Case Information
*1 Before E ASTERBROOK Chief Judge , F LAUM W OOD , Circuit Judges .
W OOD Circuit Judge
. From January until lost job December Kirk assistant state’s attorney McHenry County State’s Attorney’s Office. Problems arose early when special prosecutor began investigating suspected wrongdoing boss, McHenry County State’s Attorney Louis Bianchi. Bianchi allegedly *2 improperly influenced handling cases involving his relatives and political allies. Under command subpoena, Chrzanowski testified jury, and later, after receiving another subpoena, he testified Bianchi’s trial. A few months after trial, Chrzanowski called into Bianchi’s office, interrogated his testimony Bianchi another prosecutor, Michael Combs, fired. believes this “in retaliation his truthful testimony.” He filed suit month later, alleging Bianchi Combs violated his rights under First Amendment various state statutes.
The defendants moved dismiss Chrzanowski’s § claims, arguing First Amendment’s protections do not apply any testimony because statements were given “pursuant [his] duties” as employee. See v. Ceballos (2006). court agreed, holding presented valid constitutional claim; alternative, held defendants were entitled qualified immunity, since any protections might attached were “clearly established” time. We reverse.
I
Our analysis relies facts contained Chrzanow ski’s complaint, stage accept true construe favor. Justice Town Cicero 2009).
Chrzanowksi began working McHenry County State’s Attorney’s Office assistant state’s attorney January Initially assigned Office’s *3 ‐ misdemeanor division, but eventually he assumed responsibility prosecuting more serious drug offenses and other felonies. He received positive performance reviews raises 2006, 2007, (twice), and early 2011, Chrzanowksi received a subpoena testify before grand jury. He complied gave sworn concerning allegations Bianchi improperly influ enced negotiated plea case Chrzanowski principally responsible. On February 24, 2011, grand jury returned indictment against Bianchi on charges misconduct violation ILCS 5/33 ‐ 3(b). Chrzanowski listed potential trial witness April 2011, received trial subpoena two months later. He testified prosecution’s case ‐ chief August
From outset, Bianchi allies were concerned Chrzanowski’s cooperation with investigation. Upon learning subpoena, Ron Salgado, chief investigator McHenry County State’s Attorney’s Office (and friend political ally Bianchi), tried speak Chrzanowski. Chrzanowski avoided calls. Terry Ekl, Bianchi’s defense counsel, tried contact Chrzanowski after special prosecutor identified potential trial witness, but again ignored requests discuss Bianchi investigation. On cross examination Bianchi’s trial, Ekl pointedly brought up refusal discuss case before trial:
Q: And you didn’t feel you owed your boss any obligation talk lawyer trial, right? *4 A: My only obligation to tell truth here, sir. Over same period, Bianchi began placing memoranda *5 pursuant [his] official duties,” not “a private citizen [speaking] matter concern.” The First Amendment offers no protection “expressions [public] employees make pursuant their professional duties,” Gar ‐ cetti U.S. at accordingly, the district court dis ‐ missed the § claim under Federal Rule Civil Proce ‐ dure 12(b)(6). In the alternative, the court held that “if the conclusion that there was constitutional violation correct, it cannot said that right so clearly estab lished that defendants cannot avail themselves qualified immunity.” The then granted request voluntarily dismiss remaining state law claims. This appeal followed.
II
In Ceballos Supreme Court held “when employees make statements their duties, employees are speaking citizens for First Amendment purposes, Constitution does insu late communications employer discipline.” case, deputy attorney alleged supervisors penalized him for writing internal “disposition memorandum” highlighted police miscon duct pending criminal prosecution. Id . The plain tiff asserted punished speaking out about case other settings: instance, discussing matter supervisors, testifying truthfully hearing defendant challenged validity search warrant, delivering case bar meeting. The limited opinion question whether memorandum warranted protection. dispositive fact, explained, writ *6 ing such “disposition memoranda” exactly the plaintiff employed do capacity “calendar deputy.” Id. at 421. Court highlighted the fact “the parties … [did] not dispute Ceballos wrote disposi ‐ tion memo employment duties.” Id. at 424. Disciplinary action on the basis of such speech does not of ‐ fend First Amendment because “[r]estricting employee speech owes its existence public employee’s profes ‐ sional responsibilities does not infringe any liberties em ‐ ployee might have enjoyed private citizen.” Id. ‐ 22.
Although Garcetti Court chose not “articulate comprehensive framework for defining scope of em ‐ ployee’s cases where there room serious de bate,” id. 424, it did provide guidance on subject. Pub lic speech does not lose protec tion because it concerns subject matter employee’s job. Id. To contrary, reaffirmed public employees are often “the members community most likely informed definite opinions” mat ters public concern, it remains “essential they able speak out freely such questions without fear retaliatory dismissal.” Id. (quoting Pickering Bd. Ed. Township High School Dist. Will Cnty. (1968)). Likewise, public employees’ sub ject restriction simply because occurs inside office, since “[m]any citizens do much talking inside their respective workplaces.” other words, does “owe[] existence employee’s professional responsibilities” within meaning Garcetti simply because employment provides factual predi cate expressive activity; rather, governs *7 12 2811 7 speech that is made “pursuant duties” sense that is “government employees’ work product” that has been “commissioned or created” by employer. Id. at 422 (citing Rosenberger v. Rector Visitors Univ. Va. , 515 (1995)).
In assessing whether public employee speaking as as citizen, Court emphasized that “[t]he proper inquiry” must “a practical one.” Id. at dissenting Justices voiced concern that public employers might begin “defining [employees’] job responsibilities ex pansively” effort remove protected speech First Amendment’s purview ( e.g. “investing [employees] with general obligation ensure sound administration” institutions), id. n.2 (Souter, J., dissenting), but majority forcefully rejected “the suggestion employ ers can restrict employees’ rights by creating excessively broad job descriptions. Id. Instead, ex plained we must ask whether part employee’s “daily professional activities.” 422; see Ceballos v. Garcetti F.3d (9th Cir. 2004) (O’Scannlain, J., specially concurring) (“[W]hen em ployees speak course carrying out their routine, re quired employment obligations, they personal terest content gives rise right.”) (emphasis added). Fairley Fermaint, F.3d (7th Cir. 2006) ( Fairley I ), rehearing denied 2007) ( Fairley II ), we occasion consider how applies state employees give lawsuits filed third parties, contrasted statements made part work. There, held “[a]ssistance prisoners *8 8 12 ‐ 2811 and lawyers in litigation part of guard’s official duties.” Fairley I, F.3d 829; Fairley Andrews, 578 F.3d ‐ 2009) ( Fairley III ). Indeed, we thought this principle so well established we denied qualified immunity to defendants, taking facts in light most favorable to plaintiffs. Fairley II, F.3d language applies equally case, we observed in Fairley III “[e]ven if offering (adverse) testimony job duty, courts rather than employers are entitled supervise process. A government cannot tell employees say in court, see U.S.C. § nor can it prevent them testifying against it.”
With these considerations mind, turn issue complaint.
III alleges was interrogated and
dismissed “in retaliation his truthful [grand trial] testimony.” court concluded his “part his duties responsibilities assistant state’s attorney” because “an assistant state’s attorney [is] obligated pursue all criminal offenses, even those allegedly perpetrated supervisors.” See ILCS 5/3 9005(a)(1) (“The duty each State’s attorney shall be … commence prosecute all actions, suits, indictments prosecutions, civil criminal, circuit county, people State county may concerned.”). Since it “part [Chrzanowski’s] job serve people McHenry County proper administration justice …, part those prosecutor obligated [him] cooperate pursuit any criminal charges involving supervisors, including *9 testifying as a material witness if necessary.” In relevant respects, found case to be a replica of Garcetti : “there can be question …, after Gacretti [ sic ], [Chrzanowski] acting speaking role as prosecutor as opposed to private citizen when testified.”
This conclusion follows only if one places dispositive weight an “excessively broad job description[]” without assessing, as practical matter, what “task[s] [Chrzanowski] paid to perform” course “daily profession al activities.” Id. This is precisely what Court instructed us do when evaluating employee claims. Indeed, expressly rejected ar gument job descriptions such those issue here ( e.g. “a general obligation ensure sound administration” public institutions) could place otherwise protected outside ambit Amendment. Instead, must ask whether spoke “because is part what [the employee] employed do.”
So is assistant state’s attorney “assigned felony trial courtroom” employed do? Prosecute felonies. course work, presumably engaged wide range expressive activity: work prosecutor entails making opening closing statements juries, filing reports supervisors, perhaps speaking reporters after high profile verdict. It even possible course employment testified “investigating witness,” though Illinois courts emphasized “this practice could subject abuse encouraged.” People Bissonnette *10 2811 N.E.2d (Ill. Ct. App. 1974). But appearing as an “investigating witness” is a far cry from giving eyewitness testimony under subpoena regarding potential criminal wrongdoing Chrzanowski happened observe while job. McHenry County State’s Attorney’s Office does pay witness crimes then testify them; pays him prosecute crimes. And when there a potential conflict interest, as with investigation into wrongdoing other members McHenry County State’s Attorney’s Office, those prosecutorial responsibilities are assigned a special prosecutor with a healthy measure independence. See ILCS 5/3 Although there may be cases where a judge will “imperfect understanding precise associated with a sector job when all she knows job title,” Huppert City Pittsburg 2009) (Fletcher, J., dissenting), thus requiring further development factual record determination can be made, case presents no such difficulty.
To sure, called witness discuss his employment McHenry County State’s Attorney’s Office, testimony focused exclusively “allegation[s] … Bianchi improperly influenced and/or arranged negotiated plea case [Chrzanowski] principally responsible.” But fact “concern[ed] subject matter [his] employment” does mean “owe[d] existence” responsibilities used phrase. His different schoolteacher who writes newspaper editorial criticizing School Board *11 superintendant, Pickering U.S. at or an assistant district attorney who speaks her co workers about potential corruption within the District Attorney’s office, Connick Myers, U.S. (1983). See Garcetti at (affirming “statements or complaints … issue in cases like Pickering and Connick [were] made outside duties employment.”). Like Chrzanowski, plaintiffs in both these cases were disciplined sharing information learned and opinions formed course public employment. worked criminal justice system his speech occurred course judicial proceedings. Nonetheless, when he spoke out potential actual wrongdoing part supervisors, too was speaking “outside employment.”
IV
The
Fairley
line cases provides an independent reason why Chrzanowski’s case is not governed by : penalized given under subpoena, both grand jury trial, action filed third party. found this fact irrelevant, because “[t]he subpoena merely proce dural mechanism obtain presence trial did detract overarching duty cooperate criminal prosecution assistant state’s attorney employee.” As we already ex plained, focus general professional obligations misguided; are look only whether par ticular “made pursuant duties” (and, thus, “as citizen”) more limited sense. When gives subpoena,
*12
12 12 ‐ 2811 fulfilling the “general obligation [every] citizen to appear at trial,”
Branzburg v. Hayes
,
Careful attention to the reasoning behind Garcetti shows why is so. Typical public employee speech cases require “balanc[ing] between the interests the [public employee] the interest the State, as employer, promoting efficiency the public services it performs through employees.” Pickering , U.S. at 568; see also Garcetti , U.S. at general shares important interest government employee’s ability to speak freely, since employees contribute to civil discussion adding their well informed views. Garcetti U.S. 419; id. (“The interest stake is as much public’s interest receiving informed opinion employee’s own right disseminate it.”) (quoting San Diego Roe (2004) ( per curiam )). Public employee speech “made duties” has different character, explained. First, restrictions on such speech “do infringe any liberties employee might enjoyed private citizen.” Someone hired governor’s spokesperson paid articulate disseminate governor’s views, offer her own opinions topics day. Second, restrictions such way undermine “the potential societal value speech,” since employees “retain prospect constitutional protection contributions civic discourse.” Id . Finally, contrary approach such would “commit state federal courts new, permanent, intrusive role, mandating oversight communications between among government *13 13 employees superiors in course business,” would “displace[] … managerial discretion.” at
This reasoning applicable to situations in a public employee—prosecutor, police officer, anyone else—is compelled to give to a subpoe na. First, individual person has a strong interest in com plying with demands a subpoena: apart from what ever desire a public might have to assist in administration justice, failure to comply with a subpoena can result in lengthy incarceration. See, e.g. , Kim Murphy, Two Freed Anarchist Case , L.A. T IMES , Mar. 1, 2013, at A8 (“[t]wo activists … held for more than five months, mostly solitary confinement[,] to pressure them to testify sus pected anarchists”); Jesse McKinley, Month Jail Term Ends Maker Video Turns Over Copy , N.Y. T IMES , Apr. 2007, A9 (freelance journalist held days “refusing to turn over videotape” demonstration). It would strange to constitutional rule prohibits State conditioning public employment basis re stricts employee’s right speak freely, Connick U.S. yet allows State condition public employment employee’s willingness impede judicial process remaining mute. Indeed, held Fairley III, gov ernment has right tell employees say court. has substantial interest hearing such
speech. Indeed, extraordinary power jail those who refuse cooperate juries rooted “longstanding principle ‘the … has right every man’s evidence.’” Branzburg (quoting *14 United States v. Bryan 323, (1950)). Public ‐ speech often provides society information is essential democratic self governance:
[A]s state grows more layered and impacts lives more profoundly, it seems inimical Amend ‐ ment principles treat too summarily those who bring, often some personal risk, operations into view. It vital health of our polity functioning ever more complex power ‐ ful machinery government become democra cy’s dark lagoon.
Andrew Clark 2009) (Wilkinson, J., concurring). Unlike restrictions “made pur suant official duties,” threats or punishment subpoe naed undoubtedly chill valuable “contributions civic discourse” significant pernicious ways.
Finally, it cannot said affording some level constitutional protection would commit courts “intrusive role, mandating oversight communications between among government employ ees superiors course business.” Id. As Garcetti explained, “sound principles federalism separation powers” caution against judicial inter vention when employee’s expressive activity truly “commissioned created” employer. But if defendants here some legitimate manage rial interest dissuading testifying truthfully subpoena, cannot imagine might be. short, none rationales justifying rule announced applies here.
V
The went on hold that “even if the conclusion that there constitutional violation incorrect, cannot be said that the right so clearly established that defendants cannot avail themselves qualified immunity.” To qualify “clearly established,” right must be “particularized” sense that “[t]he contours right [were] sufficiently clear that reasonable official would understand that [was] doing violate[d] that right.” Anderson v. Creighton , (1987). Given our rationale Fairley line cases, we little trouble concluding reasonable officials defendants’ shoes would understand retaliating against for giving truthful trial testimony would violate First Amendment. defendants maintain this court’s decision Ta mayo Blagojevich 2008), cast some doubt whether testimony could entitled First Amendment protection, but this argument misapprehends reasoning scope opinion. Tamayo for mer Interim Administrator Illinois Gaming Board (IGB) alleged (among other things) she retaliated against response her testimony Illinois House Gaming Committee. As ex plained, particular form did qualify protections:
An significant comprehensive re sponsibility policy formation implementation certainly has greater responsibility speak wider audience behalf governmental unit. When, here, complaint states senior administra *16 16 12 ‐ 2811
tor of an agency testified before a committee of the legislature charged oversight of the agency allegedly improper political influence over that agency, natural reading of such allegation official, so informing legislators, was discharging responsibilities of her office, not ap ‐ pearing “Jane Q. Public.”
Id. ‐ (citations omitted). Although we noted Tamayo “had a duty see law was adminis ‐ tered properly” “a duty bring alleged wrongdoing within her agency attention of relevant au thorities,” id. our holding did not rest these broad general characterizations of Tamayo’s “official respon sibilities.” Rather, explained Tamayo’s did not receive protection because, a practi cal matter, she was expected engage such regular course her employment. Testifying House Gaming Committee was important part job high ranking like Tamayo; same was not true Chrzanowski.
Our opinion Morales v. Jones , F.3d (7th Cir. 2007), has much greater bearing case. There, Mil waukee police officer alleged he was transferred night shift patrol duty after being deposed pursuant subpoena civil suit brought fellow officer against Chief Police. Id. We concluded “being de posed civil suit subpoena unques tionably one Morales’ job because part employed do.” ; accord Karl v. City Mountlake Terrace F.3d Cir. 2012); Reilly City Atlantic City (3d 2008). But see *17 Huppert Like Chrzanowski, Morales un doubtedly professional obligation (not mention personal obligation) comply with subpoena, but this did somehow convert deposition testimony into “made duties.” Defendants point out Morales involved testimony civil context, whereas this case involves testimony criminal proceed ings, but this distinction without difference: providing eyewitness regarding potential wrongdoing, civil criminal, never “part [Chrzanowski] employed do.” Chrzanowski’s rights were clearly estab lished all relevant times.
VI
We conclude emphasizing express opinion merits claims. We hold only this preliminary stage, has stated valid Amend ment claim. We R EVERSE court’s judgment R EMAND further proceedings consistent opin ion. and notes in Chrzanowski’s personnel file; these notes bore little relation to Chrzanowski’s work performance. For in stance, June 6, 2011, Bianchi placed negative report Chrzanowski’s file because Chrzanowski failed to introduce Bianchi to “two college females” who were interning office. “He never would have thought introducing me them I stopped him and made point it,” Bianchi wrote. Chrzanowski was unaware these additions his personnel file and did opportunity contest them. On December Chrzanowski summoned his regular courtroom Bianchi’s office. There, Bian chi and Combs “confronted and interrogated” Chrzanowski trial testimony. They presented him transcripts proceedings eventually Bian chi asked resignation. When Chrzanow ski refused, Bianchi told him, “You’re terminated. Get out.” Chrzanowski alleges “fir[ed] retaliation truthful against … Bianchi.” Chrzanowski responded these events filing suit federal court, asserting claims against Bianchi Combs U.S.C. § state law. defendants moved dismiss complaint entirety, arguing failed state valid claim state counts should dismissed once feder al claim disappeared. Relying heavily court’s deci sion Tamayo Blagojevich 2008), concluded that, when testifying against Bianchi, “a … speak[ing]