Kinney v. WeaverKinney v. Weaver
While many of the basic facts in this case are uncontested, a number of the legally relevant facts are still disputed at this stage. In Parts II and III of this opinion, we elaborate the appellate prism through which we must view the facts in this interlocutory appeal from the district court‘s decision denying qualified immunity. As we explain there, we are required to accept the truth of the plaintiffs’ summary judgment evidence, and we lack jurisdiction to review the genuineness of those factual disputes that precluded summary judgment in the district court. Nonetheless, for ease of understanding and later discussion, our recitation of the facts will note both sides’ assertions with respect to the material points of disagreement.
At the time of the events giving rise to this case, Kinney and Hall were instructors at the East Texas Police Academy (“ETPA”), a division of Kilgore College in Kilgore, Texas. Founded by the East Texas Police Chiefs Association in 1966, the ETPA provides basic and advanced training for law enforcement officers in the greater East Texas area. Kinney and Hall had been working at the ETPA for seventeen years and six years, respectively, under renewable one-year employment contracts. The seven law enforcement officials (collectively “the Police Officials”) asserting qualified immunity in this case are police chiefs or sheriffs who possess final authority over the training
In August 1998, Kinney and Hall testified as expert witnesses for the family of Edward Gonzales, a teenager who was fatally shot by a police sniper employed by the city of Kerrville, Texas. The Kerrville case did not involve officers who had trained at the ETPA or police agencies that sent trainees to the ETPA, as Kerrville lies several hundred miles from Kilgore, outside the region from which the ETPA draws its students.2 Kinney and Hall had never before testified as expert witnesses against police officers, though Kinney had previously testified as an expert in defense of the police. The lawyer for the victim‘s family in the Kerrville case approached the two
Based on their knowledge and experience as law enforcement instructors specializing in the use of force and firearms, Kinney and Hall testified that the Kerrville police officer had used excessive force and that the Kerrville police department had failed to implement the proper policies necessary to direct the conduct of officers acting as snipers. Kinney and Hall were technically under subpoena in the Kerrville case, but they testified voluntarily. Although Kinney and Hall originally planned to receive payment for their services, they decided, shortly after their depositions and before trial, that they would decline payment. Kinney‘s explanation for this decision, confirmed by Hall, is that the two “felt so strongly about the incident and what had happened to Eddie Gonzales” that they concluded that “it wouldn‘t be right to charge.”
Soon after Kinney and Hall testified in the Kerrville case, William Holda, the president of Kilgore College, received letters from some of the Police Officials threatening to stop using the ETPA for officer training. In a letter dated September 15, 1998, Kilgore Director of Public Safety Ronnie Moore told Holda that he was concerned about the instructors’ recent inquiries regarding a gun confiscated by the Kilgore police, because “[i]t is a well known fact within this agency that these instructors had
In a letter dated September 29, 1998, Charles Williams, the chief of the city of Marshall‘s police department, also complained to Holda about the instructors’ expert testimony. He wrote, “I think it is deplorable . . . that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies.” Williams stated further that “[t]he Marshall Police Department will not attend any courses taught by
The summary judgment evidence submitted by Kinney and Hall includes Williams‘s deposition, in which he testified that he learned of Kinney‘s and Hall‘s involvement in the Kerrville case when he received, probably in August 1998, an anonymous package containing the three newspaper articles that he attached to his letter to Holda. In addition to the articles, the package contained a note telling Williams to contact Moore for more information, which Williams did shortly after receiving the package.
Williams forwarded copies of his September 29, 1998, letter and the attached articles to Moore and four of the other Police Officials, namely, Bill Young, the chief of police for the city of Tyler; Bob Green, the sheriff of Harrison County; Bobby Weaver, the sheriff of Gregg County; and J.B. Smith, the sheriff of Smith County. The set of documents that Williams forwarded to Young, which is in the summary judgment record, also included a copy of Moore‘s September 15 letter to Holda.
Young sent a letter to Holda on September 30, 1998, the day after he received the letters and articles from Williams. Young wrote that he was “greatly disturbed by the recent news that [Hall and Kinney] have acted in the capacity of ‘Expert
In an attempt to address the defendants’ complaints, Holda met with Moore, Williams, and Young on September 30, 1998. Also in attendance were three other law enforcement officers to whom Williams had forwarded copies of his letter to Holda, including Defendant Green. In his affidavit, Holda gave an account of this meeting that was largely confirmed by Moore, Williams, Young, and Green in their depositions. According to Holda, all four men “made it clear” (1) that “they wanted Mr. Hall and Mr. Kinney removed from the [ETPA] faculty because their testimony in the Kerrville trial created a conflict of interest with their [ETPA] responsibilities” and (2) “that they would no longer send officers and recruits to the [ETPA] for training if Mr. Hall and Mr. Kinney remained on the Academy faculty.”
Defendants Moore, Williams, and Green later agreed to send students to the ETPA on the condition that their officers not be instructed by Kinney and Hall, but Holda‘s affidavit reports that
The defendants repeatedly expressed a concern that Kinney‘s and Hall‘s testimony created “conflicts of interest” and violated principles of “cooperative responsibility,” but their letters and affidavits do not elaborate upon the import of those phrases. In their depositions, some of the Police Officials admitted that, in their view, an unacceptable conflict of interest exists whenever a police instructor testifies against a police officer, regardless of location and regardless of whether the instructor had trained the officer. Such a conflict does not exist, in their view, when an instructor testifies for police officers.
Shortly after the September 30 meeting, Holda met with Kinney and Hall to apprise them of the situation. Kinney and Hall assured Holda that they would never testify as experts against any officer who had been trained at the ETPA or any
On October 22, 1998, the East Texas Police Chiefs Association held its quarterly meeting in Kilgore. The attendance was unusually large. All of the Police Officials were
Several local media organizations reported on the controversy that had arisen between the ETPA and some of the area police agencies. On television and in print, several defendants are documented announcing their intention either to use a training institution other than the ETPA or to bar their officers from taking Kinney‘s and Hall‘s courses. Smith was quoted as stating that Kinney and Hall had “prostituted themselves” by
The Police Officials followed through on their threats both by cancelling enrollments in the plaintiffs’ classes and by barring their officers from enrolling in the plaintiffs’ courses in the future. The summary judgment evidence indicates that this boycott was quite effective. Holda stated that Kinney‘s and Hall‘s courses “were boycotted by a sufficient number of law enforcement agencies so that enrollment was insufficient to make their classes and, therefore, could not be economically continued.” The boycott began in October 1998, and by November 10, 1998, all of Kinney‘s and Hall‘s basic classes had been
Aware that the enrollment in his courses was down and concerned that he would not be able to withstand a cut in pay, Hall resigned from the ETPA effective January 3, 1999, because he anticipated that his ETPA contract would not be renewed. He was hired as a patrol officer at the Carrollton Police Department, the job he had left to work at the ETPA six years earlier.
Kinney‘s ETPA teaching contract extended through the 1998-1999 academic year, and he continued to teach during that time. The boycott remained in effect, however, and the ETPA provided alternate instructors for all of Kinney‘s classes to ensure that the law enforcement agencies that refused to enroll their officers in Kinney‘s courses could still send trainees to the ETPA. Kinney stated in his affidavit that he “had minimal class time during the first few months of the 1999 calendar year”——specifically, he “had no time in the basic police academy and very little in the in-service classes.” In their depositions taken in August 1999, the Police Officials stated that they continued to prohibit enrollment either in Kinney‘s courses or in all ETPA courses because Kinney remained on the ETPA faculty.
Kilgore College did not renew Kinney‘s 1998-1999 contract for his position as an ETPA instructor, but rather offered him a contract as a lecturer in the Criminal Justice Department of Kilgore College for the following academic year. The salary for
On April 7, 1999, Kinney and Hall filed a complaint in federal district court against the seven Police Officials, their respective cities or counties of employment, and the East Texas Police Chiefs Association, alleging that the defendants had “blackballed” Kinney and Hall “in retaliation for their truthful testimony on behalf of the victim of a police shooting.”6 Kinney and Hall claimed violations of: (1) their rights to testify freely under
The Police Officials brought an interlocutory appeal of the district court‘s order denying summary judgment on their immunity defenses. A divided panel of this court affirmed the district court‘s order denying immunity with respect to the plaintiffs’ claims under
II. JURISDICTION
We must first address our jurisdiction to hear this appeal. This court has jurisdiction over appeals of “final decisions” of the district courts. See
As will be explained in greater detail below, officials enjoy qualified immunity to the extent that their conduct is objectively reasonable in light of clearly established law. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whenever the district court denies an official‘s motion for summary judgment predicated upon qualified immunity, the district court can be thought of as making two distinct determinations, even if only implicitly. First, the district court decides that a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law. Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct. According to the Supreme Court, as well as our own precedents, we lack jurisdiction to review conclusions of the second type on interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 313, 319-20 (1995); Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir. 1999).8 Stated differently, in an
We do, however, have jurisdiction to the review the first type of determination, the purely legal question whether a given course of conduct would be objectively unreasonable in light of clearly established law. See Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996) (stating that Johnson permits a defendant official “to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of ‘objective legal reasonableness’”). That is, we have jurisdiction only to decide whether the district court erred in concluding as a matter of law that officials are not entitled to qualified immunity on a given set of facts. As one of our cases succinctly puts it, “we can review the materiality of any factual disputes, but not their
Given the above, the plaintiffs’ suggestion before the panel that we lack jurisdiction over this appeal is incorrect. We do have jurisdiction, but only to the extent that the appeal concerns the purely legal question whether the defendants are entitled to qualified immunity on the facts that the district court found sufficiently supported in the summary judgment record. See Behrens, 516 U.S. at 312-13.10
III. STANDARD OF REVIEW
The standard of review that we apply in an interlocutory appeal asserting qualified immunity differs from the standard employed in most appeals of summary judgment rulings. Ordinarily, we would review the district court‘s denial of summary judgment de novo, applying the same standard as the district court. See Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). The district court, of course, applies the standard of Rule 56, according to which summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs’ version of the facts as true. Wagner, 227 F.3d at 320 (“Even where, as here, the district court has determined that there are genuine disputes raised by the evidence, we assume plaintiff‘s version of the facts is true . . . .”); see also Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir. 2001) (“[O]n interlocutory appeal the public official must be prepared to concede the best view of the facts to the plaintiff and discuss only the legal issues raised
The plaintiffs contend that the record reflects that the defendants “blackballed” or boycotted the plaintiffs’ classes at the Academy because the plaintiffs broke the “code of silence.” . . .
The defendants, on the other hand, have maintained that they refused to send their officers to classes taught by Kinney and Hall because of potential conflicts of interests . . . .
. . . The record is full of evidence, both circumstantial and direct, backing each of the respective party‘s positions. After reviewing the record and the arguments of the parties, the court concludes that summary judgment is not appropriate and this case may proceed to trial.
Kinney, 111 F. Supp. 2d at 835.
There is ample evidence currently in the record for a jury to conclude that the defendants’ actions were intended to suppress the plaintiffs’ rights to free speech.
There is ample evidence in the record for a jury to conclude that the defendants conspired to deter the plaintiffs from testifying in court by boycotting their business.
There are genuine issues of fact remaining in this casе as to whether the plaintiffs’ expert testimony could legitimately cause any disruptions in the defendants’ operations. Moreover, it must be determined whether these disruptions, if any, were the result of a perceived “conflict of interest” or the “blackballing” of plaintiffs for turning against one of their own.
Plaintiffs’ evidence reflects a dogged determination by the defendants to rid Kilgore College of the plaintiffs as instructors in retaliation for speaking out about excessive force by police officers. The court concludes that the acts alleged in the complaint and found in the record, if proven at trial, would violate “clearly established” law.
In reviewing the district court‘s conclusions concerning the legal consequences—the materiality—of the facts, our review is of course de novo. See Lemoine, 174 F.3d at 634.
IV. QUALIFIED IMMUNITY
The doctrine of qualified immunity seeks to strike a balance between competing social objectives, providing breathing space for the “vigorous exercise of official authority” while at the same time allowing a possibility of redress for victims of officials’ abuses. See Butz v. Economou, 438 U.S. 478, 504-06 (1978). Therefore, as against claims under federal law,13 “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. The Supreme Court noted in Harlow that in most cases, the “of which a reasonable person would have known” language in the qualified immunity standard does not add anything to the “clearly established law” requirement because “a reasonably competent public official should know the law governing his conduct.” Id. at 818-19. Not long after Harlow, the Court refined the qualified immunity
The Supreme Court has recently provided us with additional guidance regarding the nature of “clearly established” law. It had already been known since Anderson that the “clearly established” standard does not mean that officials’ conduct is protected by qualified immunity unless “the very action in question has previously been held unlawful.” 483 U.S. at 640. In the Court‘s latest pronouncement on the subject, Hope v. Pelzer, 536 U.S. 730, 739 (2002), the Court held that one of our sister circuits had erred in defining clearly established law in such a way that qualified immunity was mandated unless the facts of past cases were “materially similar” to the conduct then being
Yet, at the same time, an official does not lose qualified immunity merely because a certain right is clearly established in the abstract. It is clearly established that the government may not deny due process or inflict cruel and unusual punishments, for example, but those abstract rules give officials little practical guidance as to the legality of particular conduct. Qualified immunity should not be denied unless the law is clear in the more particularized sense that reasonable officials should be “on notice that their conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001). The central concept is that of “fair warning“: The law can be clearly established “despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Hope, 536 U.S. at 740 (internal quotation marks omitted).
“A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination оf whether the plaintiff has asserted a violation of a constitutional right at all.” Siegert v. Gilley, 500 U.S. 226, 232 (1991). Therefore, before engaging in the inquiry into whether the official unreasonably violated clearly established
V. CLAIM UNDER 42 U.S.C. § 1985
(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified . . .
(3) . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
According to Kinney and Hall, the Police Officials violated the statute by conspiring to mount a campaign of economic retaliation—which took the form of boycotting Kinney‘s and Hall‘s classes and attempting to have them terminated—on account of the instructors’ testimony against a police officer in the Kerrville case. The district court denied the defendants’ motion
Much of the argument in the district court concerned the issue of whether the plaintiffs adduced sufficient evidence of a conspiracy. The district court‘s determination that there was sufficient evidence of a conspiracy is not at issue in this interlocutory appeal. Instead, the Police Officials’ main argument on appeal has been the legal argument that
Based upon the statute‘s plain language, we have little difficulty in concluding that “any party or witness” includes
In answer to the defendants’ argument that expert testimony is easily replaceable and therefore less worthy of protection than fact testimony, we would point out that expert testimony on
We further conclude that the statute‘s coverage of expert witnesses was “clearly established” for purposes of qualified immunity. No reasonable official would find the terms “any . . . witness” ambiguous on this point. Although a body of cases is typically required in order to give clear shape to vague constitutional provisions referring to “due process of law” or “cruel and unusual punishments,” we believe that the text is itself sufficient to put reasonable officials on notice that the
Regarding the question whether the plaintiffs have set forth a violation of the statute under current law, the Police Officials’ argument is foreclosed by Haddle v. Garrison, 525 U.S. 121 (1998), in which the Supreme Court held that “third-party interference with at-will employment relationships[] states a claim for relief under
Viewing the facts in the light most favorable to Kinney and Hall, the conduct at issue in this case falls within the core of
We emphasize that the statute does not create liability for every adverse action taken against a witness after the witness testifies in a federal case. In addition to the requirement that there be a cognizable injury to the witness or his property (discussed above), the statute itself contains another limiting principle: the conspirator must threaten or injure the witness “on account of his having so attended or testified“—that is, because of, and by reason of, a person‘s participation as a witness. See Webster‘s Third New International Dictionary 13 (1963) (defining the phrase “on account of” to mean “for the sake of: by reason of: because of“).22 The defendants have said that they
VI. FIRST AMENDMENT CLAIM
Kinney and Hall claim that the defendants unlawfully retaliated against them for exercising their rights to free speech guaranteed by the First Amendment and made applicable to state actors by the Fourteenth Amendment. The district court evaluated the plaintiffs’ claim according to the law governing First Amendment retaliation claims brought by public employees. See Kinney, 111 F. Supp. 2d at 837. Acknowledging that Kinney and Hall were not employees of the Police Officials, the district court noted that in Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), the Supreme Court held that the First Amendment analysis applicable to claims by public employees also applies to First Amendment claims brought by the government‘s independent contractors. Having considered the relationship between Kinney and Hall and the police agencies that have long used their
As the district court recognized, a First Amendment retaliation claim in the employment context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiff‘s speech involved a matter of public concern, (3) the plaintiff‘s interest in speaking outweighed the governmental defendant‘s interest in promoting efficiency, and (4) the protected speech motivated the defendant‘s conduct. See Lukan v. N. Forest ISD, 183 F.3d 342, 346 (5th Cir. 1999). The district court determined that Kinney and Hall had proffered sufficient evidence to withstand summary judgment on those elements. First, the district court found that both instructors presented evidence that they had suffered adverse employment actions by being forced to accept lower paying jobs as a result of the Police Officials’ boycott. Kinney, 111 F. Supp. 2d at 838. Second, the court determined that the plaintiffs’ testimony regarding the use of excessive force by police officers was unquestionably a matter of public concern. Id. Third, applying the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), the district court determined that the balance weighed in favor of Kinney and Hall; that is, the instructors’ interest in commenting on a matter of public concern outweighed the Police Officials’ interest in promoting the efficient delivery of public
As we noted in our analysis of the plaintiffs’
A. What is the applicable First Amendment analysis?
The First Amendment shields speech “not only [from] direct limitations . . . but also [from] adverse government action against . . . individual[s] because of [their speech],” including the denial of public benefits to punish individuals for their speech. Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999).
At the outset, the Police Officials contend that their conduct is not actionable under the First Amendment because their decisions on whether and where to enroll officers are discretionary in the sense that no contract required them to enroll their officers in Kinney‘s and Hall‘s courses. This assertion overlooks the fundamental point that governmental discretion is always constrained by the Constitution. As the Supreme Court stated in Perry v. Sindermann, the locus classicus of the “unconstitutional conditions” doctrine:
For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests—especially, his interest in freedom of speech.
408 U.S. 593, 597 (1972). The county officials in Umbehr were under no duty to place contracts with the plaintiff‘s trash-hauling business, nor did the plaintiff have a right to those contracts; it was an at-will relationship. See Umbehr, 518 U.S. at 670-71. The point of such cases, as we have long made plain, is the government‘s duty not to punish protected speech, not the citizen‘s supposed “right” to government patronage.24 In the instant case, the district court found sufficient evidence not only that the defendants deprived Kinney and Hall of the benefit of continued enrollment in their courses—a form of public patronage—but also that at least some of the defendants sought to have the instructors removed from the academy altogether. That no contract forbade this is irrelevant.
The Police Officials also suggest that their relationship with Kinney and Hall was too attenuated to create the requisite governmental power over the instructors. Specifically, the Police Officials argue that their conduct did not deny Kinney and
While all citizens enjoy the protections of the First Amendment, the appropriate analytical framework for applying the “unconstitutional conditions” doctrine to a given First Amendment claim depends on the context in which the claim arose. As the Supreme Court explained in Umbehr, the cases form a “spectrum” ranging from, at one end, cases involving “government employees, whose close relationship with the government requires a balancing of important free speech and government interests” and, on the other end, cases involving “ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing.” 518 U.S. at 680.
Because the government has no legitimate interest in denying a benefit to “ordinary citizens” on account of their speech on matters of public concern, there is no interest balancing involved in the First Amendment analysis for “ordinary citizen” cases. Rather, the First Amendment is violated in “ordinary citizen” cases if the individual engaged in conduct protected by the First Amendment and the government took action against the person because of that protected conduct. See, e.g., Rolf v. City of San Antonio, 77 F.3d 823, 827 (5th Cir. 1996). In
The Supreme Court set out the basic analytical structure for “governmental employee” balancing cases in Pickering v. Board of Education, 391 U.S. at 568. In that case, the Court held that a board of education violated a teacher‘s First Amendment rights by discharging him in retaliation for his criticism of the board‘s budget decisions. Id. at 566, 574-75. In so holding, the Court emphasized that government employees “may [not] constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public [institutions] in which they work.” Id. at 567-68. The Court also recognized, however, that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Id. Thus, explained the Court, it is necessary “to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the
In Umbehr and its companion case, O‘Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996), the Supreme Court held that the “governmental employee” version of the unconstitutional conditions doctrine—that is, the Pickering balancing inquiry—is also appropriate where an independent contractor alleges a First Amendment violation against the government. See O‘Hare Truck Serv., 518 U.S. at 720-24; Umbehr, 518 U.S. at 677-78, 684-85. The Court reasoned that “[i]ndependent government contractors are similar in most relevant respects to government employees.” Umbehr, 518 U.S. at 684. Specifically, the Court noted:
The government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption. And, absent contractual, statutory, or constitutional restriction, the government is entitled to terminate them for no reason at all. But either type of relationship provides a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech on mаtters of public concern by those who, because of their dealings with the government, “are often in the best position to know what ails the agencies for which they work.”
Id. at 674 (quoting Waters, 511 U.S. at 674).25
The parties in this case disagree over which First Amendment analysis—Pickering balancing on the one hand or the “ordinary citizen” framework on the other—should apply to this case. Earlier, in arguing that their actions did not deny Kinney and Hall any actionable “benefits” for purposes of the unconstitutional conditions doctrine, the Police Officials emphasized their lack of employment-type ties to Kinney and Hall. In support of their argument regarding the appropriate First Amendment analysis, however, the Police Officials now characterize their relationship with the ETPA and ETPA instructors as sufficiently akin to employment to warrant a balancing of the Police Officials’ interests against the free speech interests at stake in this case. Relying on North Mississippi Communications and Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000), Kinney and Hall respond that the “ordinary citizen” analysis is better suited to the circumstances of the
We agree with the district court and the Police Officials that a Pickering balancing analysis is appropriate in this case. The relationship between the Police Officials and ETPA instructors such as Kinney and Hall implicates governmental interests similar to those involved in the public employment context. Law enforcement agencies have a legitimate interest in exercising discretion over the choice of the instructors who train the officers who will, in turn, carry out the agencies’ public duties. Those interests include, for example, ensuring that the instructors are competent and knowledgeable, that they are adept at conveying that knowledge to officer-students, and that they maintain a good working relationship with law enforcement agency officials so that those officials can monitor the training that their officers receivе. These interests are
The defendants do not dispute that the instructors spoke on a matter of public concern, nor can they question (in this interlocutory appeal) the district court‘s factual determinations regarding causation. Accordingly, we now consider whether, under Pickering, the district court correctly balanced the First Amendment interest in protecting Kinney‘s and Hall‘s speech against the Police Officials’ interests in suppressing it.
B. Was there a First Amendment violation?
The Pickering test requires us to balance the speaker‘s First Amendment interests against the government‘s legitimate interests in the efficient provision of public services. In performing this balance, we must take care not to exceed the scope of our interlocutory appellate jurisdiction. As explained earlier, see supra Parts II-III, we must accept the existence of those genuine issues of fact identified by the district court and the district court‘s concomitant characterization of the plaintiffs’ summary judgment evidence. The question for us is whether the district court committed legal error in balancing the interests supported by the summary judgment record, viewing the record in the light most favorable to the non-movants.
We turn next to the Police Officials’ side of the Pickering balance. Stated in its most general terms, the government has an interest in “promoting the efficiency of the public services [that the governmental agency] performs.” Pickering, 391 U.S. at 568. In the instant case, given the Police Officials’ objective of providing effective law enforcement, all sides recognize that they have a strong interest in assuring the effective training of their law enforcement personnel. As the Supreme Court has made clear, however, the relevant issue is not the weight of the governmental interest considered in abstract terms; we look instead to how the speech at issue affects the government‘s interest in providing services efficiently. It is the speech‘s detrimental effect on the efficient delivery of public services that gives the government a legitimate interest in suppressing it. This is illustrated, for example, by Rankin v. McPherson, 483 U.S. 378, 381 (1987), a case in which an employee in a constable‘s office remarked, upon hearing about the attempted
In recognizing that the governmental interests at stake in a particular case necessarily depend upon the facts of the case, we most certainly do not, as the dissent asserts, pervert the First Amendment analysis by changing the Pickering balancing inquiry into a question for the jury. It is for the court to determine the importance of a plaintiff‘s speech interest, to determine the importance of a governmental interest in efficient operations, and to balance the relative weight of each. But the governmental interests that are at stake in a particular case necessarily depend on the facts of the case. As a matter of law, the Police
With these principles in mind, we now turn to the Police Officials’ asserted grounds for taking action against Kinney and Hall. In canvassing the possible harms caused by the plaintiffs’ Kerrville testimony, we note first that some of the workplace disruptions cited by the Police Officials are simply irrelevant to the Pickering calculus. It is of course true, as the defendants point out, that the boycott strained the relationship between the ETPA and the local police agencies. In addition, the boycott may have caused tension between Holda and the plaintiffs,
With regard to the question whether the plaintiffs’ speech impaired the Police Officials’ training operations, the district court concluded, based upon its review of the record before it, that the defendants had not identified any damage to the efficiency of their operations brought about by Kinney‘s and
The Police Officials claim that Kinney‘s and Hall‘s testimony damaged training by creating a “conflict of interest” and “violat[ing] . . . principles of cooperative responsibility [and] trust.” Needless to say, reasonable officials should be concerned about conflicts of interest, and they can rightfully demand that their employees and contractors not abuse the trust the government places in them. Based upon the summary judgment record, however, the district court was unable to determine whether the Police Officials had concerns about genuine conflicts of interest or were instead, as Kinney and Hall contend, merely interested in enforcing a “code of silence” against the plaintiffs. Id. at 835, 838, 843.32 One of the main reasons for
Similar comments are in order regarding the Police Officials’ asserted interests in loyalty and esprit de corps, heavily relied upon by the dissent. No one would doubt but that those are important considerations, especially in a police department. Even within a police department, however, the mere
The district court‘s conclusions with respect to the question of workplace disruption—or rather, the absence thereof—distinguish the instant case from a case like Tedder v. Norman, 167 F.3d 1213 (8th Cir. 1999). In Tedder, the deputy director of a police academy testified as an expert witness against one of the agencies that sent trainees to the academy. It is quite understandable how this could raise real concerns, including concerns about conflicts of interest. Accordingly, the Tedder court found that the “actual disruption and potential further disruption” caused by the plaintiff‘s testimony justified the academy‘s decision to demote him. Id. at 1215. Here, in
When we accept the factual disputes identified by the district court and view the disputed facts in the light most favorable to Kinney and Hall, we find that the Police Officials have not articulated any relevant, cognizable interests in suppressing the plaintiffs’ speech, while Kinney and Hall have presented a strong First Amendment interest in testifying about police brutality and inadequate supervision and training. Therefore, we conclude that, at the summary judgment stage, the instructors’ interest in testifying easily outweighs the Police Officials’ interest in suppressing their speech, given that the speech involved unrelated police agencies hundreds of miles away.
Our decision should not be taken to mean that police agencies do not enjoy broad latitude in managing the training of their officers, including significant discretion over the choice of instructors. There are any number of legitimate reasons why police officials can stop using a particular instructor or academy; barring contractual commitments, they can do so for no good reason at all. In order to do so on a basis that penalizes protected speech, hоwever, they must explain why their need to suppress the speech outweighs the countervailing First Amendment interest in free expression. At this early stage of the proceedings, there is a genuine dispute as to whether the Police
To summarize: Kinney and Hall spoke on a matter of public concern, and the value of their speech prevails, at the summary judgment stage, over the opposing governmental interests in the Pickering balance. Since the district court also found that Kinney and Hall established a genuine factual issue regarding whether the Police Officials boycotted Kinney‘s and Hall‘s courses and sought to have them removed from the ETPA faculty because of their testimony, Kinney, 111 F. Supp. 2d at 838, 843, the facts set forth by Kinney and Hall are sufficient to state a First Amendment violation. The first step of the qualified immunity analysis is thus complete. We next turn to the question of “clearly established” law—that is, whether it would have been apparent to a reasonable officer at the time of the alleged violation that the Police Officials’ conduct violated the First Amendment.
C. Are the Police Officials entitled to qualified immunity?
The First Amendment right to free speech was of course clearly established in general terms long before the events giving rise to this case. In order to defeat the Police Officials’ claim of qualified immunity, however, Kinney and Hall
There is no question that it was clearly established well before October 1998 that Kinney‘s and Hall‘s testimony was of public concern and thus was speech protected by the First Amendment.35 The Police Officials do not attempt to argue otherwise, but rather suggest that it was not clear that the First Amendment imposed any restrictions on their conduct vis-à-vis Kinney and Hall as their training instructors. This, of course, is the same argument we rejected earlier, in discussing whether Kinney and Hall had set forth evidence of
Initially, we reject the defendants’ attempt to characterize Kinney and Hall as employees of a disappointed bidder. Neither Kilgore College nor ETPA instructors such as Kinney and Hall were mere “bidders” in the sense that they lacked a “pre-existing commercial relationship” of the sort that the Court was concerned about in Umbehr—i.e., a relationship that the Police Officials could use to inhibit speech. See id. at 674 (reasoning that a Pickering balancing analysis is appropriate in cases involving the government‘s independent contractors or providers of regular services as well as its employees because both “type[s] of relationship provide[] a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech
More fundamentally, we reject the Police Officials’ suggestion that it would have been reasonable for officers in their positions to believe that they were unfettered by the First Amendment merely because their economic relationship with Kinney and Hall was non-employment and non-contractual. Both the Supreme Court and this court have explicitly rejected such reasoning. In O‘Hare Truck Service, the Court rejected “the proposition . . . that those who perform the government‘s work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgment of First Amendment rights.” 518 U.S. at 720. Similarly, in Blackburn, we stated that the “assumption that only public employees enjoy the protections of the First Amendment” rested on “inverted” reasoning because “[e]very citizen enjoys the First Amendment‘s protections against governmental interference with free speech.” 42 F.3d at 931. As we explained in Blackburn, the Supreme Court did not formulate the “governmental employee” version of the “unconstitutional conditions” doctrine in order to limit the First Amendment to the public employment context, but rather in
Part VI.A of this opinion determined that the Police Officials were entitled to have the plaintiffs’ First Amendment claim analyzed under a Pickering balancing inquiry, a framework that recognizes the Police Officials’ legitimate interests in suppressing some speech that interferes with the provision of public services. To the extent that there was any uncertainty about the proper analytical framework, the uncertainty could not redound to the defendants’ benefit, as the alternative would have been to hold the Police Officials to the higher standards that they must observe with respect to ordinary citizens. It is plain that the government cannot harry the employer of an ordinary citizen who gave unwelcome testimony, seeking to have the employee fired in retaliation. Giving the Police Officials the
Given that it is well-established in the jurisprudence of both the Supreme Court and this court that official misconduct is of great First Amendment significance, and that this court has repeatedly emphasized the need to protect speech regarding police misconduct in particular, see, e.g., Brawner, 855 F.2d at 192, it would have been objectively unreasonable for an officer to conclude that Kinney‘s and Hall‘s testimony was anything other than highly valuable speech.36 Suppressing that speech could be justified, they should have realized, only by a weighty governmental interest. See Matherne v. Wilson, 851 F.2d 752, 761 (5th Cir. 1988) (explaining that a greater disruption must be shown when the speech is of greater public concern).
As explained earlier, at this stage of the case it is disputed whether the Police Officials’ legitimate interests were threatened by Kinney and Hall. The district court found that it was disputed whether the instructors’ testimony in Kerrville
The Police Officials contend that their conduct was reasonable in light of the fact that, when the boycott started in October 1998, the Texas Legislature and Texas A&M University had enacted policies that effectively prohibited state employees from serving as expert witnesses against the state, ostensibly because of inherent conflicts of interest. See Hoover v. Morales, 164 F.3d 221, 223-24 (5th Cir. 1998) (describing the policies). But the Police Officials could hardly have reasonably relied on these state policies as support for their own stand against purported conflicts of interest: The state policies had been challenged as
In any event, we had spoken to such issues long before the controversy over the policies at issue in Hoover. For example, we held in Rainey v. Jackson State College that a teacher stated a claim under the First Amendment when a state college denied him
Judge Jones‘s dissent discusses in some detail three cases from other circuits that, in her estimation, show that the defendants did not violate the First Amendment and should in any event be entitled to qualified immunity. Only one of these, the Third Circuit‘s decision in Green, was on the books when the Police Officials began their activities.39 The plaintiff in Green, a police officer on a drug task force, agreed to testify as a character witness at the bail hearing of the son of a longtime friend. 105 F.3d at 884. The plaintiff left the hearing without testifying after he learned that the son was associated with organized crime. Id. The police agenсy demoted the officer anyway, citing their interest in avoiding the appearance of an association with organized crime. Id. at 884-85. Surely it would cast a police agency into disrepute if its vice officers were thought to consort with mob figures, but the Police Officials in this appeal cannot seriously claim that their agencies will be exposed to public obloquy if a police instructor they patronize testifies for the plaintiff in an excessive force
While some of the relevant First Amendment retaliation precedents in place in the fall of 1998 involved schools (like the Rainey cases and Reeves), and others of them (such as Brawner and Victor) have involved police departments, we concede that our past cases do not include one that has specifically addressed retaliation against instructors at a police academy. We do not see the absence of such a case as an embarrassment to our conclusion that the Police Officials are not entitled to qualified immunity. If we accepted the defendants’ view of what it means for the law to be clearly established, qualified immunity would be available in almost every case, even those cases in which “in the light of pre-existing law the unlawfulness [was] apparent,” Anderson, 483 U.S. at 640. As the Supreme Court has recently admonished, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741.
We close our discussion of qualified immunity by noting that, contrary to the position asserted by the Police Officials, the district court‘s review of the reasons for the Police Officials’ boycott does not mean that the lower court, or this court, has engaged in a “subjective” analysis of the type condemned in Harlow. The Police Officials’ position, apparently, is that they are entitled to qualified immunity as long as there exists some conceivable set of reasons that would have made their actions appropriate. Such factual scenarios doubtless exist. It would have been permissible for the Police Officials to pull
When an official‘s intent or the reasons for his or her actions are an essential element of the underlying violation, we have treated factual disputes over intent just like any other factual dispute that can justify a denial of qualified immunity. See Tompkins v. Vickers, 26 F.3d 603, 607-10 (5th Cir. 1994) (holding that the existence of a retaliatory motive was a factual issue that precluded summary judgment on qualified immunity in a First Amendment case in which a teacher claimed that he had been transferred in retaliation for criticizing the school superintendent); see also Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 535 & n.6 (5th Cir. 1997) (stating that the court lacks jurisdiction on interlocutory appeal to review whether there is a genuine issue of fact as to intentional discrimination). Other circuits take the same view.43
As we have said, accepting the Police Officials’ position would mean that every claim of qualified immunity would necessarily be upheld in those categories of cases that require proof of intent or motive. The proper approach, which treats intent as one fact issue among others, does not lead to the opposite extreme, namely that qualified immunity is never available in such cases. That too would be an intolerable result. Fortunately, in no area of the law can bare accusations of malice or evil intent withstand a properly supported motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1449 (5th Cir. 1993) (stating that unsupported assertions of bad faith cannot create a genuine issue of fact; in such a case, “summary judgment is proper even if intent is an essential element of the nonmoving party‘s case“). Insubstantial suits against public officials can be handled through the “firm application of the Federal Rules of Civil Procedure,” Butz, 438 U.S. at 508, including the restrictions on discovery available in
The Police Officials’ conduct, as presented in the summary judgment record and viewed in the plaintiffs’ favor, was objectively unreasonable in light of clearly established First Amendment law. The district court therefore correctly determined that the Police Officials are not entitled, at least at this point, to qualified immunity from Kinney‘s and Hall‘s
VII. DUE PROCESS AND STATE LAW CLAIMS
In addition to their
VIII. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s denial of the Police Officials’ motion for summary judgment on the plaintiffs’
The privilege of absurdity; to which no living creature is subject but man only.
THOMAS HOBBES, LEVIATHAN pt. I, ch. 5 (1651).
Primarily at issue is qualified immunity vel non against
Though well intended (as always), the majority has lost sight of the proverbial forest for the proverbial trees (as did the majority for the divided panel). First, the majority‘s reading of
With all due respect to my esteemed colleagues in the majority, it is simply nothing short of absurd to hold that the police chiefs and sheriffs are not vested with discretion in choosing which teachers to use (and pay) for training the police
I.
Recitation of the material facts brings the ultimate issue into sharp focus. In 1998, while instructors at the East Texas Police Academy (ETPA), part of Kilgore College in Tyler, Kinney and Hall testified voluntarily in a federal court action as expert witnesses supporting an excessive force claim against the Kerrville, Texas, police department. The police chiefs and sheriffs (Officers) who sent (paid for) their student-officers to ETPA for training were concerned about a conflict of interest evidenced by Kinney‘s and Hall‘s testimony; discussed that conflict with ETPA; and decided in 1998 not to send (pay for) their student-officers to Kinney‘s and Hall‘s classes. As a result, ETPA discontinued those classes because they were no longer economically feasible.
Kinney and Hall had one-year contracts with ETPA. Thinking that his contract might not be renewed, Hall resigned from ETPA to find other employment. Kinney stayed until his contract expired and then accepted a new contract in a different position with the college.
In 1999, Kinney and Hall filed this action against Officers, their respective cities and counties, and the East Texas Police Chiefs Association, claiming violation of:
II.
At issue is qualified immunity (interlocutory appeal), not the merits (appeal from final judgment). Restated, this appeal concerns only whether now, or when Officers acted in 1998, their alleged conduct was proscribed by law. The answer is “no“; qualified immunity must be granted.
Our standard of review for qualified immunity interlocutory appeals requires us to accept the facts in the light most favorable to Plaintiffs. But, of course, that standard does not require us to accept Plaintiffs’ contentions on points of law. For an interlocutory appeal from the denial of qualified immunity, we have jurisdiction to accept the facts as assumed by the district court and determine whether, as a matter of law, they preclude qualified immunity. E.g., Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir. 2002) (quoting Nerren v. Livingston Police Dep‘t, 86 F.3d 469, 472 (5th Cir. 1996)). Applying that standard to this record, we must hold,
Section 1985 makes it unlawful to, inter alia, “injure [a] party or witness in his ... property on account of hаving ... testified [freely and truthfully in a court of the United States]“.
Under the well-known, two-step inquiry for deciding such immunity, the first asks whether, under current law, a valid claim has been asserted — whether a right has been violated. E.g.,
Only if a valid claim has been asserted is the second step taken: was defendants’ conduct objectively unreasonable under then existing clearly established law. Hare, 135 F.3d at 326. Of course, for this interlocutory appeal, as discussed supra, the issue of fact on whether Officers’ conduct in 1998 was objectively unreasonable under then existing law is not at issue for this second step; we can consider only an issue of law — whether the law underlying the claimed violation of
In holding against qualified immunity, the majority improperly expands
1.
First, Plaintiffs do not assert a valid claim under
By enacting
Expert witnesses are quite necessary to litigate certain claims (including, in some instances, those for excessive force); but such experts are readily available — to say the least. For example, for an excessive force claim, there may be only a few fact witnesses who can testify about the force used, but there are countless experts who can opine on whether it was excessive. Such fact witnesses are of the utmost importance; they may be able to offer the only independent evidence about what force was employed. Moreover, a fact witness is usually under subpoena and, therefore, has no choice about whether to testify. Accordingly, there are
Obviously, the same policy considerations are not in play in protecting expert witnesses. Given their abundance and other factors bearing on their status, they are not obligated to testify in a particular case. An expert should not be given the additional protection of a private right of action if adverse economic consequences flow from his testimony.
It is true, for example, that we do not distinguish between fact and expert witnesses for claims that witnesses were intimidated in a criminal trial. As another example, we do not distinguish between fact and expert witnesses in cases involving the absolute immunity that protects them from civil liability arising from their testimony. Those matters involve the integrity of the underlying action; accordingly, we cannot permit expert witnesses to be intimidated into changing their testimony any more than we can permit that for fact witnesses; all must testify freely and truthfully.
On the other hand, a
Consider the wide-ranging, truly absurd results arising out of extending
2.
As noted, even if an expert witness is protected under the statute for the claim at hand, a claim could be asserted only if it arose from conduct occurring after the date we render our decision for this appeal; in other words, the majority has confected a new claim. Accordingly, for the second step of the qualified immunity analysis, it was not clearly established at the time of Officers’
In fact, as the majority admits, Maj. Opn. at 30, it appears that only one opinion (Second Circuit) had ever applied the statute to experts; this was done without analysis and concerned a claim for preventing testimony — a far cry from this case. Chahal v. Paine Webber, 725 F.2d 20 (2d Cir. 1984). Chahal‘s failure to specifically address expert witnesses does not imply that
Moreover, one Second Circuit opinion about preventing testimony could not have clearly established in Tyler, Texas, in 1998 that Officers’ actions with respect to these expert witnesses could violate
Assuming, arguendo, that
1.
Officers’ actions underlying the
a.
Regardless of Officers’ reasons for doing so, electing in 1998 not to enroll (pay for) their student-officers in a class cannot be the requisite injury to property violative of
It is simply not the law that the refusal to enroll (pay for) student-officers (regardless of Officers’ motive) is the kind of interference actionable under tort law, especially for
b.
While the analogy to tort law is instructive, the purpose and history of
The majority tries to limit its holding by stating that “the statute does not create liability for every adverse action taken against a witness after the witness testifies in a federal case“, because of the limiting principle in
The majority would allow any reaction to a witness’ testimony to be actionable if it were in response to that testimony. This is too broad. The statute limits actionable responses to those that injure the witness’ property. Although interference with at-will employment is such an injury, choosing not to enroll (pay for) student-officers in a particular class, is not. Plaintiffs do not assert a claim. Accordingly, our inquiry should stop at step one.
2.
In the alternative, taking the second step for qualified immunity analysis only makes it more evident that Officers are entitled to qualified immunity. Surely, this step compels awarding it. Again, this step involves deciding whether Officers’ conduct in 1998 was objectively unreasonable in the light of then clearly established law. Hare, 135 F.3d at 325. As discussed, and for this interlocutory appeal, we are concerned only with an issue of law — whether the law was clearly established when Officers acted in 1998; we are not concerned with an issue of fact — whether
Officers stopped sending (paying for) their student-officers to Plaintiffs’ classes in October 1998. Despite the majority‘s take on this, Maj. Opn. at 31-36, Haddle‘s being decided two months later in December did not clearly establish that Officers were then (or later) violating
III.
The ultimate issues for this interlocutory appeal are whether Plaintiffs assert a valid claim; and, only if so, whether that law was clearly established when Officers acted in 1998. Plaintiffs do
Therefore, qualified immunity must be awarded against the
Accordingly, I respectfully dissent from not granting immunity against those claims.
With all due respect to our colleagues, one of Judge Barksdale‘s opening statements puts this case in perspective:
[I]t is simply nothing short of absurd to hold that the police chiefs and sheriffs are not vested with discretion in choosing which teachers to use (and pay) for training the police chiefs and sheriffs’ own student-officers — the very persons the police chiefs and sheriffs are responsible for training. This cannot be the law.
In holding otherwise, as he says, the majority “has turned its back on the fundamental, compelling reasons for qualified immunity; it ignores the discretionary element that lies at the heart of that doctrine.” The majority has rendered a very un-balanced analysis of the balancing tests required in this case. This portion of our dissent will address the qualified immunity claim of the police officials as it relates to the teachers’ claims for First Amendment retaliation. Judge Barksdale‘s portion of the dissent discusses the police officials’ potential liability for violating
I. Background
To set the stage for the police officials’ actions against Kinney and Hall, it is useful to recount undisputed facts concerning their expert testimony and the officials’ concerns. They agreed, without following ETPA instructions to obtain prior approval, to become paid experts in 1997 on behalf of the plaintiffs in Gonzales v. City of Kerrville. A year later, at trial, the Kerrville newspaper reported that eyewitnesses testified
Rejecting these expert opinions, the jury found in favor of the Kerrville police officer, and the federal district judge overturned the award against the city. After Kinney‘s and Hall‘s opinion was rejected, the take-nothing judgment was affirmed by this court on appeal. See Gonzalez v. City of Kerrville, 205 F.3d 1337 (5th Cir. 1999).
The police officials have deposed or attested, inter alia, that appellees’ expert testimony hurt the close working relationship required between academy instructors and representatives of the cities and counties; damaged teamwork required among those involved in training officers; threatened the confidentiality of information city and county officers share with Kinney and Hall about their procedures and practices; undermined feelings of loyalty and confidence; and represented an improper use of the instructors’ affiliation with ETPA.
While the majority correctly cites the general standards of review for summary judgment and qualified immunity appeals, they repeatedly mischaracterize the court‘s function in free speech cases and thus would send to the jury issues that it is our obligation to decide. This case is, we are agreed, governed by the balancing test framed by the Supreme Court in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 1734-35 (1968), and refined and extended by Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983), and Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342 (1996). The relevant issues are: (1) whether an employee‘s or contractor‘s speech constituted a matter of public concern; (2) whether the public employer‘s legitimate countervailing government interests outweigh the value of the protected speech; (3) whether the protected speech was a substantial or motivating factor in the discipline or termination; and (4) whether the employer would have acted against the employee for some other conduct regardless of the speech. See Umbehr, 518 U.S. at 675, 116 S.Ct. at 2347. The first two issues are matters for the court to decide de novo while the last two may comprise jury issues. See Williams v. Seniff, 342 F.3d. 774, 782 (7th Cir. 2003); Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th Cir. 1989). Courts, not juries, determine the extent of protection accorded to First Amendment conduct as matters of policy and
The majority, unfortunately, appears to have confused the second and third issues and thus would leave to the jury the fundamental question of First Amendment protection that is ours to decide. The majority holds that because a fact dispute exists as to whether Kinney and Hall were “blackballed” or “boycotted” to enforce a “code of silence” (the third Pickering issue), this court may not take into account the police officials’ proffered institutional reasons for disenrolling their officers from appellees’ classes (the second issue). The majority reasons because it must give Kinney and Hall the benefit of drawing all inferences in their favor on summary judgment review, a trial is required to determine the legitimacy of the governmental interests. The weight those interests receive in the Pickering balance is, however, for this court to decide. Accordingly, sending to the jury issues crucial to the Pickering balance would be improper.
That this court alone decides the Pickering balance is reinforced by several facts. First, all discovery is complete, and there is no real dispute about the operative facts. Second, whether one characterizes the police officials’ actions as merely “disenrolling” students from appellees’ classes or as “blackballing” or “boycotting” the instructors is a matter of semantics, not motive. Third, there is no evidence that the officials
The majority‘s miscalculation of Pickering balancing necessarily affects its conclusion on qualified immunity, as the
Unlike the majority, we neither wash our hands of the crucial responsibility to determine the extent of protection owed to Kinney‘s and Hall‘s voluntary expert testimony, nor obscure the Pickering determination with erroneous or unsupported fact issues. Thus, while deferring balancing at this point, we must acknowledge the existence of legitimate governmental interests on the police officials’ side.
III. Qualified Immunity
The doctrine that confers qualified immunity from suit on public officials performing discretionary functions is not an “insignificant aberration.” See Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997). For over twenty years, the Supreme Court has explained that qualified immunity strikes a balance between providing redress to individuals for abuses of public office and protecting society against claims that “frequently run against the innocent as well as the guilty[.]” Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736 (1982). Society bears the cost of unfounded lawsuits in “the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.” Id. There is also the “danger” that “fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public
For these reasons, qualified immunity shields discretionary official conduct to prevent lawsuits that do not allege violations of clearly established constitutional law of which a reasonable person would have known. Harlow, 457 U.S. at 819, 102 S.Ct. at 2739. The standard of conduct embodies objective legal reasonableness. So measured, qualified immunity affords “ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1985). To disentitle public officials to qualified immunity, the unlawfulness of their conduct “must be apparent,” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987), and “all reasonable officials would have realized the particular challenged conduct violated the constitutional provision sued on[.]” Pierce, 117 F.3d at 871 (citations omitted). Indeed, if “officers of reasonable competence could disagree on th[e] issue, immunity should be recognized.” Malley, 475 U.S. at 341, 106 S. Ct. at 1096. The law is clearly established only where “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156 (2001) (emphasis added).
No doubt, the test of objective legal reasonableness does not always require immunity in the absence of an identical or even
First, the
Despite the majority‘s creative review of Fifth Circuit government employee free speech precedents, none of our cases had remotely conducted the free speech balancing inherent in the relation between law enforcement departments and police academy instructors. As will be seen, the only related authorities were decided outside this Circuit and uniformly denied liability or granted immunity.
Thus, that “fair warning” could be given to the prison officials in Hope does not modify the general test for qualified
Only recently, this Court expressed en banc our caution toward denying qualified immunity in novel factual cases. In McClendon v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002)(en banc), the author of today‘s majority opinion found it compelling that no court in 1993 had applied the state-created danger theory of
The fact that the state-created danger theory was recognized at a general level in [other courts‘] precedents did not necessarily provide Officer Carney with notice that his specific actions created such a danger. . . . [T]his is not a situation where ‘a general constitutional rule already identified in the decisional law . . . appl[ied] with obvious clarity to the specific conduct in question.’
Id. (internal citation and quotation omitted). McClendon then states: “Indeed, general principles of the law are less likely to provide fair warning where, as here, applicability of the doctrine is highly context-sensitive.” Id. at 332 n.13 (citation omitted).
As the foregoing authorities suggest, for immunity purposes, the question “is not whether other reasonable or more reasonable courses of action were available” to public officials. See Pierce, 117 F.3d at 883. Immunity shields officials so long as their conduct is reasonable, even though wrong in hindsight. Saucier, 533 U.S. at 205, 121 S. Ct. at 2158. The question here is whether, among police chiefs and sheriffs similarly situated to the
To apply these principles of qualified immunity, the Supreme Court‘s two-step test normally begins by considering whether, on the facts alleged by the plaintiffs, any constitutional violation occurred; if a violation could be made out, “the next, sequential step is to ask whether the right was clearly established,” i.e., whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier, 533 U.S. at 201-02, 121 S.Ct. at 2156.
The majority‘s errors become evident by inverting the process here. Consequently, let us assume arguendo that the police chiefs and sheriffs violated the
We must ask whether it was clearly established at the time of the Police Officials’ conduct that the
First Amendment forbade them from retаliating against Kinney and Hall, the employees of their contractor, on account of the instructors’ Kerrville testimony.
Kinney, __ F.3d at __. Our answer is resoundingly that the law was not clearly established.
A. Qualified Immunity and Constitutional Balancing.
At the heart of Kinney‘s and Hall‘s
For immunity determinations, the implications of this rule-avoiding constitutional standard seem obvious. The Supreme Court has alluded to the enhanced likelihood of granting qualified immunity in
Even when the general rule has long been clearly established (for instance, the
First Amendment bars retaliation for protected speech), the substantive legal doctrine on which the plaintiff relies may facilitate summary judgment . . . . [T]here may be doubt as to the illegality of the defendant‘s particular conduct (for instance, whether a plaintiff‘s speech was on a matter of public concern).
Crawford-El v. Britton, 523 U.S. 574, 592-93, 118 S. Ct. 1584, 1594 (1998). Fifteen years ago, this court explained that:
One consequence of case-by-case balancing is its implication for the qualified immunity of public
officials whose actions are alleged to have violated an employee‘s First Amendment rights. There will rarely be a basis for a priori judgment that the termination or discipline of a public employee violated “clearly established” constitutional rights.
Noyola v. Texas Dep‘t of Human Res., 846 F.2d 1021, 1025 (5th Cir. 1988). Noyola‘s “self-evident tenet of qualified immunity jurisprudence,” see Moran v. Washington, 147 F.3d 839, 846 (9th Cir. 1998), has been embraced by at least seven other circuits.47 Even before Noyola, the Seventh Circuit held that when a constitutional rule involves the balancing of competing interests, the standard may be clearly established, but its application is so fact dependent that the “law” can rarely be considered “clearly established.” Benson, 786 F.2d at 276. In such cases, “the facts of the existing case law must closely correspond to the contested
While the majority relegates Noyola to a footnote, that case remains the law of this Circuit. Judge Higginbotham, for instance, cited Noyola when observing that, “the fact-specific balancing test of Pickering complicates the question of whether an act violated clear law. This is because the question is not only the clarity of the standard but its clarity in application.” Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993). Judge Garwood added that qualified immunity
principles have particular force where, as here, resolution of whether the defendant‘s conduct violated the constitutional provision sued on is heavily dependent on a balancing or weighing against each other of different factors according to the degree they are present in the matrix of facts constituting the particular context in which the asserted violation occurred.
Pierce, at 882. Noyola has been frequently cited in our court.48
B. Finding Similar Cases for Immunity Comparison.
Against the backdrop of Noyola and the
The majority apparently overlooks the requirement that there be a higher degree of similarity between cases to satisfy the clearly established law prong of qualified immunity. The majority concedes that “our past cases do not include one that has specifically addressed retaliation against instructors at a police academy.” Instead, the majority relies exclusively on ordinary whistleblower cases50 and one case brought by a college professor who testified as an expert witness.51 Such cases entail, however, a significantly different mix of interests for balancing purposes than the one before us.
Consider first the “ordinary” whistleblower cases. This court has consistently held that a public employee is “speaking out on a matter of public concern” when he becomes a “whistleblower” and thus complains of, or testifies against, fellow employees’ misconduct or against his employer‘s practices. This court has protected a wide variety of whistleblower conduct, some of it emanating from within law enforcement agencies. All of these
In holding that ordinary whistleblower cases afford “clearly established law” for this case, the majority elides several critical distinctions. Foremost, Kinney‘s and Hall‘s testimony did not equate with whistleblower conduct. Their opinions were valuable only insofar as they correspond with someone else‘s account of the underlying facts. But it is the eyewitness who “blows the whistle,” not the expert who simply synthesizes and interprets the factual testimony. Qualified expert testimony is fungible, not irreplaceable. The majority implies, nevertheless, that without Kinney‘s and Hall‘s expert testimony, the plaintiff in the Kerrville case would have been unable to pursue his claim. Thus the public has a special interest in receiving expert opinions. This suggestion blinks reality. Our litigious culture affords well-qualified experts in every conceivable specialty, including law enforcement practices and training. If the majority intends, not so subtly, to hint that these experts had unique credibility because of their affiliation with ETPA, their implication proves the police officials’ contention: Kinney and Hall created a conflict of interest by taking advantage of their job titles in the courtroom.
Not only is the speech in whistleblower cases generically different from appellees’ expert testimony, but the corresponding
The majority‘s analogy to cases involving educators is also weak. In Rainey, this court concluded that a college teacher‘s contracts were unconstitutionally breached because of his testimony as a defense expert witness in a pornography case. Rainey v. Jackson State Coll., 481 F.2d 347, 349 (5th Cir. 1973). Holding that the breach violated Rainey‘s
Closer factually to the instant case is the policy of Texas A&M University (and a state legislative appropriation provision), implemented before the police officials took action directed at Kinney and Hall, that broadly forbade university employees from testifying as expert witnesses for parties adverse to the state‘s interests. See Hoover v. Morales, 164 F.3d 221, 223-24 (5th Cir. 1998). The police officials cite the policy as reflecting clearly established law in the Fifth Circuit. The majority discounts appellants’ reliance, because the policies were under federal court challenge, and ultimately did not survive. We agree that Hoover‘s context is sufficiently different as not to furnish controlling authority in support of the police officials.
By the same token, however, the majority ought to concede that Hoover reinforces the principle that in this context-sensitive balancing area of constitutional law, what is clearly established must be closely related factually and legally to a case at hand. Significantly, this Court in Hoover “assumed that there will be occasions when the state‘s interests in efficient delivery of public services will be hindered by a state employee acting as an expert witness or consultant . . . .” 164 F.3d at 226 (emphasis added). Hoover concludes by stating:
164 F.3d at 227. Unlike the majority opinion, Hoover does not oversimplify Pickering balancing and in its way lends powerful support to the officials’ plea that no clearly established Fifth Circuit law condemned their actions regarding Kinney and Hall.
While the majority has strained to find that clearly established Fifth Circuit law was contrary to the police officials’ conduct, they ignore or minimize, in the immunity discussion, three circuit court cases involving alleged retaliation by law enforcement agencies for non-whistleblower testimony.
The case most closely on point is Tedder v. Norman, 167 F.3d 1213 (8th Cir. 1999), decided only a few months after the events at issue here. Tedder was the Deputy Director of the Arkansas Law Enforcement Training Academy. After voluntarily testifying as an expert for the plaintiff in an excessive use of force case, Tedder was demoted. The Eight Circuit affirmed a summary judgment in Tedder‘s
Testimony concerning possible misconduct of public officials is speech on a matter of public concern that warrants constitutional proteсtion, . . . but, as the district court stated, “it is not the place for an employee of ALETA, let alone its Deputy Director to volunteer to give such testimony without a subpoena.”
The majority would distinguish Tedder because the defendant there testified against an officer employed by a law enforcement agency actually trained by the Arkansas academy. The Tedder court never specifically emphasizes this fact, however, and it found that the testimony caused “actual disruption and potential further disruption” to the academy. Id. Tedder not only undercuts the majority‘s
The majority also ignores a Third Circuit case, decided well before the events here, which exonerated a law enforcement agency that demoted one of its officers for voluntarily appearing as a character witness (for a friend‘s son) at a bail bond hearing. Green v. Philadelphia Hous. Auth., 105 F.3d 882 (3rd Cir. 1997).
Ultimately, the Pickering/Connick balancing test weighed in the department‘s favor, as an employer, because of its significant interests in protecting the department‘s reputation and in successfully fighting drugs and crime. The court held that “any risk of departmental injury or disruption weighs heavily under the Pickering balancing test.” Id. Green thus found for the police department even though Green‘s supervisor had previously approved his court appearance.
For immunity purposes, Green is closely related contextually to the present case. Green attributed significant weight to the police department‘s justification for its disciplinary action, and it carefully explains why not all court testimony is equivalent for
The third case relevant for immunity purposes was brought against an Oklahoma district attorney and agents for the Oklahoma
Worrell demonstrates that if the police officials’ role is viewed through the Pickering/Connick lens, their claim to immunity should be ironclad. Even if their position more closely resembles that of the narcotics bureau agents, however, they could argue that they fall under Worrell‘s caveat because their operations are closely intertwined with ETPA.
C. Novelty in the Majority‘s Balancing Exercise.
The third proof of error in the majority‘s qualified immunity analysis arises from the way it strikes the Pickering/Connick balance. In October, 1998, no court had held that a law enforcement employee‘s right to testify voluntarily as an expert witness outweighed the interests of the agency. See Worrell, 299 F.3d at 1206-07 (discussing prior circuit court cases and noting that even where Pickering balancing favored the employee, a different result might be reached where an agency could show a disruption in its operations). And to this day, no cases have, in the law enforcement context, elevated non-whistleblower testimony so high, or rated the department‘s interests so low, as the majority does here. This is not to say (at this point) that the majority is incorrect, but the novelty of this balance cuts against any conclusion that “clearly established law” proscribed the police officials’ conduct. The appellants’ position thus resembles that of the county supervisors in Umbehr, whose qualified immunity was upheld on appeal while the Supreme Court approved the application of Pickering/Connick balancing to the relations between independent contractors and government entities. See generally, Umbehr, 518 U.S. 668, 116 S.Ct. 2342.
When someone who is paid a salary so that she will contribute to an agency‘s effective operation begins to do or say things that detract from the agency‘s effective operation, the government employer must have some power to restrain her.
511 U.S. 661, 675, 114 S.Ct. 1878, 1887-88 (1994). Waters further noted:
[W]e have consistently given greater deference to government predictions of harm used to justify restrictions of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large. Few of the examples we have discussed involve tangible, present interference with the agency‘s operation. The danger in them is mostly speculative.
511 U.S. at 673, 114 S.Ct. at 1887. In Umbehr, too, the Court reminded that, ”Pickering requires a fact-sensitive and deferential weighing of the government‘s legitimate interests.” Umbehr, 518 U.S. at 677, 116 S.Ct. at 2348.
As was previously explained, the expert testimony caused an uproar because police officials and student-officers feared
The majority might refuse to defer and throw all these institutional concerns to the winds in its First Amendment analysis. But in doing so, not only does it abuse the general cautions expressed by the Supreme Court, but it contradicts authorities from several circuits. In Green, the Third Circuit described as “very significant” the interests of the housing authority police department as an employer where the officer‘s
In Tedder, the court concluded that Tedder‘s testimony caused actual disruption and potential further disruption between ALETA and the law enforcement agencies that it was charged with training. Tedder, 167 F.3d at 1215. The court was concerned that students’ loss of faith in the ALETA‘s Deputy Director, who had the authority to approve or veto lesson plans, could spread to every class taught there. See id. The Eighth Circuit has elsewhere recognized in emphatic terms the heightened interests of law enforcement agencies. See, e.g., Shands v. City of Kennett, 993 D.2d 1337, 1344-45 (8th Cir. 1993); Tindle v. Caudell, 56 F.3d 966, 971-73 (8th Cir. 1995).
In Worrell, the Tenth Circuit reiterated that “personal loyalty and confidence among emplоyees are especially important in law enforcement” and noted that “[t]hese concerns are heightened in smaller offices and departments, where relatively minor disturbances in morale may create significant problems.” Worrell, 219 F.3d at 1208. The court adds that the district attorney was not obliged to wait for an actual breakdown in the functioning of his taskforce before taking action. Id. at 1208-09. He was entitled to rely on reasonable predictions of workplace disruption. Id.; see also Waters, 511 U.S. at 673, 114 S.Ct. at 1887 (noting
The Seventh Circuit has repeatedly held that “‘[d]eference to the employer‘s judgment regarding the disruptive nature of an employee‘s speech is especially important in the context of law enforcement.‘” Williams v. Seniff, 342 F.3d 774, 783 (7th Cir. 2003) (quoting Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 1999)).
Finally, the Sixth Circuit has held that police officials are entitled to qualified immunity for taking reasonable administrative action to preclude one of their officers from exploiting his uniform and his position in the police department to advocate on behalf of the National Rifle Association. See generally, Thomas v. Whalen, 51 F.3d 1285 (6th Cir. 1995). While acknowledging the protected status of the officer‘s political speech, the court pointed out that “no court has recognized a right to exploit one‘s rank in public employment solely for the purpose of enhancing credibility for personal or political gain.” Whalen, 51 F.3d at 1291.
In addition, the majority wholly overlooks that public employers are entitled to deference in dealing with employees whose trust and loyalty are essential to the functioning of a public office. See, e.g., Connick, supra, 461 U.S. at 151-52, 103 S.Ct. at 1692 (“When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to
At this point, we have assumed the correctness of the majority‘s final conclusion that a First Amendment violation occurred. But in its novel approach to balancing the instructors’ interests against those of the law enforcement agencies, the majority is making new law, not simply expounding “clearly established law.” Kinney and Hall may choose to pursue their suits against the municipal entities, but the individual defendants are entitled to qualified immunity.
IV. Was There a Violation of the First Amendment?
Although we have demonstrated that the police officials were entitled to qualified immunity regardless of whether their conduct violated the First Amendment, we would also hold that their actions were not, under the Pickering/Connick balancing test, unconstitutional.
Whether Kinney and Hall are classified as third-party independent contractors or as employees is not as significant as how their overall function, and their voluntary expert testimony, affected the lаw enforcement agencies’ performance of a public mission. Compare Umbehr, id. at 679, 116 S.Ct. at 2349 (noting that a bright-line rule that “would leave First Amendment rights unduly dependent on whether a state law labels a government service provider‘s contract” as one of employment or a contract for services is “a very poor proxy for the interests at stake“). To the extent the majority opinion depends on labeling Kinney and Hall as independent contractors rather than employees, its analysis is
Balancing the interests in this case on a clean slate, the appellees’ testimony constituted speech on a matter of public concern and was entitled to some level of constitutional protection. For reasons previously discussed, we, unlike the majority, do not characterize the protection as “extremely strong.” Other circuits’ opinions have properly distinguished voluntary testimony from testimony under subpoena. See Green, 105 F.3d at 888; Tedder, 167 F.3d at 1215. Further, voluntary expert witness testimony is distinct from standard whistleblower conduct, and on the facts of this case, Kinney‘s and Hall‘s expert opinions were not essential to exposing wrongdoing by a policeman or a police department.
Two factors detract, in the majority‘s view, from the strength of these articulated interests and the deference they are due. First, it is contended that because appellees testified “400 miles away” from ETPA and in a case not involving a trainee or
That the expert testimony posed a conflict of interest with Kinney‘s and Hall‘s status as instructors, despite its taking place outside ETPA‘s formal jurisdiction, is a conclusion entitled to deference. As the majority notes, the police officials did not, in events leading up to this case, explain how they used the term conflict of interest, but the offiсials’ ineloquence does not mean their judgment is entitled to no weight. Moreover, it is evident that in testifying before a Kerrville jury, the appellees’ status as instructors at a Texas police academy would enhance their credibility and lend the prestige of ETPA to their words. By their status, the instructors necessarily implicated the sponsoring departments (despite any professional disclaimers) in the legitimacy of their expert opinions. Even if other possible standards for conflicts of interest, e.g., detracting from their time
More consequential is the majority‘s criticism that the police officials could not legitimately discipline Kinney and Hall to enforce an “unwritten code” of silence, whereby police officers do not testify against each other. We agree that enforcing the “code of silence” to stifle speech concerning police misconduct is not a legitimate governmental interest. The evidence shows, however, that this was not a contemporaneous justification formally offered for the police officials’ conduct, and, in fact, reference to an “unwritten code” was made by only one of the appellants, during a television interview. As can be seen from the wealth of detail in the majority opinion, this case contained an abundance of contemporary oral and documentary evidence as well as post-litigation depositions that explored the police officials’ reasons for their action. That only one reference appears throughout the record to an “unwritten code” is significant. This stray remark should not be blown out of proportion.
The dominant theme in cases that have considered the Pickering balance in the context of law enforcement is the need for a high degree of personal loyalty and confidence, esprit de corps, harmony and good morale within departments and between instructors
In stark contrast to those cases, the majority here ignores the paramilitary interests of the law-enforcement agencies and reduces their “legitimate” concerns to the instructors’ competence and teaching ability. As a matter of law, and based on this record, those interests are too narrowly defined.
We conclude that this is a closer case under Pickering balancing than others in the law enforcement area. While Kinney and Hall engaged in protected conduct, their voluntary expert
On balance, we conclude that the police officials did not violate the First Amendment by disenrolling their students from appellees’ classes. The officials have the discretion to decide, consistent with the First Amendment, by whom their officers will be taught.
V. Conclusion
For the foregoing reasons, I respectfully dissent from the denial of qualified immunity on the appellees’ First Amendment claims, and I join Judge Barksdale‘s dissent.
I respectfully dissent and agree with Judges Jones and Barksdale that the defendant law enforcement officers are entitled to qualified immunity and should be released from personal liability. It seems disingenuous to hold that the law is clearly established when it takes 20,467 words to explain, and when six United States Court of Appeals judges sharply disagree about it. To my way of reasoning, the majority has turned the words, and the doctrine, of “clearly established” on its head when it denies immunity in this novel case.
Notes
111 F. Supp. 2d at 843.There are genuine issues of fact remaining in this case as to whether the plaintiffs’ expert testimony could legitimately cause any disruptions in the defendants’ operations. Moreover, it must be determined whether these disruptions, if any, were the result of a perceived “conflict of interest” or the “blackballing” of plaintiffs for turning against one of their own.
The Police Officials have asserted in their briefs that Kinney and Hall admitted that the Police Officials had genuine and reasonable concerns about conflicts of interest. We do not believe that the Police Officials’ reading of the record is warranted. In their depositions, Kinney and Hall admitted that reasonable people could be concerned about conflicts of interest when an instructor testifies against his own students. They deny, however, that reasonable people would be concerned about conflicts of interest in this case, and they deny that the Police Officials held genuine concerns about conflicts.