Kinney v. Weaver

employed by respective agen- officers PROCEDURAL I. FACTUAL AND the fall of the Police cies.1 Before BACKGROUND enrolled their officers ETPA Officials in this many facts While basic basis, including a regular courses on uncontested, a number of the case are by Kinney and Hall. The taught courses disputed are legally facts still relevant contractually Officials Police were II III this In Parts stage. this using bound continue either ETPA’s prism opinion, appellate we elaborate or the and Hall services services must the facts through which we view in particular. interlocutory appeal from district 1998, Kinney Hall August testi- denying qualified immuni- court’s decision family fied as witnesses there, explain required we are ty. As we Gonzales, teenager Edward who was fa- sum- accept plaintiffs’ the truth tally police sniper employed by shot evidence, ju- we lack mary judgment Kerrville, city Texas. The the Kerrville the genuineness risdiction to review who case did not involve officers had sum- disputes precluded those that factual police agencies trained at the ETPA the court. mary judgment district ETPA, as that sent trainees to the Kerr- Nonetheless, understanding for ease of from lies hundred miles Kil- ville several discussion, the and our recitation of later region the from which the gore, outside facts note sides’ assertions with will both Kinney and ETPA draws its students.2 points respect disagree- to the material as expert Hall had never before testified ment. officers, though against police witnesses as an Kinney previously had testified ex- rise to giving At the time of the events police. lawyer The pert defense case, Kinney this and Hall were instruc- family in the Kerrville case for the victim’s Academy tors Texas Police East he the two instructors because approached (“ETPA”), College of Kilgore division difficulty finding local ex- experienced had East Kilgore, Texas. Founded willing testify against to were perts who Texas Police Chiefs Association police. provides the ETPA basic and advanced law in the

training for enforcement officers knowledge experi- and Based on and greater Kinney East Texas area. spe- as law enforcement instructors ence working firearms, Hall the ETPA for had been force and cializing in the use of years years, six respective- seventeen and that the Kerr- Kinney and Hall testified ly, one-year employment renewable used force under officer had excessive ville department law of- Kerrville contracts. seven enforcement and Officials”) policies implement proper (collectively ficials “the Police had failed two Nacogdoches driving between the cities are: Po- 2. The distance 1. The Police Officials Gibson, County Ted Sher- approximately lice Chief Harrison 435 miles. As district Green, Kilgore iff Director of Public Bob by way comparison, figure court noted Moore, County Safety Ronnie Smith Sheriff driving distance roughly the same as the Smith, Bobby Gregg County JT.B. Sheriff Boston, Massachusetts, and Wash- between Weaver, Police Chief Charles Marshall flies, ington, As crow the distance D.C. Williams, Tyler and Chief "Chuck” Police Kilgore Kerrville is 300 miles. and between Young. W.A. “Bill” circumstances, necessary to direct conduct of agency officers to these our will be acting snipers. Kinney and exploring Hall were other options provide pro- technically subpoena under necessary Kerrville for our training fessional Offi- case, they Al- voluntarily. but testified cers.” Kinney though originally planned and Hall In a September letter dated services, payment they receive for their Williams, city Charles the chief decided, shortly depositions after their police department, Marshall’s also com- trial, that they pay- before would decline plained to Holda about the instructors’ ex- Kinney’s explanation ment. deci- this wrote, pert testimony. He think “I it is sion, Hall, confirmed is that the two ... deplorable for our instructors Po- strongly “felt so about incident and Academy lice hire out themselves as an happened what had to Eddie Gonzales” expert witness: AGAINST law enforce- “it concluded that wouldn’t be agencies.” ment Williams stated further right charge.” Department “[t]he Marshall Police Kinney Soon after Hall testified any taught by will not attend courses Mr. Holda, case, the Kerrville William Hall David or Mr. Dean due to the

president Kilgore College, let- received liability they place Depart- Police ters some of the Police Officials newspa- ment.” Williams attached three using threatening stop the ETPA for per articles Kinney’s that mentioned training. officer Septem- a letter dated Hall’s roles as witnesses for the Kilgore ber Director of Public plaintiffs in the Kerrville case. Safety Ronnie Moore told Holda that he was concerned about the instructors’ re- The summary judgment evidence sub- cent inquiries gun a regarding by Kinney confiscated mitted and Hall includes by Kilgore police, the because deposition, “[i]t Williams’s which he testified well fact known within this that he agency Kinney’s that learned of and Hall’s these previously instructors had testified involvement the Kerrville case when he matter, received, against another other probably Officers.”3 in August an testimony Moore said that sup- anonymous offered in package the containing three port of the police “acceptable newspaper was and that articles he attached to his reasonable,” Kinney’s but and articles, Hall’s testi- to Holda. In letter addition to the bqsic mony “is in direct conflict with the package the contained a note telling fundamentals and expectations that we Williams to contact Moore for more infor- mation, have to enjoy Academy come from instruc- which shortly Williams did after tors.” Moore informed Holda that receiving package. “[d]ue the Kinney incident; expla- an gun and Hall offered innocent Kinney's mention the and inquiries nation for their about seized testimony only Hall's Kerrville was the stated gun, saying they hoped gun to shoot the threatening boycott reason for to the ETPA. enjoyment for their own and edification—as was, moreover, testimony Kerrville The police had local let them do on occa- other only complaint reflected in the minutes of gathering they sions—-not because were in- meeting police agen- at which the local testify formation order to as wit- boycott decided plaintiffs. cies to The gun's nesses in defense of the owner. The district court found that there was sufficient highlighted gun defendants’ briefs have jury evidence for a to conclude that incident, plaintiffs' suggests but the evidence plaintiffs’ testimony was the reason for the motivating that it was not a factor in the Weaver, boycott. Kinney F.Supp.2d below, boycott. As described the other Po- (E.D.Tex.2000). lice Officials who to wrote Holda did not faculty from the their copies Sep- [ETPA] of his because forwarded Williams testimony in the Kerrville trial created a and the attached letter tember conflict of interest with their re- [ETPA] of the other to Moore and four articles (2) “that Officials, sponsibilities” and would no Bill namely, Young, the Police and longer send officers recruits to the Tyler; city for of Bob chief if Mr. Mr. training for Hall and [ETPA] Green, County; Harrison the sheriff of Kinney facul- Academy remained on Weaver, Gregg Bobby sheriff Coun- ty.” Smith, the sheriff Smith ty; and J.B. The of documents

County. set Moore, Williams, Defendants and Green Young, which is in forwarded to Williams agreed ETPA later to send students to the record, summary judgment also includ- their condition that officers not be September 15 letter copy ed a Moore’s Kinney Hall, and by instructed but Holda’s Holda. affidavit reports Young continued Kinney insist re- Hall also be Septem- to Holda on Young sent letter faculty completely. moved the ETPA he day after received ber Holda, “the According to stated reason Young and articles from Williams. letters offi- refusals send their [the attendees’] “greatly that he disturbed wrote was cers and Mr. Hall training recruits Kinney] news that [Hall the recent testimony and Mr. ‘Expert in the Wit- capacity have acted trial law the Kerrville criticized the testify another law en- nesses’ Testifying officer on trial.” enforcement agency and it’s officers.” [sic] forcement had, in the in Kerrville view of the defen- writing “not emphasized He he was dants, conflict be- “created a of interest that is agency of Police one Chief plaintiffs] [the tween law enforcement customers, also as your largest but Presi- officers and the law enforcement communi- of the East Texas Police Chiefs [sic] dent ty.” Noting that is not our “[i]t Association.” these two instructors preference repeatedly expressed have defendants engage legal our officers and also Kinney’s teach and Hall’s concern that judicial system,” with them in the combat of interest” and violated created “conflicts matter will force Young stated that principles “cooperative responsibility,” “[t]his to consider alternative methods to us their and affidavits do not elab- but letters our needs if not training upon import phrases. achieve resolved of those orate possible.” as some the Police depositions, as soon In their that, view, in an Officials admitted their attempt In an to address defen- exists unacceptable conflict interest Moore, complaints, Holda met with dants’ instructor testifies police whenever a Williams, Young September and on officer, regardless loca- against police in 1998. Also attendance were three other regardless tion and of whether the instruc- to whom law enforcement officers a conflict tor had trained the officer. Such copies of let- had forwarded his Williams view, exist, an in their when does not Holda, Defendant including ter to Green. for officers. instructor testifies affidavit, gave In his Holda account of Shortly September meeting, after the meeting largely that was confirmed Moore, Kinney apprise and Williams, and in Holda with Hall Young, Green met Hall Holda, Kinney and According to all them of the situation. depositions. their (1) they would never testi- “they “made assured Holda that four men it clear” that had any who Kinney fy experts against Hall as officer Mr. and Mr. removed wanted any agency Subsequently, been trained at the ETPA or train their officers. that had sent officers to the ETPA for agreed minutes that “it state was that training.4 Kinney promised further that none of Chiefs present or Sheriffs accept he payment any would not fu- any would their send officers classes plaintiffs ture work on behalf of in or taught by [Kinney either Hall].” misconduct cases. In a dated letter Octo- minutes do reflect discussion of any 5, 1998, conveyed Kinney’s ber Holda and complaints concerning Kinney other and Hall’s assurances to the attendees the Hall, they any nor do reflect mention of September meeting invited and them to the substance of the testimony instructors’ along attend meeting another with other Some of Kerrville. the defendants ad- East law Texas enforcement officials for depositions they mitted their did purpose discussing their concerns Kinney not know Hall what and had said directly with and Hall. None of the trial, they Kerrville had invitees indicated an interest such a against police. testified meeting or came the ETPA on the date suggested by Holda. Hall states in his organizations Several local media re affidavit that one of the defendants told ported controversy on the that had arisen him, on October the instructors ETPA between the of the some area had committed “sin” for which could police agencies. in print, On television and get no forgiveness. several defendants are documented an On October the East Texas their nouncing intention either to use a Police Association quarterly Chiefs held its institution training other than the ETPA Kilgore. meeting The attendance was or to taking bar their officers from Kin unusually large. All of Police Officials ney’s and quot Hall’s courses. Smith was Smith, present, except were who later stating ed that Kinney and Hall had spoke deputy to a who had attended the “prostituted by testifying themselves” meeting. The meeting minutes of this re- Young another officer. was shown Kinney’s flect that and Hall’s involvement stating television he would not prominent the Kerrville case was on the send to the ETPA until Kinney officers (who agenda. Young Defendants was and Hall reassigned were fired. A president of the East Police Texas Chiefs newspaper quoted article Holda as saying time), Williams, Moore, Association at the Young was me to “asking do some Gibson, Weaver voiced their disap- thing According he wouldn’t do.” to Hol- proval Kinney’s work on Hall’s be- da, the instructors had received excellent half plaintiffs case, in the Kerrville and all evaluations and their five officials “free stated intention Kinney to ensure that and Hall did dom speech.” not Weaver told a television 4. suggested Kinney The defendants have “go that once said class in that he would to the and their Hall'told students that the highest students bidder” and could face students as might someday Kinney face Hall in witness, and court. responds Kinney that he depositions, Kinney their affidavits and might have made such a as a remark obvious that, and subpoenaed Hall concede if to testi- joke. apparently The students took the com- students, fy against they one their would way, only piece ment that as the of evidence testify truthfully they taught as to what relating to a student’s reaction to the com- student; state, however, Kinney and Hall also says gave thought ment "I never that much they that they do not tell their students that my what he and said believed in mind that he against testify experts. would them as Re- talking.” just was garding Kinney the defendants' that assertion in Kinney Hall the ETPA. stated his Kinney and had violated affidavit reporter that during that he “had minimal time class “an code.”5 unwritten first few of the 1999 months calendar through followed The Police Officials year” specifically, he “had no time in the — by cancelling enroll- their threats both police academy very and little in the basic classes and bar- plaintiffs’ ments in the depositions in-service In their classes.” in enrolling ring officers their in taken the Police August Officials future. sum- courses The plaintiffs’ prohibit continued to stated en- mary evidence indicates that this judgment Kinney’s rollment courses either or effective. Holda stated boycott quite was Kinney ETPA all courses because re- Hall’s “were Kinney’s and courses faculty. mained on ETPA law boycotted by a sufficient number of renew Kilgore College Kinney’s did not so enrollment agencies enforcement position 1998-1999 contract for his as an and, make their classes was insufficient instructor, ETPA rather offered him but therefore, economically con- could not be contract as a lecturer the Criminal Jus- began in boycott October tinued.” College Department Kilgore tice for the 10, 1998, by November all salary following year. The for academic Hall’s basic classes had been Kinney’s and $15,000 position Kinney less than was schedule, the ETPA dropped from He earned as an ETPA instructor. had many off-campus classes had been of their taught Depart- not in the Criminal Justice cancelled. ment rather had been an previously, but enrollment his courses Aware that the ETPA entire instructor for the seventeen- that he not and concerned would down year period working that he had been in pay, a cut Hall to withstand able Holda, Kilgore College. According January ETPA effective resigned from the “Kilgore anticipate College did 3, 1999, anticipated that his he because assignment change teaching ei- He ETPA would not be renewed. contract Kinney prior ther Mr. or Mr. Hall to the officer at the Carroll- patrol was hired as a agen- certain enforcement law decisions job had left Department, ton he Police boycott taught by Mr. cies to classes Hall years to work the ETPA six earlier. Kinney.” and Mr. teaching ETPA contract ex-

Kinney’s April Kinney and Hall filed a On through the 1998-1999 academic tended court complaint in district federal year, during to teach and he continued Officials, respective the seven their Police effect, boycott remained in that time. The employment, and the cities counties however, provided ETPA alternate Association, and the al- East Texas Police Chiefs Kinney’s for all of classes had “black- leging instructors the defendants “in agencies Kinney that the law enforcement and Hall retaliation for ensure balled” testimony on in Kin- their truthful behalf to enroll officers refused shooting.”6 of a to victim ney’s could still send trainees courses relevant, defendants; (either reports are those admitted in their The defendants regard the truth of the matter without during hearing pleadings, depositions, or asserted, argument that the to the defendants' court) making to the media- in the district plaintiffs’ be- created rift para- reported statements recounted in this agencies. and the local tween ETPA graph, defendants’ admissions are and the proper summary judgment evidence. The eighth police originally named an 6. The suit great many other record also contains employment agency of addi- chief his quoting newspaper clippings both Holda and defendants, grant- the district court tional but 346 (1) rights held that Supreme

Hall claimed violations of: their Court has the deni- 1985(2), testify § to 42 freely summary under U.S.C. al a motion for judgment of (2) rights their free under upon qualified immunity is a based collat- (3) Amendments, First and Fourteenth capable eral of immediate order review. process their under rights to due of law 511, 530, 472 Forsyth, See Mitchell v. U.S. Amendment, (4) the Fourteenth Texas 2806, (1985).7 105 86 L.Ed.2d 411 S.Ct. (both tort law. The the Police defendants limited, jurisdiction significantly Our entities) Officials for sum- and the moved however, appeals for it to such extends mary on all judgment the merits of four only “to the denial [the extent of claims, and the Police Officials also assert- summary judgment] turns on an issue of qualified immunity ed from plaintiffs’ law.” Id. immunity

federal claims and state official tort claim. district state in greater As will be explained de court denied the defendants’ motion below, enjoy tail officials immu summary on all Kin- judgment grounds. nity to the extent their conduct is 111 ney, F.Supp.2d at 845. objectively light clearly reasonable law. v. Fitzger established See Harlow brought The Police an interloc- Officials ald, 800, 818, 102 S.Ct. 73 utory appeal district court’s order (1982). L.Ed.2d Whenever the dis summary denying judgment on im- trict court denies an official’s motion for munity A panel defenses. divided ;the summary judgment predicated upon qual court district order affirmed court’s immunity, the court can immunity ified district be denying respect with to the of as plaintiffs’ thought making § under two distinct deter claims the First minations, Amendment, law, First, if only implicitly. state we even but re- respect versed the court court that a district with district decides certain would, process the due claim. as a Kinney, 301 F.3d course conduct matter of law, granted 286. The court rehear- objectively light en banc unreasonable in ing July clearly Second, an order dated 338 of law. established (5th Cir.2003), F.3d 432 oral and we heard genuine court decides that a issue of fact argument on September defendant(s) regarding exists whether did, fact, engage in such conduct. Ac II. JURISDICTION Court, cording as well as jurisdic precedents, jurisdiction We must first address our our lack own we appeal. tion to hear this This court has type review conclusions of second jurisdiction appeals interlocutory over deci appeal. “final See Johnson v. Jones, 304, 313, 319-20, sions” of the district courts. See 28 U.S.C. 515 U.S. (2000). § Although (1995); of a denial L.Ed.2d Lem Ctr., for summary judgment Inc., defendant’s motion New oine v. Horizons Ranch & (5th Cir.1999).8 ordinarily immediately appealable, Stated Rocha, agreed ed an motion to dismiss the claims Cantu 803-04 Cir.1996). parties. those jurisdiction we 8. Since lack to review a denial denying 7. This court has held that orders offi- summary judgment on the based district immunity cial under Texas law immedi- are questions court’s conclusion that fact exist ately appealable same extent as denials regarding engaged whether the defendants qualified immunity under See federal law. that would conduct violate established it, succinctly puts “we can review the appeal we cases interlocutory differently, in an any court’s as- not materiality disputes, the district factual but challenge cannot sufficiency of the the regarding genuineness.” Wagner Bay City, v. sessments is, Cir.2000). question whether evidence—that record for enough evidence there is above, plaintiffs’ sugges- Given the facts are conclude that certain jury a jurisdic- panel tion that we lack before true.9 is incorrect. do appeal tion over this We do, however, jurisdiction to have We jurisdiction, only have but to the extent determination, the type review first purely legal concerns the appeal that the given legal question whether purely are enti- question whether the defendants objectively un of conduct would be course qualified immunity tled to on the facts that clearly established light reasonable sufficiently sup- court found the district Pelletier, 516 U.S. law. See Behrens summary judgment record. ported 312-13, 116 834, 133 L.Ed.2d 773 S.Ct. Behrens, 312-13, at See U.S. (1996) a de permits (stating Johnson 834.10 appeal claim on all official “to fendant District Court conduct which the of the III. STANDARD OF REVIEW purposes for sufficiently supported deemed that we The standard review the Harlow summary judgment met interlocutory appeal asserting in an apply ‘objective legal reasonable standard of immunity differs from the stan qualified ”). is, jurisdiction only have ness’ That we appeals in most of sum employed dard the district court erred whether decide rulings. Ordinarily, we mary judgment of law that offi concluding as a matter court’s denial of would review the district immunity qualified not entitled to cials are novo, summary judgment applying of our de of facts. As one given on a set par- law, Although by both required to the briefs submitted may sometimes be officials though only res- proceed to trial even the ultimate address the issue wheth- ties in this case may disputes show of those factual olution properly denied the Po- er the district court immunity qualified are entitled immunity, qualified claims of lice Officials’ recognizes liability. Court from appeal filed with this court the notices of policy of to undercut” the that this "threatens Officials, only but also not the Police name trial, immunity affording from but the Court counties, cities, Texas Police and the East "countervailing considerations” has said that qualified The doctrine of Chiefs Association. support on inter- this limitation nonetheless government immunity applies only to offi- Johnson, locutory jurisdiction. See cials, portion thus the of the motion 317-18, S.Ct. 2151. addressing plaintiffs' summary judgment counties, cities, and the against the claims provided Court three reasons 9. The Johnson Chiefs Association attacked East Texas Police relating arguments for its conclusion grounds apart those claims on sufficiency are not imme- of the evidence (1) immunity. court’s order Because the district diately appealable: Mitchell had said denying summary judgment the entities is interlocutory appeal appropriate was purely legal meaning reviewing court's rul- the district decision within the final (2) sufficiency ings, questions regarding of the jurisdiction § over an we do not have "separable” from the under- evidence are not Accordingly, we appeal of such an order. purposes of the lying merits of the case for appeal district court’s sum- dismiss doctrine, (3) reviewing order collateral cities, brought by mary judgment order interlocutory appeal disputes factual counties, Police Chiefs and the East Texas judicial administra- undesirable as matter of Association. Johnson, 313-17, 515 U.S. tion. See S.Ct. 2151. (5th Cir.2001) (“[0]n the district court. ty, same standard as See 249 F.3d Houston, City 666 interlocutory appeal Vela official (5th Cir.2001). court, The district prepared must be to concede the best view course, applies the of Rule standard plaintiff only of the facts to the and discuss according summary judgment to which legal appeal.”).11 issues raised genuine if there is no issue of mate proper When the district court fails to set forth rial fact and the moving party is entitled to disputes preclude granting the factual that judgment as a matter law. Fed.R.Civ.P. summary judgment, may required we 56(c). appeal, ordinarily ap On we would to review the record in order “to deter- standard, ply that same Rule and we court, mine what facts the district would reverse the district court’s denial of light nonmoving par- most favorable to the summary judgment if that we concluded Johnson, ty, likely assumed.” 515 U.S. at genuine the district court found a factual ease, however, 115 S.Ct. 2151. In this when, dispute on our own review of the the district court opinion wrote a detailed record, genuine no such dispute exists. carefully identified those factual dis- But, above, explained as in an interlocu putes prevented summary judgment.12 tory appeal power we lack the to review In doing, so the district court also assessed the district genuine court’s decision import the factual plaintiffs’ of the sum- Therefore, dispute factual exists. we do mary judgment evidence. Given the na- apply not the standard of Rule 56 but jurisdiction ture of our over an interlocu- only instead consider whether the district tory appeal asserting qualified immunity, assessing court erred in the legal signifi disputes, together these factual with the cance of the conduct that the district court district court’s concomitant assessment of sufficiently supported deemed for purposes supported by what facts are plaintiffs’ Behrens, summary judgment. See evidence, summary judgment necessarily 834; Jones, U.S. at 116 S.Ct. 515 U.S. play a critical role in our decision. We 313, 115 S.Ct. 2151. length: therefore set them forth at factual disputes Where exist in an plaintiffs The contend that the record interlocutory appeal asserting qualified im reflects the defendants “black- munity, accept plaintiffs’ we version of boycotted balled” or plaintiffs’ the facts Wagner, as true. 227 F.3d at 320 classes at Academy because the (“Even where, here, the district court plaintiffs the “code of ... broke silence.” has genuine determined that there are dis putes evidence, defendants, hand, raised The we assume on the other plaintiffs version of the facts they is true have maintained that refused to ”); .... see also Gonzales v. Dallas Coun- send their officers to taught by classes recognize 11. The point explicitly defendants respond- court did not address. not, reply panel conceded in their ing arguments, brief before the to those we do as the "accept must the material facts rea- alleges "freely disputed dissent evaluate[] sonably suggested by evidence,” Kinney’s and Hall's Jones dissent at 383. We do not summary-judgment proof.” purport any disputes, to resolve factual as this summary judgment stage. case is at sure, Rather, opinion To be we seek district court’s did "determine what facts (and court, to) expected light could not be the district discuss most favorable assumed,” every aspect conflicting nonmoving party, likely evidence. to the have, times, purposes Police Officials' summary judgment. briefs dis- See John- son, aspects cussed of the facts that the district 515 U.S. at 115 S.Ct. 2151. trial, proven “clearly at would violate potential Hall because Kinney and established” law. of interests.... conflicts Id. at 845. evidence, both is full of ... The record direct, backing each reviewing

circumstantial the district court’s conclu- Af- party’s positions. respective concerning legal consequences— sions facts, argu- reviewing materiality the record and our review is ter —of Lemoine, the court concludes of course de novo. See parties, ments of the at summary judgment appropri- is not 634. that trial. may proceed to ate and this case QUALIFIED IV. IMMUNITY 111 at 835.

Kinney, F.Supp.2d qualified immunity The doctrine seeks currently in the ample There evidence competing a balance between so strike that the jury to conclude record for objectives, providing breathing space cial actions were intended defendants’ “vigorous for the exercise of official au rights to free suppress plaintiffs’ thority” allowing while at the same time speech. for victims of offi possibility of redress Id. at 839. Economou, Butz v. cials’ abuses. See 478, 504-06, evidence in the record 57 L.Ed.2d ample There is U.S. 98 S.Ct. (1978). Therefore, jury the defen- claims for a conclude law,13 plaintiffs “government to deter the officials conspired dants under federal by boycotting discretionary gener in court testifying performing functions liability civil ally are shielded from business. damages insofar as their conduct does Id. 840. clearly statutory established or con violate of fact remain- genuine There are issues rights of which a reasonable stitutional plain- in this case as to whether the ing Harlow, known.” person would have legitimately tiffs’ could 2727. The U.S. S.Ct. in the defendants’ any disruptions cause cases, noted in Harlow that most Court Moreover, it must be deter- operations. person the “of which a reasonable would any, if disruptions, mined whether these im qualified in the language have known” perceived “conflict were the result of anything to munity standard does not add “blackballing” of interest” or “clearly requirement established law” turning against one of their plaintiffs for reasonably competent public “a because own. governing his official know the law should Id. at 843. 818-19, Id. at 102 S.Ct. conduct.” Harlow, long after the Court refined dogged evidence reflects a de- Not Plaintiffs’ by defin qualified immunity Kil- standard termination the defendants to rid way in a ing “clearly established” gore College plaintiffs of the as instruc- “objective encompasses the reasonable speaking in retaliation for out about tors “clearly To established” by police inquiry: officers. The ness” be excessive force immunity, alleged purposes “[t]he that the in for court concludes acts record, sufficiently right if contours of the must complaint and found plaintiffs' panel opinion that dealt with the state respect state law 13. With claim, claim, apply we the Texas law of official must we discuss official immuni- law do not immunity, slightly fed- which differs from the today's opinion. ty Texas law in under portion standard. Since we reinstate the eral clear that a reasonable official would un- that reasonable officials should be “on no doing derstand what he is violates tice their conduct is unlawful.” Sau right.” Katz, Creighton, Anderson v. 483 cier v. 533 U.S. 121 S.Ct. (2001). L.Ed.2d 150 L.Ed.2d 272 The central (1987). Thus, recog- as this court has concept warning”: is that of “fair The law nized, light of the Anderson definition of “despite can be established notable established,” “clearly question “wheth- precedents factual distinctions between the ... right clearly er the established at relied on and the cases then before the requires the time the defendant acted ... Court, long prior gave so as the decisions an assessment of whether the con- official’s warning reasonable that the conduct then objectively duct would have been reason- at issue violated constitutional rights.” able at the time of the incident.” Conroe 740, Hope, 536 at 122 U.S. S.Ct. 2508 Creosoting v. Montgomery County, Co. 249 (internal omitted). quotation marks (5th Cir.2001). necessary “A concomitant to the deter- recently The has Court mination of whether the constitutional provided guidance us with additional re right plaintiff ‘clearly asserted is es- garding “clearly the nature of established” tablished’ at the time the defendant acted already law. It had been known since is the determination of plain- whether the “clearly Anderson that established” tiff has asserted a violation of a constitu- standard does not mean that officials’ con right Siegert Gilley, tional at all.” v. protected by qualified immunity duct is 226, 232, 111 S.Ct. 114 L.Ed.2d very question unless “the action in has (1991). Therefore, engaging before in previously been held unlawful.” 483 U.S. inquiry into whether the official unrea- 107 S.Ct. 3034. In the Court’s sonably clearly law, violated established pronouncement subject, Hope latest on the we should first determine whether Pelzer, 536 U.S. 122 S.Ct. conduct, challenged light viewed in the (2002), 153 L.Ed.2d 666 the Court held plaintiff, most favorable to the would actu- that one of our sister in circuits had erred ally amount to a violation of federal law in defining clearly established in such a law Saucier, place. the first 533 U.S. at way that qualified immunity was mandated 2151. In conducting this initial past unless the facts of cases were “mate inquiry, employ currently applicable we rially being similar” to the conduct then constitutional standards. McClendon v. challenged. requirement of “material Columbia, City facts, determined, ly similar” the Court Cir.2002) (en banc) curiam). (per was “not consistent with our cases.” Id. Yet, time, at the same an official does § V. CLAIM UNDER 42 U.S.C. qualified immunity merely not lose because in provides, part: Section relevant right clearly a certain in is established (2) It abstract. is established that the If persons any two or more government may deny deter, not due process Territory conspire or State or punishments, force, intimidation, threat, inflict cruel and unusual any or party example, give any but those abstract rules offi- or court witness of the United practical guidance court, cials little attending as to the le- from States such or gality Qualified particular testifying any conduct. im- pending matter therein, munity should not denied freely, fully, truthfully, be unless the law or particularized injure is clear the more party sense such or witness his his fendants would draw a distinction on account of between property or person testified ... upon attended or the two kinds witnesses based having so expert testimony, assertion that unlike fact (3) any conspiracy ... case of set testimony, “readily accessible” and can section, if one or more in this forth easily replaced be with the do, or cause to engaged therein persons witnesses, expert. Expert another done, in furtherance of the any act view, pro- defendants’ therefore need less whereby an- object conspiracy, of such tection from intimidation. The Police Offi- injured person proper- in his or other contend, moreover, cials enacting having exercising ty, deprived or Congress protect could not have meant to of a citizen of the any right privilege or States, injured expert practice witnesses because the party so United may calling an action for the deprived have witnesses did exist by such recovery damages enacted, § occasioned the time that 1985 was in the any one or injury deprivation, against the aftermath of Civil War. conspirators. more of upon plain language, Based the statute’s (2000). § 1985 U.S.C. difficulty concluding little that we have Hall, the Police

According Kinney to “any party expert or witness” includes wit- by conspiring violated the statute Officials language nesses. is clear on this Since campaign a of economic retalia- to mount is little room for the defen- point, there boycotting took the form of tion—-which arguments for dants’ extra-textual exclud- attempting Kinney’s and Hall’s classes case, experts. any to the extent ing account of to have them terminated —on relevant, they are fail arguments that their testimony against a the instructors’ persuade. simply The defendants are The district in the Kerrville case. officer they claim that the enact- incorrect when motion for court denied the defendants’ could not have been familiar ing Congress summary judgment, finding plain- that the Expert expert with witnesses. witnesses produced sufficient evidence of tiffs had years. known for hundreds of have been conspiracy plaintiffs’ and that illegal Hand, and Prac- See Learned Historical § under 1985 were estab- rights Regarding Expert tical Considerations Kinney, F.Supp.2d time. lished Hajrv. Testimony, 15 L. Rev. 45-50 at 840. (1901). side, Leaving that to one the de- assuming fendants are also incorrect argument Much of the the dis that reach is restricted to the statute’s trict court concerned the issue of whether enacting those factual scenarios that evidence of plaintiffs adduced sufficient legislature specifically could have contem- conspiracy. The district court’s determi contrary, plated. On the that there sufficient evidence of nation has instructed that Reconstruction- Court conspiracy is not at issue this interloc “ rights given statutes are to be ‘a era civil Instead, utory the Police Officials’ appeal. ” language,’ as sweep [their] as broad on has been the argument appeal main Grif- 88, 97, Breckenridge, v. pro § no legal argument that 1985 offers fin (1971) (altera- 1790, 29 L.Ed.2d 338 S.Ct. witnesses, expert but instead tection v. original) (quoting tion in United States argu This only reaches fact witnesses. Price, 383 U.S. impedi an immediate textual ment faces (1966)), ensuring that ment, L.Ed.2d 267 says “any inasmuch as the statute cir- Nonetheless, relevant to modern protections the de- remain party or witness.” ambiguous point. Although body cumstances.14 on this typically required of cases is order to argument In answer to the defendants’ give shape vague clear constitutional easily expert replaceable provisions referring process to “due worthy protection and therefore less punishments,” law” or “cruel and unusual testimony, point than fact we would out we believe the text is itself sufficient expert testimony police procedures put reasonable officials on notice that if, “readily hap- will accessible” word “witness” includes witn here, pened prevent can officials esses.16 No case of which we are aware persons expertise with the relevant remotely suggested has even testifying, even cases hundreds of miles 1985(2) § apply experts. does not On away.15 involving This court’s cases Sixth contrary, addressing case Amendment claims of witness intimidation issue it treats as obvious that the statute suggested experts have not need less encompasses experts. See Chahal See, protection than fact e.g., witnesses. (2d Inc., Paine Webber 725 F.2d 20 Cir. Bieganowski, United States v. 1984). clarity phrase Given the Cir.2002); United States v. witness,” ... “any absence more (5th Cir.1997). Dupre, 117 F.3d 822-23 cases like hardly surprising. Chahal case, In any unsupported the defendants’ Nor would an official find a basis for ex conjectures experts’ about relative “need” cluding if experts happened he or she to be protection displace for cannot the text’s familiar with the law related contexts. plain “any party words: or witness.” We just mentioned, As we have no distinction 1985(2) § protects therefore hold that ex- fact expert between witnesses and wit pert witnesses. nesses exists our Sixth Amendment wit We further conclude that the stat cases, ness intimidation any nor is such coverage expert ute’s of witnesses was distinction drawn in involving cases “clearly purposes quali established” for immunity protects absolute that witnesses immunity. fied No reasonable official liability arising from civil from their testim “any ony.17 would find the terms ... witness” 1985, calling counterpart § for a narrow construction of criminal the civil doc-

14. 1985(2) text, departs § Judge from the qualified immunity trine of has “the same Rutledge, Barksdale's dissent cites Kush v. objective” process as the that due rule re- 719, 1483, 460 U.S. 103 S.Ct. 75 L.Ed.2d 413 quires warning” liability "fair before criminal (1988). reject- But Kush is notable because it Lanier, may imposed. be See United States limiting ed a non-textual construction that 259, 270-71, 520 U.S. 117 S.Ct. circuits, one, including certain had erro- (1997). L.Ed.2d 432 touchstone "[T]he neously embraced. Id. at 103 S.Ct. statute, standing whether the either alone or 1483. construed, reasonably as made it clear at the relevant time that the defendant’s conduct earlier, posi- As described the defendants' was criminal.” Id. at 117 S.Ct. 1219 testimony against tion is that no added). (emphasis We doubt that the Police too distant to warrant condemnation. The willing agree Officials would be that the plaintiffs sought help in the Kerrville case contents of the Texas Penal Code or Title 18 Kinney they expe- and Hall because had inherently incapable of the U.S. Code are difficulty finding rienced from their giving meaning, notice of their own even as to local area. phrases transparent "any as as ... witness.” any general proposition 16. We find untenable LaHue, necessarily required that cases are 17. See in order to Briscoe v. 460 U.S. 341- (1983); create established law. As the Su- 103 S.Ct. 75 L.Ed.2d 96 Servs., preme explained involving County Court in a case Dep’t Storck v. Soc. Suffolk plau deprivation property, a more not but intimi- make The defendants dation or retaliation they assert that their witnesses argument when sible proceedings,” federal-court the loss of at- “injure” Kinney and Hall not conduct did injure a employment plaintiff will can or within the “person[s] property” in their purposes though of the statute even he or Pointing out meaning of the statute. property purposes she lacks a interest for contractually obligated to they were not 125-26, of the Due Process Id. at Clause. sending their officers continue 489. The Police Officials certain- instructor for any particular ETPA or to ly Kinney’s interfered with and Hall’s em- argue Police Officials training, meaning of ployment within the Haddle. interest Kinney property and Hall lacked they avowedly Not did act in concert enrollment of their in the Police Officials’ their students from the pull plaintiffs’ Kinney’s and Hall’s courses. officers classes, but, court, according to the district further contend The Police Officials plaintiffs also tried to have the fired employees at-will Kinney and Hall were jobs. Kinney, from their See ETPA; thus, precedents under inter F.Supp.2d (referring at 845 to evidence of Clause, the in the Due Process preting dogged “a determination the defen- any property interest structors lacked Kilgore College dants to rid of the plain- ETPA.18 employment at continued (re- tiffs”); supra pp. see also it argue, Police Officials Consequently, the counting the Police Officials’demands have reasonable for them would been fired). Hall plaintiffs “injure did not believe that their conduct injury a result suffered economic person property” witness in his [a] Kinney’s ETPA con- defendants’ actions: purposes of the statute. renewed, tract and Hall left question whether Regarding apprehension suffering ETPA in forth a plaintiffs have set violation that, same fate. Holda’s affidavit confirms law, under current the Police Offi- statute cam- began before the defendants their by v. argument cials’ is foreclosed Haddle anticipated renewing ETPA paign, the Garrison, 121, 489, 142 525 U.S. 119 S.Ct. Coercing employ- an plaintiffs’ contracts. (1998), Supreme L.Ed.2d 502 in which the is firing employee er into the classic “third-party held that interference Court interfering employment rela- case of with employment relationships[ ] with at-will tions.19 1985(2).” § a claim for relief under states Haddle, 126, precedent so command Although In

Id. at 119 S.Ct. 489. necessary ing Haddle is not to establish gist that because as “[t]he Court reasoned 1985(2) reasonably competent official would § is directed is that wrong at which case, 927, ("[The (E.D.N.Y.1999) it is incorrect F.Supp.2d 19. Given the facts of this persons, immunity to all Judge repeated- absolute] extends say, dissent as Barksdale’s lay governmental, expert, or wit- whether does, only thing ly that the Police that nesses, (citing integral process.”) to the trial benignly was to decline to enroll Officials did Briscoe). plaintiffs' classes. The their officers in the plaintiffs' em- interfered with the defendants Kinney for the 18. and Hall had contracts result, ployment, and if that is an absurd then year, they academic so were not 1998-1999 Haddle, quarrel with not with the dissent’s employees for that term. The relation- at-will us. ship was at-will in the sense employ- had contract for continued Hall no i.e., right beyond period, no ment the contract to automatic renewal. have understood that certain conduct was September after the events of unlawful, agree we with the Police Officials and the conspiracy October when clearly that it was not established before began. They mistaken in believing are “property” contemplated Haddle the conduct that forms the basis of 1985(2) by § employment. included at-will statutory plaintiffs’ place claim took granted Court certiorari in solely in or before October 1998. Subsec- split among Haddle to resolve a the cir- 1985(3)’s specifically tion cause of action regard cuits with to the status of at-will “do, liability any persons extends who employment, 525 U.S. at 119 S.Ct. done, any cause to be act in furtherance clearly and this circuit not had an- object injure conspiracy [a] [to subject. Thus, nounced its view on the witness retaliation for his or her testi- given judicial the absence of a definitive added).21 mony].” (emphasis Kinney and interpretation “property” purposes provided Hall evidence the Police Of- 1985(2), coupled §of with the fact that at- affirmatively ficials committed “act[s] not employment “property” pur- will furtherance” of conspiracy their to have Clause, poses of the Due Process we can- Kinney and Hall from their removed 1985(2) § not conclude that its terms Haddle, positions long just ETPA after clearly that third-party established inter- particular, Kinney before. and Hall inju- employment ference with at-will (and claim the Police Officials conceded in ry property. point, On this the law depositions) that the Police Officials became established after Had- prohibit continued to their officers from dle.20 enrolling Kinney’s or Hall’s classes for Judge

The Police Officials and Barks- the entire time that working were as argue ETPA; dale that Haddle is irrelevant to this instructors at the at least one of it case because was issued on December boycott the defendants continued to expiration thority Hall left ETPA respect point before the with to the raised year, his contract Compare Clayton for the 1998-1999 academic defendants. Chavis v. Coun Cir.2002), assertedly Dist., job security. ty (11th because of fears over Sch. 300 F.3d Hunter, To the extent that the Police inter- Officials v. 189 F.3d Hef fernan contract, rights (3d Cir.1999), fered with Hall's under this 409-10 and Brever v. Rockwell opposed prospects to Hall's continued em- Corp., Int’l 1125 n. 7 contract, ployment beyond the 1994) (all the Police Offi- holding non-party Cir. wit merely cials did more than interfere with at- standing), Blankenship nesses have with However, employment. plaintiffs will McDonald, the (9th 176 F.3d Cir. argued have not that the 1999), Servs., Ltd., defendants' interfer- Rylewicz and v. Beaton ence with Hall's contract violated (7th law that 1989) (both holding Cir. Haddle, clearly established even before non-party standing). witnesses lack We question. and thus we need not decide that question jurisdic note that there is a as to our argument relating tion to entertain an to stat (as petition rehearing, utory standing opposed In their for the defen- to constitutional 21. argument standing) dants raised interlocutory for the first time an in the context of an Assocs., plaintiffs statutory appeal. do not have stand- See Summit Med. P.C. v. 1985(3). ing § argument Pryor, to sue under 180 F.3d 1334-36 Cir. 1985(2) 1999); Robinson, though § prohibits that even the in- Triad Assoc. v. (as (7th Cir.1993). "part[ies] timidation of or 496 n. 2 We witness[es]” need not resolve however, many categories persons), question, well as other as the defendants did remedy described in the last clause raise this issue in the district court or 1985(3) phrase § "party injured” panel. They uses the so before the are of course free to "litigant injured” argument to mean so proceedings rather than raise the in further be "person injured.” split so There is a of au- low. court properly that time. Hall’s res- denied their motion for during ETPA entire summary judgment respect ETPA became effective with from th‘e ignation Kinney’s § ETPA January and 1985 claim. September until expire did not contract that the emphasize We statute does not summary judgment Viewing the liability every create adverse action to Kin- light in the most favorable record against taken witness after the witness Hall, it reasonable to infer that ney and in a federal case. In addition to testifies boy- ceased their if the Police Officials had requirement cognizable that there abe Haddle, may Holda cott in the wake of (dis- the,witness injury to property his it his conclusion that have reconsidered above), cussed the statute itself contains Kil- economically longer was no viable limiting principle: conspirator another Kinney’s and Hall’s gore College to offer injure must threaten or the witness “on courses, Hall Kinney might and thus having account of his so attended or testi- end, injured. may In the it not have been is, of, by fied”—that because reason damage much of the was done be of, person’s participation as a witness. enjoyed qual- still while the Police Officials See Third New WebsteR’s International nonetheless, immunity; Kinney and ified DiCtionary (1963) (defining phrase their claims for pursue Hall are entitled to “on account of’ to mean “for the sake of: in fur- any damages “act[s] traceable of’).22 by reason of: because The defen- illegality therance” that occurred after the they dants have said had concerns actions of the Police Officials’ become about the instructors’ abilities and ethics. clear. found, however, The district court jury there was sufficient evidence for a light fa- Viewing the facts most pun- conclude that the defendants acted to Hall, Kinney the conduct at vorable plaintiffs ish the because had testified the core of issue this case falls within against police. proceedings further post-Haddle meaning. § There was 1985’s case, may in this the defendants able to to show that the defen- sufficient evidence dispute resolve this factual in their favor. Kinney agreed against dants to retaliate and Hall on account of the instructors’ VI. FIRST AMENDMENT CLAIM testimony against police officers in a feder- Haddle, case, and, and Hall claim that al retaliation unlawfully the form of interference with the defendants retaliated took rights to free employment relationship, exercising them for instructors’ First Amend namely by boycotting speech guaranteed their classes and actors pressuring applicable the ETPA to fire them. We ment and made state Fourteenth Amendment. The dis thus conclude that the Police Officials’con- plaintiffs’ trict court evaluated the claim objectively light duct was unreasonable law, governing to the law First according and the district established Interpreting language reading the same.” in 22. Our of the “on' account of his Guest, 745, having language in so attended or testified” S.Ct. United States v. 383 U.S. 86 Supreme parallels 1170, § the Court's inter- (1966), 1985 Court stated 16 L.Ed.2d 239 pretation language U.S.C. of similar in 18 every conspiracy § 241 would not reach 241, counterpart § § the criminal 1985. right, only a a federal but con- that affected alia, criminalizes, conspira- 241 inter Section purpose” spiracy "predominant was to whose injure a cies to or intimidate citizen in the punish the of the federal deter or exercise enjoyment rights free exercise and of federal 760, right. 86 S.Ct. Id. at 1170. having so [the citizen's] “because of exercised 356 jobs a brought by ing accept paying forced to lower

Amendment retaliation claims boycott. 111 Kinney, See result of the Police Officials’ Kin- public employees. Second, Acknowledging F.Supp.2d at 111 at F.Supp.2d ney, 837. 838. Kinney employees and Hall were not of plaintiffs’ court determined that the testi- Officials, the Police the district court noted mony regarding the use of excessive force County that in Board Commissioners by unquestionably officers was of Umbehr, 2342, 668, Third, 518 116 S.Ct. 135 U.S. public ap- matter of concern. Id. (1996), 843 Court L.Ed.2d balancing forth in Pick- plying the test set analysis the First Amendment Education, held ering v. Board 391 U.S. of by public employees to claims applicable (1968), 20 811 88 S.Ct. L.Ed.2d applies also to First Amendment claims that the the district court determined bal- by brought government’s independent Hall; Kinney weighed ance favor of and Having contractors. considered the rela is, the instructors’ interest in com- Kinney Hall and the tionship between menting public on matter concern long that have used their police agencies outweighed the Police Officials’interest in services, the district court concluded that delivery public the efficient promoting ... equivalent and Hall are “the Kinney, F.Supp.2d 111 at services. 838.23 independent governmental contractor^].” Fourth, the district court found that the Kinney, F.Supp.2d (citing at 841 Um speech instructors’ the Police motivated 2342). behr, U.S. S.Ct. Then, turning spe- Officials’ actions. Id. cifically question to the immu- recognized, As the district court nity, the court determined that the rele- First Amendment retaliation claim in the clearly vant law was established at the (1) employment context has four elements: alleged time of the and that the violation plaintiff employ suffered an adverse objectively Police Officials’ conduct was (2) decision, plaintiffs speech ment in light unreasonable of that estab- (3) concern, public involved a matter of lished id. at 840-44. law. See outweighed plaintiffs speaking interest governmental analysis plain- defendant’s interest As we noted our (4) claims, efficiency, § promoting protected tiffs’ the threshold issue speech immunity whether, a qualified inquiry motivated the defendant’s conduct. ISD, N. light See Lukan v. Forest taken most favorable to the (5th Cir.1999). party asserting injury, Kinney The district court de that Kinney prof termined and Hall had Hall have shown that the Police Officials’ rights. fered sufficient evidence to withstand sum conduct violated their constitutional Saucier, First, mary judgment on those elements. See ifOnly plain-

the district court found that both instruc we determine that the presented tors evidence that had suf tiffs’ evidence shows a constitutional viola- fered employment question adverse actions be- tion do we whether address balancing expert testimony legitimately 23. This ofwas course informed could cause summary the district court's evaluation of the any disruptions opera- in the defendants' judgment regarding Specifically, evidence. Moreover, tions. it must be determined the Police Officials’ assertions that the in- disruptions, any, whether these if were the disrupt structors' threatened to perceived result of a "conflict of interest" services, provision efficient the dis- "blackballing” plaintiffs or the for turn- trict court remarked as follows: ing against one of their own. genuine remaining There are issues fact F.Supp.2d at 843. plaintiffs' in this case toas whether the reasons, any suffi- number of there are right [were] contours “[t]he alleged the time of the ciently upon govern- clear some reasons which the [at official would that a reasonable may rely. may deny violation] ment not It not doing that what he is violates understand person to a on a that in- benefit basis Anderson, right.” U.S. fringes constitutionally in- protected his then, by asking begin, 107 S.Ct. 3034. We especially, his interest in free- terests — conduct the Police Officials’ whether speech. dom of plaintiffs’ to a violation of the amounts 408 U.S. requires This us first right speech. to free (1972). county L.Ed.2d 570 officials identify proper to First Amendment duty place in Umbehr were under no to analysis. plaintiffs contracts trash-hauling with business, plaintiff right nor did the have a Amend- applicable A. is the First What contracts; to those it was an at-will rela- analysis? ment Umbehr, 670-71, tionship. See Amendment shields The First cases, point S.Ct. 2342. The of such only direct limitations speech “not [from] long plain, govern- we have made is the government ... but also adverse [from] duty punish protected ment’s action ... because of individuals] speech, supposed “right” not the citizen’s including pub the denial of speech],” [their government patronage.24 In the instant punish lic individuals their benefits case, the district court found sufficient evi- Grohman, 174 F.3d speech. Colson v. dence not the defendants de- (5th Cir.1999). Kinney Hall prived and of the benefit of outset, con At the the Police Officials continued enrollment their courses—a tend that their conduct is not actionable public patronage form of also that at —but their under the First Amendment because sought least some of the defendants on whether and where to enroll decisions have the instructors removed from the discretionary in the officers are sense That for- academy altogether. no contract required no contract them enroll their bade this is irrelevant. Kinney’s Hall’s courses. officers suggest The Police Officials also assertion overlooks the fundamental This relationship al with point governmental discretion is req As ways constrained the Constitution. Hall was too attenuated to create Perry in governmental power Court stated Sin uisite over the dermann, classicus of the “un Specifically, locus the Police Officials structors. doctrine: deny constitutional conditions” Kin argue that their conduct did not ney employment Hall the benefit of this quarter-century, For at least a Po Kilgore College, because and not the though has made clear that even Court Officials, authority to refuse lice held the “right” gov- has no to a valuable person Kinney’s and Hall’s contracts. though even to renew ernmental benefit and reject argument. him line of The Su- government may deny the benefit We Communications, advertising, [newspa- from the 24. See N. Miss. Inc. v. the form of its Jones, (5th Cir.1986) per] newspaper’s exer- in retaliation for that ("Although [plaintiff newspaper] may or, rights, first amendment in similar cise of ‘right’ legal have had no to receive certain reprisal advertisers to threaten commercial advertising County Super- Board of from the county should with a loss of business visors, it would the Constitution for violate [newspaper].”). to advertise in the continue public patronage, Board to withhold end, involving “government one cases em has made it clear that First preme Court protection depend relationship does not on ployees, Amendment whose close with the governmental action at issue balancing impor whether government requires “direct” or “indirect.” To hold that the speech government tant inter free Police conduct cannot constitute a Officials’ and, end, involving ests” on the other cases First Amendment violation because “ordinary viewpoints citizens whose on directly Kinney and Hall of deprive did not public government matters of concern the jobs, governmental but instead used legitimate repressing.” has no interest on the power pressure to exert economic 680, 116 518 U.S. at S.Ct. 2342. to achieve employer

instructors’ in order government Because the has no result, govern- allow the same “would legitimate denying interest in a benefit to could ‘produce [it] ment to a result which “ordinary citizens” on account of their directly.’” Perry, not command 408 U.S. concern, 597, on matters of there (quoting Speiser at 92 S.Ct. 2694 v. Randall, 1332, balancing 357 U.S. 78 S.Ct. is no interest involved (1958)) (alteration origi- “ordinary L.Ed.2d 1460 analysis First Amendment nal). argu- The defendants’ “attenuation” Rather, citizen” cases. the First Amend fundamentally misguided, for the ment is “ordinary ment is violated in citizen” cases relation- situation which the economic engaged pro if the individual in conduct ship government between the and the tected the First Amendment and the speaker is the most attenuated would be government took action person speaker the case in is an ordi- which See, of that protected because conduct. nary employment-related citizen with no Antonio, e.g., City San Rolf government. limiting ties to the In this (5th Cir.1996). In “governmental argu- for the case defendants’ attenuation cases, contrast, employee” courts must ment, plainly the First Amendment would government’s be attentive to the “[t]he government pressuring forbid the achieving goals effectively interest in its as employer citizen’s fire the citizen as efficiently possible,” as which interest punishment for trial from a relatively “is elevated subordinate government degree disliked. The of atten- sovereign interest when it acts as present given may uation in a case well significant employer.” one when it acts is, may bear on causation —that it be easi- Churchill, Waters v. U.S. er government for a official to fire his own (1994) (plurali 128 L.Ed.2d 686 than employee persuade a contractor to ty opinion). employees fire one of this does its —but change the official’s First Amendment Supreme Court set out the duty. reject We thus the defendants’ ini- analytical structure for “governmen basic arguments tial that the First Amendment employee” balancing Pickering tal cases in bearing has no on this case. Education, v. Board case, In that S.Ct. 1731. the Court held enjoy protections all citizens While that a board of education violated a teach Amendment, appropriate of the First rights by discharg er’s First Amendment analytical “un- applying framework ing him in retaliation for his criticism of giv- constitutional conditions” doctrine to a depends budget en First Amendment claim board’s decisions. Id. at 574-75, holding, context in which the claim arose. As the 88 S.Ct. 1731. so Umbehr, emphasized explained government Court the Court em from, a “spectrum” ranging ployees “may constitutionally cases form com- [not]

359 to government needs be free the First Amendment relinquish pelled citi- enjoy as and contrac- employees otherwise terminate both rights they would in- public matters of on poor performance, improve zens to comment tors for operation the of with in connection efficiency, efficacy, responsive- terest the they in which public the [institutions] and to public, ness of service to the 567-68, 1731. The at 88 S.Ct. Id. work.” corruption. of prevent appearance the however, that “the recognized, Court also contractual, And, statutory, or absent regu- in employer as an has interests State restriction, govern- constitutional employees speech of its lating to terminate them for ment is entitled possesses it from those significantly differ type But no reason at all. either speech of the regulation in connection with relationship provides a valuable financial Thus, Id. citizenry general.” in of the benefit, in threat of the loss of which Court, necessary “to it is explained the speech may speech for chill retaliation the interests at a between arrive balance concern those public on matters citizen, commenting teacher, in as a of the who, dealings with the because of and the public concern upon matters posi- government, “are often the best State, employer, an of the interest agencies tion to know what ails the ser- efficiency promoting the which work.” employees.” its through it performs vices Waters, 674, (quoting Id. at 116 S.Ct. 2342 568, 1731. Id. at 88 S.Ct. 1878).25 674, 114 511 at S.Ct. U.S. case, companion and its In Umbehr cases, explained past As we have Service, City Inc. v. Truck O’Hare relationship be- determination whether Northlake, 712, 116 S.Ct. 518 U.S. and an individual government tween the (1996), Supreme L.Ed.2d 874 employee” end “governmental falls on the em- “governmental held that Court spectrum turns on whether Umbehr unconstitutional con- ployee” version of the sufficiently “analogous relationship is, Pickering ditions doctrine—-that employment relationship.” See appropriate balancing inquiry also —is Marshall, 42 F.3d City v. Blackburn alleges a independent contractor where an (5th Cir.1995). Applying this against Amendment violation First Blackburn, that the we held standard Serv., Truck government. See O’Hare applica- balancing test was not Pickering Umbehr, 2353; 720-24, 116 S.Ct. owner’s First to a wrecker service ble 677-78, 684-85, 116 S.Ct. 2361. 518 U.S. at against police claim Amendment retaliation “independent The Court reasoned to use revoking permission his officials for contractors are similar government criti- frequency after he radio government em- respects most relevant contracting Umbehr, police department’s cized the 518 U.S. ployees.” revoca- Id. at 934. The procedures. noted: Specifically, the Court agency's revocation of his reasoning based on a state similar to that of the 25. Based on publicly the licens- license after he criticized in Umbehr and O'Hare Truck Court Service, Hardy, Pickering ing program); v. applied a Caine this court has also Cir.1991) (en banc) (treating an balancing 1415-16 test in First Amendment retaliation anesthesiologist privileges at a public employment with clinical arising cases outside the See, "public employee” for Swearingen, public hospital as a e.g., Copsey context. v. (5th Cir.1994) claim based (holding purposes First Amendment his hospital’s permanent suspension of his Pickering balancing analysis appro- was the proposal opposed a evaluating vending privileges after he priate clinical framework for anesthesiology). by the chief of operator’s Amendment claim made stand First interests interests the free the ser privileges radio rendered tion of on North Relying at stake this case. in a rotation participate vice unable to Mississippi and Worrell Communications damaged vehicles system removing (10th Cir.2000), Henry, F.3d 1197 Id. at 930. the scenes of accidents. Kinney respond Hall that the “ordi reasoned in Blackburn that the busi We analysis suited to nary citizen” is better the wrecker ser relationship ness between than of the instant case the circumstances did police department and the vice owner test. “governmental employee” is the ties but implicate employment-type not Worrell, ap declined to the Tenth Circuit be relationship similar to the was instead Pickering balancing test to a First ply Mississippi in North parties the tween alleging that the law Amendment claim Communications, in which another case pressured enforcement defendant “ordinary citizen” version applied we plain plaintiffs employer to rescind conditions” doc of the “unconstitutional plain in job offer retaliation for tiffs Blackburn, at trine. See 934. having tiffs testified as an witness Mississippi Communications in North See on behalf of a criminal defendant. First Amendment newspaper’s volved a the Wor Rather, 1209-12. county had alleging claim that officials rell court determined that appropriate newspa placing legal notices ceased analysis evaluating First Amendment newspaper’s pub per in retaliation for the “ordinary claim citi plaintiffs that criticized the lication of editorials condi zen” version of the unconstitutional F.2d at 1337. board and its members. 792 doctrine. See id. at 1212-13. tions Pickering balancing apply did not We court and the agree with the district We Amendment newspaper’s test to the First Pickering balancing Police Officials that claim, held that “it would vio but rather analysis in this case. The appropriate late the for the Board to with Constitution the Police Officials relationship between of its public patronage, hold the form Kinney and and ETPA instructors such as for that advertising, ... in retaliation implicates governmental Hall interests exercise of first amendment newspaper’s public to those involved in the em- similar Id. rights.” ployment context. Law enforcement disagree parties this case agencies legitimate have a interest exer- analysis— which First Amendment over cising the choice of the discretion over Pickering balancing on the one hand or will, instructors who train the officers who “ordinary citizen” on the framework turn, carry agencies’ public out the Earlier, apply to this case. other —should include, Those interests for exam- duties. arguing deny that their actions did not instructors are com- ple, ensuring Kinney any and Hall actionable “benefits” are petent knowledgeable, of the unconstitutional condi purposes offi- adept conveying knowledge doctrine, empha tions the Police Officials cer-students, they maintain a and that employment-type sized their lack of ties to good working relationship with law en- Kinney support argu and Hall. In of their those agency forcement officials so regarding appropriate ment First training can monitor the that their officials however, analysis, the Police are all Amendment officers receive. These interests relation in- governmental Officials now characterize their relevant to the ultimate Pickering balancing analy- ship with the ETPA and ETPA instructors terest that the sufficiently employment protect, namely akin to to war sis is meant to the interest efficiency public “in promoting the balancing rant a of the Police Officials’ Hall agency] per- present extremely law enforcement [a services Pickering, 391 U.S. at 88 strong forms.” First Amendment interest. The is, weight of the First Amendment interest course, solely measured the in dispute do not The defendants if personal gain, any, structors’ own on a matter of spoke instructors is, rather, speaking.26 It a function of the (in concern, they question nor can See, speech. social value of that e.g., Con the district court’s interlocutory appeal) Myers, nick v. 103 S.Ct. regarding causa- factual determinations (1983) (“[S]peech 75 L.Ed.2d 708 consider Accordingly, tion. we now whether, Pickering, concerning public district affairs is more than self- under correctly the First Amend- expression; court balanced it is the of self-gov essence Kinney’s in protecting ernment.”) (alteration (internal ment interest in original) the Police Officials’ speech against Hall’s omitted); quotation marks and citation in it. suppressing interests Richardson, City Brawner v. of (5th Cir.1988)

187, in (discussing, 192 the B. there a First Amendment viola- Was case, a Pickering balancing course of “the tion? public’s interest in the disclosure of mis (emphasis conduct malfeasance” add to bal Pickering requires

The test us ed)). speaker’s emphasized great First Amendment inter This court has ance government’s legitimate ests significance speech Amendment of First provision public in of interests the efficient misconduct, bearing “especially on official balance, we performing services. operation police it concerns the of a when scope not to exceed the of must take care Brawner, department.” 855 F.2d at 191— jurisdiction. interlocutory appellate our Indeed, working 92. because individuals earlier, II- supra see Parts explained As in law enforcement “are often in the best III, accept must the existence of those we position to know” about the occurrence genuine issues of fact identified Umbehr, misconduct, official 518 U.S. court and the district court’s con district 674, 116 S.Ct. “it is essential” plaintiffs’ comitant characterization of the individuals well-placed such “be able summary ques judgment evidence. The misconduct, freely” speak out about official tion for us is whether the district court Pickering, 391 U.S. at 88 S.Ct. 1731. in the in legal balancing committed error Hall, en Kinney experienced two law summary judg supported terests expertise weap in forcement trainers with record, the record in the viewing ment force, ideally placed the use of are ons and non-movants. light most favorable comment about public to offer valuable adequacy police force and the excessive plain Starting first with the scales, in training supervision, key issues tiffs’ side of the we conclude they Contrary later decided that "it wouldn't to some of the Police Officials' cers—but intimations, plaintiffs’ speak- in right charge” interests "felt so because ing pecuniary cannot be reduced to mere strongly explain we about the incident.” As in, it, put interest as the defendants "moon- text, speech in this case is uncom- in the lighting experts-for-hire." plaintiffs as monly public's valuable because of the inter- originally planned paid to be for their work in remedying identifying, preventing, and est in Kinney shooting -just the Kerrville misconduct, case— any per- official not because paid past he had testi- had been in the when advantage Kinney sonal and Hall. support fied as an in offi- 362 Moreover, terms; look instead to how the

the Kerrville trial.27 as the dis- stract we “[¡Individuals out, pointed trict court will government’s at issue affects succeeding in an exces- have a hard time efficiently. providing interest services sive force case without the assistance of speech’s It is the detrimental effect experts intimately acquainted who are with delivery services that efficient Kinney, procedures.” gives legitimate interest government F.Supp.2d Expert at 838. illustrated, suppressing it. This is in providing thus essential both victims McPherson, example, by Rankin v. with “the realistic avenue for vindica- 378, 381, U.S. 107 S.Ct. 97 L.Ed.2d Harlow, guarantees,” tion of constitutional (1987), a employee case which as well as U.S. S.Ct. remarked, upon a constable’s office hear- § func- serving parallel 1983’s deterrent ing attempted about assassination tion, City Independence, see Owen him Reagan, they go President “[I]f again, hope they get I him.” The Rankin (1980). L.Ed.2d 673 thus conclude We Court did not consider the defendant con- particularly and Hall have a maintaining generalized stable’s interest weighty First Amendment interest on discipline certainly important inter- — Pickering their side of the scales.28 est—but the Court instead asked whether turn next to the Police Officials’side We issue, speech given the at the context and in Pickering of the balance. Stated its duties, employee’s actually impaired the terms, general government most the has operations. performing office “In the “promoting efficiency an interest in the [.Pickering] balancing, the statement will public governmental the [that services the vacuum; not be considered a the man- agency] performs.” Pickering, 391 U.S. ner, time, ex- place employee’s case, In 88 S.Ct. 1731. the instant relevant, pression are as is the context in given objective pro- the Police Officials’ dispute which the arose.” Id. at enforcement, viding effective law all sides Thus, question S.Ct. 2891. this case recognize they that strong have a interest is not whether the have an interest in assuring training the effective of their training” deny “effective one would personnel. law enforcement As the Su- —no whether, record, rather that —but clear, however, preme Court has made they reasonably could think that interest weight relevant issue is not the of the governmental interest considered in plaintiffs’ protected ab- threatened Kinney spoke Judge impor- 27. The that fact and Hall as Jones would minimize the expert witnesses does not mean that speech tance of the free interest at stake here speech was less valuable than other forms of ground Kinney on the and Hall testified speech By that reveals official misconduct. voluntarily. (Kinney actually and Hall were experience expertise, virtue of their wit- subpoenaed, they ap- but admit play nesses like and Hall an essential so, peared voluntarily.) doing In she relies identifying police role in misconduct. There on the Third Circuit’s decision in Green v. was no secret about the fact that Eddie Gon- Philadelphia Housing Authority, 105 F.3d 882 Kerrville; zales had been shot (3d Cir.1997). plaintiff in Green was public did not need an witness to agreed testify, demoted after he as a favor experts reveal that. The does need like friend, a a as character witness at the Hall, however, Kinney and to reveal whether hearing. friend's son’s bail Id. at 884. Such shooting unjustified was an use of force or testimony public importance is of much less inadequate training supervi- the result of than the here. sion. See, may disputed. that the Police Officials rial facts are e.g., such Victor v. suppress speech. McElveen, (5th Cir.1998) legitimately (explaining that a sheriff was unable to recognizing governmental In show that his interests efficient func- in a case nec- particular interests at stake tioning department outweighed a case, facts of the essarily depend upon the interests, deputy’s speech given that it was not, the dissent certainly most do as we disputed whether the disrup- comment was asserts, pervert the First Amendment tive).29 The dissent is thus incorrect if it analysis by changing Pickering balanc- suggests It ing inquiry question jury. into a for the First Amendment cases impor- present the court to determine the an exception general is for to the rule interest, plaintiffs speech tance of genuine that we do not factual resolve importance governmen- of a determine disputes summary judgment stage. at the operations, tal interest in efficient and to differently, engaging Put in Pickering bal- But weight the relative of each. balance ancing is not like performing rational basis that are at governmental interests review, uphold where we government ac- necessarily de- particular stake case long tion as imaginable there is some facts of the case. As a matter pend on the legitimate Gustafson, basis for it. law, surely the Police Officials have an 909-10; City see Boddie v. array weighty interests in various mat- (5th Cir.1993) Columbus, 989 F.2d 745 ters, but those interests are relevant (“There was no interest to balance [in if, fact, a to this case as a matter of certain Pickering inquiry] [potential] when this interest is threatened. this case—-an rejected factually.”). reason was We do interlocutory appeal of denial sum- governmental not let pre- defendant to mary judgment permitted are not —we vail, summary judgment, by relying on on to indulge preferred our own view as that, viewing interests the record the case, much less -can the true facts of the favor, reasonably non-movant’s are not simply accept we the defendant’s version threatened the case. Instead, disputed facts as true. we mind, principles With these we now accept genuine disputes must the factual turn to the Police Officials’ asserted by and conduct identified the district court grounds taking against Kinney for action if inquiry plaintiffs’ the as the version is canvassing possible and Hall. In the harms circuit, true. That is how this like other plaintiffs’ caused the Kerrville testimo- circuits, handles law of the substantive ny, we note first that some of the work- Pickering balancing procedural pos- in the summary judgment place disruptions ture of when the mate- cited the Police Offi- Ganim, 105, 1091, Pelt, 29. See also Johnson v. 342 F.3d Domina v. Van 235 F.3d 1098-99 (2d Cir.2003) (8th Cir.2000) summary (denying judg- (denying summary judgment 114-15 qualified immunity qualified immunity dispute ment and because of fac- and due to factual dispute regarding plaintiff’s employee's speech tual whether over whether created morale); speech reasonably disrupt govern- workplace disharmony could the and affected Cincinnati, employer's operations); v. ment v. Johnson Univ. 215 F.3d Gustafson Jones, (7th Cir.2002) (6th Cir.2000) (reversing grant 290 F.3d of sum ("Pickering balancing mary judgment is not an exercise in because material factual dis balance); judicial speculation. putes Pickering While it is true that in bore on Shands cf. Kennett, undisputed summary City some cases the facts on 993 F.2d 1342-43 (8th Cir.1993) permit (instructing judgment the of a district courts to resolution claim trial, special interrogatories jury without a that means that the Pick- submit to the ering light question employee’s elements are of a rec- of whether the assessed in disputes.”); speech disruptive). ord free from material factual was ever, predictions officials’ Pickering is that simply irrelevant to the ciáis are true, It as the defen- disruption calculus. is of course must be reasonable. See Wa out, boycott strained point that the ters, 1878; dants at Con 511 U.S. S.Ct. ETPA relationship and between nick, 1684; at 103 S.Ct. addition, police agencies. the local Brawner, (asking whether 855 F.2d at 192 boycott may caused tension between have “likely” disrupt de although Holda plaintiffs, Holda and the also partment’s operations); see Gustaf Kinney and Hall in the media did defend son, (denying police at offi boycott amica- attempt to resolve immunity and request cials’ for disruptions might bly. types Those remarking that “mere incantation of the given the ETPA a sound reason have harmony workplace’ phrase ‘internal Hall, against Kinney action but taking (internal enough carry day” in the Police Offi- they cannot be counted omitted)). “Even in situ quotation marks just disruptions cials’ favor. The noted recognized ations where courts have boy- by the Police Officials’ were caused special needs of cer special expertise cott, hardly rely Police can so the Officials decisionmakers, deference to their tain disruptions justification on those complete.” conclusions has never been boycott. question is whether the Waters, 114 S.Ct. 1878. 511 U.S. to the plaintiffs’ posed threat The reason for this rule should be obvious: ability ser- Police Officials’ deliver always possible, give but to Disruption is vices, not whether the Police Officials predictions deference to unfounded it.30 disruption response caused government arbi harm would allow regard question to the With whether guise of trarily punish speech under the plaintiffs’ speech impaired the Police Offi- is, disruption. That it would preempting court training operations, cials’ the district permit government “to silence dis concluded, upon its review of the based course, func hampers public not because it it, record before that the defendants had simply superiors tions because dis but any damage efficiency to the not identified agree employees’ with the content of brought' by Kin- operations of their about Rankin, 384, 107 speech,” 483 U.S. ney’s testimony in Kerrville. and Hall’s 2891. The district court addressed the 111 find- Kinney, F.Supp.2d 842. This disruption was a reason issue whether (like determinative, ing not itself for we prospect, able and its conclusion was dissent) are mindful of the fact those “[tjhere genuine are of fact remain issues often prudent that a administrator will plaintiffs’ case as to whether the ing this ripens to take action a risk wish before testimony legitimately could cause workplace disruption. an actual The into action, key preemptive any disruptions opera- limitation on how- in the defendants’ Kennedy Library effectively very workplace Tangipahoa 30. Parish could create the Cf. Control, that, Pickering Bd. n. 19 disruption approach, under Cir.2000). reject- Other courts have likewise justify could be used to the limitation of First argument ed the circular advanced Whitmer, rights.”); Hughes v. Amendment cf. Worrell, Officials. See 219 F.3d at Police (8th Cir.1983) (McMilli 714 F.2d intent, ("[AJcting retaliatory with a 1210-11 an, J., ("It dissenting) would be anserine to party upon cooperation third whose the em- permit government discipline to its em ployer depended cooperate could refuse to ployees disruption because of caused employer particular employ- with the unless a government's repressive reaction to the em fired, demoted, By ee were or transferred. activities.”). ployee’s first amendment withholding cooperation, party the third at 843.31 record that the Kinney, F.Supp.2d shows Police Officials see a tions.” disregard to that conclu- conflict of are not free interest whenever and wherever We appeal. police against in this trainer police sion testifies offi- Regardless cers. of whether one uses the Kinney’s claim that The Police Officials silence,” that, label “code of we believe testimony damaged training by and Hall’s record, the defendants’ asserted no- a “conflict of interest” and “vio- creating tion of sweeps “conflicts of interest” so cooperative ... re- lat[ing] principles broadly as to undermine its status as a say, sponsibility trust.” Needless [and] legitimate government interest can officials should be concerned reasonable properly weigh Pickering in the balance.33 interest, they can about conflicts persuasiveness of the Police Officials’ rightfully employees demand that asserted concern sinks further still when not abuse the trust and contractors one considers that refused to upon government places them. Based Kinney’s send students Hall’s record, however, summary judgment might proper classes—that be a response the district court was unable determine to concerns about an instructor —but the the Police had concerns whether Officials Police Officials in- also tried have the or genuine about conflicts of interest were fired, structors which to imply tends instead, contend, as and Hall mere- trying defendants were to do more ly enforcing interested in a “code of si- prevent than any- conflict of interest. If plaintiffs. Id. at lence” thing, the sweeping (yet Police Officials’ main 843.32 One of the reasons for one-sided) notion of “conflicts of was that the interest” the district court’s conclusion impair provision tends to the efficient have asserted an interest in Police Officials services, inasmuch as it thwarts the suppressing po- that involved objective agency away, important public preventing lice hundreds of miles well police outside of the ETPA’s service area. The misconduct.34 As the regard, people In this it should be remembered reasonable would be about concerned case, any they deny the record does not contain affidavits conflicts of interest in this depositions genuine from trainees who stated that the Police Officials held con- they lost confidence in the instructors. Kin- cerns about conflicts. ney relationships and Hall stated that their Pickering 33. The balance takes account of le- adversely with students were not affected. Umbehr, gitimate only. See interests silence,” we 32. The so-called "code of have (referring "legiti- S.Ct. 2342 cases, explained previous is the informal interests”) countervailing government mate according rule one Ctr., to which officer added); (emphasis Wilson v. UT Health report testify against does not on or another (5th Cir.1992) ("Though officer, regardless of the nature of the public employees may be of See, e.g., Snyder accused officer's conduct. concern, speech public still does not en- that (5th Trepagnier, 142 F.3d 797 n. 6 Cir. joy protection legitimate First Amendment if 1998) witness). (citing expert an government limiting speech interests in The Police Officials have asserted in their outweigh employees’ speak- interest in Kinney added). briefs that and Hall admitted that the ing.”) (emphasis genuine Police Officials had and reasonable recognized, government about of interest. We do 34. As this court has concerns conflicts reading agencies protecting speech not believe that the Police Officials’ have an interest in misconduct, depositions, relating the record is warranted. In their and there are official Kinney that in which that interest counter- and Hall admitted reasonable circumstances sup- people governmental could be concerned about conflicts of balances the interest in Victor, against pressing disruptive speech. interest an testifies See when instructor however, (observing, They deny, at in connection with a his own students. that Rankin, from a case like tinguish in case the instant case counseled another Court context, Norman, that arose in the law enforcement Tedder v. 167 F.3d 1213 Cir.1999). necessary Tedder, to ensure that “[v]igilance deputy director authority over public employers do not use academy as an of a testified discourse, not employees to silence be- agencies that against witness one of hampers public it functions but sim- cause academy. quite It is sent trainees to the with the ply superiors disagree because how this could raise real understandable speech.” 483 U.S. employees’ content of concerns, con- including concerns about 107 S.Ct. 2891. Accordingly, the Tedder flicts of interest. disruption court found that the “actual and regard are in order Similar comments potential disruption” further caused asserted interests ing the Police Officials’ justified plaintiffs the acade- corps, heavily re loyalty esprit in and de my’s decision to demote him. Id. at 1215. one would upon by lied the dissent. No Here, contrast, in the district court con- important that those are consid doubt but erations, police department. genuine dispute in a that there was a especially cluded however; department, in plaintiffs’ Even within whether the activities did over preserv to, fact, the mere assertion of interests reasonably expected and could be ing loyalty working relationships and close impair proper training. the debate as it would if this does not end accept disputes we the factual When inquiry. a rational basis See Bran were by the district court and view identified Dallas, City ton v. disputed light most favor- facts (5th Cir.2001). trumpets the dissent When Hall, we find that the able to and loyalty,” the need for “institutional Jones any have not articulated Police Officials one must ask institu dissent what relevant, cognizable suppress- interests by testify plaintiffs wronged tion the have plaintiffs’ speech, Kinney and ing the while ing against distant officers that have presented strong Hall have First charge of never met. The Police Officials’ testifying po- interest in about Amendment disloyalty only Kinney if makes sense brutality inadequate supervision lice fealty Hall owe to law enforcement univer Therefore, that, training. we conclude Indeed, sally. the Police Officials’ stated summary judgment stage, at the the in- disloyal' has com

view is one —and testifying easily out- structors’ interest unforgivable mitted “sin”-—whenever weighs sup- the Police Officials’interest in one testifies law enforcement offi pressing speech, given their loyalty A anywhere. concept cers police agencies involved unrelated sweeps broadly may so is not one that away. hundreds miles legitimately trump compelling interests speaking on matters of concern. Our decision should not be taken to police agencies enjoy mean that do not

The district court’s conclusions with re- spect question workplace disrup- managing training to the broad latitude rather, officers, including significant tion—or the absence thereof— dis- discre- claim, brought by deputy sheriffs First Amendment case a nurse who worked in a maintaining harmony prison, "[a]lthough plaintiff’s] [the "concerns about -and 'whis- eliminating disruption blowing' obviously be the sole tle created tension cannot government prison], weighed of interest when the em- difficulties at when [the measure exposure ployee’s speech important against of unethical medical furthers other state 820, inmates, interests”); King, practices affecting 873 F.2d 826 hundreds of Frazier (5th Cir.1989) interest”). (stating, disruption a a First Amendment is minimal

367 of instructors. There C. Are the Police the choice entitled to tion over Officials legitimate why qualified immunity? of reasons any are number stop using particular can a police officials The First right Amendment academy; barring contractual instructor free was of clearly course estab commitments, they good can do so for no in general long lished terms before the at all. In order to do so on basis reason giving events rise to this case. In order to however, speech, penalizes protected defeat the Police Officials’ claim quali explain why sup- their need to must however, immunity, fied Kinney and Hall counter- press speech outweighs right must show contours of the “[t]he Amendment interest in free vailing First sufficiently clear that a [were] reasonable early stage At this expression. official would understand that what he is dispute proceedings, genuine there is Anderson, doing right.” violates that any the Police had to whether Officials 640, Qualified S.Ct. 3034. im justify interests that could their legitimate munity should not be denied unless the law boycott termi- and seek the decision is such that reasonable officials should be had testified in a nation of instructors who “on notice [that] their conduct is unlawful.” against police agen- trial unrelated distant Saucier, 533 U.S. at 2151. cies. repeating It bears once that our more guide factual is the district court’s view of Kinney spoke and Hall To summarize: record, legal and the question is concern, public on a matter of and the whether the defendants’ conduct violated speech prevails, at the sum- value of clearly established law measured mary stage, opposing over the judgment the facts that the district court believed governmental Pickering interests in the plaintiffs prove could at trial. See balance. Since the district court also Behrens, 516 U.S. at 116 S.Ct. 834. Kinney found that and Hall established a genuine regarding factual issue whether There no that it question was boycotted Kinney’s the Police Officials and established well before 1998 that October sought Kinney’s courses and to have them Hall’s pub- Hall’s faculty ETPA speech protected removed from the because lic concern and thus was testimony, Kinney, F.Supp.2d of their the First Amendment.35 The Police Kinney attempt argue the facts set forth Officials do not other- wise, suggest Hall are sufficient to it state First but rather that was step imposed Amendment violation. The first clear that the First Amendment qualified immunity analysis any is thus restrictions on their conduct vis-á-vis complete. question Kinney training next turn to the and Hall as their instruc- We is, This, course, “clearly argu- established” law—that whether tors. same earlier, rejected discussing it have to a apparent would been reason- ment we alleged able officer at the time of the and Hall had set forth whether violation that the Police conduct that amount to Officials’ conduct evidence of would arguing violated the First Amendment. a constitutional violation at all. In Testimony ceedings); Hightower, judicial proceedings "is Smith v. 693 F.2d in herently (5th 1982) concern.” Johnston v. Har (testimony pro Cir. in criminal Dist., County Coll., ris Flood Control 869 F.2d ceedings); Rainey v. Jackson State Cir.1989); (5th see also Reeves v. Clai (5th Cir.1973) (testimony of 349-50 Educ., County borne Bd. witness). 1987) (testimony pro- Cir. in civil reject Po- fundamentally, we immunity, Police Officials More at least a reason- that it would have suggestion contend that there was lice Officials’ view, if it for their even legal posi- able basis in their for officers been reasonable specifically, ultimately wrong. More was they to that were unfettered tions believe say that their duties the Police Officials merely by the First Amendment because un- respect Kinney and Hall were with Kinney relationship their economic with were “em- because the instructors clear non-employment Hall and non- and i.e., ‘disappointed a ployees of bidder’ — and Supreme contractual. Both the Court ap- Kilgore College.” The Police Officials rejected rea- explicitly this court have such part in on base this contention parently Service, Truck soning. O’Hare that Court’s admonishment Umbehr rejected ... that proposition “the Court concerns the termi- [this] suit “[b]ecause perform government’s work those who pre-existing of a commercial rela- nation employment outside the formal relation- tionship government, with the we need ship subject are to what we conclude is the possibility of suits bidders address the specific abridgment and of First direct government con- applicants or for new rights.” Amendment 518 U.S. at rely cannot on such relation- tracts who Blackburn, Similarly, in we S.Ct. 2353. ship.” 518 U.S. at 116 S.Ct. 2342. “assumption only pub- that the that stated reject at- Initially, we the defendants’ enjoy of the employees protections lic Kinney to characterize and Hall as tempt on First Amendment” rested “inverted” Nei- employees disappointed of a bidder. “[e]very enjoys citizen reasoning because College ETPA instruc- Kilgore ther nor protections against Amendment’s the First Hall were mere tors such as and governmental interference with free they in that lacked a “bidders” the sense explained speech.” F.3d at 931. As we “pre-existing relationship” commercial Blackburn, Supreme in Court did not concerned the sort the Court was “governmental employee” formulate the i.e., relationship in about Umbehr — version of the “unconstitutional conditions” the Police Officials could use to inhibit limit the Amend- doctrine order to First speech. See id. S.Ct. context, employment public ment (reasoning Pickering balancing- that a to take into account but rather order analysis appropriate involving in cases rights pub- that “the First Amendment contractors government’s independent employees lic are restricted the nature providers regular services as well as relationship.” employer-employee employees “type[s] its of re- because both Indeed, Id. Court’s decisions financial lationship provide! ] valuable Umbehr, Pickering, Truck O’Hare benefit, the threat the loss which predicated assumption Service are on the speech may retaliation for chill although government may have concern”). matters of The Police relationships other with individuals ad- power deny Kinney Officials had the citizen-sovereign relationship, dition to the significant Hall as ETPA in- benefits not, individuals do as a result of such structors, it of that is the existence relationships, cease to be citizens with power sort of not mere labels de- —and rights govern- First Amendment that the scribing governmental relationships'—-that Thus, obligated respect. ment is we purposes is relevant of the First Serv., difficulty concluding little have Truck Amendment. See O’Hare 721-22, 2353; Umbehr, Police Officials would be unreasonable U.S. at 116 S.Ct. 678-79, failing recognize had First 518 U.S. realized, Kinney only by weighty governmental obligations toward Amendment Wilson, interest. and Hall. See Matherne (5th Cir.1988) (explaining opinion Part of this determined VI.A greater disruption that a must be shown were entitled to that the Police Officials speech when the of greater public is con First Amendment claim plaintiffs’ have the cern). in- analyzed Pickering balancing under a quiry, recognizes a framework that the earlier, explained As at stage sup- in legitimate Police Officials’ interests it is disputed case whether the Police Offi that interferes with pressing speech some legitimate cials’ interests were threatened services. To the provision the by Kinney and Hall. The district court any uncertainty that there was extent disputed found that it was whether the framework, proper analytical about in testimony disrupt instructors’ Kerrville uncertainty could not redound to the de- ed, legitimately disrupt, and even could benefit, fendants’ as the alternative would training objectives. Police Officials’ Kin the Police have been to hold Officials record, ney, F.Supp.2d at 843. On this they standards that must ob- higher the Police Officials’ asserted interest respect ordinary citizens. It serve with loyalty given is unreasonable the events at plain government harry is that the cannot issue; certainly justi such interests cannot ordinary employer of an citizen who fy attempt to force the instructors out gave testimony, seeking unwelcome academy altogether. Viewing employee have the fired retaliation. summary judgment light facts in the most Police Giving the Officials benefit non-movants, favorable to the the Police test, Pickering balancing ask we .must pursued Kinney Officials and Hall not be it was established at the whether genuine cause of conflicts interest but time of the Police Officials’ conduct merely Kinney instead and Hall because the First Amendment forbade them from against had testified officer. Id. Hall, retaliating against Kinney 838-39, 843, disputed When contractor, employees of their on account perspective facts are viewed from the testimony. of the instructors’ Kerrville plaintiffs’ evidence—and that is the conclude that it was. We only perspective allowed on this interlocu Given that it is well-established in the Behrens, tory appeal, see 516 U.S. at jurisprudence of both the Court illegality 834 — the of the Police and this court that official misconduct is of readily apparent. Officials’ actions great significance, First Amendment and Summary judgment inappro therefore repeatedly emphasized that this court has priate. protect speech regarding po- the need to contend see, The Police Officials particular, e.g., lice misconduct light conduct of the fact Browner, was reasonable it would have that, boycott when the started October objectively been unreasonable for an offi- Legislature the Texas and Texas Kinney’s cer to conclude that and Hall’s University policies had enacted anything highly than A&M other effectively employees state speech.36 Suppressing prohibited valuable justified, speech serving expert could be should have witnesses earlier, particularly protected category. explained 36. As we outside of this experts accompanying Hall testified as rather than as fact supra 26-27 and text. Morales, obscenity F.2d at Hoover v. criminal case. See 435 flicts of interest. See Cir.1998) (de- I). (5th (Rainey appeal 223-24 In a later 164 F.3d case, scribing policies). college But the Police Offi- noted that a trustee same we reasonably relied hardly could have denied plaintiff cials had admitted that the was support for their policies on these state testi teaching position because his against purported conflicts of own stand mony publicity surrounding the and the chal- policies “[tjhese The state had been interest: same; facts we observed that a lenged speech, as violative of free a appear make out what to us be clear enjoined judge preliminarily had federal impermissibly freighting plaintiffs case of August on over their enforcement deprivation contract with a of the First year boycott. This court before right speech,” to free and we Amendment in an issued opinion affirmed that decision ultimately plaintiff held that the was enti It therefore July 1998.37 would have judgment as a matter of law. tled to rely on these state been unreasonable Coll., Rainey v. Jackson State 481 F.2d guidance meaning on the of the policies II).38 (5th Cir.1973) (Rainey The Amendment. First Rainey part decisions are themselves in long series of First Amendment cases event, any spoken we had to such have condemned retaliation we controversy long before the over the which issues testimony, including court retalia against example, For policies at issue Hoover. employees gave testimony tion who Rainey College held in v. Jackson State we employers’ interests. See a claim under adverse their that a teacher stated Johnston, (county em college Amendment a state 869 F.2d First when on co-worker’s employment ployee testifying denied him retaliation for fired for blanket, 37. The have stated that Hoover case looks much more like the view- defendants was not decided until December after point-based ban condemned in Hoover itself. (but all) by Indeed, much no means conduct we at their if take the Police Officials probably issue in this case. Their belief is word, policy people is that like fact that the version of the based very people expertise and Hall—the with the opinion printed Hoover in the bound volume required prove that is claims of excessive Reporter a date of the Federal 31, 3d bears of Dec. inadequate police supervision force and July opinion 1998. The version case, training testify any any- —cannot published at 146 F.3d 304 in the advance where, against doing because so is Reporter, sheet of the but it was withdrawn a conflict of interest. from the bound volume in favor of the De- cember version. The difference between Rainey plaintiff’s underlying 38. Part of the para- the two versions is the addition of one passage claim had been mooted of time placed majority opin- graph, at the end of the appeal; the date of the second we reached ion, acknowledging that some restrictions on the merits of the claim in order to determine employee testimony not before —restrictions attorneys’ whether he was entitled to fees. might pass constitutional muster. court— II, Rainey F.2d at 349. This was none Hoover, at 227. See 164 F.3d The Police holding theless a on the merits of the First way Officials' conduct in no resembles the claim, appeal Amendment as a later in the types appended of restraints that Hoover s saga recognized: opinion “Our in Rai same suggested might permissible. paragraph findings ney on the II considered and made indicated, instance, paragraph judgment sustaining merits and entered a may greater pre- the state have a interest Rainey's employ that his termination of claim venting policymaking employees testify- Rainey was unconstitutional.’’ v. Jack ment ing, and that restraints are less if troublesome Cir.1977) Coll., Wholly State son are content-neutral. Id. unlike (R III). ainey examples, those the conduct in the instant hearing); way supports no in an administrative the Police Officials’ ac- behalf (school Reeves, at 1097-99 em- tions. for her civil

ployee demoted While some of the relevant First co-employee against their em- favor of her Amendment retaliation precedents place ployer). (like in the fall of 1998 involved schools Reeves), Rainey cases and dissent discusses in some and others of Judge Jones’s (such Victor) that, them as Braumer and from other circuits have detail three cases police estimation, departments, involved we in show that the defen- concede her past that our cases do not include one that dants did not violate the First Amendment specifically has addressed retaliation any and should in event be entitled to against police instructors at a these, academy. Only qualified immunity. one of do not see We the absence of such a case Green, in Third decision was on Circuit’s as an embarrassment to our conclusion began when the Police Officials the books that the Police Officials are not entitled to Green, plaintiff The in their activities.39 qualified immunity. accepted If we force, drug agreed officer on a task defendants’ view of what it means for the testify as a character witness at the bail established, qualified law to be im longtime of a hearing of the son friend. munity every would be available in almost plaintiff 105 F.3d at 884. The left the case, in even those cases which “in the hearing testifying without after he learned light of pre-existing law the unlawfulness organized that the son was associated with Anderson, apparent,” [was] 483 U.S. police agency crime. Id. The demoted 107 S.Ct. 3034. As the in anyway, citing the officer their interest recently admonished, Court has “officials avoiding appearance of an association can be on notice that still their conduct organized crime. Id. at with 884-85. violates established law even novel fac Surely police agency it cast a into would Hope, tual circumstances.” 536 U.S. at disrepute thought if its vice officers were 741, 122 S.Ct. 2508. figures, to consort with mob but the Police seriously appeal Officials this cannot Although we are sensitive to the fact agencies claim that will exposed might always their to that reasonable officials not if public obloquy they predict instructor be able to the outcome of a balanc patronize plaintiff ing Pickering testifies an test such as that used in case, just cases, Noy excessive force as he has before see ola v. Human Dep’t Tex. Res., Cir.1988),41 testified in favor of police.40 Green Eighth competence expert opinion, surely 39. Circuit decided Tedder in Feb- to offer ruary boycott already after the had instructors’ would have to mention Kinney's place employment. caused Hall's classes to be can- their The Police Offi- already complained celled and after Hall had left ETPA. cials never about misuse of the good gave The Tenth Circuit decided Worrell in 2000. name of ETPA when instructor testimony, supra. pay, Both cases are discussed with in favor of the police. Relatedly, we do not understand the Police 40. Noyola assertion, dissent, that, advanced Officials' observed because of the bal cases, "[tjhere ancing required Pickering Jones dissent and Hall exploited rarely judgment priori somehow with will be a basis for a association discipline ETPA. The instructors did not seek out their that the termination or of a case; family employee ‘clearly role in the Kerrville the victim's violated established' consti approached failing any rights.” them after to find tutional 846 F.2d at 1025. We do qualified experts testify local who would think that this can be taken to set not remark police. qualified In order to establish their forth rule of law to the effect that n of the reasons court’s review the district illegality case the we believe boycott does not Police Officials’ sufficiently for the conduct is the Police Officials’ court, court, or this that the lower fairly to have mean they can be said clear that analysis of “subjective” in a engaged has impropriety of their on notice of the been in Harlow. The Po- Indeed, type dis- condemned given the factual actions. is that position, apparently, court and by the district lice Officials’ putes identified immunity as disputes, of those taking plaintiffs’ side are entitled set require any real balanc- exists some conceivable long this case does not as there all, the Police Officials do have made their ing at of reasons that would relevant, interests to any legitimate factual scenar- appropriate. have actions Such scales. Pickering put on their side It would have been ios doubtless exist. entirely appro- that it is pull cases show Our for the Police Officials permissible immunity when deny qualified priate Kinney’s and Hall’s their students out of weighs interests cognizable (for instance) the balance if the Police Officials classes See, e.g., starkly plaintiffs in the favor. so were un- the instructors learned Frazier, 750; Boddie, 873 989 F.2d at Therefore, the Police Officials skilled. summary F.2d at 826. This means necessarily engage a for- suggest, we be denied judgment must sometimes if we take “subjective” inquiry bidden factual Pickering genuine because of cases dispute over the cognizance genuine of a admittedly concerning disputes whether the in- for their actions reasons are important government interests legally approach the defendants’ structors. What See, e.g., given on a record. implicated course, mean, that there can would Branton, 741; 224 Kennedy, 272 F.3d at liability any for violation for never be Victor, 457; 378-79; at 150 F.3d F.3d elements include the official’s which the from (citing note 29 cases supra see also § 1983 intent or reasons for action. Most circuits). course, the ultimate other Of element, include such an claims do not disputes may factual resolution of those claims Amendment retaliation but First are entitled that the Police Officials show em- protects do: The First Amendment liability. qualified immunity from See only from “termination because ployees supra note 8. con- on matters Umbehr, cern,” 116 518 U.S. at im- qualified our discussion of We close that, simpliciter. from termination contrary to the munity by noting Officials, Similarly, forbids officials by the Police the Constitution position asserted cases; qualified Noyola deny immunity Pickering the official's claim of in- is mandated deed, Texas, Noyola opinion went on to immunity. Compare itself Gunaca v. 65 F.3d right analyze plaintiff’s alleged (5th Cir.1995) whether the qual (upholding a claim of actually clearly id. at established. See immunity), Indep. with Harris v. Victoria ified facially Noyola's takes 1025-26. statement Dist., (5th Cir.), reh’g de Sch. 168 F.3d 216 prediction quali- the form of a that denials of (5th clarified, opinion nied and 336 F.3d immunity Picker- "rare[]” fied will be in the Columbus, 1999), City Cir. Boddie v. Qua may ing prediction, context. it not be Brawner, Cir.1993), (5th F.2d 745 Nonetheless, unreasonable one. a number (It (all immunity). denying qualified F.2d 187 quali- Pickering this court's cases have denied Noyola that Brawner cites should be noted See, Branton, immunity. e.g., 272 F.3d at fied proposition.) we state in the a different As Ctr., 741-46; v. UTHealth 973 F.2d Wilson when, text, Noyola predictive nadir is at its 1270; Frazier, at 826-27. Under- case, balancing re in this there is no true scoring Noyola purport the fact that does not has not quired because the defendant official result, particular three of the to command any legitimate interest. substantial set forth Pickering cases that cite four Fifth Circuit (5th Cir.1997) of race F.3d 535 & n. 6 discriminating (stating on basis from jurisdiction discrimination is inten- the court lacks only when their inter- Davis, locutory Washington appeal See v. to review whether there tional. 229, 239-48, genuine 96 S.Ct. issue of fact as to intentional (1976). cases, discrimination). read- L.Ed.2d 597 such Other circuits take the ing forbidding Harlow as all discussion same view.43 qualified immunity

intent would allow said, accepting As we have the Police recovery preclude defense to even when position Officials’ every would mean that established, plain- the law was qualified immunity claim of would neces proving be an es- tiffs would barred sarily upheld categories those legal element of their case.42 sential require cases that proof of intent or mo proper approach, When an official’s intent or the reasons tive. The which treats others, are an among for his or her actions essential intent as one fact issue does violation, underlying extreme, we not lead to opposite namely element disputes qualified immunity have treated factual over intent is never available just any dispute like other factual that can in such cases. That too would be an intol immunity. justify Fortunately, a denial of See erable result. in no area of Vickers, 607-10 can Tompkins law bare of malice or accusations Cir.1994) (holding that the existence evil intent properly supported withstand a retaliatory summary of a motive was a factual issue motion for judgment. See Celo Catrett, precluded summary judgment Corp. on tex v. 477 U.S. 106 2548, (1986); immunity in a 91 qualified First Amendment S.Ct. L.Ed.2d 265 Krim v. Inc., 1435, Group, case in which a teacher claimed that he BancTexas 989 F.2d (5th Cir.1993) (stating unsup had been transferred retaliation for crit 1449 see also faith icizing superintendent); ported the school assertions of bad cannot cre Dist., fact; case, Indep. genuine v. Houston 113 ate a issue of in such a Coleman Sch. Indeed, explicitly specific 42. to deter a Court has or comment on issue hand, (citation omitted). distinguished, public importance.” on the one focused Id. inquiry a into intent that court must under- See, Velez, take in connection with certain constitutional e.g., Rivera-Torres v. Ortiz violations, from, hand, 86, (1st Cir.2003); on the other wide- Talley, Thomas v. 743, ranging “subjective” inquiry (8th Cir.2001) ("In into bad faith 251 F.3d consid- defense, sought condemned in Harlow ering qualified immunity Harlow. a a court prevent open-ended inquiry subjec- disregard "an into cannot evidence of the intent that is primary plaintiff's tive motivation ... [with the] focus an element of the case because if it any possible plain- plaintiff on animus directed at did so the could not show Britton, law.”); clearly tiff.” 523 U.S. defendant violated established Crawford-El Schwalbe, (1998). L.Ed.2d Walker v. 1132-33 Cir.1997) inquiry (citing stating That would burden officials unneces- cases and sarily, because whether the defendant official the official’s state of mind is “[w]here violation, generalized plaintiff underlying a bore ill will toward the essential element of the question is irrelevant to the the de- whether the state of mind must be considered in the clearly qualified immunity analysis plaintiff fendant official has violated estab- or a prove lished law. But when intent is an would almost never be able to that the element violation, predicate immunity. qualified as in was such claims of official not entitled to hold, every racial We intentional discrimination First as Circuit that has considered retaliation, held, inquiry subjective Amendment into intent this issue has that where mo- permissible specific,” because it is "more tive or intent is a critical element of the focusing disadvantage alleged on “an intent all violation the intent of constitutional relevant.”). plaintiff government a members of class that includes the actor is interlocutory appeal reversed the if in- Officials’ proper even “summary judgment claim, process the due district court on of the nonmov- an essential element tent is case”). Kinney and Hall had not stat- finding Insubstantial suits ing party’s affirmed the panel can be handled ed violation. against public officials judg- summary Feder- court’s denial of application “firm of the district through the Butz, Procedure,” 438 ment on the state law claim. As the issues al Rules Civil § upon the including rehearing on centered 98 S.Ct. claims, in Rule we now rein- discovery available and First Amendment restrictions portions not a panel opinion us is case state those 26.44 The case before on the impugn process seeks to an other- that rule due and state law plaintiff which claims, by casting namely and official action Parts IV.C V. legitimate wise malice, faith, and bad accusations bare Hall

retaliatory animus. and VIII. CONCLUSION the district court sufficient evi- showed reasons, AFFIRM foregoing For the we circumstantial, dence, both direct of the Police court’s denial the district the defendants’ much of which came from summary judgment on motion for Officials’ words, genuine issue of fact own to raise § Amend- plaintiffs’ 1985 and First as to their claims. Part ment claims. We reinstate IV.C conduct, present- The Police Officials’ panel opinion, which REVERSED summary judgment in the record ed summary judg- district court’s denial favor, objec- plaintiffs’ in the viewed claim, process due and we ment on the tively light es- unreasonable panel opinion, Part V of the reinstate law. The dis- First Amendment tablished court’s de- which AFFIRMED district correctly determined trict court therefore law summary judgment nial of on the state entitled, that the Police Officials are appeal of the claim. DISMISS the We immunity point, least at this cities, counties, Texas Police and East § 1983 claims Kinney’s from and Hall’s the reasons set Chiefs Association for rights of their to free- alleging violations supra. Finally, RE- forth note we under the First and Four- dom of district court for MAND the case to the teenth Amendments. not inconsistent with proceedings further The Police Officials shall opinion. this AND VII. DUE PROCESS appeal. costs of this bear the STATE LAW CLAIMS BARKSDALE, RHESA HAWKINS § In to their 1985 and First addition joined EDITH H. Judge, Circuit claims, Kinney and Hall also

Amendment SMITH, JONES, M. JERRY E. EMILIO alleged process a denial of due and state GARZA, and EDITH BROWN interference with law claim for tortious CLEMENT, concurring part and The district court de- business relations. dissenting part: summary nied the defendants’ motion for absurdity; to which no privilege The judgment panel on these claims. The subject only. but man living creature is initially court that heard the Police Indeed, immunity. availability qualified of the several of the defendants in the Therefore, say, case moved the district court to limit precisely instant is not accurate to it qualified discovery question of im- until the does, discovery Judge that "all as Jones granted munity was resolved. The court complete.” at 383. Jones dissent limiting discovery part, to the issue motion in I, Hobbes, ck. 5 pt. police department. chiefs and Leviathan Thomas (1651). (Officers) for) (paid sheriffs who sent their to ETPA for training student-officers were immunity Primarily at issue is concerned about a conflict of interest evi- (First §§ against non Amend- vel by Kinney’s denced testimony; and Hall’s ment) I dis- respectfully and 1985 claims. ETPA; discussed that conflict with denied, being from its as well sent for) decided in 1998 not to (pay send their denied, immunity’s being as a re- official Kinney’s student-officers and Hall’s (I sult, against the state law claim. con- result, As a ETPA classes. discontinued cur, course, immunity’s being granted those classes because were no longer against the Fourteenth Amendment due economically feasible. claim.) join Judge Because I process splendid concerning dissent Jones’ Kinney one-year and Hall had contracts claim, I First Amendment address with ETPA. Thinking that his contract § 1985. renewed, might not resigned Hall (as ETPA Though always), employment. well intended to find other majority sight proverbial stayed expired has lost until his contract and then (as proverbial accepted forest for the trees did the a new contract in a posi- different First, majority panel). for the divided college. tion with the § majority’s reading of 1985 has stretched 1999, Kinney and Hall filed this ac- beyond recognition; that statute all Officers, respective tion cities new law it has confected leads to an ab- counties, East Texas Police Second, it has its surd result. turned back Association, claiming Chiefs violation of: fundamental, compelling on the reasons for 1985(2); § free speech under the First qualified immunity; ignores it the discre- process Amendment and due under the tionary element lies at the heart of Fourteenth; Among and Texas law. other that doctrine. rulings summary judgment, on motions for my all respect With due esteemed qualified immunity was denied Officers. A colleagues majority, simply it panel divided of our court reversed the nothing short of absurd to hold that the qualified immunity denial for the due pro- police chiefs and sheriffs are not vested claim; it cess but affirmed the denial for choosing with discretion in which teachers dissent). my (against the remainder Kin- (and pay) training to use Weaver, Cir.2002), ney v. 301 F.3d 253 chiefs’ and sheriffs’ own student-officers— reh’g granted, vacated and en banc 338 very persons chiefs and (5th Cir.2003). F.3d 432 responsible training. sheriffs are for This

cannot be the law. II. (interloc- qualified immunity At issue is

I. utory not the merits appeal), (appeal brings Recitation of the material facts Restated, judgment). appeal final this In sharp the ultimate issue into focus. now, concerns whether or when Offi- 1998, while instructors at the East Texas 1998, alleged cers acted conduct (ETPA), Academy Police part Kilgore of proscribed by was The answer is law. College Tyler, Kinney and Hall testified “no”; qualified immunity granted. must be voluntarily in a federal court action as im- expert supporting qualified witnesses an excessive Our standard of review for Kerrville, Texas, interlocutory claim against munity appeals requires force us 376 well-known, two-step inquiry favor- Under the light in the most accept the facts immunity, first asks But, course, deciding such for to Plaintiffs.

able law, whether, claim under current valid require accept not us to does standard right has been asserted —whether points of law. has Plaintiffs’ contentions Gilley, 500 E.g., Siegert been violated. interlocutory appeal from the deni- For an 1789, 111 114 L.Ed.2d jurisdic- S.Ct. immunity, we have U.S. qualified al of (1991). right no been “[I]f [such] [has] as assumed 277 accept tion to the facts whether, violated[,] necessity no for ... there is and determine as district court im- concerning qualified law, inquiries im- further they preclude qualified matter 194, Katz, munity”. Saucier v. 533 munity. E.g., Haney, Aucoin v. (5th Cir.2002) L.Ed.2d 272 150 (quoting Nerren v. S.Ct. Corinth, (2001); see, e.g., City Hare v. Dep’t, 86 F.3d Livingston Police Cir.1998). Miss., (5th Cir.1996)). Applying that standard to hold, record, we must as a matter this Only if a valid claim has been asserted is law, qualified are entitled to that Officers was defendants’ step the second taken: immunity. objectively unreasonable under conduct clearly law. existing then established to, it 1985 makes unlawful inter Section Hare, course, for this 135 F.3d at 326. Of alia, ... “injure party or witness in his [a] interlocutory supra, appeal, discussed ... having on account of testified property of fact on whether Officers’ con- the issue [freely truthfully in a court objectively unreasonable duct 1998 was 1985(2). § In States]”. United U.S.C. not at issue for existing under then law is § immunity for the denying qualified only an step; this second we can consider (1) claim, majority holds: the statute underlying issue of law—whether the law (2) witnesses; expert Offi- applies clearly § the claimed violation of for) choosing (pay to send their stu- cers’ at the time of that conduct established other than Plain- dent-officers to teachers step; they fail the first do 1998. Plaintiffs injury property under requisite tiffs is a § sev- not assert a claim under 1985—for majority doing, In so has the statute. reasons, apply it not eral does purpose for sight lost of the well-known type claims of the made witnesses’ immunity' protect govern- —to That concerning action Officers’ conduct. discretionary officials in their ac- ment alternative, inquiry. ends the tions, illegality appar- of which is not claimed underlying law violation Accordingly, government officials are ent. § 1985 was not established when if individually “only for their conduct liable purposes acted in 1998. For Officers reasonably anticipate can when [it] demonstrating why qualified immunity is liability damages”. may give rise to two-step analysis will be compelled, this Scherer, 183, 195, 104 Davis v. 468 U.S. first, examining why applied twice: (1984). Again, 82 L.Ed.2d 139 apply qua to Plaintiffs statute does interlocutory the ultimate issue for this A.); second, for expert (part ex- witnesses Officers could reason- appeal is whether why conduct is not sub- amining Officers’ ably alleged that their anticipate B.). ject (part to the statute liability. § give conduct could rise to straying proper inquiry, In from the A. very majority has undercut the reason for immunity, holding against qualified immunity discretion —the § majority improperly expands at lies its heart. by holding expert may provide post-testimony, witnesses economic loss they type the claim at issue here if are claim of the at issue bring expert here for injured testimony. allowing account of their witnesses. Even salutary We for the 1985(2) broadly; sweep” § “broad cannot read so Plain- Reconstruction-era civil statutes, rights Maj. 351-52, qua expert Opn. tiffs witnesses cannot assert majority § alternative, has stretched claim. In the we cannot 1985 much too this far. The reading § it accords right for 1985 leads expert hold witnesses— result, to an absurd by evidenced newly now created our court for this 2004) following examples. (year case established —was acted in when Officers 1998. Expert witnesses are quite necessary to

litigate certain (including, claims in some instances, force); for those excessive but experts readily such are available—to say First, Plaintiffs do not assert a valid example, least. For for an excessive § apply claim under 1985—it does not claim, may force there few fact economic claim post-testimony made testify witnesses who can about the force testimony. concerning expert their It is used, but there experts are countless who expert true that witnesses have been used opine can on whether it was excessive. hand, years; for hundreds of on the other fact Such witnesses are of the utmost im- professional expert profits witness who portance; they may be able to offer the considerably testimony from such is a re only independent evidence about what Perrin, development. E.g., Timothy cent Moreover, force employed. a fact Expert Testimony: Witness Back to the usually and, subpoena witness is under Future, 29 U. Rich. L. Rev. therefore, has no choice about whether to (1995) (discussing industry growing of indi testify. Accordingly, compelling there are spend portions viduals who substantial give high reasons to fact witnesses a level testifying consulting their time with liti protection against injury to them or services). gants and even advertise their property on account of their federal Congress pro could never have envisioned testimony. court tecting against type loss of income for this § when it enacted 1985 in Obviously, policy the same consider- assuming, arguendo, 1871. Even the ma play protecting expert ations are not in § jority holding 1985js is correct in witnesses. Given their abundance and plain meaning encompasses the claim status, bearing other factors on their witnesses, expert Maj. these Opn. 351- obligated are not testify particular necessarily this is not determinative. An expert given case. should not be meaning plain, Even where a statute’s protection private right additional of a may depart “we ... meaning from its action if consequences adverse economic avoid a Congress result so bizarre that testimony. flow from his could not have intended it”. Moosa v. true, example, It is that we do not (5th Cir.1999)(in- INS, distinguish expert between fact and wit- omitted). quotation ternal marks This is in- nesses claims that witnesses were just such an instance. timidated in a criminal trial. As another

By enacting intended, § Congress example, distinguish we do not between alia, protect inter those who testified fact and witnesses cases involv- integral federal court and ing immunity protects were the absolute courts, proper functioning liability arising of those not to them from from civil occurring from conduct the in- arose matters involve testimony. Those after ap- for this render our decision action; date we underlying accord- tegrity words, majority has peal; in other witnesses permit expert cannot ingly, we Accordingly, for a new claim. confected changing their testi- into to be intimidated immunity qualified step second permit we can mony any more than at clearly it not established analysis, was witnesses; testify freely all must fact for 1998 that time of Officers’ conduct in truthfully. under protected are expert witnesses hand, § claim of the On the other type at issue through § a claim of the remedy providing concerns type at issue here. post-trial who suffers expert for an witness admits, fact, majority Maj. In as the words, injury. In other economic only opin- appears it one Opn. interests expert an witness’ protects claim Circuit) (Second applied had ever ion truthfully given his freely after he has experts; to this was done without statute however, many respects, testimony. pre- concerned a claim for analysis and business; such expert an is testifying as testimony cry far venting —a weigh to the economic are able witnesses Webber, Paine case. Chahal v. testimony of their be- and risks benefits Cir.1984). (2d spe- failure to Chahal’s Therefore, testify. expert agreeing to fore not cifically expert witnesses does address testify in a case who choose witnesses obviously applies § imply (and so, quite usually paid to do often are contrary, fact that there them. On not to avail handsomely) should be able opinion involving expert wit- only one later, § 1985 if adverse eco- themselves of history long in the of this statute nesses flow from their testi- consequences nomic concluding expert compels witnesses mony. it, present do not claims under simply truly absurd wide-ranging, Consider apply because it does not precisely extending § 1985 to arising out of results them. injury to post-testimony cover economic Moreover, opinion one Second Circuit claimed here. type witnesses of the expert not have preventing could about testifies as an Arguably, every person who Texas, Tyler, in 1998 clearly established employment later denied expert and is respect to these that Officers’ actions with § an action under could file § could violate 1985. It expert witnesses example, For as- employer. the would-be that, judicial interpre- without is true even routinely testifies planner sume an urban tation, clearly of a can be violation statute city cities. Is a now litigation against immunity pur- qualified established for 1985(2) subject liability § if it refuses to instance; an poses. This is not such job in applies if he for a person hire that application of very questions at issue about majority’s department? The planning its 1985(2) injury expert § to economic bring expert witnesses permitting im- holding, compel witnesses injury for such claims under this statute that, when Officers munity purposes, proverbial opens (perhaps the door Texas, it Tyler, acted claim. floodgates) type for this could that their conduct established 1985(2). § violate B. noted, if expert even witness As § 1985 covers Assuming, arguendo, for the claim protected under the statute presented for the claim hand, if it witnesses a claim could be asserted

379 added). action, that, phasis majority are still entitled 'to states this Officers immunity requisite court, “according because to the district [Officers] § “injury property” by to Officers for 1985 ... plaintiffs tried to have the fired from Therefore, liability lacking. is Plaintiffs jobs”, Maj. their Opn. (emphasis 353 claim; in fail to assert a the alterna- still added); but, in quite the next breath and tive, 1998, acted this law when Officers contrary review, to our limited standard of was not established. majority greatly overstates Officers’

“trying” by equating conduct it with “coercing employer an into firing an em- § underlying actions 1985 ployee”, Officers’ Trying employer id. to coerce an proscribed by not the kind claim are firing employee into an in- is not tortious majority to hold other- statute. For the Rather, employment. terference with 1985(2) beyond § all wise is to stretch concedes, majority id., the “classic recognition. (as case” for such interference evidenced by by majority all cases cited both

a. Haddle) dissent, including concerns a Regardless doing of Officers’ reasons for plaintiffs being actually discharged. Kin- for) so, electing (pay not to enroll ney discharged; resigned was not Hall in a class cannot be student-officers volition;' his own and neither claims he was requisite injury property violative of Therefore, constructively discharged. Of- Garrison, § v. 1985. Haddle U.S. inju- ficers’ conduct does not an constitute (1998), 119 S.Ct. L.Ed.2d 502 1985(2). ry property § under tort law or that, contrary. not to the The fact under here, qualified immunity For purposes Haddle, § plaintiff a has a 1985 claim for law, if analogize refusing and we to tort employment interference does with at-will for) (pay to enroll student-officers compel holding that Officers’ choice equate “maliciously class does not in with in Plain- 1998 not enroll student-officers ducing” employer discharge an an em injury tiffs’ classes is an under the statute. ployee. typical A case of such tortious in employees Plaintiffs’ status as at-will irrelevant, sending terference with economic relations would because student-offi- cers to teachers at ETPA other than Plain- that a demanding involve defendant’s cognizable injury fired, tiffs is not under plaintiff telling about him lies § 1985. fired, in order to have followed him employee’s being E.g., fired. Ahrens Haddle, Court analo- Systems Corp., v. Perot gized concerning to tort inter- law claims (5th Cir.) judicial (discussing estoppel relationships ference with economic context claim that she plaintiffs earlier third-party held that interference with at- had defendants tor- been fired because employment injury will can constitute an tiously employment interfered with her § under 1985. Id. at 119 S.Ct. 489. in revealing, disparaging confidential and The Court defined tortious interference her), denied, formation about cert. “maliciously with economic relations as L.Ed.2d 26 justifiable inducting] and without cause an (2000); Co., Sterner Marathon Oil employer discharge employee, by (Tex.1989) statements, (upholding finding S.W.2d 686 put- means of false threats or tortious interference because defendant ting (quoting in fear”. 2 T. Cooley, Id. (3d him). 1906))(em- plaintiffs employer ed. directed to fire 589-591 Law of Torts holding by limit majority tries to its The that the refusal simply It not the law is create for) statute does not stating that “the (regard- (pay to enroll student-officers taken motive) liability every for adverse action kind of is the less of Officers’ testifies a witness after the witness law, against under tort es- interference actionable case”, limiting because of the in a federal § pecially for 1985. injury must be §in 1985 that the principle having so attended or “on account of his b. majori- Maj. Opn. at 355. The testified”. important to the other ty pays lip service instruc analogy to tort law is While the §in contained 1985— limiting principle § tive, history of purpose and against action taken that the adverse not holding that Plaintiffs do compel also “injury property”. to Even an witness be noted a claim. The Court assert acted “on account assuming that Officers Rutledge, 460 in Kush v. testimony, Officers’ choice of’ Plaintiffs’ (1983), 75 L.Ed.2d 413 for) in their student-officers (pay enroll of the feder processes of the “[p]rotection requi- classes is not the other instructors’ component of al courts was an essential injury property. site § in 1985 enacted Congress’ [via solution anarchy in to disorder 1871] majority any would allow reaction § it enacted Southern States”. When if testimony to be actionable to a witness’ processes, in such Con protect an effort to testimony. response to that it were a sce possibly have intended gress cannot ac- The statute limits This is too broad. to enroll compelling akin to Officers’ nario injure responses to those that tionable for) in Plaintiffs’ (pay their student-officers Although interference property. witness’ who Allowing Officers to decide classes. injury, an employment with at-will such student-officers, if even moti- teaches their for) (pay to enroll student- choosing not testimony, Plaintiffs’ vated class, in a is not. Plain- particular officers anarchy” hardly type of “disorder Accordingly, not assert a claim. tiffs do Al- addressing 1871. Congress was stop step one. inquiry our should § statutory language of 1985 is though the

broad, broadly as to it cannot be read so especially encompass Officers’ actions— where, here, immu- qualified issue is alternative, taking In the the second is, § nity, the merits. To so read immunity analysis only step qualified and to give it an absurd result again, that Officers are makes it more evident majority’s comments create new law. The immunity. Surely, entitled rejection of a racial concerning Kush’s compels awarding Again, it. this step this § requirement for certain animus deciding whether Officers’ step involves claims, n. Maj. Opn. at 352 are irrele- objectively in 1998 unreason- conduct inju- to our conclusion that Plaintiffs dearly vant of then established light able discussed, cognizable Hare, under the statute. ry is not F.3d at 325. As law. Instead, allowing are interlocutory appeal, Kush elucidates we and for choice not to en- an of law— claim based on Officers’ concerned with issue produces dearly law was established roll their students classes whether the 1998; are not light Congres- in the Officers acted we absurd result when § an issue of fact—whether goal 1985(2) protecting concerned with sional — objectively conduct in 1998 was courts. Officers’ processes of the federal against the First Amend- existing also be awarded light -in the of then unreasonable Finally, ment claim. as a result and for law. clearly established my the reasons stated dissent from the for) stopped sending (paying Officers F.3d at im- panel opinion, 301 official Plaintiffs’ classes their student-officers munity must be awarded the state majority’s Despite the in 1998. October law claim. 353-56, this, Opn. at Had- Maj. take on in months later being decided two dle’s I from Accordingly, respectfully dissent clearly did not establish December granting immunity against not those (or later) violating then were Officers claims. 1985(2). Moreover, Haddle was decided § Hall’s classes were re- Kinney’s and after JONES, Judge, EDITH H. Circuit with from the schedule. in moved November SMITH, E. RHESA whom JERRY acted contends that Officers majority The BARKSDALE, EMILIO M. HAWKINS conspiracy after De- in furtherance of the GARZA and EDITH BROWN prohib- they “continued cember because CLEMENT, join, Judges, Circuit Kinney’s in enrolling it their officers Concurring Dissenting in Part and in Part: 354; classes”, but Maj. Opn. or Hall’s enroll- prohibited not have Officers could colleagues, our respect With all due in that were not on sched- ment classes opening Judge one of Barksdale’s state- conspiracy majority’s continuing ule. The in puts perspective: ments this case theory attempts to obscure the obvious—it simply nothing short of absurd [I]t when clearly established Officers was police hold that the chiefs and .sheriffs in that their actions violated acted are not vested with discretion choos- addition, no gave In Haddle indi- statute. (and ing pay) which teachers to use for case, cation, that an act any has other nor training police chiefs and sheriffs’ for) sending (paying benign as as Officers’ very persons student-officers —the own to different teachers their student-officers respon- and sheriffs are police chiefs academy injury proper- is an police at a cannot training.- This be sible 1985(2). § ty under law. III. otherwise, says, the ma- holding as he interlocutory ultimate issues for this on the funda- jority “has turned its back Plaintiffs a valid appeal are assert whether mental, compelling qualified reasons for and, so, claim; law only if whether discretionary ele- immunity; ignores it act- clearly when Officers established of that doc- ment that lies at the heart Plaintiffs do not assert ed 1998. very majority trine.” The has rendered claim; moreover, majori- given § balancing analysis of the tests un-balaneed § existing ty’s extreme extensions portion case. This of our required in this against quali- to hold law needed order immunity qualified will address dissent immunity, it is obvious that the law fied it police relates claim of officials majority was not now confected claims First Amendment the teachers’ for. when Officers acted established Judge portion Barksdale’s retaliation. officials’ the dissent discusses liability violating U.S.C. Therefore, immunity potential must qualified immunity corresponding § § claim. For 1985 and their awarded Jones, it claim. by Judge must the reasons stated

I. Background feelings loyalty undermined and confi- dence; represented improper use stage To set the for the officials’ of the instructors’ affiliation with ETPA. Hall, against Kinney actions it is use- ful to undisputed concerning recount facts and the officials’ II. Standard Review They agreed, following concerns. without majority correctly While the cites the ETPA prior approv- instructions to obtain general summary standards of review for al, paid experts to become in 1997 on judgment immunity appeals, plaintiffs

behalf of the City Gonzales v. they repeatedly mischaracterize the court’s later, trial, year Kerrville. A function free cases and thus newspaper reported Kerrville eyewit- jury would to the send issues that it is our nesses suspect testified the had fired in is, obligation to decide. This case we are forty of standing excess shots while on the agreed, governed by balancing the test Guadalupe hitting objects River Dam in- by Supreme framed Court in Picker window, cluding apartment garbage Educ., ing 563, can v. Bd. 391 U.S. 88 patrol and car window. The defen- S.Ct. of 1731, 1734-35, (1968), police sniper dant testified that he 20 first L.Ed.2d 811 and suspect rifle, told the drop his and when refined and extended Connick v. suspect lifted pointed the rifle and it at 138, 1684, Myers, 461 U.S. 103 S.Ct. him, the officer suspect killed self- (1983), L.Ed.2d County and Board of Kinney’s defense. expert and Hall’s con- Umbehr, Commissioners v. 518 U.S. sniper’s clusions were that the failure to (1996). 116 S.Ct. 135 L.Ed.2d 843 apply defendant, training City his and (1) The relevant issues are: whether an Kerrville’s lack proper policy of a were employee’s or speech contractor’s consti proximate tragic shooting causes concern; (2) public tuted a matter of and that sniper’s deadly use of force whether the employer’s legitimate amounted to excessive force. countervailing government interests out weigh the value of

Rejecting protected speech; expert opinions, jury these (3) protected found in whether police speech favor of the Kerrville offi awas cer, and the judge motivating federal district over substantial or factor in the dis (4) turned the against city. cipline termination; award After or and whether the Kinney’s and opinion rejected, Hall’s was employer would have acted the take-nothing judgment was affirmed employee for some other regard conduct by this court appeal. See Gonzales v. Umbehr, speech. less of the See 518 U.S. (5th Kerrville, City 205 F.3d 1337 Cir. at at 2347. The first two 1999). issues are matters for the court to decide de novo while the may comprise last two police The officials deposed have or at- jury Seniff, issues. See Williams tested, alia, appellees’ inter Cir.2003); Melton v. working hurt the close relation- City Oklahoma City, 879 F.2d ship required academy between instructors (10th Cir.1989). Courts, juries, not deter representatives and of the cities and coun- ties; mine the extent protection damaged accorded to required among teamwork officers; those First Amendment conduct training involved as matters of threat- Melton, confidentiality policy uniformity. ened the and city of information county (concluding officers share with at 713 that “the trial court procedures Hall about their practices; improperly jury submitted to the ques- banc). (5th Cir.2002) (en In other n.25 plaintiffs] [the tion of whether words, purporting to rest on the while constitutionally protected”). issues, disputed fact the ma- existence unfortunately, appears majority, The jority its conclusion on the has rendered and third issues the second have confused Pickering first and second issues listed jury the funda- leave to and thus would majority’s balancing above. The de facto pro- of First Amendment question mental undermined, additionally only by its majori- to decide. The that is ours tection into ac- failure to take the entire record dispute fact exists that because a ty holds count, requirement but its erroneous Hall were Kinney and as to whether prove disrup- that the officials actual “boycotted” to enforce “blackballed” tion, potential disrup- to the exclusion (the is- Pickering third “code of silence” tion, departments by the caused in their sue), may not take into account this court protected speech. Court institutional proffered officials’ held, contrary, employ- has to the that an officers from disenrolling their reasons for legitimate potential concern about dis- er’s (the issue). The second appellees’ classes arising protected speech ruption Kin- give because it must majority reasons Umbehr, entitled to deference. 518 U.S. all drawing benefit of ney and Hall the (recognizing 116 S.Ct. summary judg- on in their favor inferences “consistently given greater the Court has review, to deter- required a trial is ment government predictions to of deference legitimacy governmental mine the justify employ- restriction of harm used to weight those interests re- interests. The (citations quotations and omit- speech”) ee is, however, Pickering balance ceive ted). Accordingly, to decide. for this court majority’s miscalculation of Picker- to the jury issues crucial sending necessarily conclu- ing balancing affects its improper. Pickering balance would be immunity, majority qualified as the sion the Picker- That this court alone decides legitimate gov- that there are no reiterates facts. reinforced several ing balance is police on the officials’ ernmental interests First, discovery complete, and there all of the balance. side operative facts. dispute is no real about the majority, we neither wash Unlike Second, po- characterizes the whether one responsibility crucial our hands of the merely “disenroll- lice officials’ actions protection owed to determine the extent classes or as ing” appellees’ students from voluntary testi- Kinney’s and Hall’s “blackballing” “boycotting” or the instruc- Pickering mony, nor obscure the determi- semantics, not motive. a matter of tors is fact unsupported or nation with erroneous Third, no evidence that the offi- there is Thus, deferring balancing at while issues. themselves used the term “blackball” cials acknowledge the exis- point, we must actions; “boycott” or to describe interests legitimate governmental tence by ETPA were used pejoratives those officials’side. on the pervade appel- Holda and President opin- and the district court complaint lees’ Qualified Immunity III. itself Finally, majority opinion ion. qualified im- that confers advanced The doctrine concludes that the officials public per- officials munity from suit on place in the Pick- legitimate no interests functions is not an balance, forming discretionary freely it evaluates the ering and Pierce v. See, aberration.” See Kinney “insignificant v. e.g., evidence. disputed (5th Cir.1997). Smith, Weaver, n.3, n.4, 882 117 F.3d 282 to a twenty years, only where “it would be clear reason- For over Court immunity explained qualified has able officer that his conduct was unlawful providing between re- strikes balance in the situation he Saucier confronted.” dress to individuals abuses Katz, 194, 202, v. 533 U.S. S.Ct. society against claims protecting office and (2001) (emphasis 150 L.Ed.2d 272 “frequently run the innocent added). guilty[.]” Harlow v. Fitz- as well as doubt, objective legal No the test 800, 814, gerald, 457 U.S. S.Ct. always require reasonableness does not (1982). Society 73 L.Ed.2d 396 or immunity the absence of an identical cost of unfounded lawsuits in bears the of- “materially guide even similar” case to litigation, the diversion of expenses “the Pelzer, Hope ficial conduct. See issues, energy pressing public from official 2508, 2516, and the deterrence of able citizens from (2002). Hope, L.Ed.2d 666 Court public office.” Id. There is acceptance of prison officials could held Alabama “danger” being that “fear of sued also readily pre-existing au- ‘dampen will the ardor of all but the most have inferred resolute, irresponsible [public most thority that it unconstitutional to chain officials], unflinching discharge in the prisoners painfully long recalcitrant ” (citation quotation their duties.’ Id. “hitching post.” Id. a context-spe- As omitted). immunity, Hope qualified cific denial of spring does not eternal for reasons, immunity

For these Hall. The contrasts between the two eases discretionary shields official conduct plain. are allege that do not viola- prevent lawsuits established constitutional tions First, Eighth proscribes Amendment person law of which a reasonable would “unnecessary and wanton infliction of Harlow, 819, have known. 457 U.S. at 102 Albers, Whitley pain” prisoners, on v. 475 S.Ct. at 2739. The standard of conduct 312, 319, 1078, 1084, U.S. 106 S.Ct. 89 objective legal embodies reasonableness. (1986). para- L.Ed.2d 251 With two measured, qualified immunity affords So discussion, graphs Hope of the Court in “ample protection plainly to all but prisoner’s allegations found in the an “ob- incompetent knowingly or those who vio- Eighth vious” Amendment violation. Malley Briggs, late the law.” v. 475 U.S. 741, 122 Hope, 536 U.S. S.Ct. at 2516. 335, 341, 1092, 1096, 106 S.Ct. 89 L.Ed.2d case, however, In dealing rather than (1985). public 271 To disentitle officials to (com- “obviously practice with an cruel” qualified immunity, the unlawfulness of 745, 122 pare Hope, 536 U.S. at S.Ct. at apparent,” conduct “must be 2518), the court confronts a First Amend- 635, 640, Creighton,

Anderson v. 483 U.S. protection speech ment of free is not 3034, 3039, 107 S.Ct. 97 L.Ed.2d 523 unequivocal; courts must accommodate (1987), and “all reasonable officials would provision interest in effective of particular challenged have realized the government speaker services when the provi- conduct violated the constitutional government. works for or on behalf of the Pierce, 117 sion sued F.3d at 871 on[.]” rigid liability No (citations omitted). rule of exists. See Pick- Indeed, if “officers of 568, ering, 391 U.S. 88 S.Ct. at 1734-35. competence disagree reasonable could “ Thus, issue, majority requires well over 20 immunity recog- should be th[e] 341, Malley, pages legal reasoning explain why to nized.” 475 U.S. at 106 S.Ct. clearly constitutionally at 1096. The law is established officials could

385 Kinney’s degree prior particularity may factual their students from disenroll 741-42, necessary.” Hope, be 536 U.S. at classes. Hall’s (quoting 122 at 2516 S.Ct. United States v. constitutional governing as the Just Lanier, 259, 269, 117 Hope simpler, so was standard (1997))(internal 137 L.Ed.2d 432 citations clearly that the law was es- determination omitted). quotations Hope did Nor An circuit court case earlier tablished. cast doubt on the Court’s decision to unconstitutional, inter specifically held had law determine whether the es alia, practice handcuffing prisoners tablished, public officials should consider long periods and to cells for to “the fence jurisdiction controlling cases in their own ” Collier, 501 F.2d of time.... Gates v. or, alternatively, refer to a consensus of (5th Cir.1974).1 Another case authority persuasive outside it. Wilson v. deny water held it unconstitutional had Layne, 526 U.S. 119 S.Ct. punishment for his refusal prisoner (1999). 1700, 143L.Ed.2d 818 work, that conduct which explaining Only recently, expressed this Court en or inflicts jeopardizes prisoner’s health denying qualified banc our caution toward au- stops resisting after he physical abuse immunity novel factual cases. White, 813 thority is actionable. Ort v. Columbia, City McClendon v. (11th Cir.1987). Finally, a F.2d (5th Cir.2002)(en banc), the author report to Alabama Department of Justice it today’s majority opinion found com exactly corporal authorities condemned applied that no court in had pelling punishment Hope. at issue § danger theory the state-created majority’s creative review Despite liability a similar factual context. This government employee free Fifth Circuit “qualified immunity court held that should none of our cases had speech precedents, ‘if granted be a reasonable official would remotely conducted the free bal- application left uncertain of the law’s between ancing inherent the relation ” confronting the facts him.’ Id. at 332 departments law enforcement Carpenter, (quoting Salas seen, the academy instructors. As will be (5th Cir.1992))(other omitted).2 citation out- only related authorities were decided Further, despite adoption of the state- lia- uniformly side this Circuit and denied by nearly danger theory liability created immunity. bility granted all circuit courts at the time of the other Thus, given warning” question, that “fair could be this court denied that conduct not of eases of prison Hope they comprised to the officials does a consensus authority provide modify general persuasive test for immu- sufficient warning,” “fair because the constitutional nity applicable this case. As Court circumstances, “sufficient clari right “in as was not defined with acknowledged, some ty to enable a reasonable official assess expressly open an earlier case leaves when conduct.” Id. at 332- general applies par- a rule to the the lawfulness his whether issue, very court concluded that: type high ticular of conduct at 33. This noted, majority's presented here. The fail- 1. Court cases decided stances As the by split persuasive that creat- point the Fifth Circuit before the to such case ure binding in the ed the Eleventh Circuit remain were “uncertain evidence that these officers Eleventh Circuit. application to the facts confront- of the law’s Id. ing [them].” Likewise, circuit 2. there is no case in this qualified immunity the circum- denied under 6 201-02, Saucier, danger

The fact that the state-created he confronted. 533 U.S. at theory general at a recognized level S.Ct. at 2156. precedents did not nec- [other courts’] majority’s by The errors become evident essarily provide Carney no- Officer with inverting process Consequently, here. specific tice that his actions created such arguendo let us assume danger.... [T]his is a situation chiefs and sheriffs violated the First general “a al-

where constitutional rule by disenrolling Amendment their students ready identified in the decisional law ... Assume, Kinney’s and Hall’s classes. clarity applfied] spe- with obvious to the is, appellees engaged that the in some in question.” cific conduct level of protected speech, and Picker- (internal quotation Id. citation and omit- ing/Connick balancing applies. quali- ted). “Indeed, McClendon then states: immunity by fied question is as framed general principles likely are the law less majority: where, here, provide warning fair as applicability of highly the doctrine is con- clearly We must ask whether it was (citation text-sensitive.” Id. at 332 n. 13 established at the time of the Police omitted). Officials’ conduct the First Amend- ment retaliating forbade them from foregoing As the suggest, authorities Hall, against Kinney employees immunity purposes, question “is not contractor, of their on account of the whether other reasonable or more reason- testimony. instructors’ Kerrville able courses of action were available” to Pierce, public officials. See 117 F.3d at Maj. at Opn. 369. Our answer is resound- Immunity long shields officials so as ingly clearly that the law was not estab- reasonable, though their conduct is even lished. Saucier, wrong hindsight. U.S. The law was not established for question S.Ct. at 2158. The here whether, First, among police chiefs and sher- three reasons. court and seven similarly appellants, iffs situated to the “all recognized other circuits have plainly incompetent” but would have likely officials are more quali- entitled to realized at the time that what did immunity fied underlying when the consti- Kinney’s violated and Hall’s First Amend- depends balancing tutional law tests rights testify voluntarily ment judiciary, enforced factually and no Pierce, witnesses. (citing Second, similar case exists. the Fifth Cir- 224, 228, Bryant, Hunter v. cuit majority cases relied on are (1991)). 116 L.Ed.2d 589 case, critically different from this while precedents other circuits’ more relevant To apply principles qualified these of liability either found qualified no or immu- immunity, Supreme two-step the Court’s Third, nity for law enforcement officials. normally begins by considering test wheth- in unprecedented approach an to Picker- er, alleged by on the facts the plaintiffs, ing/Connick balancing, majority in- occurred; any constitutional violation if a flates the appellees’ “speech,” value of the out, next, violation could be made “the while discounting balancing from the test sequential step is to right ask whether the interests; established,” i.e., legitimate officials’ no clearly it whether “clearly supports would be clear to a established law” the ma- reasonable officer that his conduct was unlawful in jority’s approach. the situation

387 determinations, For Immunity immunity impli- Qualified, A. Constitu- rule-avoiding cations of this constitutional Balancing. tional standard The Supreme seem obvious. Kinney’s and First At of Hall’s the heart Court has alluded to the enhanced likeli- the case- con- claim is Amendment granting qualified hood of in immunity Pickering!Connick balancing text-specific First Amendment cases: Pickering progeny, and its test. general Even when the rule long has interest has balanced the Court (for instance, clearly been established commenting of each as a citizen plaintiff the First Amendment bars retaliation public of concern matters protected speech), for the substantive state, as an employer interests of the legal plaintiff doctrine on which re- contractor, efficiency of promoting summary lies may judg- facilitate 568, public performs. it Id. at services ... may ment. be [TJhere doubt as Connick, 1735; see also 461 88 S.Ct. at illegality particu- of the defendant’s 140, Pickering at at 1686. U.S. 103 S.Ct. (for instance, lar conduct a whether however, that emphasized, view plaintiffs was on a matter of variety of fact “enormous situations” concern). public by public employ- which critical statements Britton, 574, 523 U.S. 592- Crawford-El thought by superiors may ees be 93, 118 140 L.Ed.2d 759 dismissal, for it was not grounds furnish (1998). years ago, Fifteen this court ex- lay “appropriate or feasible to attempt plained that: resolving general down a standard” case-by-case consequence One balanc- public free-speeeh employees claims qualified ing implication for the its only it “indicate some of could immunity public officials ac- whose general along analysis which an lines alleged tions to have are violated run.” controlling interests should employee’s rights. First Amendment 569, 391 U.S. at 88 S.Ct. Pickering, for a rarely priori There will be a basis Subsequently, 1735. the Court acknowl- judgment that the termination or disci- edged particularized balancing re- employee pline public a violated quired by Pickering is difficult even “clearly constitutional established” Connick, See judges accomplish. rights. short, 150, at 1692. In 103 S.Ct. Res., Noyola Dep’t clear v. Texas Human may “while it have been since Cir.1988). (5th Noyo forfeit 846 F.2d citizen does not First Amend- he la’s tenet of immu entirely ment when becomes “self-evident rights contractor], nity jurisprudence,” see Moran v. scope Wash employee [or (9th Cir.1998), any given ington, situa- 147 F.3d rights those factual by at least seven other tion well defined.” Benson v. has been has not been embraced (7th Cir.1986). Noyola, circuits.3 before the Sev- Allphin, Even Haines, ”); DiMeglio v. 45 F.3d Washington, 147 F.3d lished’.... Moran v. (4th Cir.1995) 1998) (noting "in- (stating Pickering bal Cir. cases, regarding frequently" law be established ancing "the law claims will the such involved); ever, balancing sufficiently 'clearly of interests is rarely, will es when if Steeves, qualified immunity"); 917 n. 11 preclude O’Connor v. tablished’ to Woodard, Mo., (1st Cir.1993) (same); v. City Springs, McDaniel Kincade v. Blue 64 F.3d Cir.1989) ("[W]hen 311, (11th (8th Cir.1995) PickeringH (quoting 886 F.2d 314 398 issue, Noyola finding qualified immunity appli- . is the asserted First Amendment right was un- right rarely 'clearly cable because the constitutional can be considered estab- 388 degree present

enth Circuit held that when a constitution are the ma- trix of facts balancing competing constituting particular al rule involves the interests, context in may es which the asserted violation standard be tablished, occurred. application is fact but its so de rarely can con pendent that the “law” be Pierce, Noyola frequent- at 882. has been Benson, “clearly sidered established.” 786 ly cited our court.4 cases, F.2d at 276. In such “the facts of Noyola judicial counsels reticence to- existing closely case law must corre abrogating qualified immunity ward spond to the contested action before the government employee First Amendment subject liability defendant official is un cases, but it does not act as a dispensation Noyola, Fitzgerald]” der Harlow Id. [v. duty carefully. to examine each case express

Moran and Benson the consensus cases, citing Noyola, several after this among circuit courts. view When, court has denied the defense.5 as majority relegates Noyola While here, the First Amendment case law is footnote, that case remains the law of dissimilar from precedents, we must Judge Higginbotham, for in- Circuit. Noyola, echo the expressed caution stance, that, Noyola observing cited when Boddie, Pierce, among the circuits fact-specific balancing “the test of Picker- balancing that fact-sensitive of “the matrix ing complicates question of whether an constituting particular of factors con- act violated clear law. This is because the text which the asserted violation oc- question clarity is not of the stan- gives particular curred” force to an immu- clarity dard its in application.” but Boddie cases, nity defense. In such “a very high (5th Columbus, City v. F.2d 750 989 degree of prior particularity may factual Cir.1993). Judge added that Garwood necessary.” Hope, 536 122 qualified immunity 2516; McClendon, S.Ct. at see also 305 where, F.3d at 332 n.

principles particular have force here, resolution of whether the defen- B. Finding Immunity Similar Cases for dant’s conduct violated constitutional Comparison. provision heavily dependent sued balancing weighing against on a Against each backdrop Noyola and the according standards, other of different balancing factors to First Amendment we clear); (5th Cir.1996); Texas, City City, Melton v. Oklahoma 879 1365 65 F.3d Gunaca v. (10th Cir.1989) ("In (5th Cir.1995); F.2d cumstances, 729 some cir- Brady 467 v. Fort Bend Coun fact-specific nature of the (5th Cir.1995); ty, 58 F.3d 173 Boddie v. Pickering balancing may preclude a determi- Columbus, (5th Cir.1993); 989 F.2d 745 ...."), 'clearly nation of established law' va- (5th Cir.1991) Hardy, Caine v. 943 F.2d 1406 (10th grounds, on other cated 928 F.2d 920 (en Dist., banc); Kinsey Indep. v. Salado Sch. Cir.1991) (en banc); Allphin, Benson v. 786 (5th Cir.1990), by, 916 F.2d 273 vacated (7th Cir.1986) (stating F.2d that the (5th (en Cir.1992) banc); Connelly F.2d 988 v. application fact-dependent rarely law "can (5th Comptroller Currency, 876 F.2d 1209 "). ‘clearly be considered established’ Cir.1989); Brittain, (5th Price v. 874 F.2d 252 Cir.1989); Dallas, (5th v. Evans 861 F.2d 846 Tejeda, 4. See Keenan v. F.3d Cir.1988) curiam); (per Brawner v. Richard Cir.2002); Dist., Indep. Harris v. Victoria Sch. son, (5th Cir.1988). (5th Cir.1999) (on petition 336 F.3d curiam) reh'g) (per (specifically stating Harris, 225; Boddie, 5. See 168 F.3d at circuit”); Noyola "reflects the law of this 750; Brawner, Smith, (5th Cir.1997); F.2d at Pierce 855 F.2d at 193. 117 F.3d 866 Univ., bearing Wallace These applica- v. Texas Tech 80 F.3d 1042 cases have little on the (5th Cir.1996); Reno, Piclceringbalancing Vander Zee v. tion of here. governmental chiefs misconduct within their own no reasonable conclude units. clearly have understood could and sheriffs October, violating 1998 that were holding ordinary whistleblower refusing to enroll by Amendment the First “clearly cases afford established law” for Hall’s Kinney’s and recruits

their case, majority elides several criti- compellingly compelling No or classes. Foremost, Kinney’s cal distinctions. and gave Fifth Circuit case law analogous testimony did with equate Hall’s not whis- warning” in this context-sen- officials “fair opinions conduct. tleblower Their were law. balancing area constitutional sitive only they correspond insofar valuable as uniformly grant- from other Cases circuits someone else’s account of the under- with offi- enforcement ed extra deference law But it lying eyewitness facts. is the who decisions. cials’ whistle,” expert “blows the not the who simply synthesizes interprets and fac- majority apparently overlooks The testimony. Qualified expert testimony tual higher degree that there a requirement irreplaceable. majori- not fungible, is The satisfy the similarity between cases to nevertheless, ty implies, that without Kin- qualified law prong established testimony, Hall’s ney’s expert and majority concedes that immunity. in the would plaintiff Kerrville case have do not one that has past “our cases include pursue unable to his claim. Thus been against specifically addressed retaliation public special receiving has a interest Instead, police academy.” at a instructors expert opinions. suggestion This blinks ordinary majority exclusively relies reality. litigious affords well- Our culture brought cases6 case whistleblower and one experts every spe- conceivable an college professor testified as a who including practices cialty, law enforcement entail, Such howev- expert witness.7 cases intends, If training. majority er, mix of interests significantly different hint subtly, experts so that these had balancing purposes than the one before credibility of their affilia- unique because us. ETPA, proves implication with tion officials’ contention: “ordinary” first whistle- Consider by taking Hall created a conflict of interest consistently This blower cases. court has advantage job of their in the court- titles public employee “speaking that a is held room. public matter of he out on a concern” when com- and thus

becomes “whistleblower” Not whistleblower of, plains or testifies fellow em- against, appellees’ generically cases different employ- ployees’ against misconduct his testimony, corresponding expert but practices. protected This court has er’s are different. employers interests of conduct, variety of whistleblower unsympathetic wide has been em- This court emanating law en- government some of it from within ployer against retaliation cases, whistleblowers, agencies. forcement All of these since their unorthodox witnesses, however, only pro- may public’s concerned fact em- furnish the conduct A personal knowledge against had internal misconduct. ployees who tection Brawner, 191-92; majority a case concern 6. 855 F.2d at Matherne also cited Wilson, 1988). (5th educator, Cir. ing but involve it does not testimony protects truthful fact Coll., Rainey v. Jackson 481 F.2d 347 State employer's one's interest. 1973). (5th County Cir. Reeves v. Claiborne 1987), of Educ., Bd. 828 F.2d 1096 Cir. (5th Cir.1998). little, public employer any, if legiti- police has The cite officials in hiding dirty policy clearly mate interest linen from as reflecting established taxpaying public. law in the Fifth majority The case before us is Circuit. The not, however, reliance, appellants’ discounts easily pigeonholed. so The because the policies police were under federal court chal- concealing officials are not misdeeds Indeed, lenge, ultimately and did not departments. within their survive. We since agree that sufficiently Hoover’s context is plaintiff the Kerrville on whose behalf Kin- different not to controlling as furnish au- ney and Hall empty- testified left court thority handed, support police officials. police officials’ “retaliation” ultimately did not exposure stifle the token, however, By majori- the same wrongdoing. majority’s analogy The facile ty ought to concede that Hoover reinforces ordinary with whistleblower cases is sim- principle that in this context-sensitive ply wrong. We have here assumed that law, balancing area of constitutional what police officials’ actions would not satis- closely established must be relat- fy Pickering/Connick balancing test factually legally ed and to a case at hand. after analysis, legal careful but such a Significantly, this Court in Hoover “as- ineluctably conclusion does not so follow sumed that there will be occasions when from a few citations to whistleblower cases delivery state’s interests efficient “clearly guiding as to establish” the law. public services by will be hindered a state employee acting an expert as witness or majority’s analogy to cases involv- consultant-” (empha- 164 F.3d at 226 ing Rainey, educators is also weak. added). by stating: sis Hoover concludes this court college concluded that a teach- But our task in requires er’s contracts were this case us to unconstitutionally apply Pickering case-by-case testimony analysis, breached because of his as a expert doing defense so we pornography witness in a conclude Coll., expert Rainey policy case. witness rider and Jackson State TAMUS Cir.1973). No. 3105 are impermissibly overbroad. Holding that opinion the breach Our does not Rainey’s violated First foreclose consider- Amend- rights, regulations ment court ation of rules and engage did not aimed at Pickering limiting expert testimony balancing. By faculty Id. at 349-50. nature, Rainey’s its members or other state employees could not have which conflicted with the adhere to our First Amendment interests of his employer. jurisprudence. No countervailing employer in- terests were college advanced 164 F.3d at 227. majority opin- Unlike the against Rainey’s right testify. Legally ion, Hoover does oversimplify Picker- factually, Rainey a poor fit with this ing balancing way and in power- its lends case. ful support plea to the officials’ that no clearly established Fifth Circuit law con- factually

Closer to the instant case is the regarding Kinney demned their actions (and policy of University Texas A&M and Hall. state legislative appropriation provision),

implemented before the officials majority While the has strained to find took Hall, action directed at Kinney that clearly established Fifth Circuit law broadly university forbade employees contrary to the officials’ con- from testifying duct, they ignore minimize, witnesses for in the im- parties discussion, adverse to the state’s munity interests. three circuit court cases Morales, See Hoover v. involving alleged 223- retaliation law en- very employer for concerns over the same for non-whistleblower agencies forcement stranger would activity. Even de- testimony. immunity to the non-em- qualified nial of point is Tedder closely on The case most internal relations are most ployer whose (8th Cir.1999), Norman, 167 F.3d 1213 expert testimony, the while affected after the events only a few months decided supervisor granted qualified was Tedder’s Deputy was the here. Tedder at issue immunity. Id. Enforce- Arkansas Law Director majority a Third ignores The also Cir Academy. After voluntari- Training ment case, well the events cuit decided before plaintiff an for the testifying expert ly here, case, a law enforcement Tedder which exonerated of force in an excessive use that of its officers for agency affirmed demoted one Eight The Circuit demoted. was voluntarily appearing as a character wit in Tedder’s First summary judgment a son) (for a a friend’s bail bond ness supervisor. his against lawsuit Amendment Hous. hearing. Philadelphia Green v. that: The court held Cir.1997). (3rd Auth., 105 F.3d 882 miscon- concerning possible Testimony Green, hearing, officer left the declin the on a is public officials duct of stand, the when he learned ing to take that warrants public concern matter of in a charged was with involvement the son but, ... as the protection, constitutional offi ring. The court found the drug stated, place “it not the court is district First testify constituted cer’s decision ALETA, alone its let employee for an activity, but also protected Amendment give Director to volunteer Deputy voluntary in his public’s the interest testimony subpoena.” without a such more limit “somewhat appearance court is Further, the court F.3d at 1215. if were appearance than it would be his ed disruption to “significant a threat of found (citing 105 F.3d at 888 subpoenaed.” [academy] relationships between cases). it agencies that the law enforcement bal- Ultimately, Pickering/Connick balancing the at 1215. On trains.” Id. department’s in the ancing weighed test interests, court ruled for the relevant favor, signif- of its employer, as an because claim of uncon- against Tedder’s defendant protecting depart- icant interests retaliation. Id. stitutional successfully fight- reputation and ment’s distinguish Tedder majority would The court held drugs and crime. ing defendant there testified because injury disrup- “any departmental risk employed by a law en- against an officer Pickering heavily weighs under tion actually trained agency forcement found for Id. thus balancing test.” Green academy. The court Tedder Arkansas though Green’s department even police fact, emphasizes this specifically never approved his supervisor previously had however, testimony and it found that the appearance. court potential disruption caused “actual closely immunity purposes, Green academy. Id. For to the disruption” further present case. contextually to the majority’s related only undercuts the Tedder not weight to the significant attributed analysis, but Green First Amendment justification for its dis- department’s immunity. finding supports action, carefully explains and it ciplinary rule strange constitutional It would be equivalent why not all court employer’s protects indeed In these purposes. First Amendment employee for action an adverse backdrop for the furnishes a ways, non- Green testimony, punishes the but just may officials’conduct opposite of We end this section where we be gan. Because this case involves constitu synthetic “clearly established law” con- tional balancing, “clearly established by majority. cocted higher law” must have existed at a level immunity The third case relevant for specificity might required than other purposes brought against an Okla- types immunity hardly eases. This is attorney agents homa district for the extraordinary conclusion. It follows as Oklahoma Bureau of Narcotics and Dan- a negative implication from this court’s en gerous Drugs, alleging that the rescission that, holding banc in McClendon absent employment of an offer of to coordinate controlling authority, circuit “a ‘consensus persuasive authority1 of cases of drug might, the DA’s task force was based on the circumstances, under some be sufficient to plaintiffs previous expert witness testimo- compel the conclusion that no reasonable ny for a murder defendant. Worrell officer could have believed that his or her (10th Cir.2000). Henry, 219 F.3d 1197 McClendon, actions were lawful.” The murder trial in which the would-be case, F.3d at In 329. this the Fifth Circuit employee killing testified involved the precedents cited majority the involve agents. one of the narcotics bureau’s The fundamental distinctions in the nature of granted summary court judgment for the public employer’s as well as the attorney, district prospective who was the useful, interests. hardly While such cases employer, but it summary judg- denied compel the police conclusion that the offi qualified immunity ment and to the chief cials could not properly disenroll their offi agent. narcotics bureau The Tenth Cir- cers from Kinney’s and Hall’s classes. cuit that Pickering/Connick held balancing majority overlooked other circuits’ appropriate to evaluate the First cases that discussed Pickering balancing consequences Amendment of the district specific context of law enforcement attorney’s Worrell, refusal to hire but it agencies types testimony. and various did Pickering appropriate not find to ana- majority Whether or not the agree would lyze alleged retaliation the non- cases, with the outcome of those two of employer, agents non-contractor predate police them officials’ conduct narcotics bureau. In reaching the latter here, they should regarded as con conclusion, the court acknowledged “that stituting persuasive a consensus of authori may there opera- be instances which the ty arrayed against majority’s conclu tions of a party agency third are so inter- best, sion. At one must conclude that twined with operations of the employ- “clearly there was no established law” that ing agency gave police Pickering officials “fair balancing warning” of unconstitutionality Worrell, their conduct. applied.” should be 219 F.3d at McClendon, (no See 305 F.3d at 332-33 1212, n. 3. jurisdictions consensus of cases from other Worrell demonstrates that if the applied where those cases the constitution through officials’role is viewed the Picker- differently al rule and facts were insuffi lens, ing/Connick immunity their claim to similar; ciently qualified immunity granted should be ironclad. if position Even officer). closely more resembles of the narcot- Novelty Majority’s C. in the Balancing however, agents, they

ics bureau could ar- Exercise. gue fall under Worrell’s caveat operations

because their closely are inter- proof The third in majority’s error twined with ETPA. qualified immunity analysis arises from the employees’ testimony is not absolute. bal- Pickering/Connick way it strikes October, 1998, court had held government no There are instances in which In ance. right to employee’s a law enforcement employers outweigh as entities’ interests voluntarily an witness testify expression in free employees’ interests agency. interests of outweighed the encouraging truthful and un- policy (discuss- Worrell, F.3d at 1206-07 See Worrell, 219 testimony.” inhibited noting circuit court cases and ing prior approv- then described with Worrell balancing fa- Pickering where that even way al the which the courts Green result employee, a different vored the and Tedder evaluated the clash between agency could reached where might be testify rights law enforcement officers’ operations). in its And disruption show agency’s significant and their interests. have, in the law day, no cases Green, Worrell, 219 F.3d at 1206-07. context, non-whistle- elevated enforcement above, as noted the Third Circuit held high, or rated the so blower voluntary appearance the officer’s at bail low, ma- as the interests so department’s hearing, although constitutionally signifi- (at say not to jority does here. This is Green, cant, weight. to less was entitled incorrect, majority is the but point) Eighth 105 at 888-89. The Circuit F.3d against any cuts novelty of this balance the that the voluntariness Tedder also decided “clearly established law” conclusion testimony deputy expert the director’s police officials’ conduct. proscribed the brutality case lessened its First police thus resembles position appellants’ The Tedder, protection. Amendment 167 Umbehr, county supervisors that of case has ascribed to at 1215. No other on immunity upheld whose testimony like voluntary expert witness approved Court appeal while Hall such elevated that of bal- Pickering/Connick application status. First Amendment indepen- between ancing to the relations government entities. contractors dent fashion, Likewise, unprecedented Umbehr, 668, 116 518 U.S. generally, See naught police majority holds for 2342. S.Ct. description of their institutional officials’ majority exaggerated has Because the controlling the education of interests in voluntary expert tes analogy between majority’s department officers.8 The testimony, it ele timony and whistleblower posi- hostility officials’ toward in tes Kinney’s and Hall’s interests vated Churchill, contrary to Waters v. tion is voluntary expert witnesses tifying as government’s “signif- described the which status. The absolutely protected almost employer as follows: icant” interest as partially majority has thus extended salary so paid who is When someone Morales, reject which overruled Hoover v. agency’s to an will contribute she See Hoo approach. such an absolutist ed begins say to do or operation effective ver, perspec From the 164 F.3d at 227. agency’s things that detract from the circuits, too, majority’s tive of other em- government operation, effective The Tenth unprecedented. conclusion power to re- must have some ployer specifically has held otherwise: Circuit strain her. protection public “First Amendment associating See disciplined with union. majority on two cases in conclud

8. The relies Boddie, 747. The other involved 989 F.2d at appellants legitimate interests ing the have no activity. Fra prison whistleblower balancing. inappo- -a nurse's Pickering Both are in the 1989). these, King, Cir. policeman was In one of site. zier 1878, 1887-88, U.S. S.Ct. might legitimately that the officials (1994). question 128 L.Ed.2d 686 further whether the impar- Waters instructors’ tiality was noted: undermined because ini- tially agreed paid experts. to be consistently have given greater [W]e government deference to predictions of majority might The refuse to defer and justify harm used restrictions of em- throw all these institutional concerns to ployee speech than predictions analysis. the winds its First Amendment harm justify used to restrictions on the so, doing But in does it abuse the large. of the at Few general expressed by cautions the Su examples Court, we have discussed involve preme but it contradicts authorities tangible, present interference Green, with the from several circuits. In the Third agency’s operation. danger in them “very Circuit described as significant” the mostly speculative. interests of the housing authority police department employer as an where the offi at U.S. at In voluntary testimony cer’s created a “risk Umbehr, too, that, the Court reminded of departmental injury ‘po based “Pickering requires a fact-sensitive and ” tential disrúptiveness speech.’ of the deferential weighing government’s (Green, Waters, 105 F.3d at quoting Umbehr, legitimate interests.” U.S. 1890.) 680, 114 S.Ct. at 677, 116 S.Ct. at 2348. Tedder, the court concluded that Ted- previously As was explained, testimony der’s disruption caused actual uproar caused an po- because potential and further disruption between lice officials and student-officers feared ALETA and the law agencies enforcement Kinney and Hall might use information Tedder, that it charged training. was with gleaned in testify their to against classes 167 F.3d at 1215. The court was con- sponsoring the agencies; that their testi- cerned that students’ loss of faith the mony interfered with unfettered class- Director, Deputy ALETA’s who had the discussions; room they and that misused authority approve to plans, or veto lesson their affiliation with ETPA to enhance spread every could to taught class there. testimony. their certainly One can under- Eighth See id. The Circuit has elsewhere sensitivity stand the police officials recognized in emphatic height- terms the Kinney’s about and Hall’s testimony. Far ened agen- interests law enforcement from exhibiting wanton brutality, See, Kennett, e.g., cies. City Shands v. the Gonzales portrayed case an officer’s (8th Cir.1993); 993 F.2d 1344-45 endangered life deranged shooter. Caudell, (8th Tindle v. 56 F.3d 971-73 Such situations are the stuff of law offi- Cir.1995). nightmares cers’ and tragedies. domestic Worrell, There is no evidence that Kinney and the Tenth Circuit reiterated lawyers, Hall were and are entitled “personal loyalty and confidence professional to their opinions among as law en- employees especially are important Nevertheless, forcement instructors. feel- in law enforcement” and noted that “[tjhese ings loyalty, confidence and teamwork concerns heightened are agencies between the and the instructors smaller departments, offices and where understandably were strained this relatively tes- minor disturbances in morale timony. Further, it is evident that the in- may create significant problems.” Wor rell, structors enhanced credibility their 219 F.3d at 1208. The court adds be- ETPA, cause of their association with attorney the district obliged was not to occupy func- instructors sensitive the enforcement actual breakdown wait position taking extremely important ac- with re- taskforce before tioning of his to If agencies’ training He entitled to mission. spect 1208-09. the tion. Id. at of work- the lost confi- predictions fails because trainees have rely reasonable Waters, Id.; are disruption. see also their instructors and unwill- place dence them, (noting frankly at 1887 ing issues with discuss weight govern- consequences [afforded] can be “substantial disastrous. predictions reasonable employers’ ment cases insti- specifically above-cited refer to disruptions”). re- loyalty quality especially tutional as a yet agencies, in law enforcement quired has held repeatedly Circuit The Seventh “ majority ignores it. ‘[djeference judg employer’s to the disruptive of an nature regarding ment At have cor- point, we assumed the especially important employee’s speech majority’s final rectness of conclusion ” of law enforcement.’ in the context oc- that a First Amendment violation (7th Seniff, 342 F.3d v. Williams approach But its novel to bal- curred. Ivkovich, Cir.2003) v. (quoting Kokkinis ancing against instructors’ interests Cir.1999)). 840, 845 agencies, law enforcement those law, majority simply new making has held that Finally, the Sixth Circuit “clearly law.” expounding established im- officials are entitled to may pursue Hall choose to munity administra- taking reasonable entities, municipal suits their preclude one of officers tive action the individual defendants are entitled but posi- his uniform and his exploiting qualified immunity. police department advocate tion Rifle Association. on behalf of National TV. Was There Violation of Whalen, generally, Thomas See ? the First Amendment (6th Cir.1995). acknowledging While we have demonstrated that politi- Although status of the officer’s protected entitled to “no officials were pointed the out that speech, cal court of their con- regardless whether recognized exploit immunity a right court has Amendment, we First solely for duct violated the public employment rank in one’s not, hold that their actions were credibility for would also enhancing of purpose balancing Whalen, Pickering/Connick 51 under political gain.” personal or test, unconstitutional. at 1291. F.3d “requires and addition, wholly Pickering a fact-sensitive majority over In weighing government’s of the are entitled to deferential public employers looks that Umbehr, 518 at interests.” U.S. employees legitimate in whose dealing deference with holding 116 at 2348. to the func S.Ct. loyalty trust and are essential See, in balancing applies to cases e.g., Pickering tioning public a office. Con 151-52, entity appears a nick, governmental 461 at 103 S.Ct. which supra, (“When on a provision contracts working relationships condition at 1692 close ex- constitutionally protected fulfilling public responsibil party’s third are essential ities, Court observed pression, a to the degree wide deference Pickering “which approach, judgment appropriate.”); the “nuanced” employer’s may Dist., variety a recognizes that of interests Kinsey Indep. v. Salado Sch. (en banc). cases, (5th Cir.1992) independent in contractor arise F.2d distinguish- a rule hardly any superior bright-line that law dispute There can ing independent employ- strong.” opinions contractors from Other circuits’ have Id. properly distinguished voluntary testimony ees.” at 116 S.Ct. 2342. The clear, also found it from testimony subpoena. Court “far as under See matter, Green, 888; Tedder, general whether at balance 167 F.3d Further, interests at stake is more favorable to the voluntary at wit- expert 1215. government independent contractor ness is distinct from standard at employee cases than in eases.” Id. conduct, on whistleblower the facts at case, 116 S.Ct. Kinney’s expert opin- this and Hall’s exposing wrong- ions were essential Hall Whether are classified police depart- doing policeman or a third-party independent as contractors or ment. employees significant as is not as how function, voluntary overall and their The interests the law enforcement testimony, enforce- affected law agencies have been well-documented agencies’ performance

ment aof cases, other it where has been held that Umbehr, mission. Compare id. at a “special there is need for deference to (noting at a bright-line rule employment respon decisions of those rights that “would leave First Amendment public safety.” sible insuring Kokkin unduly dependent on whether a state law is, F.3d at 845. Law enforcement government provider’s labels service con- agencies have “a more significant interest employment tract” as one of or a contract typical government than the employer “a very poor proxy for services is for the regulating speech activities of [their] stake”). interests at To the extent employees efficiency, to promote order majority opinion depends labeling on Kin- loyalty superior foster and obedience to ney and Hall as independent contractors morale, officers, maintain and instill public employees, analysis rather than its is over- Tyler v. City confidence.” Mountain Umbehr,9 simplified and inconsistent with Home, Cir.1995) Further, majority’s reliance (internal quotation marks and citations involving government court’s cases con- omitted). officials here de hollow, tractors is neither the since posed or that appellees’ expert attested governmen- issue those eases nor the testimony hurt working the close relation tal comparable interests stake is to the ship required academy between instruc present case.10 representatives tors and cities counties; damaged teamwork Balancing required interests this case on a slate, officers; among training those involved in appellees’ testimony clean consti- speech confidentiality tuted on a of threatened the of informa matter concern tion and was entitled to some level of constitu- officers share with their instructors protection. tional about previously procedures practices; For reasons and under discussed, we, confidence; majority, feelings unlike the do not mined loyalty of and protection characterize the “extremely represented as and an improper use of the Jones, foregoing qualified immunity In the discus- 10. See N. Miss. Communications v. sion, F.2d, (5th Cir.1986) (county opinion, this reta- majority's, like the board neces- against newspaper cases, liated sarily for critical editorials government employee focuses on stories) City and and Blackburn v. Mar- the Proper since those are most common. of shall, (5th Cir.1995) (wrecker 42 F.3d 925 however, Pickering analysis, the balances rele- permission police service denied use to radio regard vant interests without to labels. chief; frequency complaint police after to no all). Pickering analysis at to prepare ETPA. The from their time available with affiliation instructors’ of evidence actual ETPA or “double-dip- offered and conduct classes police officials training fees, to disruption salary their and are ping” and witness ex- potential departments. cluded, and in programs a conflict existed this sense. See, Whalen, e.g., 51 F.3d at Thomas detract, majority’s in the factors Two government entity’s (discussing a in- view, of articulat- strength the these preserving appearance the im- terest are they deference ed interests and the partiality). First, that because it is contended due. away” from “400 miles appellees testified the consequential majority’s More is a involving case trainee ETPA and in a police criticism that the officials could not pro- ETPA sponsor of the department legitimately discipline Kinney and Hall to mis- concerns are gram, police the officials’ silence, an code” of enforce “unwritten Kerrville

placed. The distance between police testify do not whereby officers Texas, herring. red Both Kilgore, and is a that enforc- agree each other. We Texas, governed are cities are both the ing “code of silence” stifle law, federal regime the state and same not a concerning police misconduct is le- officers showing police is no there gitimate governmental interest. The evi- rarely mi- or never trained east Texas shows, however, that this was not a dence state, the or that other areas of grate to formally justification of- contemporaneous spreads further than ETPA’s influence no conduct, and, police the fered for officials’ sponsoring depart- its boundaries fact, “unwritten reference code” is argument” The “400 disin- ment. mile by only appellants, one was made genuous.11 during As can be a television interview. a con- posed That the of detail in the ma- seen from wealth and Hall’s Kinney’s flict interest with jority opinion, this case contained an instructors, taking despite its status as contemporary oral docu- abundance jurisdiction, formal place outside ETPA’s post-litigation as as mentary evidence well As a entitled to deference. is conclusion explored police offi- depositions that notes, did majority officials their That cials’ reasons for action. case, not, up leading in events throughout the rec- appears one reference conflict of explain how used term significant. to an code” ord “unwritten interest, ineloquence does but the officials’ stray remark should not be blown This no judgment is not mean their entitled of proportion. out Moreover, weight. it is evident that theme in cases that have The dominant jury, ap- testifying before Kerrville Pickering balance considered Texas pellees’ status instructors need for law enforcement context of academy enhance their credi- would loyalty and con- high degree personal of ETPA bility prestige and lend fidence, good esprit corps, harmony de status, By the instruc- their words. between departments and morale within necessarily implicated sponsoring tors Tedder, for in- instructors and trainees. (despite any professional dis- departments stance, of the actual claimers) on the interests relied legitimacy expert in the their of training academy, employer, police the if opinions. possible Even other standards interest, stake the detracting has an indirect e.g., which for conflicts of impact on speculate Texas would have different We need not and do not whether agencies' testimony given of evaluation of the interests. expert the State outside Tedder, training. results of 167 F.3d at dents They instructors’ classes. stronger 1215. Tedder reflects the even directly did not and could not terminate case, interests of the officials this whose appellees’ employment. departments rely and officers on acad- balance, On police we conclude that the emy’s training for public. the sake of the officials did not violate the First Amend- Worrell, In the Tenth Circuit held that a disenrolling ment by their students from attorney’s district preventing interest appellees’ classes. The officials have the

disruption with other law-enforcement decide, discretion consistent with the agencies outweighed applicant’s inter- Amendment, by First whom their officers avoiding est in retaliation for his taught. will be as an witness offi- Worrell, cer. 219 F.3d at 1208-09. V Conclusion Green, reputation and law enforcement capacity housing authority reasons, For foregoing respectfully I prevail were held to over officer’s deci- dissent from the of qualified denial immu- Green, testify sion voluntarily. 105 nity appellees’ on the First Amendment F.3d at Seventh 888-89. The Circuit has claims, join Judge and I Barksdale’s dis- on protected several held occasions sent. was subordinate the institutional agencies. interests law-enforcement JOLLY, E. GRADY Judge, Circuit Kokkinis, Seniff, 783-85; See 342 F.3d at Dissenting: 185 F.3d at 844-45. I respectfully agree dissent and with cases, In stark contrast to those Judges Jones Barksdale that the de- majority here ignores paramilitary in- fendant law enforcement officers are enti- terests of the agencies law-enforcement tled qualified immunity and should be and reduces their “legitimate” concerns to personal released from liability. It seems competence instructors’ teaching disingenuous to hold the law is clearly law, ability. As matter and based on 20,467 established when it takes words to record, this those interests are too narrow- explain, and when six United States Court ly defined. of Appeals judges sharply disagree about We conclude that this is a closer case it. my way To reasoning, majority Pickering balancing under than others in words, doctrine, has turned and the the law Kinney enforcement area. While “clearly established” its head when it engaged protected conduct, and Hall immunity denies in this novel case. their voluntary expert testimony did not carry a high degree such impor-

tance, in general or facts

case, ordinary testimony. whistleblower

Further, owe special we deference to the

law agencies’ legitimate enforcement inter-

ests in maintaining discipline, harmony,

confidentiality depart- and morale training ments and MARQUETTE programs. We also TRANSPORTATION note that the police opined while officials COMPANY, INC., Plaintiff-Counter fired, Hall should Appellant-Appellee-Cross- Defendant only in disenrolling succeeded their stu- Appellant, See notes does not mean that their fell witnesses testimony for the defendant state, of inherent con- his ostensibly because

Case Details

Case Name: Kinney v. Weaver

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 24, 2002

Citation: 367 F.3d 337

Docket Number: 00-40557

Court Abbreviation: 5th Cir.