ... but also [from] adverse government action against ... individuals] because of [their speech],” including the denial of public benefits to punish individuals for their speech. Colson v. Grohman,
At the outset, the Police Officials contend that their conduct is not actionable under the First Amendment because their decisions on whether and where to enroll officers are discretionary in the sense that no contract required them to enroll their officers in Kinney’s and Hall’s courses. This assertion overlooks the fundamental point that governmental discretion is always constrained by the Constitution. As the Supreme Court stated in Perry v. Sindermann, the locus classicus of the “unconstitutional conditions” doctrine:
For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.
The Police Officials also suggest that their relationship with Kinney and Hall was too attenuated to create the requisite governmental power over the instructors. Specifically, the Police Officials argue that their conduct did not deny Kinney and Hall the benefit of employment because Kilgore College, and not the Police Officials, held the authority to refuse to renew Kinney’s and Hall’s contracts. We reject this line of argument. The Su
While all citizens enjoy the protections of the First Amendment, the appropriate analytical framework for applying the “unconstitutional conditions” doctrine to a given First Amendment claim depends on the context in which the claim arose. As the Supreme Court explained in Umbehr, the cases form a “spectrum” ranging from, at one end, cases involving “government employees, whose close relationship with the government requires a balancing of important free speech and government interests” and, on the other end, cases involving “ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing.”
Because the government has no legitimate interest in denying a benefit to “ordinary citizens” on account of their speech on matters of public concern, there is no interest balancing involved in the First Amendment analysis for “ordinary citizen” cases. Rather, the First Amendment is violated in “ordinary citizen” cases if the individual engaged in conduct protected by the First Amendment and the government took action against the person because of that protected conduct. See, e.g., Rolf v. City of San Antonio,
The Supreme Court set out the basic analytical structure for “governmental employee” balancing cases in Pickering v. Board of Education,
In Umbehr and its companion case, O’Hare Truck Service, Inc. v. City of Northlake,
The government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption. And, absent contractual, statutory, or constitutional restriction, the government is entitled to terminate them for no reason at all. But either type of relationship provides a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech on matters of public concern by those who, because of their dealings with the government, “are often in the best position to know what ails the agencies for which they work.”
Id. at 674,
As we have explained in past cases, the determination whether the relationship between the government and an individual falls on the “governmental employee” end of the Umbehr spectrum turns on whether the relationship is sufficiently “analogous to an employment relationship.” See Blackburn v. City of Marshall,
The parties in this case disagree over which First Amendment analysis— Pickering balancing on the one hand or the “ordinary citizen” framework on the other — should apply to this case. Earlier, in arguing that their actions did not deny Kinney and Hall any actionable “benefits” for purposes of the unconstitutional conditions doctrine, the Police Officials emphasized their lack of employment-type ties to Kinney and Hall. In support of their argument regarding the appropriate First Amendment analysis, however, the Police Officials now characterize their relationship with the ETPA and ETPA instructors as sufficiently akin to employment to warrant a balancing of the Police Officials’ interests against the free speech interests at stake in this case. Relying on North Mississippi Communications and Worrell v. Henry,
We agree with the district court and the Police Officials that a Pickering balancing analysis is appropriate in this case. The relationship between the Police Officials and ETPA instructors such as Kinney and Hall implicates governmental interests similar to those involved in the public employment context. Law enforcement agencies have a legitimate interest in exercising discretion over the choice of the instructors who train the officers who will, in turn, carry out the agencies’ public duties. Those interests include, for example, ensuring that the instructors are competent and knowledgeable, that they are adept at conveying that knowledge to officer-students, and that they maintain a good working relationship with law enforcement agency officials so that those officials can monitor the training that their officers receive. These interests are all relevant to the ultimate governmental interest that the Pickering balancing analysis is meant to protect, namely the interest “in promoting the efficiency of the public
The defendants do not dispute that the instructors spoke on a matter of public concern, nor can they question (in this interlocutory appeal) the district court’s factual determinations regarding causation. Accordingly, we now consider whether, under Pickering, the district court correctly balanced the First Amendment interest in protecting Kinney’s and Hall’s speech against the Police Officials’ interests in suppressing it.
B. Was there a First Amendment violation?
The Pickering test requires us to balance the speaker’s First Amendment interests against the government’s legitimate interests in the efficient provision of public services. In performing this balance, we must take care not to exceed the scope of our interlocutory appellate jurisdiction. As explained earlier, see supra Parts II-III, we must accept the existence of those genuine issues of fact identified by the district court and the district court’s concomitant characterization of the plaintiffs’ summary judgment evidence. The question for us is whether the district court committed legal error in balancing the interests supported by the summary judgment record, viewing the record in the light most favorable to the non-movants.
Starting first with the plaintiffs’ side of the scales, we conclude that Kinney and Hall present an extremely strong First Amendment interest. The weight of the First Amendment interest is, of course, not measured solely by the instructors’ own personal gain, if any, from speaking.
We turn next to the Police Officials’ side of the Pickering balance. Stated in its most general terms, the government has an interest in “promoting the efficiency of the public services [that the governmental agency] performs.” Pickering,
In recognizing that the governmental interests at stake in a particular case necessarily depend upon the facts of the case, we most certainly do not, as the dissent asserts, pervert the First Amendment analysis by changing the Pickering balancing inquiry into a question for the jury. It is for the court to determine the importance of a plaintiffs speech interest, to determine the importance of a governmental interest in efficient operations, and to balance the relative weight of each. But the governmental interests that are at stake in a particular case necessarily depend on the facts of the case. As a matter of law, the Police Officials surely have an array of weighty interests in various matters, but those interests are only relevant to this case if, as a matter of fact, a certain interest is threatened. In this case — -an interlocutory appeal of a denial of summary judgment — we are not permitted to indulge in our own preferred view as to the true facts of the case, much less -can we simply accept the defendant’s version of the disputed facts as true. Instead, we must accept the genuine factual disputes identified by the district court and conduct the inquiry as if the plaintiffs’ version is true. That is how this circuit, like other circuits, handles the substantive law of Pickering balancing in the procedural posture of summary judgment when the material facts are disputed. See, e.g., Victor v. McElveen,
With these principles in mind, we now turn to the Police Officials’ asserted grounds for taking action against Kinney and Hall. In canvassing the possible harms caused by the plaintiffs’ Kerrville testimony, we note first that some of the workplace disruptions cited by the Police Offi-
With regard to the question whether the plaintiffs’ speech impaired the Police Officials’ training operations, the district court concluded, based upon its review of the record before it, that the defendants had not identified any damage to the efficiency of their operations brought' about by Kinney’s and Hall’s testimony in Kerrville. Kinney,
The Police Officials claim that Kinney’s and Hall’s testimony damaged training by creating a “conflict of interest” and “vio-lat[ing] ... principles of cooperative responsibility [and] trust.” Needless to say, reasonable officials should be concerned about conflicts of interest, and they can rightfully demand that their employees and contractors not abuse the trust the government places in them. Based upon the summary judgment record, however, the district court was unable to determine whether the Police Officials had concerns about genuine conflicts of interest or were instead, as Kinney and Hall contend, merely interested in enforcing a “code of silence” against the plaintiffs. Id. at 835, 838, 843.
Similar comments are in order regarding the Police Officials’ asserted interests in loyalty and esprit de corps, heavily relied upon by the dissent. No one would doubt but that those are important considerations, especially in a police department. Even within a police department, however; the mere assertion of interests in preserving loyalty and close working relationships does not end the debate as it would if this were a rational basis inquiry. See Branton v. City of Dallas,
The district court’s conclusions with respect to the question of workplace disruption — or rather, the absence thereof— distinguish the instant case from a case like Tedder v. Norman,
When we accept the factual disputes identified by the district court and view the disputed facts in the light most favorable to Kinney and Hall, we find that the Police Officials have not articulated any relevant, cognizable interests in suppressing the plaintiffs’ speech, while Kinney and Hall have presented a strong First Amendment interest in testifying about police brutality and inadequate supervision and training. Therefore, we conclude that, at the summary judgment stage, the instructors’ interest in testifying easily outweighs the Police Officials’ interest in suppressing their speech, given that the speech involved unrelated police agencies hundreds of miles away.
Our decision should not be taken to mean that police agencies do not enjoy broad latitude in managing the training of their officers, including significant discre
To summarize: Kinney and Hall spoke on a matter of public concern, and the value of their speech prevails, at the summary judgment stage, over the opposing governmental interests in the Pickering balance. Since the district court also found that Kinney and Hall established a genuine factual issue regarding whether the Police Officials boycotted Kinney’s and Hall’s courses and sought to have them removed from the ETPA faculty because of their testimony, Kinney,
C. Are the Police Officials entitled to qualified immunity?
The First Amendment right to free speech was of course clearly established in general terms long before the events giving rise to this case. In order to defeat the Police Officials’ claim of qualified immunity, however, Kinney and Hall must show that “[t]he contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson,
There is no question that it was clearly established well before October 1998 that Kinney’s and Hall’s testimony was of public concern and thus was speech protected by the First Amendment.
Initially, we reject the defendants’ attempt to characterize Kinney and Hall as employees of a disappointed bidder. Neither Kilgore College nor ETPA instructors such as Kinney and Hall were mere “bidders” in the sense that they lacked a “pre-existing commercial relationship” of the sort that the Court was concerned about in Umbehr — i.e., a relationship that the Police Officials could use to inhibit speech. See id. at 674,
More fundamentally, we reject the Police Officials’ suggestion that it would have been reasonable for officers in their positions to believe that they were unfettered by the First Amendment merely because their economic relationship with Kinney and Hall was non-employment and non-contractual. Both the Supreme Court and this court have explicitly rejected such reasoning. In O’Hare Truck Service, the Court rejected “the proposition ... that those who perform the government’s work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgment of First Amendment rights.”
Part VI.A of this opinion determined that the Police Officials were entitled to have the plaintiffs’ First Amendment claim analyzed under a Pickering balancing inquiry, a framework that recognizes the Police Officials’ legitimate interests in suppressing some speech that interferes with the provision of public services. To the extent that there was any uncertainty about the proper analytical framework, the uncertainty could not redound to the defendants’ benefit, as the alternative would have been to hold the Police Officials to the higher standards that they must observe with respect to ordinary citizens. It is plain that the government cannot harry the employer of an ordinary citizen who gave unwelcome testimony, seeking to have the employee fired in retaliation. Giving the Police Officials the benefit of the Pickering balancing test, we .must ask whether it was clearly established at the time of the Police Officials’ conduct that the First Amendment forbade them from retaliating against Kinney and Hall, the employees of their contractor, on account of the instructors’ Kerrville testimony. We conclude that it was.
Given that it is well-established in the jurisprudence of both the Supreme Court and this court that official misconduct is of great First Amendment significance, and that this court has repeatedly emphasized the need to protect speech regarding police misconduct in particular, see, e.g., Browner,
As explained earlier, at this stage of the case it is disputed whether the Police Officials’ legitimate interests were threatened by Kinney and Hall. The district court found that it was disputed whether the instructors’ testimony in Kerrville disrupted, and even legitimately could disrupt, the Police Officials’ training objectives. Kinney,
The Police Officials contend that their conduct was reasonable in light of the fact that, when the boycott started in October 1998, the Texas Legislature and Texas A&M University had enacted policies that effectively prohibited state employees from serving as expert witnesses against the
In any event, we had spoken to such issues long before the controversy over the policies at issue in Hoover. For example, we held in Rainey v. Jackson State College that a teacher stated a claim under the First Amendment when a state college denied him employment in retaliation for his expert testimony for the defendant in a criminal obscenity case. See
Judge Jones’s dissent discusses in some detail three cases from other circuits that, in her estimation, show that the defendants did not violate the First Amendment and should in any event be entitled to qualified immunity. Only one of these, the Third Circuit’s decision in Green, was on the books when the Police Officials began their activities.
While some of the relevant First Amendment retaliation precedents in place in the fall of 1998 involved schools (like the Rainey cases and Reeves), and others of them (such as Braumer and Victor) have involved police departments, we concede that our past cases do not include one that has specifically addressed retaliation against instructors at a police academy. We do not see the absence of such a case as an embarrassment to our conclusion that the Police Officials are not entitled to qualified immunity. If we accepted the defendants’ view of what it means for the law to be clearly established, qualified immunity would be available in almost every case, even those cases in which “in the light of pre-existing law the unlawfulness [was] apparent,” Anderson,
Although we are sensitive to the fact that reasonable officials might not always be able to predict the outcome of a balancing test such as that used in Pickering cases, see Noyola v. Tex. Dep’t of Human Res.,
We close our discussion of qualified immunity by noting that, contrary to the position asserted by the Police Officials, the district court’s ■ review of the reasons for the Police Officials’ boycott does not mean that the lower court, or this court, has engaged in a “subjective” analysis of the type condemned in Harlow. The Police Officials’ position, apparently, is that they are entitled to qualified immunity as long as there exists some conceivable set of reasons that would have made their actions appropriate. Such factual scenarios doubtless exist. It would have been permissible for the Police Officials to pull their students out of Kinney’s and Hall’s classes if (for instance) the Police Officials learned that the instructors were unskilled. Therefore, the Police Officials suggest, we necessarily engage in a forbidden “subjective” inquiry if we take cognizance of a genuine dispute over the reasons for their actions against the instructors. What the defendants’ approach would mean, of course, is that there can never be liability for any violation for which the elements include the official’s intent or reasons for action. Most § 1983 claims do not include such an element, but First Amendment retaliation claims do: The First Amendment protects employees only from “termination because of their speech on matters of public concern,” Umbehr,
When an official’s intent or the reasons for his or her actions are an essential element of the underlying violation, we have treated factual disputes over intent just like any other factual dispute that can justify a denial of qualified immunity. See Tompkins v. Vickers,
As we have said, accepting the Police Officials’ position would mean that every claim of qualified immunity would necessarily be upheld in those categories of cases that require proof of intent or motive. The proper approach, which treats intent as one fact issue among others, does not lead to the opposite extreme, namely that qualified immunity is never available in such cases. That too would be an intolerable result. Fortunately, in no area of the law can bare accusations of malice or evil intent withstand a properly supported motion for summary judgment. See Celotex Corp. v. Catrett,
The Police Officials’ conduct, as presented in the summary judgment record and viewed in the plaintiffs’ favor, was objectively unreasonable in light of clearly established First Amendment law. The district court therefore correctly determined that the Police Officials are not entitled, at least at this point, to qualified immunity from Kinney’s and Hall’s § 1983 claims alleging violations of their rights to freedom of speech under the First and Fourteenth Amendments.
VII. DUE PROCESS AND STATE LAW CLAIMS
In addition to their § 1985 and First Amendment claims, Kinney and Hall also alleged a denial of due process and a state law claim for tortious interference with business relations. The district court denied the defendants’ motion for summary judgment on these claims. The panel of this court that initially heard the Police Officials’ interlocutory appeal reversed the district court on the due process claim, finding that Kinney and Hall had not stated a violation. The panel affirmed the district court’s denial of summary judgment on the state law claim. As the issues on rehearing centered upon the § 1985 and First Amendment claims, we now reinstate those portions of the panel opinion that rule on the due process and state law claims, namely Parts IV.C and V.
VIII. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of the Police Officials’ motion for summary judgment on the plaintiffs’ § 1985 and First Amendment claims. We reinstate Part IV.C of the panel opinion, which REVERSED the district court’s denial of summary judgment on the due process claim, and we reinstate Part V of the panel opinion, which AFFIRMED the district court’s denial of summary judgment on the state law claim. We DISMISS the appeal of the cities, counties, and East Texas Police Chiefs Association for the reasons set forth in note 10 supra. Finally, we REMAND the case to the district court for further proceedings not inconsistent with this opinion. The Police Officials shall bear the costs of this appeal.
Notes
. The Police Officials are: Nacogdoches Police Chief Ted Gibson, Harrison County Sheriff Bob Green, Kilgore Director of Public Safety Ronnie Moore, Smith County Sheriff JT.B. Smith, Gregg County Sheriff Bobby Weaver, Marshall Police Chief Charles "Chuck” Williams, and Tyler Police Chief W.A. “Bill” Young.
. The driving distance between the two cities is approximately 435 miles. As the district court noted by way of comparison, that figure is roughly the same as the driving distance between Boston, Massachusetts, and Washington, D.C. As the crow flies, the distance between Kilgore and Kerrville is 300 miles.
. Kinney and Hall offered an innocent explanation for their inquiries about the seized gun, saying that they hoped to shoot the gun for their own enjoyment and edification — as local police had let them do on other occasions — -not because they were gathering information in order to testify as expert witnesses in defense of the gun's owner. The defendants’ briefs have highlighted the gun incident, but the plaintiffs' evidence suggests that it was not a motivating factor in the boycott. As described below, the other Police Officials who wrote to Holda did not mention the gun incident; Kinney's and Hall's Kerrville testimony was the only stated reason for threatening to boycott the ETPA. The Kerrville testimony was, moreover, the only complaint reflected in the minutes of the meeting at which the local police agencies decided to boycott the plaintiffs. The district court found that there was sufficient evidence for a jury to conclude that the plaintiffs’ testimony was the reason for the boycott. Kinney v. Weaver,
. The defendants have suggested that Kinney and Hall'told their students that the students might someday face Kinney and Hall in court. In their affidavits and depositions, Kinney and Hall concede that, if subpoenaed to testify against one of their students, they would testify truthfully as to what they taught the student; Kinney and Hall also state, however, that they do not tell their students that they would testify against them as experts. Regarding the defendants' assertion that Kinney once said in class that he would “go to the highest bidder” and could face the students as an expert witness, Kinney responds that he might have made such a remark as a obvious joke. The students apparently took the comment that way, as the only piece of evidence relating to a student’s reaction to the comment says that "I never gave much thought to what he said and believed in my mind that he was just talking.”
. The defendants admitted (either in their pleadings, depositions, or during the hearing in the district court) to making the media-reported statements recounted in this paragraph, and the defendants’ admissions are proper summary judgment evidence. The record also contains a great many other newspaper clippings quoting both Holda and the defendants; those reports are relevant, without regard to the truth of the matter asserted, to the defendants' argument that the plaintiffs’ testimony created a public rift between the ETPA and the local police agencies.
. The suit originally named an eighth police chief and his agency of employment as additional defendants, but the district court grant
. This court has held that orders denying official immunity under Texas law are immediately appealable to the same extent as denials of qualified immunity under federal law. See Cantu v. Rocha,
. Since we lack jurisdiction to review a denial of summary judgment based on the district court’s conclusion that fact questions exist regarding whether the defendants engaged in conduct that would violate clearly established
. The Johnson Court provided three reasons for its conclusion that arguments relating to the sufficiency of the evidence are not immediately appealable: (1) Mitchell had said that interlocutory appeal was appropriate only for reviewing the district court's purely legal rulings, (2) questions regarding sufficiency of the evidence are not "separable” from the underlying merits of the case for purposes of the collateral order doctrine, and (3) reviewing factual disputes on interlocutory appeal was undesirable as a matter of judicial administration. See Johnson,
. Although the briefs submitted by both parties in this case address only the issue whether the district court properly denied the Police Officials’ claims of qualified immunity, the notices of appeal filed with this court name not only the Police Officials, but also the cities, counties, and the East Texas Police Chiefs Association. The doctrine of qualified immunity applies only to government officials, and thus the portion of the motion for summary judgment addressing the plaintiffs' claims against the cities, counties, and the East Texas Police Chiefs Association attacked those claims on grounds apart from qualified immunity. Because the district court’s order denying summary judgment to the entities is not a final decision within the meaning of § 1291, we do not have jurisdiction over an appeal of such an order. Accordingly, we dismiss the appeal of the district court’s summary judgment order brought by the cities, counties, and the East Texas Police Chiefs Association.
. The defendants recognize this point and conceded in their reply brief before the panel that they must "accept the material facts reasonably suggested by Kinney’s and Hall's summary-judgment proof.”
. To be sure, the district court’s opinion did not (and could not be expected to) discuss every aspect of the conflicting evidence. The Police Officials' briefs have, at times, discussed aspects of the facts that the district court did not explicitly address. In responding to those arguments, we do not, as the dissent alleges "freely evaluate[] the disputed evidence,” Jones dissent at 383. We do not purport to resolve any factual disputes, as this case is at the summary judgment stage. Rather, we seek only to "determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed,” for purposes of summary judgment. See Johnson,
. With respect to the plaintiffs' state law claim, we must apply the Texas law of official immunity, which differs slightly from the federal standard. Since we reinstate the portion of the panel opinion that dealt with the state law claim, we do not discuss official immunity under Texas law in today's opinion.
. In calling for a narrow construction of § 1985(2) that departs from the text, Judge Barksdale's dissent cites Kush v. Rutledge,
. As described earlier, the defendants' position is that no testimony against the police is too distant to warrant condemnation. The plaintiffs in the Kerrville case sought help from Kinney and Hall because they had experienced difficulty finding an expert from their local area.
. We find untenable any general proposition that cases are necessarily required in order to create clearly established law. As the Supreme Court explained in a case involving the criminal counterpart to § 1985, the civil doctrine of qualified immunity has “the same objective” as the rule that due process requires "fair warning” before criminal liability may be imposed. See United States v. Lanier,
. See Briscoe v. LaHue,
. Kinney and Hall had contracts for the 1998-1999 academic year, so they were not at-will employees for that term. The relationship was at-will in the sense that Kinney and Hall had no contract for continued employment beyond the contract period, i.e., no right to automatic renewal.
. Given the facts of this case, it is incorrect to say, as Judge Barksdale’s dissent repeatedly does, that the only thing that the Police Officials did was to benignly decline to enroll their officers in the plaintiffs' classes. The defendants interfered with the plaintiffs' employment, and if that is an absurd result, then the dissent’s quarrel is with Haddle, not with us.
. Hall left the ETPA before the expiration of his contract for the 1998-1999 academic year, assertedly because of fears over job security. To the extent that the Police Officials interfered with Hall's rights under this contract, as opposed to Hall's prospects of continued employment beyond the contract, the Police Officials did more than merely interfere with at-will employment. However, the plaintiffs have not argued that the defendants' interference with Hall's contract violated law that was clearly established even before Haddle, and thus we need not decide that question.
. In their petition for rehearing, the defendants raised for the first time an argument that the plaintiffs do not have statutory standing to sue under § 1985(3). The argument is that even though § 1985(2) prohibits the intimidation of "part[ies] or witness[es]” (as well as many other categories of persons), the remedy described in the last clause of § 1985(3) uses the phrase "party so injured” to mean "litigant so injured” rather than "person so injured.” There is a split of authority with respect to the point raised by the defendants. Compare Chavis v. Clayton County Sch. Dist.,
. Our reading of the “on' account of his having so attended or testified” language in § 1985 parallels the Supreme Court's interpretation of similar language in 18 U.S.C. § 241, the criminal counterpart to § 1985. Section 241 criminalizes, inter alia, conspiracies to injure or intimidate a citizen in the free exercise and enjoyment of federal rights “because of [the citizen's] having so exercised the same.” Interpreting this language in United States v. Guest,
. This balancing was of course informed by the district court's evaluation of the summary judgment evidence. Specifically, regarding the Police Officials’ assertions that the instructors' speech threatened to disrupt the efficient provision of public services, the district court remarked as follows:
There are genuine issues of fact remaining in this case as to whether the plaintiffs' expert testimony could legitimately cause any disruptions in the defendants' operations. Moreover, it must be determined whether these disruptions, if any, were the result of a perceived "conflict of interest" or the "blackballing” of plaintiffs for turning against one of their own.
. See N. Miss. Communications, Inc. v. Jones,
. Based on reasoning similar to that of the Supreme Court in Umbehr and O'Hare Truck Service, this court has also applied a Pickering balancing test in First Amendment retaliation cases arising outside the public employment context. See, e.g., Copsey v. Swearingen,
. Contrary to some of the Police Officials' intimations, the plaintiffs’ interests in speaking cannot be reduced to a mere pecuniary interest in, as the defendants put it, "moonlighting as experts-for-hire." The plaintiffs originally planned to be paid for their work in the Kerrville shooting case — -just as Kinney had been paid in the past when he had testified as an expert in support of police officers — but they later decided that "it wouldn't be right to charge” because they "felt so strongly about the incident.” As we explain in the text, the speech in this case is uncommonly valuable because of the public's interest in identifying, preventing, and remedying official misconduct, not because of any personal advantage to Kinney and Hall.
. The fact that Kinney and Hall spoke as expert witnesses does not mean that their speech was less valuable than other forms of speech that reveals official misconduct. By virtue of their experience and expertise, witnesses like Kinney and Hall play an essential role in identifying police misconduct. There was no secret about the fact that Eddie Gonzales had been shot by the police in Kerrville; the public did not need an expert witness to reveal that. The public does need experts like Kinney and Hall, however, to reveal whether the shooting was an unjustified use of force or the result of inadequate training or supervision.
. Judge Jones would minimize the importance of the free speech interest at stake here on the ground that Kinney and Hall testified voluntarily. (Kinney and Hall were actually subpoenaed, but they admit that they appeared voluntarily.) In doing so, she relies on the Third Circuit’s decision in Green v. Philadelphia Housing Authority,
. See also Johnson v. Ganim,
. Cf. Kennedy v. Tangipahoa Parish Library Bd. of Control,
. In this regard, it should be remembered that the record does not contain any affidavits or depositions from trainees who stated that they lost confidence in the instructors. Kinney and Hall stated that their relationships with students were not adversely affected.
. The so-called "code of silence,” as we have explained in previous cases, is the informal rule according to which one police officer does not report on or testify against another police officer, regardless of the nature of the accused officer's conduct. See, e.g., Snyder v. Trepagnier,
The Police Officials have asserted in their briefs that Kinney and Hall admitted that the Police Officials had genuine and reasonable concerns about conflicts of interest. We do not believe that the Police Officials’ reading of the record is warranted. In their depositions, Kinney and Hall admitted that reasonable people could be concerned about conflicts of interest when an instructor testifies against his own students. They deny, however, that reasonable people would be concerned about conflicts of interest in this case, and they deny that the Police Officials held genuine concerns about conflicts.
. The Pickering balance takes account of legitimate interests only. See Umbehr,
. As this court has recognized, government agencies have an interest in protecting speech relating to official misconduct, and there are circumstances in which that interest counterbalances the governmental interest in suppressing disruptive speech. See Victor,
. Testimony in judicial proceedings "is inherently of public concern.” Johnston v. Harris County Flood Control Dist.,
. As we explained earlier, that Kinney and Hall testified as experts rather than as fact witnesses does not mean that their speech fell outside of this particularly protected category. See supra notes 26-27 and accompanying text.
. The defendants have stated that Hoover was not decided until December 1998, after much (but by no means all) of the conduct at issue in this case. Their belief is probably based on the fact that the version of the Hoover opinion printed in the bound volume of the Federal Reporter 3d bears a date of Dec. 31, 1998. The July version of the opinion was published at
. Part of the Rainey plaintiff’s underlying claim had been mooted by the passage of time by the date of the second appeal; we reached the merits of the claim in order to determine whether he was entitled to attorneys’ fees. Rainey II,
. The Eighth Circuit decided Tedder in February 1999, after the boycott had already caused Kinney's and Hall's classes to be can-celled and after Hall had already left ETPA. The Tenth Circuit decided Worrell in 2000. Both cases are discussed supra.
. Relatedly, we do not understand the Police Officials' assertion, advanced by the dissent, Jones dissent at 394, that Kinney and Hall somehow exploited their association with ETPA. The instructors did not seek out their role in the Kerrville case; the victim's family approached them after failing to find any qualified local experts who would testify against the police. In order to establish their competence to offer expert opinion, surely the instructors’ testimony would have to mention their place of employment. The Police Officials never complained about misuse of the good name of ETPA when an instructor gave expert testimony, with pay, in favor of the police.
. Noyola observed that, because of the balancing required in Pickering cases, "[tjhere will rarely be a basis for a priori judgment that the termination or discipline of a public employee violated ‘clearly established' constitutional rights.”
. Indeed, the Supreme Court has explicitly distinguished, on the one hand, the focused inquiry into intent that a court must undertake in connection with certain constitutional violations, from, on the other hand, the wide-ranging “subjective” inquiry into bad faith condemned in Harlow. Harlow sought to prevent "an open-ended inquiry into subjective motivation [with the] primary focus ... on any possible animus directed at the plaintiff.” Crawford-El v. Britton,
. See, e.g., Rivera-Torres v. Ortiz Velez,
. Indeed, several of the defendants in the instant case moved the district court to limit discovery until the question of qualified immunity was resolved. The court granted the motion in part, limiting discovery to the issue of the availability of qualified immunity. Therefore, it is not precisely accurate to say, as Judge Jones does, that "all discovery is complete.” Jones dissent at 383.
Concurrence Opinion
concurring in part and dissenting in part:
The privilege of absurdity; to which no living creature is subject but man only.*375 Thomas Hobbes, Leviathan pt. I, ck. 5 (1651).
Primarily at issue is qualified immunity vel non against §§ 1983 (First Amendment) and 1985 claims. I respectfully dissent from its being denied, as well as official immunity’s being denied, as a result, against the state law claim. (I concur, of course, in immunity’s being granted against the Fourteenth Amendment due process claim.) Because I join Judge Jones’ splendid dissent concerning the First Amendment claim, I address only § 1985.
Though well intended (as always), the majority has lost sight of the proverbial forest for the proverbial trees (as did the majority for the divided panel). First, the majority’s reading of § 1985 has stretched that statute beyond all recognition; the new law it has confected leads to an absurd result. Second, it has turned its back on the fundamental, compelling reasons for qualified immunity; it ignores the discretionary element that lies at the heart of that doctrine.
With all due respect to my esteemed colleagues in the majority, it is simply nothing short of absurd to hold that the police chiefs and sheriffs are not vested with discretion in choosing which teachers to use (and pay) for training the police chiefs’ and sheriffs’ own student-officers— the very persons the police chiefs and sheriffs are responsible for training. This cannot be the law.
I.
Recitation of the material facts brings the ultimate issue into sharp focus. In 1998, while instructors at the East Texas Police Academy (ETPA), part of Kilgore College in Tyler, Kinney and Hall testified voluntarily in a federal court action as expert witnesses supporting an excessive force claim against the Kerrville, Texas, police department. The police chiefs and sheriffs (Officers) who sent (paid for) their student-officers to ETPA for training were concerned about a conflict of interest evidenced by Kinney’s and Hall’s testimony; discussed that conflict with ETPA; and decided in 1998 not to send (pay for) their student-officers to Kinney’s and Hall’s classes. As a result, ETPA discontinued those classes because they were no longer economically feasible.
Kinney and Hall had one-year contracts with ETPA. Thinking that his contract might not be renewed, Hall resigned from ETPA to find other employment. Kinney stayed until his contract expired and then accepted a new contract in a different position with the college.
In 1999, Kinney and Hall filed this action against Officers, their respective cities and counties, and the East Texas Police Chiefs Association, claiming violation of: § 1985(2); free speech under the First Amendment and due process under the Fourteenth; and Texas law. Among other rulings on motions for summary judgment, qualified immunity was denied Officers. A divided panel of our court reversed the qualified immunity denial for the due process claim; but it affirmed the denial for the remainder (against my dissent). Kinney v. Weaver,
II.
At issue is qualified immunity (interlocutory appeal), not the merits (appeal from final judgment). Restated, this appeal concerns only whether now, or when Officers acted in 1998, their alleged conduct was proscribed by law. The answer is “no”; qualified immunity must be granted.
Our standard of review for qualified immunity interlocutory appeals requires us
Section 1985 makes it unlawful to, inter alia, “injure [a] party or witness in his ... property on account of having ... testified [freely and truthfully in a court of the United States]”. 42 U.S.C. § 1985(2). In denying qualified immunity for the § 1985 claim, the majority holds: (1) the statute applies to expert witnesses; and (2) Officers’ choosing to send (pay for) their student-officers to teachers other than Plaintiffs is a requisite injury to property under the statute. In so doing, the majority has lost sight of the well-known purpose for qualified immunity' — to protect government officials in their discretionary actions, the illegality of which is not apparent. Accordingly, government officials are liable individually for their conduct “only if they reasonably can anticipate when [it] may give rise to liability for damages”. Davis v. Scherer,
Under the well-known, two-step inquiry for deciding such immunity, the first asks whether, under current law, a valid claim has been asserted — whether a right has been violated. E.g., Siegert v. Gilley,
Only if a valid claim has been asserted is the second step taken: was defendants’ conduct objectively unreasonable under then existing clearly established law. Hare,
A.
In holding against qualified immunity, the majority improperly expands § 1985
1.
First, Plaintiffs do not assert a valid claim under § 1985 — it does not apply to the post-testimony economic claim made concerning their expert testimony. It is true that expert witnesses have been used for hundreds of years; on the other hand, the professional expert witness who profits considerably from such testimony is a recent development. E.g., Timothy Perrin, Expert Witness Testimony: Back to the Future, 29 U. Rich. L. Rev. 1389, 1411 (1995) (discussing growing industry of individuals who spend substantial portions of their time testifying or consulting with litigants and even advertise their services). Congress could never have envisioned protecting against loss of income for this type of testimony when it enacted § 1985 in 1871. Even assuming, arguendo, the majority is correct in holding that § 1985js plain meaning encompasses the claim by these expert witnesses, Maj. Opn. at 351-52, this is not necessarily determinative. Even where a statute’s meaning is plain, “we may depart from its meaning ... to avoid a result so bizarre that Congress could not have intended it”. Moosa v. INS,
By enacting § 1985, Congress intended, inter alia, to protect those who testified in federal court and were integral to the proper functioning of those courts, not to provide a post-testimony, economic loss claim of the type at issue here for expert witnesses. Even allowing for the salutary “broad sweep” of Reconstruction-era civil rights statutes, Maj. Opn. at 351-52, the majority has stretched § 1985 much too far. The reading it accords § 1985 leads to an absurd result, as evidenced by the following examples.
Expert witnesses are quite necessary to litigate certain claims (including, in some instances, those for excessive force); but such experts are readily available — to say the least. For example, for an excessive force claim, there may be only a few fact witnesses who can testify about the force used, but there are countless experts who can opine on whether it was excessive. Such fact witnesses are of the utmost importance; they may be able to offer the only independent evidence about what force was employed. Moreover, a fact witness is usually under subpoena and, therefore, has no choice about whether to testify. Accordingly, there are compelling reasons to give fact witnesses a high level of protection against an injury to them or their property on account of their federal court testimony.
Obviously, the same policy considerations are not in play in protecting expert witnesses. Given their abundance and other factors bearing on their status, they are not obligated to testify in a particular case. An expert should not be given the additional protection of a private right of action if adverse economic consequences flow from his testimony.
It is true, for example, that we do not distinguish between fact and expert witnesses for claims that witnesses were intimidated in a criminal trial. As another example, we do not distinguish between fact and expert witnesses in cases involving the absolute immunity that protects them from civil liability arising from their
On the other hand, a § 1985 claim of the type at issue concerns providing a remedy for an expert witness who suffers post-trial economic injury. In other words, the claim protects an expert witness’ interests after he has freely and truthfully given his testimony. In many respects, however, testifying as an expert is a business; such witnesses are able to weigh the economic benefits and risks of their testimony before agreeing to testify. Therefore, expert witnesses who choose to testify in a case (and are usually paid to do so, often quite handsomely) should not be able to avail themselves of § 1985 later, if adverse economic consequences flow from their testimony.
Consider the wide-ranging, truly absurd results arising out of extending § 1985 to cover post-testimony economic injury to expert witnesses of the type claimed here. Arguably, every person who testifies as an expert and is later denied employment could file an action under § 1985 against the would-be employer. For example, assume an urban planner routinely testifies in litigation against cities. Is a city now subject to § 1985(2) liability if it refuses to hire that person if he applies for a job in its planning department? The majority’s permitting expert witnesses to bring claims under this statute for such injury opens the door (perhaps the proverbial floodgates) for this type claim.
2.
As noted, even if an expert witness is protected under the statute for the claim at hand, a claim could be asserted only if it arose from conduct occurring after the date we render our decision for this appeal; in other words, the majority has confected a new claim. Accordingly, for the second step of the qualified immunity analysis, it was not clearly established at the time of Officers’ conduct in 1998 that expert witnesses are protected under § 1985 through a claim of the type at issue here.
In fact, as the majority admits, Maj. Opn. at 352, it appears that only one opinion (Second Circuit) had ever applied the statute to experts; this was done without analysis and concerned a claim for preventing testimony — a far cry from this case. Chahal v. Paine Webber,
Moreover, one Second Circuit opinion about preventing testimony could not have clearly established in Tyler, Texas, in 1998 that Officers’ actions with respect to these expert witnesses could violate § 1985. It is true that, even without judicial interpretation, violation of a statute can be clearly established for qualified immunity purposes. This is not such an instance; the very questions at issue about application of § 1985(2) to economic injury for expert witnesses compel holding, for qualified immunity purposes, that, when Officers in Tyler, Texas, acted in 1998, it was not clearly established that their conduct could violate § 1985(2).
B.
Assuming, arguendo, that § 1985 covers expert witnesses for the claim presented in
1.
Officers’ actions underlying the § 1985 claim are not the kind proscribed by the statute. For the majority to hold otherwise is to stretch § 1985(2) beyond all recognition.
a.
Regardless of Officers’ reasons for doing so, electing in 1998 not to enroll (pay for) their student-officers in a class cannot be the requisite injury to property violative of § 1985. Haddle v. Garrison,
In Haddle, the Supreme Court analogized to tort law claims concerning interference with economic relationships and held that third-party interference with at-will employment can constitute an injury under § 1985. Id. at 126,
For qualified immunity purposes here, and if we analogize to tort law, refusing to enroll (pay for) student-officers in a class does not equate with “maliciously inducing” an employer to discharge an employee. A typical case of such tortious interference with economic relations would involve a defendant’s demanding that a plaintiff be fired, or telling lies about him in order to have him fired, followed by the employee’s being fired. E.g., Ahrens v. Perot Systems Corp.,
b.
While the analogy to tort law is instructive, the purpose and history of § 1985 also compel holding that Plaintiffs do not assert a claim. The Supreme Court noted in Kush v. Rutledge,
The majority tries to limit its holding by stating that “the statute does not create liability for every adverse action taken against a witness after the witness testifies in a federal case”, because of the limiting principle in § 1985 that the injury must be “on account of his having so attended or testified”. Maj. Opn. at 355. The majority pays lip service to the other important limiting principle contained in § 1985— that the adverse action taken against the witness be an “injury to property”. Even assuming that Officers acted “on account of’ Plaintiffs’ testimony, Officers’ choice to enroll (pay for) their student-officers in other instructors’ classes is not the requisite injury to property.
The majority would allow any reaction to a witness’ testimony to be actionable if it were in response to that testimony. This is too broad. The statute limits actionable responses to those that injure the witness’ property. Although interference with at-will employment is such an injury, choosing not to enroll (pay for) student-officers in a particular class, is not. Plaintiffs do not assert a claim. Accordingly, our inquiry should stop at step one.
2.
In the alternative, taking the second step for qualified immunity analysis only makes it more evident that Officers are entitled to qualified immunity. Surely, this step compels awarding it. Again, this step involves deciding whether Officers’ conduct in 1998 was objectively unreasonable in the light of then dearly established law. Hare,
Officers stopped sending (paying for) their student-officers to Plaintiffs’ classes in October 1998. Despite the majority’s take on this, Maj. Opn. at 353-56, Had-dle’s being decided two months later in December did not clearly establish that Officers were then (or later) violating § 1985(2). Moreover, Haddle was decided after Kinney’s and Hall’s classes were removed in November from the schedule. The majority contends that Officers acted in furtherance of the conspiracy after December because they “continued to prohibit their officers from enrolling in Kinney’s or Hall’s classes”, Maj. Opn. at 354; but Officers could not have prohibited enrollment in classes that were not on the schedule. The majority’s continuing conspiracy theory attempts to obscure the obvious — it was not clearly established when Officers acted in 1998 that their actions violated the statute. In addition, Haddle gave no indication, nor has any other case, that an act as benign as Officers’ sending (paying for) their student-officers to different teachers at a police academy is an injury to property under § 1985(2).
III.
The ultimate issues for this interlocutory appeal are whether Plaintiffs assert a valid claim; and, only if so, whether that law was clearly established when Officers acted in 1998. Plaintiffs do not assert a § 1985 claim; moreover, given the majority’s extreme extensions of existing § 1985 law needed in order to hold against qualified immunity, it is obvious that the law now confected by the majority was not clearly established when Officers acted in 1998.
Therefore, qualified immunity must be awarded against the § 1985 claim. For the reasons stated by Judge Jones, it must also be awarded against the First Amendment claim. Finally, as a result and for the reasons stated in my dissent from the panel opinion,
Accordingly, I respectfully dissent from not granting immunity against those claims.
Concurrence Opinion
join, Concurring in Part and Dissenting in Part:
With all due respect to our colleagues, one of Judge Barksdale’s opening statements puts this case in perspective:
[I]t is simply nothing short of absurd to hold that the police chiefs and .sheriffs are not vested with discretion in choosing which teachers to use (and pay) for training the police chiefs and sheriffs’ own student-officers — the very persons the police chiefs and sheriffs are responsible for training.- This cannot be the law.
In holding otherwise, as he says, the majority “has turned its back on the fundamental, compelling reasons for qualified immunity; it ignores the discretionary element that lies at the heart of that doctrine.” The majority has rendered a very un-balaneed analysis of the balancing tests required in this case. This portion of our dissent will address the qualified immunity claim of the police officials as it relates to the teachers’ claims for. First Amendment retaliation. Judge Barksdale’s portion of the dissent discusses the police officials’ potential liability for violating 42 U.S.C. § 1985 and their corresponding immunity claim.
To set the stage for the police officials’ actions against Kinney and Hall, it is useful to recount undisputed facts concerning their expert testimony and the officials’ concerns. They agreed, without following ETPA instructions to obtain prior approval, to become paid experts in 1997 on behalf of the plaintiffs in Gonzales v. City of Kerrville. A year later, at trial, the Kerrville newspaper reported that eyewitnesses testified the suspect had fired in excess of forty shots while standing on the Guadalupe River Dam hitting objects including an apartment window, a garbage can and a patrol car window. The defendant police sniper testified that he first told the suspect to drop his rifle, and when the suspect lifted the rifle and pointed it at him, the officer killed the suspect in self-defense. Kinney’s and Hall’s expert conclusions were that the sniper’s failure to apply his training and defendant, City of Kerrville’s lack of a proper policy were proximate causes of the tragic shooting and that the sniper’s use of deadly force amounted to excessive force.
Rejecting these expert opinions, the jury found in favor of the Kerrville police officer, and the federal district judge overturned the award against the city. After Kinney’s and Hall’s opinion was rejected, the take-nothing judgment was affirmed by this court on appeal. See Gonzales v. City of Kerrville,
The police officials have deposed or attested, inter alia, that appellees’ expert testimony hurt the close working relationship required between academy instructors and representatives of the cities and counties; damaged teamwork required among those involved in training officers; threatened the confidentiality of information city and county officers share with Kinney and Hall about their procedures and practices; undermined feelings of loyalty and confidence; and represented an improper use of the instructors’ affiliation with ETPA.
II. Standard of Review
While the majority correctly cites the general standards of review for summary judgment and qualified immunity appeals, they repeatedly mischaracterize the court’s function in free speech cases and thus would send to the jury issues that it is our obligation to decide. This case is, we are agreed, governed by the balancing test framed by the Supreme Court in Pickering v. Bd. of Educ.,
The majority, unfortunately, appears to have confused the second and third issues and thus would leave to the jury the fundamental question of First Amendment protection that is ours to decide. The majority holds that because a fact dispute exists as to whether Kinney and Hall were “blackballed” or “boycotted” to enforce a “code of silence” (the third Pickering issue), this court may not take into account the police officials’ proffered institutional reasons for disenrolling their officers from appellees’ classes (the second issue). The majority reasons because it must give Kinney and Hall the benefit of drawing all inferences in their favor on summary judgment review, a trial is required to determine the legitimacy of the governmental interests. The weight those interests receive in the Pickering balance is, however, for this court to decide. Accordingly, sending to the jury issues crucial to the Pickering balance would be improper.
That this court alone decides the Pickering balance is reinforced by several facts. First, all discovery is complete, and there is no real dispute about the operative facts. Second, whether one characterizes the police officials’ actions as merely “disenroll-ing” students from appellees’ classes or as “blackballing” or “boycotting” the instructors is a matter of semantics, not motive. Third, there is no evidence that the officials themselves used the term “blackball” or “boycott” to describe their actions; those pejoratives were used by ETPA President Holda and pervade the appel-lees’ complaint and the district court opinion. Finally, the majority opinion itself concludes that the police officials advanced no legitimate interests to place in the Pickering balance, and it freely evaluates the disputed evidence. See, e.g., Kinney v. Weaver,
The majority’s miscalculation of Pickering balancing necessarily affects its conclusion on qualified immunity, as the majority reiterates that there are no legitimate governmental interests on the police officials’ side of the balance.
Unlike the majority, we neither wash our hands of the crucial responsibility to determine the extent of protection owed to Kinney’s and Hall’s voluntary expert testimony, nor obscure the Pickering determination with erroneous or unsupported fact issues. Thus, while deferring balancing at this point, we must acknowledge the existence of legitimate governmental interests on the police officials’ side.
III. Qualified Immunity
The doctrine that confers qualified immunity from suit on public officials performing discretionary functions is not an “insignificant aberration.” See Pierce v. Smith,
For these reasons, qualified immunity shields discretionary official conduct to prevent lawsuits that do not allege violations of clearly established constitutional law of which a reasonable person would have known. Harlow,
No doubt, the test of objective legal reasonableness does not always require immunity in the absence of an identical or even “materially similar” case to guide official conduct. See Hope v. Pelzer,
First, the Eighth Amendment proscribes “unnecessary and wanton infliction of pain” on prisoners, Whitley v. Albers,
Just as the governing constitutional standard in Hope was simpler, so was the determination that the law was clearly established. An earlier circuit court case had specifically held unconstitutional, inter alia, the practice of handcuffing prisoners to “the fence and to cells for long periods of time.... ” Gates v. Collier,
Despite the majority’s creative review of Fifth Circuit government employee free speech precedents, none of our cases had remotely conducted the free speech balancing inherent in the relation between law enforcement departments and police academy instructors. As will be seen, the only related authorities were decided outside this Circuit and uniformly denied liability or granted immunity.
Thus, that “fair warning” could be given to the prison officials in Hope does not modify the general test for qualified immunity applicable in this case. As the Court acknowledged, “in some circumstances, as when an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high degree of prior factual particularity may be necessary.” Hope,
Only recently, this Court expressed en banc our caution toward denying qualified immunity in novel factual cases. In McClendon v. City of Columbia,
*386 The fact that the state-created danger theory was recognized at a general level in [other courts’] precedents did not necessarily provide Officer Carney with notice that his specific actions created such a danger.... [T]his is not a situation where “a general constitutional rule already identified in the decisional law ... applfied] with obvious clarity to the specific conduct in question.”
Id. (internal citation and quotation omitted). McClendon then states: “Indeed, general principles of the law are less likely to provide fair warning where, as here, applicability of the doctrine is highly context-sensitive.” Id. at 332 n. 13 (citation omitted).
As the foregoing authorities suggest, for immunity purposes, the question “is not whether other reasonable or more reasonable courses of action were available” to public officials. See Pierce,
To apply these principles of qualified immunity, the Supreme Court’s two-step test normally begins by considering whether, on the facts alleged by the plaintiffs, any constitutional violation occurred; if a violation could be made out, “the next, sequential step is to ask whether the right was clearly established,” i.e., whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier,
The majority’s errors become evident by inverting the process here. Consequently, let us assume arguendo that the police chiefs and sheriffs violated the First Amendment by disenrolling their students from Kinney’s and Hall’s classes. Assume, that is, that the appellees engaged in some level of protected speech, and Pickering/Connick balancing applies. The qualified immunity question is as framed by the majority:
We must ask whether it was clearly established at the time of the Police Officials’ conduct that the First Amendment forbade them from retaliating against Kinney and Hall, the employees of their contractor, on account of the instructors’ Kerrville testimony.
Maj. Opn. at 369. Our answer is resoundingly that the law was not clearly established.
The law was not clearly established for three reasons. First, this court and seven other circuits have recognized that public officials are more likely entitled to qualified immunity when the underlying constitutional law depends on balancing tests enforced by the judiciary, and no factually similar case exists. Second, the Fifth Circuit cases relied on by the majority are critically different from this case, while other circuits’ more relevant precedents either found no liability or qualified immunity for law enforcement officials. Third, in an unprecedented approach to Pickering/Connick balancing, the majority inflates the value of the appellees’ “speech,” while discounting from the balancing test the police officials’ legitimate interests; no “clearly established law” supports the majority’s approach.
At the heart of Kinney’s and Hall’s First Amendment claim is the case- and context-specific Pickering!Connick balancing test. In Pickering and its progeny, the Supreme Court has balanced the interest of each plaintiff as a citizen in commenting on matters of public concern against the interests of the state, as an employer or contractor, in promoting the efficiency of the public services it performs. Id. at 568,
For immunity determinations, the implications of this rule-avoiding constitutional standard seem obvious. The Supreme Court has alluded to the enhanced likelihood of granting qualified immunity in First Amendment cases:
Even when the general rule has long been clearly established (for instance, the First Amendment bars retaliation for protected speech), the substantive legal doctrine on which the plaintiff relies may facilitate summary judgment. ... [TJhere may be doubt as to the illegality of the defendant’s particular conduct (for instance, whether a plaintiffs speech was on a matter of public concern).
Crawford-El v. Britton,
One consequence of case-by-case balancing is its implication for the qualified immunity of public officials whose actions are alleged to have violated an employee’s First Amendment rights. There will rarely be a basis for a priori judgment that the termination or discipline of a public employee violated “clearly established” constitutional rights.
Noyola v. Texas Dep’t of Human Res.,
While the majority relegates Noyola to a footnote, that case remains the law of this Circuit. Judge Higginbotham, for instance, cited Noyola when observing that, “the fact-specific balancing test of Pickering complicates the question of whether an act violated clear law. This is because the question is not only the clarity of the standard but its clarity in application.” Boddie v. City of Columbus,
principles have particular force where, as here, resolution of whether the defendant’s conduct violated the constitutional provision sued on is heavily dependent on a balancing or weighing against each other of different factors according to
the degree they are present in the matrix of facts constituting the particular context in which the asserted violation occurred.
Pierce, at 882. Noyola has been frequently cited in our court.
Noyola counsels judicial reticence toward abrogating qualified immunity in government employee First Amendment cases, but it does not act as a dispensation of the duty to examine each case carefully. In several cases, after citing Noyola, this court has denied the defense.
B. Finding Similar Cases for Immunity Comparison.
Against the backdrop of Noyola and the First Amendment balancing standards, we
The majority apparently overlooks the requirement that there be a higher degree of similarity between cases to satisfy the clearly established law prong of qualified immunity. The majority concedes that “our past cases do not include one that has specifically addressed retaliation against instructors at a police academy.” Instead, the majority relies exclusively on ordinary whistleblower cases
Consider first the “ordinary” whistle-blower cases. This court has consistently held that a public employee is “speaking out on a matter of public concern” when he becomes a “whistleblower” and thus complains of, or testifies against, fellow employees’ misconduct or against his employer’s practices. This court has protected a wide variety of whistleblower conduct, some of it emanating from within law enforcement agencies. All of these cases, however, concerned fact witnesses, employees who had personal knowledge of misconduct within their own governmental units.
In holding that ordinary whistleblower cases afford “clearly established law” for this case, the majority elides several critical distinctions. Foremost, Kinney’s and Hall’s testimony did not equate with whis-tleblower conduct. Their opinions were valuable only insofar as they correspond with someone else’s account of the underlying facts. But it is the eyewitness who “blows the whistle,” not the expert who simply synthesizes and interprets the factual testimony. Qualified expert testimony is fungible, not irreplaceable. The majority implies, nevertheless, that without Kinney’s and Hall’s expert testimony, the plaintiff in the Kerrville case would have been unable to pursue his claim. Thus the public has a special interest in receiving expert opinions. This suggestion blinks reality. Our litigious culture affords well-qualified experts in every conceivable specialty, including law enforcement practices and training. If the majority intends, not so subtly, to hint that these experts had unique credibility because of their affiliation with ETPA, their implication proves the police officials’ contention: Kinney and Hall created a conflict of interest by taking advantage of their job titles in the courtroom.
Not only is the speech in whistleblower cases generically different from appellees’ expert testimony, but the corresponding interests of public employers are different. This court has been unsympathetic to employer retaliation against government whistleblowers, since their unorthodox conduct may furnish the public’s only protection against internal misconduct. A
The majority’s analogy to cases involving educators is also weak. In Rainey, this court concluded that a college teacher’s contracts were unconstitutionally breached because of his testimony as a defense expert witness in a pornography case. Rainey v. Jackson State Coll.,
Closer factually to the instant case is the policy of Texas A&M University (and a state legislative appropriation provision), implemented before the police officials took action directed at Kinney and Hall, that broadly forbade university employees from testifying as expert witnesses for parties adverse to the state’s interests. See Hoover v. Morales,
By the same token, however, the majority ought to concede that Hoover reinforces the principle that in this context-sensitive balancing area of constitutional law, what is clearly established must be closely related factually and legally to a case at hand. Significantly, this Court in Hoover “assumed that there will be occasions when the state’s interests in efficient delivery of public services will be hindered by a state employee acting as an expert witness or consultant-”
But our task in this case requires us to apply a Pickering case-by-case analysis, and in doing so we conclude that the expert witness rider and TAMUS policy No. 3105 are impermissibly overbroad. Our opinion does not foreclose consideration of rules and regulations aimed at limiting expert testimony of faculty members or other state employees which adhere to our First Amendment jurisprudence.
While the majority has strained to find that clearly established Fifth Circuit law was contrary to the police officials’ conduct, they ignore or minimize, in the immunity discussion, three circuit court cases involving alleged retaliation by law en
The case most closely on point is Tedder v. Norman,
Testimony concerning possible misconduct of public officials is speech on a matter of public concern that warrants constitutional protection, ... but, as the district court stated, “it is not the place for an employee of ALETA, let alone its Deputy Director to volunteer to give such testimony without a subpoena.”
The majority would distinguish Tedder because the defendant there testified against an officer employed by a law enforcement agency actually trained by the Arkansas academy. The Tedder court never specifically emphasizes this fact, however, and it found that the testimony caused “actual disruption and potential further disruption” to the academy. Id. Tedder not only undercuts the majority’s First Amendment analysis, but clearly supports a finding of qualified immunity. It would be a strange constitutional rule indeed that protects a public employer’s adverse action against an employee for expert testimony, but punishes the non-employer for concerns over the very same activity. Even stranger would be the denial of qualified immunity to the non-employer whose internal relations are most affected by the expert testimony, while Tedder’s supervisor was granted qualified immunity. Id.
The majority also ignores a Third Circuit case, decided well before the events here, which exonerated a law enforcement agency that demoted one of its officers for voluntarily appearing as a character witness (for a friend’s son) at a bail bond hearing. Green v. Philadelphia Hous. Auth.,
Ultimately, the Pickering/Connick balancing test weighed in the department’s favor, as an employer, because of its significant interests in protecting the department’s reputation and in successfully fighting drugs and crime. The court held that “any risk of departmental injury or disruption weighs heavily under the Pickering balancing test.” Id. Green thus found for the police department even though Green’s supervisor had previously approved his court appearance.
For immunity purposes, Green is closely related contextually to the present case. Green attributed significant weight to the police department’s justification for its disciplinary action, and it carefully explains why not all court testimony is equivalent for First Amendment purposes. In these ways, Green furnishes a backdrop for the
The third case relevant for immunity purposes was brought against an Oklahoma district attorney and agents for the Oklahoma Bureau of Narcotics and Dangerous Drugs, alleging that the rescission of an offer of employment to coordinate the DA’s drug task force was based on the plaintiffs previous expert witness testimony for a murder defendant. Worrell v. Henry,
Worrell demonstrates that if the police officials’ role is viewed through the Pickering/Connick lens, their claim to immunity should be ironclad. Even if their position more closely resembles that of the narcotics bureau agents, however, they could argue that they fall under Worrell’s caveat because their operations are closely intertwined with ETPA.
We may end this section where we began. Because this case involves constitutional balancing, the “clearly established law” must have existed at a higher level of specificity than might be required in other types of immunity eases. This is hardly an extraordinary conclusion. It follows as a negative implication from this court’s en banc holding in McClendon that, absent controlling circuit authority, “a ‘consensus of cases of persuasive authority1 might, under some circumstances, be sufficient to compel the conclusion that no reasonable officer could have believed that his or her actions were lawful.” McClendon,
C. Novelty in the Majority’s Balancing Exercise.
The third proof of error in the majority’s qualified immunity analysis arises from the
Because the majority has exaggerated the analogy between voluntary expert testimony and whistleblower testimony, it elevated Kinney’s and Hall’s interests in testifying as voluntary expert witnesses to almost absolutely protected status. The majority has thus extended or partially overruled Hoover v. Morales, which rejected such an absolutist approach. See Hoover,
Likewise, in unprecedented fashion, the majority holds for naught the police officials’ description of their institutional interests in controlling the education of department officers.
When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.
[W]e have consistently given greater deference to government predictions of harm used to justify restrictions of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large. Few of the examples we have discussed involve tangible, present interference with the agency’s operation. The danger in them is mostly speculative.
As was previously explained, the expert testimony caused an uproar because police officials and student-officers feared Kinney and Hall might use information gleaned in their classes to testify against the sponsoring agencies; that their testimony interfered with unfettered classroom discussions; and that they misused their affiliation with ETPA to enhance their testimony. One can certainly understand the sensitivity of the police officials about Kinney’s and Hall’s testimony. Far from exhibiting wanton police brutality, the Gonzales case portrayed an officer’s life endangered by a deranged shooter. Such situations are the stuff of law officers’ nightmares and domestic tragedies. There is no evidence that Kinney and Hall were lawyers, and they are entitled to their professional opinions as law enforcement instructors. Nevertheless, feelings of loyalty, confidence and teamwork between the agencies and the instructors were understandably strained by this testimony. Further, it is evident that the instructors enhanced their credibility because of their association with ETPA, and that the police officials might legitimately question whether the instructors’ impartiality was undermined because they initially agreed to be paid experts.
The majority might refuse to defer and throw all these institutional concerns to the winds in its First Amendment analysis. But in doing so, not only does it abuse the general cautions expressed by the Supreme Court, but it contradicts authorities from several circuits. In Green, the Third Circuit described as “very significant” the interests of the housing authority police department as an employer where the officer’s voluntary testimony created a “risk of departmental injury based on the ‘potential disrúptiveness of the speech.’ ” (Green,
In Tedder, the court concluded that Ted-der’s testimony caused actual disruption and potential further disruption between ALETA and the law enforcement agencies that it was charged with training. Tedder,
In Worrell, the Tenth Circuit reiterated that “personal loyalty and confidence among employees are especially important in law enforcement” and noted that “[tjhese concerns are heightened in smaller offices and departments, where relatively minor disturbances in morale may create significant problems.” Worrell,
The Seventh Circuit has repeatedly held that “ ‘[djeference to the employer’s judgment regarding the disruptive nature of an employee’s speech is especially important in the context of law enforcement.’ ” Williams v. Seniff,
Finally, the Sixth Circuit has held that police officials are entitled to qualified immunity for taking reasonable administrative action to preclude one of their officers from exploiting his uniform and his position in the police department to advocate on behalf of the National Rifle Association. See generally, Thomas v. Whalen,
In addition, the majority wholly overlooks that public employers are entitled to deference in dealing with employees whose trust and loyalty are essential to the functioning of a public office. See, e.g., Connick, supra,
At this point, we have assumed the correctness of the majority’s final conclusion that a First Amendment violation occurred. But in its novel approach to balancing the instructors’ interests against those of the law enforcement agencies, the majority is making new law, not simply expounding “clearly established law.” Kinney and Hall may choose to pursue their suits against the municipal entities, but the individual defendants are entitled to qualified immunity.
TV. Was There a Violation of the First Amendment ?
Although we have demonstrated that the police officials were entitled to qualified immunity regardless of whether their conduct violated the First Amendment, we would also hold that their actions were not, under the Pickering/Connick balancing test, unconstitutional.
Pickering “requires a fact-sensitive and deferential weighing of the government’s legitimate interests.” Umbehr,
Whether Kinney and Hall are classified as third-party independent contractors or as employees is not as significant as how their overall function, and their voluntary expert testimony, affected the law enforcement agencies’ performance of a public mission. Compare Umbehr, id. at 679,
Balancing the interests in this case on a clean slate, the appellees’ testimony constituted speech on a matter of public concern and was entitled to some level of constitutional protection. For reasons previously discussed, we, unlike the majority, do not characterize the protection as “extremely strong.” Other circuits’ opinions have properly distinguished voluntary testimony from testimony under subpoena. See Green,
The interests of the law enforcement agencies have been well-documented in other cases, where it has been held that there is a “special need for deference to the employment decisions of those responsible for insuring public safety.” Kokkinis,
Two factors detract, in the majority’s view, from the strength of these articulated interests and the deference they are due. First, it is contended that because appellees testified “400 miles away” from ETPA and in a case not involving a trainee or department sponsor of the ETPA program, the police officials’ concerns are misplaced. The distance between Kerrville and Kilgore, Texas, is a red herring. Both cities are in Texas, both are governed by the same regime of state and federal law, and there is no showing that police officers trained in east Texas rarely or never migrate to other areas of the state, or that ETPA’s influence spreads no further than the boundaries of its sponsoring department. The “400 mile argument” is disingenuous.
That the expert testimony posed a conflict of interest with Kinney’s and Hall’s status as instructors, despite its taking place outside ETPA’s formal jurisdiction, is a conclusion entitled to deference. As the majority notes, the police officials did not, in events leading up to this case, explain how they used the term conflict of interest, but the officials’ ineloquence does not mean their judgment is entitled to no weight. Moreover, it is evident that in testifying before a Kerrville jury, the ap-pellees’ status as instructors at a Texas police academy would enhance their credibility and lend the prestige of ETPA to their words. By their status, the instructors necessarily implicated the sponsoring departments (despite any professional disclaimers) in the legitimacy of their expert opinions. Even if other possible standards for conflicts of interest, e.g., detracting from their time available to prepare for and conduct ETPA classes or “double-dipping” on salary and witness fees, are excluded, a conflict existed in this sense. See, e.g., Thomas v. Whalen,
More consequential is the majority’s criticism that the police officials could not legitimately discipline Kinney and Hall to enforce an “unwritten code” of silence, whereby police officers do not testify against each other. We agree that enforcing the “code of silence” to stifle speech concerning police misconduct is not a legitimate governmental interest. The evidence shows, however, that this was not a contemporaneous justification formally offered for the police officials’ conduct, and, in fact, reference to an “unwritten code” was made by only one of the appellants, during a television interview. As can be seen from the wealth of detail in the majority opinion, this case contained an abundance of contemporary oral and documentary evidence as well as post-litigation depositions that explored the police officials’ reasons for their action. That only one reference appears throughout the record to an “unwritten code” is significant. This stray remark should not be blown out of proportion.
The dominant theme in cases that have considered the Pickering balance in the context of law enforcement is the need for a high degree of personal loyalty and confidence, esprit de corps, harmony and good morale within departments and between instructors and trainees. Tedder, for instance, relied on the interests of the actual employer, the police training academy, which has only an indirect stake in the
In stark contrast to those cases, the majority here ignores the paramilitary interests of the law-enforcement agencies and reduces their “legitimate” concerns to the instructors’ competence and teaching ability. As a matter of law, and based on this record, those interests are too narrowly defined.
We conclude that this is a closer case under Pickering balancing than others in the law enforcement area. While Kinney and Hall engaged in protected conduct, their voluntary expert testimony did not carry such a high degree of public importance, in general or in the facts of this case, as ordinary whistleblower testimony. Further, we owe special deference to the law enforcement agencies’ legitimate interests in maintaining discipline, harmony, confidentiality and morale in their departments and training programs. We also note that while the police officials opined that Kinney and Hall should be fired, they succeeded only in disenrolling their students from the instructors’ classes. They did not and could not directly terminate appellees’ employment.
On balance, we conclude that the police officials did not violate the First Amendment by disenrolling their students from appellees’ classes. The officials have the discretion to decide, consistent with the First Amendment, by whom their officers will be taught.
V Conclusion
For the foregoing reasons, I respectfully dissent from the denial of qualified immunity on the appellees’ First Amendment claims, and I join Judge Barksdale’s dissent.
. As the Supreme Court noted, cases decided by the Fifth Circuit before the split that created the Eleventh Circuit remain binding in the Eleventh Circuit.
. Likewise, there is no case in this circuit that denied qualified immunity under the circumstances presented here. The majority's failure to point to such a case is persuasive evidence that these officers were “uncertain of the law’s application to the facts confronting [them].” Id.
. Moran v. Washington,
. See Keenan v. Tejeda,
. See Harris,
. Brawner,
. Rainey v. Jackson State Coll.,
. The majority relies on two cases in concluding the appellants have no legitimate interests in the Pickering balancing. Both are inappo-site. In one of these, the policeman was disciplined for associating with a union. See Boddie,
. In the foregoing qualified immunity discussion, this opinion, like the majority's, necessarily focuses on government employee cases, since those are the most common. Proper Pickering analysis, however, balances the relevant interests without regard to labels.
. See N. Miss. Communications v. Jones,
. We need not and do not speculate whether expert testimony given outside the State of Texas would have a different impact on the evaluation of the agencies' interests.
Dissenting Opinion
Dissenting:
I respectfully dissent and agree with Judges Jones and Barksdale that the defendant law enforcement officers are entitled to qualified immunity and should be released from personal liability. It seems disingenuous to hold that the law is clearly established when it takes 20,467 words to explain, and when six United States Court of Appeals judges sharply disagree about it. To my way of reasoning, the majority has turned the words, and the doctrine, of “clearly established” on its head when it denies immunity in this novel case.