Lead Opinion
Plaintiffs-Appellees Dean Kinney and David Hall brought suit against seven law enforcement officials, the seven cities or counties that employ these officials, and the East Texas Police Chiefs’ Association,
I. FACTUAL AND PROCEDURAL BACKGROUND
Viewing the summary judgment record in the light most favorable to the non-moving parties, i.e., Dean Kinney and David Hall, the facts are as follows. See Kemp v. G.D. Searle & Co.,
In August 1998, Kinney and Hall testified as expert witnesses for the family of Edward Gonzales, a seventeen-year-old who was fatally shot by a police officer employed by the city of Kerrville (“the Kerrville case”).
Shortly after Kinney and Hall testified in the Kerrville case, William Holda, the president of Kilgore College, received letters from some of the Police Chiefs and Sheriffs denouncing Kinney’s and Hall’s expert testimony for the Kerrville case plaintiffs and threatening to stop using the ETPA for officer training. In a letter dated September 15, 1998, Kilgore Director of Public Safety Ronnie Moore
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 an envelope from an anonymous source containing the three newspaper articles that Williams attached to his letter to Holda. In addition to the articles, the envelope contained a note telling Williams to contact Moore for more information, which Williams did shortly after receiving the envelope. Williams forwarded copies of his September 29, 1998 letter and the attached articles to Moore and four of the other Police Chiefs and Sheriffs, 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, “I am greatly disturbed by the recent news that [David Hall and Dean Kinney] have acted in the capacity of ‘Expert Witnesses’ to testify against another law enforcement agency and it’s [sic] officers.” He emphasized he was “voic[ing] [his] concern, not only as Chief of Police of an agency that is one of your largest customers, but also as President of the East Texas Police Chiefs’ Association.” Noting that “[i]t is not our preference to have these two instructors teach our officers and also engage in legal combat with them in the judicial system,” Young stated that “[t]his matter will force us to consider alternative methods to achieve our training needs if not resolved as soon as possible.”
In an attempt to address these 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 it was unacceptable for Mr. Hall and Mr. Kinney to continue as instructors of officers and recruits and also testify in litigation against police officers,” 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.” Moore, Williams, and Green subsequently agreed to use the ETPA on the condition that their officers would not be instructed by Kinney and Hall, but Young continued
Shortly after the September 30 meeting, Holda met with Kinney and Hall to apprise them of the Police Chiefs’ and Sheriffs’ condemnation of Kinney’s and Hall’s work in the Kerrville case. Kinney and Hall assured Holda that they would never testify as experts against any officer who had been trained at the ETPA or any agency that had sent officers to the ETPA for training.
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 Chiefs and Sheriffs were present.
A number of local media organizations reported on the controversy that arose out of Kinney’s and Hall’s expert testimony against a law enforcement officer and agency. On television and in print, Defendants Young, Weaver, Williams, and Smith are documented announcing their intention either to bar their officers from taking Kinney’s and Hall’s courses or to use a training institution other than the ETPA. Smith was quoted as stating that Kinney and Hall “prostituted themselves ... in a case that did not involve them and that’s wrong.” Weaver told a television reporter that Kinney and Hall had violated “an unwritten code.”
The Police Chiefs and Sheriffs followed through on their threat to boycott Kinney’s and Hall’s courses by both cancelling current enrollment and disallowing future enrollment of their officers in Kinney’s and Hall’s courses. 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 removed from the schedule, and many of their off-campus classes had been cancelled.
Aware that the enrollment in his courses was down and thus anticipating that his
Kinney continued working as an ETPA instructor until his contract for the 1998-1999 academic year expired on August 31, 1999. During this period, the boycott remained in effect. The ETPA double-booked all Kinney’s classes on the 1999 schedule to ensure that the law enforcement agencies that refused to enroll their officers in Kinney’s courses would have alternatives at 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 on August 24, 25, and 26, 1999, the Police Chiefs and Sheriffs 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 for a lecturer position in the Criminal Justice Department of Kilgore College for the following 1999-2000 academic year. The salary for this position was $15,000 less than Kinney earned as an ETPA instructor. He had not taught in the Criminal Justice Department previously, but rather had been an ETPA instructor for the entire seventeen-year period that he had been working for Kilgore College. According to Holda, “Kilgore College did not anticipate a change in the teaching assignment for either Mr. Kinney or Mr. Hall prior to the decisions by certain law enforcement agencies to boycott classes taught by Mr. Hall and Mr. Kinney.”
On April 7,1999, Kinney and Hall filed a complaint in federal district court against the Police Chiefs and Sheriffs, 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.” Kinney and Hall claimed that in taking such action, the defendants had violated: (1) their rights to testify freely under 42 U.S.C. § 1985(2), (2) their rights to free speech under the First and Fourteenth Amendments, (3) their rights to due process of law under the Fourteenth Amendment, and (4) Texas law. The defendants (both the law enforcement officials and the entities) moved for summary judgment on the merits of all four claims, and the Police Chiefs and Sheriffs also asserted qualified and state law immunity defenses. The district court denied the defendants’ summary judgment motion on all grounds. Kinney v. Weaver,
II. JURISDICTION OVER AN INTERLOCUTORY APPEAL OF A DISTRICT COURT’S DENIAL OF QUALIFIED IMMUNITY
We must first address our jurisdiction to hear the Police Chiefs’ and Sheriffs’ interlocutory appeals. Under the collateral-order doctrine, a denial of summary judgment based on qualified immunity is immediately appealable as a “final deci
Kinney and Hall assert that we are without jurisdiction to consider an interlocutory appeal of the district court’s order denying qualified immunity because the court based that order on its determination that genuine issues of fact exist as to whether the Police Chiefs and Sheriffs boycotted Kinney’s and Hall’s courses in retaliation for their truthful testimony in the Kerrville case. However, the district court’s denial of summary judgment was also based on the court’s conclusion that such a boycott violated Kinney’s and Hall’s clearly established rights. See Kinney,
As the Police Chiefs and Sheriffs point out, for purposes of this appeal, they do
III. STANDARD OF REVIEW
We review de novo a district court’s denial of a summary judgment motion, including those based on qualified immunity. Chiu,
Accordingly, the proper inquiry in the instant appeal is whether the district court was correct in determining that the facts alleged by Kinney and Hall were materially sufficient to establish that the Police Chiefs’ and Sheriffs’ conduct was objectively unreasonable in light of law that was clearly established at the time of the alleged violations. As the Court held in Mitchell, our inquiry is a purely legal one: assuming as true the facts alleged by the plaintiff that the district court determined to be in genuine dispute, we determine whether those facts “support a claim of violation of clearly established law.”
IV. QUALIFIED IMMUNITY
Under the doctrine of qualified immunity, “government officials performing discretionary functions[ ] generally are
The Supreme Court also clarified in Anderson that its explication of the “clearly established” standard does not mean “that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.”
A. The § 1985(2) Claim
In the district court, Kinney and Hall claimed that, by retaliating against them for them expert testimony in the Kerrville case, the Police Chiefs and Sheriffs violated 42 U.S.C. § 1985(2). Under § 1985(2), it is unlawful to
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.
42 U.S.C. § 1985(2) (1994). Subsection (3) creates a cause of action to remedy harm caused by a violation of subsection (2):
if one or more persons engaged [in such a conspiracy] 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 ... 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.
Id. § 1985(3).
The Police Chiefs and Sheriffs contend that Kinney’s and Hall’s § 1985(2) claims cannot withstand the “clearly established” test because it would not have been apparent to a reasonably competent official in October 1998 (when the East Texas Police Chiefs’ Association held the meeting at which the Police Chiefs and Sheriffs agreed not to attend Kinney’s and Hall’s classes) that the Police Chiefs’ and Sheriffs’ conduct violated § 1985(2). The Police Chiefs and Sheriffs make three arguments in support of this position.
First, citing the Supreme Court’s decision in Kush v. Rutledge,
Second, the Police Chiefs and Sheriffs argue that it was not clearly established that Kinney and Hall had claims under § 1985(2) because it is not clear that the “witnesses” protected by this provision include expert witnesses. The Police Chiefs and Sheriffs note that the statute prohibits a conspiracy to injure a person because that person testified truthfully ” arguing that expert witnesses testify as to their opinions, which are neither true nor false. The district court, however, agreed with Kinney and Hall that the terms of the statute make clear that expert witnesses are protected. The court pointed out that § 1985(2) specifically refers to “any” witness, rejecting the argument that the reference to truthful testimony excludes expert witnesses. Kinney,
We agree with the district court that the plain language of the statute does not permit a contrary reading. As the district court pointed out, the language of the statute is sweeping. On its face, § 1985(2) applies to “any party or witness.” That the protected right is the right to testify “truthfully” cannot, as the Police Chiefs and Sheriffs suggest, reasonably be interpreted as limiting the statute’s protection to “fact” witnesses. Indeed, the premise underlying Kinney’s and Hall’s claims is that they have the right to testify freely as to what is in truth their opinion.
We also conclude that it would have been apparent to reasonably competent officials at the time of the alleged violations in this case that § 1985(2) proscribes conspiracies to intimidate or injure expert witnesses. In support of their argument that a reasonably competent official might have believed that § 1985(2) did not protect ex
Finally, the Police Chiefs and Sheriffs argue that it was not clearly established in October 1998 that the conduct in question would injure Kinney and Hall in their “person[s] or property,” as required by § 1985(2) and (3). Pointing out that they were not contractually obligated to send their officers to the ETPA or to any particular instructor for training, the Police Chiefs and Sheriffs argue that it was not clearly established that Kinney and Hall had a property interest in the Police Chiefs’ and Sheriffs’ enrollment of their officers in Kinney’s and Hall’s courses. The Police Chiefs and Sheriffs further contend that Kinney’s and Hall’s employment at Kilgore College was at-will, which does not establish a property right under Texas law and thus is not a property interest for purposes of the Due Process Clause. Consequently, the Police Chiefs and Sheriffs argue, it would have been reasonable for an officer to believe that at-will employment was not “property” for purposes of § 1985(2).
In response to this argument, Kinney and Hall do not take the position that they were not at-will employees, but rather rely on Haddle v. Garrison,
Although a decision such as Haddle, which holds that the very conduct in question constitutes a violation of the right invoked by the plaintiff, is not necessary to establish that a reasonably competent official would have understood that the conduct was unlawful, Anderson,
However, the alleged conduct that forms the basis of Kinney’s and Hall’s § 1985(2) claims did not all take place in or before October 1998. Subsection 1985(3) creates a cause of action for injury to person or property caused by “any act in furtherance of the object of [a] conspiracy [to injure a witness in retaliation for his or her testimony].” § 1985(3) (emphasis added). Kinney and Hall have alleged that the Police Chiefs and Sheriffs took actions in furtherance of their conspiracy to have Kinney and Hall removed from their ETPA positions after as well as before the Supreme Court issued its decision in Haddle on December 14, 1998. In particular, Kinney and Hall claim (and the Police Chiefs and Sheriffs conceded in their depositions) that the Police Chiefs and Sheriffs continued to prohibit their officers from enrolling in Kinney’s or Hall’s classes for the entire time that they were working as instructors at the ETPA. Hall’s resignation from the ETPA became effective on January 3, 1999, and Kinney’s ETPA contract expired on September 1,1999. Viewing the summary judgment record in the light most favorable to Kinney and Hall, it is reasonable to infer that if the Police Chiefs and Sheriffs had ceased their boycott of Kinney’s and Hall’s courses after Haddle was issued, Holda may have reconsidered his conclusion that it was no longer economically viable for Kilgore College to offer Kinney’s and Hall’s courses, and thus Kinney and Hall may not have been injured.
Apparently conceding that Haddle was part of the clearly established law while the Police Chiefs and Sheriffs continued their boycott of Kinney’s and Hall’s courses, the dissent maintains that, under current law, the Police Chiefs’ and Sheriffs’ alleged conduct does not violate § 1985(2) because “when Congress enacted [§ 1985(2) ] in 1871, it could not have intended it to extend to the facts at hand.” It is not necessary, however, for the Congress of 1871 to have specifically contemplated the facts of the instant case in order to justify a conclusion that those facts constitute a violation of § 1985(2). Moreover, the dissent’s unsupported assertions about congressional intent are belied by portions of § 1985(2)’s legislative history indicating that the Congress of 1871 intended for this provision’s language regarding the rights of parties and witnesses in federal court to have “enormous sweep.” Kush,
The dissent also maintains that Haddle does not make it “apparent ... that not enrolling the officers to receive training from Plaintiffs constitutes [an] injury [to property within the meaning of § 1985(2) ].” Haddle’s applicability to the instant case is apparent, however, when the facts at hand are properly viewed in the light most favorable to Kinney and Hall. The conduct that we assume is attributable to the Police Chiefs and Sheriffs for purposes of summary judgment — i.e., boycotting Kinney’s and Hall’s classes in order to pressure Holda to remove them from the ETPA faculty — clearly constitutes interference with Kinney’s and Hall’s employment and thus “injury in their property” under § 1985(2) as construed by the Haddle Court.
Thus, we conclude that after Haddle, the contours of § 1985(2) were sufficiently clear that it would have been apparent to a reasonably competent official that the ongoing boycott of Kinney’s and Hall’s courses violated § 1985(2). The district court properly denied the Police Chiefs and Sheriffs qualified immunity from the § 1985(2) claim.
B. The § 1982 Claim Invoking the Right to Freedom of Speech Under the First and Fourteenth Amendments
The district court also denied the Police Chiefs and Sheriffs qualified immunity against Kinney’s and Hall’s § 1983 claims alleging that the Police Chiefs and Sheriffs unlawfully retaliated against Kinney and Hall for exercising their rights to free speech under the First and Fourteenth Amendments.
The district court determined that there was sufficient evidence to raise a genuine factual issue on each of the three elements of a First Amendment retaliation claim in the public employment context. First, the district court found that both Kinney and Hall claimed that they had suffered adverse employment actions by being forced to accept lower paying jobs as a result of the Police Chiefs’ and Sheriffs’ boycott. Id. at 838. Second, the court held that Kinney’s and Hall’s testimony regarding the use of excessive force by police officers is unquestionably a matter of public concern. Id. Finally, the court determined that the balancing inquiry set forth in Pickering v. Board of Education,
As we noted in our analysis of Kinney’s and Hall’s § 1985 claims, the threshold issue in a qualified-immunity inquiry is whether, “[tjaken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer’s conduct violated a constitutional right.” Saucier v. Katz,
1. Was there a First Amendment violation?
“Throughout its history th[e Supreme] Court has consistently recognized at least two ways in which constitutionally protected freedom of speech is narrower than an unlimited license to talk”: (1) “certain forms of speech, or speech in certain contexts, has been considered outside the scope of constitutional protection,” and (2) some governmental limitations of protected speech have nevertheless been determined to be valid under the First Amend
a. Is the speech protected by the First Amendment?
There is no question that Kinney’s and Hall’s testimony in the Kerrville case is speech protected by the First Amendment. Testimony in judicial proceedings “is inherently of public concern.” Johnston v. Harris County Flood Control Dist.,
b. What is the applicable First Amendment analysis?
Having concluded that Kinney’s and Hall’s testimony is protected speech, we must next determine the appropriate First Amendment analysis for evaluating the Police Chiefs’ and Sheriffs’ conduct. The. First Amendment shields speech “not only [from] direct limitations ... but also [from] adverse government action against individuals] because of [their speech],” including the denial of public benefits to punish individuals for their speech. Colson v. Grohman,
The Police Chiefs and Sheriffs suggest that their relationship with Kinney and Hall was too attenuated to create any power on the part of the Police Chiefs and Sheriffs to grant or deny Kinney and Hall any benefits. Specifically, the Police Chiefs and Sheriffs argue that their conduct did not deny .Kinney and Hall the “benefit” of employment because Kilgore College, and not the Police Chiefs and Sheriffs, had authority to refuse to renew Kinney’s and Hall’s contracts. We disagree: the Supreme Court has made clear that First Amendment protection does not depend on whether the governmental action at issue is “direct” or “indirect.” See Perry v. Sindermann,
The Police Chiefs and Sheriffs also contend that their conduct does not amount to a denial of benefits actionable under the First Amendment because their decisions on whether and where to enroll officers are discretionary — they had no legal obligation to enroll their officers in Kinney’s and Hall’s courses. However, whether an individual is entitled to the benefit denied is irrelevant to our First Amendment analysis. Governmental discretion is always bound by the Constitution. As the Court stated in Perry:
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.
Id. at 597,
This general principle enunciated in Perry, known as the “ ‘unconstitutional conditions’ doctrine,” Umbehr,
The Court has determined that interest-balancing is appropriate in “governmental employee” cases, but not in “ordinary citizen” cases, because “[t]he government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” Waters v. Churchill,
The Supreme Court recognized the need for interest-balancing in the public employment context and “indicate[d] some of the general lines along which an analysis of the controlling interests should run” in Pickering v. Board of Education,
In Umbehr and its companion case, O’Hare Truck Service, Inc. v. City of Northlake,
The government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption. And, absent contractual, statutory, or constitutional restriction, the government is entitled to terminate them for no reason at all. But either type of relationship provides a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech on matters of public concern by those who, because of their dealings with the government, “are often in the best position to know what ails the agencies for which they work.”
Id. at 674,
Based on reasoning similar to that of the Court in Umbehr and O’Hare Truck Service, this court has also applied a Pickering balancing test in First Amendment retaliation cases arising outside the public employment context. See, e.g., Copsey v. Swearingen,
As we explained in Blackburn, the determination whether a relationship between the government and an individual falls on the “governmental employee” end of the Umbehr spectrum turns on whether the relationship is sufficiently “analogous to an employment relationship.”
In arguing that Kinney and Hall were not denied any “benefits,” the Police Chiefs and Sheriffs emphasized their lack of .employment-type ties to Kinney and Hall. In contrast, in support of their argument regarding the appropriate First Amendment analysis, the Police Chiefs and Sheriffs characterize their relationship with the ETPA and ETPA instructors as sufficiently akin to employment to warrant a balancing of the Police Chiefs’ and Sheriffs’ interests against the free speech interests at stake in this case.
Relying on North Mississippi Communications and Worrell v. Henry,
We agree with the district court and the Police Chiefs and Sheriffs that a Pickering balancing analysis is properly applied to Kinney’s and Hall’s First Amendment claims. The relationship between the Police Chiefs and Sheriffs and ETPA instructors such as Kinney and Hall involves governmental interests similar to those involved in the public employment context. Legitimate interests require that law enforcement agencies be afforded considerable discretion in choosing the instructors who train the officers who will, in turn, carry out the agencies’ public duties on a daily basis. 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 then officers receive. These interests are all relevant to the ultimate governmental interest that the Pickering balancing analysis is meant to protect, i.e., the interest “in promoting the efficiency of the public services [a law enforcement agency] performs.” Pickering,
Although Kinney and Hall are correct that many of the facts of Worrell are similar to those at issue in this case, there is a significant difference between the relationship that the Worrell governmental defendant had with the plaintiff and the relationship that the Police Chiefs and Sheriffs had with Kinney and Hall. It is this relationship that determines whether application of the “ordinary citizen” or the “governmental employee” version of the “unconstitutional conditions” doctrine is appropriate. In contrast to this case, the relationship between the plaintiff and the non-employer governmental defendant in Worrell was not analogous to an employment relationship. The Worrell defendant, an official in charge of a state drug enforcement agency, had offered to assist those working in the district attorney’s “drug task force.”
Thus, we conclude that the district court correctly determined that Kinney’s and Hall’s First Amendment claims are subject to a Pickering balancing test. In cases where the relationship between the governmental defendant and the plaintiff necessitates balancing of interests, the elements of a First Amendment retaliation claim properly reviewed on interlocutory appeal are the legal questions (1) whether the speech “can be fairly characterized as constituting speech on a matter of public concern,” and (2) whether the Pickering balance weighs in favor of the First Amendment interests at stake in the case. Branton,
c. Does the conduct in question violate the First Amendment under the applicable First Amendment analysis?
The Pickering balancing test requires a case-specific inquiry. See O’Hare Truck Serv.,
The Pickering Court considered a school board’s interest in restricting a teacher’s statements criticizing the board’s distribution of school funds — not the school board’s more general interest in choosing teachers — against the First Amendment interest in protecting those statements. See
The First Amendment interest at stake in this case is extremely strong. Protection of speech critical of public officials’ exercise of their powers is an integral part of the “public debate” that the First Amendment protects. As the Court recognized in New York Times Co. v. Sullivan,
In the particular circumstances of this case, we find it clear that this significant First Amendment interest outweighs any interest of the Police Chiefs and Sheriffs in prohibiting their training instructors from testifying against law enforcement. The Police Chiefs and Sheriffs claim that Kinney’s and Hall’s testimony created a “conflict of interest” and “violated ... principles of cooperative responsibility [and] trust,” thereby “undermining] [the Police Chiefs’ and Sheriffs’] feelings of personal loyalty and confidence” in Kinney and Hall and potentially damaging the relationship between student-officers and training instructors. Although there may be cases in which it is conceivable that speech by a training instructor could
In fact, enforcing a “code of silence” not only fails to promote the efficiency of a law enforcement agency in carrying out its
We have concluded that Kinney’s and Hall’s testimony was speech of public concern and that the First Amendment interests in that testimony outweigh any governmental interests in this case.
We now turn to the “clearly established” question of qualified-immunity analysis, 1.e., whether it would have been apparent to a reasonable officer under law clearly established the time of the alleged violation that the Police Chiefs’ and Sheriffs’ conduct violated the First Amendment.
2. The “clearly established” inquiry: Would it have been apparent to a reasonably competent officer that the alleged conduct violated the First Amendment?
Because the applicable law dictating that the Police Chiefs’ and Sheriffs’ alleged
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. The Police Chiefs and Sheriffs do not attempt to argue otherwise, but rather suggest that it was not clearly established that the First Amendment imposed any restrictions on their conduct vis-a-vis Kinney and Hall in their capacity as training instructors. The Police Chiefs and Sheriffs point out that there is no controlling easelaw directly addressing a First Amendment claim in the specific circumstances of this case, i.e., where a plaintiff has provided services to the governmental defendant but is neither an employee of the defendant nor in a contractual relationship with the defendant. More specifically, the Police Chiefs and Sheriffs characterize Kinney and Hall as “employees of a ‘disappointed bidder’— i.e., Kilgore College.” The Police Chiefs and Sheriffs apparently base this contention in part on the Court’s admonishment in Umbehr that “[b]ecause Umbehr’s suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.”
Initially, we reject the implication of the Police Chiefs’ and Sheriffs’ argument that it would have been reasonable for an officer in their positions to believe that they were completely unfettered by the First Amendment merely because their 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.”
The Police Chiefs and Sheriffs also incorrectly assume that a decision addressing the specific circumstances of the instant case is a necessary condition of “clearly established” law. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier,
In light of this law that was clearly established in October 1998, it would have been apparent to reasonable officials in the Police Chiefs’ and Sheriffs’ positions that their attempts to inhibit Kinney’s and Hall’s speech on matters of public concern were governed by a Pickering analysis. Kinney and Hall were not nearly as removed from the financial benefit afforded by the Police Chiefs’ and Sheriffs’ enrollment of their officers in Kinney’s and Hall’s courses as the Police Chiefs and Sheriffs’ “bidder” characterization might suggest. 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 Chiefs and Sheriffs could use to inhibit speech. See 518 U.S. at 674,
Similarly, the Police Chiefs and Sheriffs had employment-type interests in their relationship with Kinney and Hall. Indeed, the Police Chiefs and Sheriffs persuasively asserted such interests at oral argument. For example, the Police Chiefs and Sheriffs pointed out that the East Texas Police Chiefs’ Association founded the ETPA in 1966, that they had been sending their officers to the ETPA for training since then, that they sat on the ETPA’s advisory board after the ETPA became a part of Kilgore College, that they worked closely with the training instructors, and that they had a role in designing the ETPA’s curriculum. In light of this relationship that the Police Chiefs and Sheriffs had with Kinney and Hall and the controlling Fifth Circuit and Supreme Court precedent at the time of the alleged violation, no reasonable official would have believed that the Police Chiefs’ and Sheriffs’ use of their relationship with the ETPA to impose restrictions on Kinney’s and Hall’s freedom to speak on matters of public concern was limited by anything less than a Pickering balancing analysis.
The Police Chiefs and Sheriffs also contend that, even assuming it was clearly established that their conduct vis-a-vis Kinney and Hall was governed by the “governmental employee” version of the unconstitutional-conditions doctrine, it was not clearly established that their conduct violated the First Amendment under a Pickering balancing analysis. In particular, the Police Chiefs and Sheriffs note that two Texas policies denying benefits to state employees who testified as expert witnesses against the state were in effect in October 1998. See Hoover v. Morales,
Given (1) that it is well-established in the jurisprudence of both the Supreme Court and this court that exposure of misconduct by a governmental official is of great First Amendment significance, and (2) that this court has repeatedly emphasized the need to protect speech exposing police officer misconduct in particular, it would have been objectively unreasonable for an officer to conclude that Kinney’s and Hall’s testimony bore no significant weight for purposes of a Pickering balancing analysis.
Moreover, in light of the law clearly established at the time of the alleged violation, no reasonable official in the Police Chiefs’ and Sheriffs’ position would have believed that exerting pressure on Kilgore College to remove Kinney and Hall from the ETPA faculty could be justified on the grounds that their testimony created a “conflict of interest” and violated amorphous and questionable “principles” such as “personal loyalty” and “cooperative responsibility.” Whatever interests he behind these words, no reasonable officer would have believed that they were legitimate interests in the circumstances of this case, much less that any such interest was sufficient to outweigh the strong First Amendment interest in ensuring that individuals such as Kinney and Hah, who are in the best position to know about official misconduct, are not inhibited from testifying as to official misconduct.
C. The § 1988 Claim Invoking the Right to Due Process of Law Under Fourteenth Amendment
The district court also denied the Police Chiefs and Sheriffs qualified immunity against Kinney’s and Hall’s § 1983 claims alleging that the Police Chiefs and Sheriffs violated the Due Process Clause of the Fourteenth Amendment.
Although Kinney’s and Hall’s due process claims are ambiguously pled, it appears that they allege violations of the procedural, rather than the substantive, component of the Clause. In support of their due process claim, Kinney and Hall allege that the Police Chiefs and Sheriffs “blackballed [them] and cost them their jobs without providing any process at all.” More specifically, Kinney and Hall note that the Police Chiefs and Sheriffs “refused to even listen to [them] when Dr. Holda set up a meeting.” However, regardless whether their claim is based on substantive or procedural due process (or both), Kinney and Hall have failed to allege that they have been deprived of a life, liberty, or property interest.
Kinney and Hall contend, and the district court agreed, that they had “property interests in their continued employment at the Academy.” Kinney,
The Police Chiefs and Sheriffs contend that because Kilgore College was not obligated to renew Kinney’s and Hall’s contracts each year, their continued employment from one year to the next was at-will. Thus, the Police Chiefs and Sheriffs assert, Kinney and Hall had no property interest in their “continued employment” within the meaning of the Due Process Clause. Kinney and Hall do not dispute that their employment from one contract to the next was at-will. Rather, they point to the “unconstitutional-conditions” doctrine, which establishes 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, ... [i]t may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.” Perry,
Kinney and Hall do not allege that their continued employment at the ETPA was a property interest derived from state law or some other source independent of the Constitution. Accordingly, for the purpose of this appeal, we assume without deciding that Kinney and Hall have not asserted a property interest established by state law or some similarly independent source. In the absence of such an assertion, their alleged “property interests” in continued employment are not sufficient to trigger the protections of the Due Process Clause.
Because we conclude that Kinney and Hall have not stated a violation of their Fourteenth Amendment right to due process of law, we need not engage in the “clearly established” inquiry of qualified-immunity analysis.
V. TEXAS LAW “OFFICIAL IMMUNITY”
Finally, the district court denied the Police Chiefs and Sheriffs “official immunity” against Kinney’s and Hall’s state-law claims of tortious interference with business relations. “[O]rders premised on the denial of qualified immunity under Texas state law are appealable in federal court to the same extent as district court orders premised on the denial of federal-law immunity.” Cantu v. Rocha,
Texas law provides government officials with “official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority.” City of Lancaster v. Chambers,
The “good faith” standard established by the Texas Supreme Court “is derived substantially from the test that has emerged under federal immunity law for claims of qualified immunity.” Chambers,
The Police Chiefs and Sheriffs argue that they acted in good faith because “a reasonable officer could have believed that expressing his concerns to Dr. Holda and changing the training of his officers to meet those concerns was reasonable.” However, in applying the good-faith test of official immunity, Texas courts assume the plaintiff’s version of the facts to be true. O’Bryant v. City of Midland,
VI. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s summary judgment denying the Police Chiefs and Sheriffs qualified immunity from Kinney’s and Hall’s § 1985(2) claims, their § 1983 claims invoking their rights to freedom of speech, and their state tort claims. However, we REVERSE the district court’s denial of qualified immunity on Kinney’s and Hall’s § 1988 claims invoking their Fourteenth Amendment rights to due process of law. Finally, as explained above, we DISMISS the appeals of the cities, counties, and East Texas Police Chiefs’ Association.
Notes
. Originally, Kinney and Hall named an eighth official and his agency of employment as defendants, but the district court granted a subsequent agreed motion to dismiss Kinney and Hall’s complaint against these two 'parties.
. The Kerrville case did not involve an officer who had been trained at the ETPA or a law enforcement agency that sent students to the ETPA, as Kerrville lies outside the region of Texas from which the ETPA draws its students.
. As director of public safety for the city of Kilgore, Moore supervised the city’s police and fire departments.
. Kinney and Hall made clear, however, that if compelled to testify in a case involving an officer whom they had trained at the ETPA, they would testify truthfully as to whether the officer had acted in accordance with their training.
. Smith did not personally attend, but rather sent a representative.
. Section 1291 provides that "[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291.
. Although the briefs submitted by both parties in this case address only the issue whether the district court properly denied the Police Chiefs' and Sheriffs' claims of qualified immunity in their summary judgment motion, the notices of appeal filed with this court name not only the Police Chiefs and Sheriffs, but also the cities, counties, and the East Texas Police Chiefs' Association. Of course, the doctrine of qualified immunity applies only to officials, and thus the portion of the summary judgment motion addressing Kinney's and Hall's claims against the cities, counties, and tire East Texas Police Chiefs’ Association attacked those claims solely on their merits. Because a district court’s order denying summary judgment based on the merits of claims is not a final decision within the meaning of § 1291, we do not have jurisdiction over an appeal of such an order. Accordingly, we dismiss the appeal of the district court's summary judgment order brought by the cities, counties, and the East Texas Police Chiefs’ Association.
. The district court determined that there is a genuine factual dispute regarding whether the Police Chiefs and Sheriffs retaliated against Kinney and Hall for testifying against law enforcement officers by taking actions (such as complaining to Holda and agreeing to boycott Kinney's and Hall's classes) intended to force Kilgore College to remove Kinney and Hall from the ETPA faculty. See Kinney,
. The dissent correctly points out that the Kush Court characterized Congress's addition of “equal protection” language to, the second pari of § 1985(2) as an attempt to limit the "enormous sweep of the original language” in that part. However, this characterization does not affect our analysis of the first part of § 1985(2) invoked by Kinney and Hall in the instant case. Indeed, the Kush Court discussed the legislative history of § 1985 in the context of distinguishing the provisions of § 1985 that Congress limited — namely, the provisions governing "activity that is not institutionally linked to federal interests and that is usually of primary state concern” (such as obstruction of justice in state courts) — from those provisions of § 1985 that Congress did not limit — namely, the provi
. The Police Chiefs and Sheriffs also argue that "all reasonable officers in October 1998 would [not] have known that Defendants’ actions — furthering public safety through high-quality training for their officers, expressing concerns over instructors' conflicts of interests, exercising discretion to choose instructors for training their law enforcement officers, maintaining confidentiality over their internal methods of law enforcement, and preventing someone privy to sensitive and confidential information from [testifying] as an expert witness in future litigation against them — would violate [§ 1985(2)].” However, the Police Chiefs and Sheriffs are merely asserting their version of the facts that the district court determined to be in genuine dispute. Such assertions are appropriately made to the jury, not to this court on interlocutory appeal. We conclude that the Police Chiefs and Sheriffs are not entitled to qualified immunity from Kinney’s and Hall’s § 1985(2) claims because, assuming Kinney and Hall’s version of the facts to be true, "those facts are materially sufficient to establish that [the Police Chiefs and Sheriffs] acted in an objectively unreasonable manner [in light of clearly established law].” Chiu,
. "It has long been established that the[] First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States.” Edwards v. South Carolina,
. The dissent expresses skepticism regarding whether "enrollment of students in a particular class with a particular teacher [can constitute] a cognizable benefit, the withholding of which would be protected by our First Amendment jurisprudence.” However, when the principle enunciated by the Perry Court is applied to the facts of the instant case (viewed in the light most favorable to Kinney and Hall), it is evident that the Police Chiefs and Sheriffs denied Kinney and Hall a benefit: the Police Chiefs and Sheriffs withdrew their officers from and ceased enrolling officers in any course taught by Kinney or Hall in order to pressure Kilgore College to remove them from the ETPA faculty. Further, it is important to bear in mind that the First Amendment does not protect receipt of governmental benefits per se, as the dissent’s argument appears to suggest, but rather protects the speech that the government seeks to inhibit through the denial of a benefit. Cf. Bd. of County Comm'rs v. Umbehr,
. The Umbehr Court noted that in between these two ends of the "unconstitutional conditions” spectrum lie "claimants for tax exemptions,”
. We determined in Blackburn that there is another situation in which balancing is appropriate; namely, if the speech at issue does not involve matters of public concern, but instead involves matters only of personal interest. Blackburn,
. Revocation of the wrecker service owner's permission to use the police radio frequency rendered him unable to participate in a rotation system for removing vehicles from the scenes of accidents. Blackburn,
. Similarly, although the dissent points out that Kilgore College “had the sole authority to hire and fire” Kinney and Hall in arguing that the Police Chiefs' and Sheriffs' enrollment decisions cannot amount to a "denial of benefits” for First Amendment purposes, the dissent nevertheless agrees with our determination that the governmental interests at stake in the instant case are sufficiently analogous to employment interests to warrant application of a Pickering balancing analysis instead of an "ordinary citizen” analysis. As the Umbehr Court recognized, the ability to suppress constitutionally-protected speech through the denial of a benefit tends to go hand-in-hand with employer-like interests. See
. We note that the Police Chiefs and Sheriffs are incorrect in their claim that the Tenth Circuit established a "new” First Amendment analysis in Wonell. The Worrell court simply applied the "ordinary citizen” version of the "unconstitutional conditions” doctrine that federal courts have been applying for years in cases that do not arise in the public employment context.
. Although the dissent acknowledges that Kinney's and Hall's "testi[mony] as expert witnesses against law enforcement” is protected speech under the First Amendment, the dissent’s Pickering balancing analysis fails to take into account the great strength of the First Amendment interest in protecting speech about official misconduct. Notably, in weighing the governmental interest against the First Amendment interest involved in this case, the dissent does not mention that the subject matter of Kinney’s and Hall's speech was official misconduct, much less official misconduct as grave as a police officer’s use of excessive force. The dissent further minimizes the First Amendment interest at stake in this case by characterizing it as solely Kinney’s and Hall’s interest. However, it is well-established that the First Amendment interest in protecting speech on matters of public concern — particularly speech regarding official misconduct — is preeminently a public interest. See, e.g., Stromberg v. California,
. This case is by no means the first time that this court has recognized the existence of a "code of silence” among law enforcement officers. See, e.g., Piotrowski v. City of Houston,
In a number of cases, our sister circuits have also recognized the existence of a "code of silence” in law enforcement. See, e.g., B.K.B. v. Maui Police Dep’t,
. The Police Chiefs and Sheriffs never protested Kinney’s previous expert testimony on the side of law enforcement or argued that such testimony created a conflict of interest. Indeed, the Police Chiefs and Sheriffs have explicitly stated in the record that, in contrast to expert testimony by their training instructors on behalf of plaintiffs in police misconduct cases, the Police Chiefs and Sheriffs do not believe that expert testimony by their training instructors on behalf of law enforcement gives rise to a "conflict of interest.” This viewpoint discrimination by the Police Chiefs and Sheriffs only further convinces us that they did not have any legitimate interest in suppressing Kinney's and Hall's speech. Cf. Smith,
. Given the case-specific nature of the Pickering inquiry, this case does not present — and thus we do not address — the questions whether a law enforcement agency has legitimate interests in prohibiting its training instructors from serving as expert witnesses against officers who are employed by that agency or whether any such legitimate interests would be outweighed by the First Amendment interest in ensuring that speech about official misconduct is uninhibited. Consequently, Tedder v. Norman,
. Moreover, the analysis that this count set forth in Blackburn for determining whether a First Amendment claim Eilleging retaliatory denial of governmental benefits is governed by the "ordinary citizen” or "governmental employee” version of the "unconstitutional conditions” doctrine assumes that one of these two levels of First Amendment scrutiny applies. Blackburn does not leave open the possibility that there are circumstances in which a governmental denial of benefits is not subject to any First Amendment restrictions.
. In Hoover, this court affirmed the district court's issuance of a preliminary injunction enjoining the state from enforcing the two policies because we determined them to be overbroad in violation of the First Amendment.
In arguing that the unlawful nature of the Police Chiefs' and Sheriffs' conduct was not clearly established at the time of the alleged violation, the dissent relies heavily on this court's recognition in Hoover that "there may be occasions when the State's interest in efficient delivery of public services will be hindered by a state employee acting as an expert witness or consultant.” Id. According to the dissent, "considering that, at the very time [the Police Chiefs and Sheriffs] were acting, our court left open the possibility that the government could legitimately curtail the First Amendment rights of an employee testifying as an expert witness, it simply cannot be the case that it is apparent a reasonable official (sheriff or police chief) would have then known that refusing to send their officers to teachers who have testified as expert witnesses against law enforcement would violate those teachers’ First Amendment rights.” This conclusion, however, fails as a matter of logic because it proves too much. The fact that we limited our decision in Hoover to the two policies at issue, which effectively "prohibit[ed] state employees from acting as consultants or expert witnesses on behalf of parties opposing the State in litigation,”
Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.
. The Police Chiefs and Sheriffs also suggest that a reasonable officer would not necessarily have understood the First Amendment import of Kinney's and Hall’s speech because it was in the form of expert testimony. That Kinney and Hall testified as expert witnesses does not dimmish the First Amendment interest in ensuring that the speech is uninhibited. Indeed, we concluded as much in Rainey v. Jackson State College,
. The dissent does not argue that it was not clearly established that the Piclcering balancing analysis applied to the Police Chiefs' and Sheriffs’ alleged conduct, but rather that it was not clearly established that their conduct violated the First Amendment under that analysis. In particular, the dissent maintains that ”[t]he majority fails to cite a single case rendered prior to the conduct at issue both dealing with a factually analogous situation and deciding that such conduct violates a First Amendment right.” We are convinced that Umbehr and O’Hare Truck Service are two such cases. Further, even assuming that those two cases are not directly controlling, it
. Contending that we apply the "clearly established" inquiry only to the question whether the Pickering balancing analysis governed the Police Chiefs' and Sheriffs' conduct vis-a-vis Kinney and Hall, but not to the question whether the Police Chiefs’ and Sheriffs' conduct violated the First Amendment under that analysis, the dissent maintains that we consequently "conflate[] the qualified immunity inquiry into a decision on the merits — whether [the Police Chiefs and Sheriffs] violated a constitutional right.” As the foregoing analysis makes clear, however, we conclude that the contours of the law were sufficiently clear at the time of the alleged violation that a reasonable official in the Police Chiefs' and Sheriffs' position would have understood both that Pickering was the governing First Amendment law and that, in the circumstances of the instant case, the First Amendment interests in protecting Kinney's and Hall’s expert testimony outweighed any legitimate governmental interests in suppressing that speech. We do not, as the dissent suggests, conclude merely that the First Amendment interests did in fact outweigh the governmental interests.
. The Due Process Clause prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1.
. Kinney continued to work under the contract in effect at the time that the boycott began until that contract expired. Although Hall resigned approximately seven months before his contract would have expired, he, like Kinney, does not allege that he was deprived of a property interest in employment established by that one-year contract, but rather that he was deprived of an interest in continued employment at the ETPA in future years.
. At oral argument, Kinney and Hall appeared to suggest that the Police Chiefs' and Sheriffs’ "blackballing” and the resulting harm to their professional reputations may somehow render their property interest adequate for purposes of the Due Process Clause. However, in Paul v. Davis,
. See supra, note 7.
Concurrence in Part
concurring in part and dissenting in part:
I agree with the majority that: (1) we lack appellate jurisdiction over the interlocutory appeals of the municipalities and counties, as well as that of the East Texas Police Chiefs’ Association; (2) we have jurisdiction for the interlocutory appeals of the individual defendants; and (3) they are entitled to qualified immunity from the 42 U.S.C. § 1983 due process claim. On the other hand, the individual defendants are also entitled to qualified immunity from the two remaining federal law claims: (1) the 42 U.S.C. § 1985(2) claim (retaliation against a witness); and (2) the other
This dissent focuses on the federal law claims. The state law claim is not addressed until the end. The majority and I part company for the most part because, for the two federal law claims for which qualified immunity is denied by the majority, each of those claimed federal rights (the law) was not clearly established several years ago at the time of the claimed illegal, discretionary conduct. Therefore, on this basis alone, such immunity should be granted. In this regard, the majority recognizes quite correctly that “[Ilegití-mate interests require that law enforcement agencies be afforded considerable discretion in choosing the instructors who train the officers who will, in turn, carry out the agencies’ public duties on a daily basis”. Maj. Opn. at 274. (emphasis added). In short, from this acknowledgment should flow qualified immunity from each of Plaintiffs’ three similar federal law claims. The majority grants it for only one. Notwithstanding my admiration for the thought and effort invested by the majority in its carefully written opinion, I must respectfully dissent from its not granting immunity from all three (as well as from the state law claim).
As noted, for qualified immunity purposes for the two federal law claims for which the majority denies qualified immunity, the linchpin for this appeal is whether, several years ago at the time of the claimed illegal conduct, was the answer (the law) to the following question clearly established?
When law enforcement officers’ agencies are not obligated to continue to enroll (and pay for) their officers for training in classes taught by persons the agencies do not want teaching their officers, because those persons voluntarily offered expert testimony against another law enforcement agency in a federal action, are those agencies required, nevertheless, to enroll (and pay for) their officers because to not do so constitutes retaliation that: (1) injures the teachers’ property, in violation of 42 U.S.C. § 1985(2); and (2) abridges their right to free speech, in violation of the First Amendment?
The answer, at least to me, is a prompt, simple, and resounding “No”. Yet the majority answers “Yes”, and holds that, as a result, the defendant law enforcement officers making the non-enrollment decision are not entitled, in their individual capacities, to qualified immunity from the foregoing claims by the teachers seeking civil damages. As a former beloved Fifth Circuit colleague, the late Judge Thomas Gibbs Gee, would often say, “this cannot be the law”.
In other words, for this issue, we need not even decide what the answer would be today under existing law; we need only decide what it was several years ago at the time of the allegedly illegal conduct. Again, we need decide only whether the answer (“the law”) was then “clearly established”. Again, the answer should be a prompt, simple, and resounding “No”.
The importance of this interlocutory appeal cannot be overstated. It presents a true test for whether the intent and purpose of qualified immunity are to be honored. Such immunity is designed to protect governmental officials in their discretionary actions, the claimed illegality of which is not apparent. Along this line, as noted, the majority acknowledges the “considerable discretion” that must “be afforded” law enforcement agencies “in choosing the instructors who train [their]
Indeed, the “qualified immunity doctrine recognizes that officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages”. Davis v. Scherer,
It seems that, in carefully and painstakingly applying each step and sub-step of the qualified immunity analysis for the retaliation claims under § 1985(2) and the First Amendment, the majority has lost sight of the proverbial forest for the trees; most especially, it has lost sight of what is required for the law to be “clearly established” at the time of the claimed violation. The individual defendants should be granted qualified immunity from all three federal law claims, as well as official immunity from the state law claim. Therefore, I must respectfully dissent in part.
I.
Plaintiffs Dean Kinney and David Hall were employed as instructors for the East Texas Police Academy (ETPA) at Kilgore College in Kilgore, Texas. In August 1998, for a federal action filed by the family of a person shot by a police officer, Plaintiffs voluntarily testified as expert witnesses against a police department.
Prior to Plaintiffs’ so testifying, the defendant cities and counties sent their law enforcement officers to ETPA to receive training. In so doing, the cities and counties paid the tuition expense and costs associated with that training.
After Plaintiffs’ voluntary, expert witness testimony, however, many of the defendant sheriffs and police chiefs (Individual Defendants) voiced their concern to the president of Kilgore College about Plaintiffs’ having rendered such voluntary, expert witness services. One wrote: Plaintiffs’ actions “seem[] to reflect a growing trend of some of your personnel to be gaining profit and garnering evidence and providing testimony against other Police Officers and Departments”; another, “it is deplorable to think that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies”; and another, that Plaintiffs’ expert testimony could become a conflict of interest. (Emphasis in original.)
Plaintiffs’ expert testimony was discussed at an October 1998 meeting of the defendant East Texas Police Chiefs’ Association, which had founded the Academy approximately 30 years earlier. Several Individual Defendants stated they did not want their officers trained by Plaintiffs. The Association agreed its members would not send their officers to classes taught by Plaintiffs. (The majority terms this a “boycott” and “enforcing a code of silence”. See, e.g., Maj. Opn. at 283-83 n.25. Of course, how it styles the conduct at issue does not alter our method for determining qualified immunity vel non.)
Individual Defendants removed their officers from Plaintiffs’ classes and disallowed their future enrollment in courses taught by them. By that November (1998), Plaintiffs had been removed as teachers for ETPA’s basic police classes. In 1999, Hall left the college to become a city police officer; Kinney was given a new contract, at less pay, through Kilgore Col
Plaintiffs filed this action in April 1999, claiming defendants’ actions violated, inter alia, 42 U.S.C. §§ 1983 and 1985(2) because their refusal to send their officers to be trained by Plaintiffs was in retaliation for their expert testimony and exercise of their First Amendment rights. Individual Defendants moved unsuccessfully for summary judgment based on qualified immunity, resulting in this interlocutory appeal.
II.
As noted, because Individual Defendants’ immunity is driven by qualified immunity from the federal law claims, the focus of this dissent is on those claims (part II.A). Official immunity from the state law claim is addressed last (part II.B.).
A.
For federal law claims, “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 v. Fitzgerald,
For the first prong, “[a] necessary concomitant to the determination of whether the [statutory or] constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a [statutory or] constitutional right at all”. Siegert v. Gilley,
For qualified immunity analysis, the second prong (objective reasonableness in the light of clearly established law) “is better understood as two separate inquiries: whether the ... rights [claimed to have been violated] were dearly established at the time of the incident; and, if so, whether [defendants’] conduct ... was objectively unreasonable in the light of that then clearly established law”. Id. (emphasis added).
For this second prong, and viewing first the second subpart (objectively reasonable conduct vel non), an official’s acts “are ... objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s [alleged] conduct violated the plaintiffs asserted constitutional or federal statutory right”. Cozzo v. Tangipahoa Parish Council-President Gov’t,
Deciding objective reasonableness may well be beyond our jurisdictional reach for this interlocutory appeal. As discussed by the majority, jurisdiction for an interlocutory appeal of this type is limited; it does not extend to genuine issues of material fact concerning Individual Defendants’ conduct. Restated, “genuineness” issues cannot be addressed in an interlocutory appeal for qualified immunity vel non. See, e.g., Bazan v. Hidalgo County,
Arguably, as viewed by the majority, such genuineness issues are involved in whether the Individual Defendants’ conduct was objectively reasonable, notwithstanding the above-quoted general rule about a defendant’s subjective state of mind not being an issue for this subpart of the qualified immunity analysis. Concerning the reviewability of this subpart on an interlocutory appeal for the federal law claims, the majority may have painted with too broad a brush in stating the point is beyond our jurisdictional reach. (It properly reaches objective reasonableness for the state law claim.) In any event, there is no need to decide this jurisdictional question.
As noted, on this record, and for the federal law claims presented, the most immediate and surest path for granting qualified immunity lies elsewhere. The linchpin for Individual Defendants’ interlocutory appeal is whether the claimed federal statutory or constitutional right was clearly established at the time of the incident. This critical, “clearly established law” question is straightforward.
A right (the law) is clearly established when its “contours ... [are] sufficiently clear that a reasonable official would understand ... what he is doing violates that right”. Doe v. Taylor Indep. Sch. Dist.,
In this regard, the following issue is pending before our en banc court in McClendon v. City of Columbia, 258 F.3d 432 (5th Cir.2001), vacated,
For each of those two claims, Plaintiffs: (1) fail, under currently applicable standards (existing law), to assert the requisite violation of a clearly established statutory
1.
Plaintiffs claim Individual Defendants conspired to retaliate against them based upon Plaintiffs’ expert testimony in another federal action. Section 1985(2) is violated
[i]f 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....
42 U.S.C. § 1985(2) (emphasis added). For this claim, as stated, Plaintiffs fail the first prong of the qualified immunity analysis: in the light of existing law, they do not assert the violation of a clearly established statutory right. In the alternative, as also stated, the claimed right was not clearly established at the earlier time of the incident.
a.
Regarding asserting, under existing law, the violation of a clearly established right, the majority cites no case law for the proposition that § 1985(2) prohibits Individual Defendants from not continuing to enroll their officers (including paying for their attendance) in courses taught by Plaintiffs. It relies solely on the statute’s proscribing “injur[y]” to a “witness in his ... property on account of his having ... testified”. (In advocating the “enormous sweep” of § 1985(2), the majority relies on Kush v. Rutledge,
Assuming arguendo the majority is correct that the statute’s plain language is so sweeping that it proscribes Individual Defendants’ alleged conduct, that language is not necessarily determinative. Indeed, even where a statute’s language is plain, “we may depart from its meaning ... to avoid a result so bizarre that Congress could not have intended it”. Moosa v. INS,
This is such an instance. “[T]he debates surrounding the [section] revealed a Congressional intent to insulate witnesses, parties and grand or petit jurors from conspiracies to pressure or intimidate them in the performance of their duties”. Nealy v. Hamilton,
Moreover, as the majority acknowledges, Congress does not have to specifically contemplate a statute’s application to a particular set of facts. But, where, as here, such application leads to an absurd result, the plain language is not disposi-tive.
b.
Assuming arguendo Individual Defendants’ alleged conduct, under existing law, is a clearly established violation of § 1985(2), it was certainly not clearly established, at the time of the incident, that such conduct is illegal. First, as just discussed, not enrolling officers in training classes is not the type harm contemplated as violative of § 1985(2) — far from it. True, the statute prohibits injury to property. And, third party interference with an at-will employment relationship can constitute such injury. See Haddle v. Garrison,
2.
Plaintiffs claim retaliation for exercising their right to free speech under the First Amendment (imposed, of course, in this action through the Fourteenth). As stated, they have not asserted, in the light of existing law, the requisite violation of a clearly established constitutional right; and, in the alternative, the claimed right was not clearly established at the earlier time of the incident. The majority seeks to narrow the qualified immunity analysis by looking to the fact that Plaintiffs’ testimony was not about an officer either trained at ETPA or employed by a department that enrolled its officers there. See Maj. Opn. at 278 n. 21, 282 n. 25. Obviously, this distinction has no bearing on the method for determining qualified immunity vel non. Moreover, the majority’s narrow approach flies in the face of the “discretion” the majority claims it recognizes must be accorded law enforcement in deciding where and how to train its officers.
a.
There are two independent reasons why Plaintiffs have not asserted, in the light of existing law, the violation of a clearly established constitutional right.
i.
First, Plaintiffs have not been denied a benefit. As discussed by the majority, and pursuant to the “unconstitutional conditions” doctrine, the government may not deny a benefit to a person on a basis that
Placing legal notices in newspapers, see N. Miss. Communications, Inc. v. Jones,
ii.
Assuming arguendo the majority is correct that enrollment in a particular class with a specific teacher is a “benefit”, I agree with the majority that, on this record, for the “unconstitutional conditions” doctrine, the Pickering framework is more appropriate than the “ordinary citizen” test. See Umbehr,
The case-specific Pickering balancing test involves a two-part inquiry: whether the governmental action restricts speech of an employee (or, as here, an employee-equivalent) on a matter of public concern; and if it does, whether the employee’s interest in free speech outweighs the government’s interest, “as an employer, in promoting the efficiency of the public services it performs through its employees”. Hoover v. Morales,
Plaintiffs’ expert testimony was speech protected by the First Amendment. See, e.g., Branton v. City of Dallas,
Concerning the second part (balancing of interests) of the Pickering test, “[t]he government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer”. Waters v. Churchill,
(1) the degree to which the employee’s activity involved a matter of public concern; (2) the time, place, and manner of the employee’s activity; (3) whether close working relationships are essential to fulfilling the employee’s public responsibilities and the potential effect of the employee’s activity on those relationships; (4) whether the employee’s activity may be characterized as hostile, abusive, or insubordinate; (5) whether the activity impairs discipline by superiors or harmony among coworkers.
Brady v. Ft. Bend County,
Individual Defendants maintain that solid training is essential to effective law enforcement; and that effective training requires a high degree of personal loyalty and confidence, esprit de corps and harmony, close working relationships free of divisive influences, and discipline and uniformity. No one could dispute that. Individual Defendants also maintain that Plaintiffs’ expert witness testimony jeopardized each of these interests by: undermining the students’ and Individual Defendants’ ability to trust Plaintiffs as teachers; threatening the confidentiality of information concerning Individual Defendants’ policies and procedures; causing controversy between Individual Defendants and Kilgore College; and improperly using their affiliation with the ETPA during such testimony.
Tedder v. Norman,
As noted at the outset, the majority recognizes the “legitimate interests” that “require” Individual Defendants being “afforded considerable discretion in choosing the instructors who train [their] officers”. Maj. Opn. at 274. The majority construes my Pickering analysis as being framed in “broad terms” and goes on to “define[ ] the proper Pickering inquiry”. Maj. Opn. at 275-76. In so doing, the majority ignores Pickering’s conclusion:
What we do have before us is a case in which a teacher has made erroneous public statements ... which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of- the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.
Here, Plaintiffs’ statements impeded their performance in the classroom by undermining the enrolling entities’ trust in Plaintiffs as teachers and interfered with the regular operation of the ETPA. This analysis is faithful to Pickering.
Consequently, I would hold Plaintiffs cannot, in the light of existing law, state the requisite violation of their clearly established First Amendment right, because Individual Defendants’ interests in effective training of their law enforcement personnel (necessary for the efficient provision of public services) far outweigh Plaintiffs’ interests in providing expert testimony.
Assuming the majority is correct in holding that, in the light of existing law, Plaintiffs have asserted the violation of a clearly established constitutional right, I would hold it was not clearly established at the time of the incident. The majority holds the law was then clearly established because: Individual Defendants should have known the governmental employment context is governed by the Pickering test; and that test warrants concluding there was a constitutional violation. The problem with this approach is that the majority does the very thing it cautions against, Maj. Opn. at 278: it conflates the qualified immunity inquiry into a decision on the merits — whether Individual Defendants violated a constitutional right.
The majority fails to cite a single case rendered prior to the conduct at issue both dealing with a factually analogous situation and deciding that such conduct violates a First Amendment right. Instead, it points to cases concerning the nonrenewal of contracts for government contractors, see Umbehr,
Further, I read Hoover,
In fact, as both the Hoover concurrence and opinion noted, “our opinion [did] not foreclose consideration of [actions] aimed at limiting expert testimony of ... employees which adhere to our First Amendment jurisprudence”; Hoover merely determined (again, only in the context of a preliminary injunction) that a blanket prohibition on expert testimony by any state employee was overbroad. Id. at 227. Indeed, Hoover acknowledged “there will be occasions when the [government’s] interest in efficient delivery of public services will be hindered by a state employee acting as an expert witness or consultant”. Id. at 226 (emphasis added).
The majority seeks to minimize the import of Hoover by quoting from Pickering and emphasizing the words “in the context of this case”, while ignoring the statement following that phrase: “we shall indicate some of the general lines along which an analysis of the controlling interests should run”. Maj. Opn. at 282 n. 23 (quoting Pickering,
The principles laid down in Pickering and further elaborated upon by Brady,
Consequently, considering that, at the very time Individual Defendants were acting, our court left open the possibility that government could legitimately curtail the First Amendment rights of an employee testifying as an expert witness, it simply cannot be the case that it is apparent a reasonable official (sheriff or police chief) would have then known that refusing to send their officers to teachers who have testified as expert witnesses against law enforcement would violate those teachers’ First Amendment rights. See Doe,
B.
Concerning official immunity for Plaintiffs’ state law claim (tortious interference with business relations), the majority agrees Individual Defendants were performing discretionary duties within the scope of their authority and notes the applicable good faith requirement under Texas law is derived substantially from federal qualified immunity law. See Maj. Opn. at 284. But, it holds erroneously that Individual Defendants’ conduct was objectively unreasonable.
Texas law departs from its federal qualified immunity counterpart with respect to the burden of establishing good faith. It is established if Individual Defendants show “a reasonable prudent person in the same or similar circumstances would have taken the same actions”. Putthoff v. Ancrum,
III.
For the foregoing reasons, Individual Defendants should be granted qualified immunity from all, not just one, of Plaintiffs’ three federal law claims, as well as official immunity from the state law claim. Accordingly, I must respectfully dissent in part.