Johnson v. Clifton , 74 F.3d 1087 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 94-3179, 94-3180 and 94-3184.
George JOHNSON, Plaintiff,
Sylvia Hill, Raymond Griffin, Plaintiffs-Appellees,
v.
Wayland CLIFTON, Defendant-Appellant,
City of Gainesville, Defendant.
Eugene ROSS, Plaintiff-Appellee,
v.
Wayland CLIFTON, Defendant-Appellant,
City of Gainesville, Defendant,
George Johnson, Respondent.
Sylvia HILL, Plaintiff-Appellee,
v.
Wayland CLIFTON, individually and as the Chief of Police and
agent for the City of Gainesville, Defendant-Appellant,
City of Gainesville, Defendant.
Jan. 26, 1996.
Appeals from the United States District Court for the Northern
District of Florida. (No. 91-10121 MMP) Maurice Mitchell Paul,
Chief Judge.
Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.
FAY, Senior Circuit Judge:
This appeal arises from the District Court's denial of
qualified immunity and denial of summary judgment to Wayland
Clifton, Jr., the Police Chief for the City of Gainesville. Three
former police officers, Sylvia Hill, Eugene Ross, and Raymond
Griffin, brought suit against Clifton, alleging that they were
disciplined for testifying about Clifton before a grand jury.
Because Clifton is entitled to qualified immunity, we reverse.
I. BACKGROUND
Hill, Ross, and Griffin worked together in Internal Affairs at
the Gainesville Police Department. Hill was the Unit Commander;
Ross was Hill's immediate supervisor, while Griffin reported to
Hill. Hill, Ross, and Griffin allege that Internal Affairs began
an investigation of alleged misconduct by a group within the police
department called Hallucinations 2000, and gave proper notice to
the City Manager that Clifton might be involved; in response to
this investigation, Clifton transferred the plaintiffs from
Internal Affairs; after an audit of Internal Affairs revealed no
wrongdoing, Clifton stated that the investigation was concluded and
nothing would come of it; Clifton offered to transfer the
plaintiffs to any position within the department that they desired;
State Attorney Len Register then contacted Hill and asked who he
should subpoena to enable the grand jury to make a decision as to
whether the police department should be investigated regarding
Hallucinations 2000; the plaintiffs testified before the grand
jury regarding Hallucinations 2000; in retaliation for the grand
jury testimony, Clifton re-opened the investigation into Internal
Affairs and then disciplined the plaintiffs.
Clifton denies that he retaliated against the plaintiffs for
their testimony before the grand jury. He claims that the
plaintiffs initiated a secret investigation without notifying the
City Manager; that he was not involved in any way with
Hallucinations 2000 and that the group turned out to be innocuous
in any event; that the grand jury and the independent investigator
concluded that he had done nothing wrong; that an audit of
Internal Affairs showed that investigative files were missing, some
cases had not been completed, some investigations were untimely or
unauthorized, and certain direct orders had been ignored; that in
response to that misconduct he disciplined the plaintiffs; and
that the plaintiffs had only gone to the grand jury in order to
gain leverage over him and prevent the deserved discipline rather
than out of any public concern about possible corruption.
It is undisputed that Hill was told in April of 1991, prior to
any allegations or investigation concerning Hallucinations 2000,
that she would be transferred from Internal Affairs; that in early
April she was transferred; that in early April Ross and Griffin
were "locked out" of Internal Affairs so that an audit could be
conducted; that the audit was concluded in June; that in July
Clifton offered to transfer Hill to any position within the police
department (except Internal Affairs) if that was the end of the
matter; that the plaintiffs went to the grand jury anyway; that
after the plaintiffs went to the grand jury, the audit findings
were reviewed and misconduct charges were filed.
Hill, Ross, and Griffin brought suit against Clifton and the
City of Gainesville. The District Court granted summary judgment
to the City on all charges, but denied Clifton's motion for summary
judgment based on qualified immunity. Clifton immediately appealed
the denial of qualified immunity.
II. STANDARD OF REVIEW
We review de novo a District Court's ruling that a public
official's conduct violated clearly established law so that the
official is not entitled to qualified immunity. Mitchell v.
Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411(1985).
Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the
light most favorable to the non-moving party. Augusta Iron and
Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,
856 (11th Cir.1988).
III. ANALYSIS
A. Jurisdiction: Johnson v. Jones
Public officials are entitled to qualified immunity from
"liability for civil damages insofar as their conduct does not
violate clearly established ... rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A public official may
immediately appeal a denial of qualified immunity where the
disputed issue involves whether or not the defendant's conduct
constitutes a violation of clearly established law. Mitchell, 472
U.S. at 528, 105 S.Ct. at 2816-17. The public official may appeal
such a decision because it is considered a final, collateral order
regarding qualified immunity. Id. at 528, 105 S.Ct. at 2816-17.
In Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132
L.Ed.2d 238 (1995), the Supreme Court further addressed the law of
summary judgment in the context of qualified immunity. The issue
in Johnson was whether there was any evidence in the record to
support the District Court's ruling that a reasonable fact finder
could find that the public officials were involved in the
plaintiff's beating.1 Id. at ---- - ----, 115 S.Ct. at 2153-54.
The defendants admitted that such a beating was unconstitutional
and violated clearly established law; they only argued that the
District Court had erred when it found a genuine issue of material
fact in regard to their involvement in the unconstitutional
conduct. Id. at ----, 115 S.Ct. at 2154. The Supreme Court held
that such a ruling by the District Court could not be appealed as
a final, collateral order. Id. at ---- - ----, 115 S.Ct. at 2156-
58.
It seems clear to us that the Supreme Court was not changing
the well-established law of qualified immunity in the context of
summary judgment, just elaborating on it. When faced with a motion
for summary judgment based on qualified immunity, the District
Court must determine whether there is a genuine issue of material
fact as to whether the defendant committed conduct that violated
clearly established law. This analysis can be broken down into two
parts. First, what was the official's conduct, based on the
pleadings, depositions, and affidavits, when viewed in the light
most favorable to the non-moving party? Second, could a reasonable
public official have believed that such conduct was lawful based on
1
Or phrased another way, whether there was enough evidence
to create a genuine issue of material fact as to whether the
public officials were involved in the beating.
clearly established law?
The resolution of the second issue constitutes a final,
collateral order. Mitchell at 528, 105 S.Ct. at 2816-17. A ruling
on such an issue is immediately appealable. Id. When such a
ruling is appealable, the first issue—the factual issue—may be
addressed by an appellate court because it is a part of the core
qualified immunity analysis. See Anderson v. Creighton, 483 U.S.
635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). However,
if only the first issue is appealed, namely what conduct the
defendant engaged in based on the evidence viewed in the light most
favorable to the plaintiff, and not the second issue, namely
whether that conduct violated clearly established law, then the
appellate court has no jurisdiction to hear the case. See Johnson,
--- U.S. at ----, 115 S.Ct. at 2159. The first issue—the factual
issue—can only be heard because it is a necessary part of the core
qualified immunity analysis, the resolution of which constitutes a
final, collateral order; when the core qualified immunity issue is
not appealed, then the factual issue may not be either. Id.When the core qualified immunity issue is raised on appeal,
the appellate court has two options regarding how to deal with the
factual issue. "When faced with an argument that the district
court mistakenly identified clearly established law, the court of
appeals can simply take, as given, the facts that the district
court assumed when it denied summary judgment for that (purely
legal) reason." Id. at ----, 115 S.Ct. at 2159. Or, the court of
appeals can conduct its own review of the record in the light most
favorable to the nonmoving party. First, the appellate court may
have to do so because the trial court failed to state the facts it
assumed. Id. Second, the appellate court can do so because such
a determination is part of the core qualified immunity analysis, as
discussed above. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-
40. Third, even if such a determination were not part of the core
qualified immunity analysis, it would be "inextricably intertwined"
with that analysis and within the appellate court's pendent
jurisdiction. Swint v. Chambers County Com'n, --- U.S. ----, ----,
115 S.Ct. 1203, 1209, 131 L.Ed.2d 60 (1995). See also Johnson, ---
U.S. at ----, 115 S.Ct. at 2159. Of course, if there is any
evidence in the record to support the District Court's ruling that
there was a genuine issue of material fact as to whether the
official actually engaged in the conduct that violated clearly
established law, the District Court's factual ruling will not be
disturbed. See Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
B. Qualified Immunity
In the qualified immunity context, the plaintiffs have the
burden of proving that a reasonable public official would not have
believed that his actions were lawful, in light of clearly
established law. Anderson, 483 U.S. at 641, 107 S.Ct. at 3039-40.
Clifton argues both that the District Court wrongly applied the
clearly established law to the facts it found and that the record
does not support some of the facts the District Court found, even
when viewed in the light most favorable to the plaintiffs.
1. The Factual Issue
Even when viewing the record in the light most favorable to
the plaintiffs, there is no genuine dispute regarding the following
material facts: 1) while the plaintiffs were still in Internal
Affairs, Clifton told Hill that he was not happy with some of the
work product coming out of Internal Affairs; 2) Clifton
transferred the plaintiffs out of Internal Affairs prior to the
point at which they testified before the grand jury; 3) Clifton,
in consultation with City Manager White, ordered an audit of
Internal Affairs prior to the plaintiffs testifying before the
grand jury; 4) the plaintiffs knew they were being investigated;
5) the plaintiffs went to the grand jury after they knew they were
being investigated; 6) the plaintiffs would likely be in a better
employment position if the grand jury indicted Clifton.2
2. Clearly Established Law
A government employer may not retaliate against a public
employee for engaging in protected speech. Bryson v. City of
Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). Where the public
employer denies that the employee was disciplined in violation of
that employee's first amendment rights, the court engages in a
four-stage analysis: 1) the employee's speech must involve a
matter of public concern in order for it to be protected, 2) the
employee's first amendment interests must outweigh the public
employer's interest in efficiency (the Pickering3 balancing test),
2
It is true that Clifton had offered at least Hill the
chance to be transferred anywhere she wanted other than Internal
Affairs. However, Hill wanted to be transferred back into
Internal Affairs, and neither she nor the other plaintiffs
reached any agreement with Clifton. The only chance for the
plaintiffs to receive what they wanted, then, was through a grand
jury indictment or report.
3
Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968).
3) the employee must have been disciplined, in substantial part,
because of the protected speech, and 4) the public employer must
not be able to prove by a preponderance of the evidence that it
would have disciplined the employee even without the protected
speech. Bryson, 888 F.2d at 1565-66.
Whether a statement involves a matter of public concern is a
question of law for the judge, who must consider the purpose of the
employee's speech by analyzing "the content, form, and context" of
the statement. Id. See also Ferrara v. Mills,781 F.2d 1508, 1513
(11th Cir.1986). If the relevant speech was motivated by personal
concerns instead of public concerns then it is not protected by the
First Amendment in this context. Connick v. Myers, 461 U.S. 138,
147-48, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708 (1983). The issue
here is not whether the employee is entitled to make the statement,
but rather whether the employee is entitled to retain employment
and avoid discipline after making the statement. The Supreme Court
has decided that only statements motivated by public concern
deserve such protection because otherwise every criticism of a
public official and every employment dispute would "plant the seed
of a constitutional case." Id. at 149, 103 S.Ct. at 1691.
"[G]overnment officials should enjoy wide latitude in managing
their offices, without intrusive oversight by the judiciary in the
name of the First Amendment." Id. at 146, 103 S.Ct. at 1690.
Furthermore, even if the employee's speech touches upon a
matter of public concern, a Pickering balancing must be conducted
to determine whether the government office was justified in
discharging the employee. Connick, 461 U.S. at 149, 103 S.Ct. at
1691. A public official is entitled to qualified immunity, except
in "the extraordinary case where the Pickering balancing would lead
to the inevitable conclusion that the discharge of the employee was
unlawful." Dartland v. Metropolitan Dade County, 866 F.2d 1321,
1323 (11th Cir.1989).
In Morgan v. Ford, 6 F.3d 750 (11th Cir.1993), an employee was
fired after complaining about sexual harassment. This Court
concluded that her statement regarding sexual harassment did not
involve a matter of public concern because, even though sexual
harassment is a matter of "important social interest," the purpose
of the statement was not to raise issues of public concern, but
rather to further her own "entirely rational self-interest." Id.
at 755.
In the instant case, possible police corruption is obviously
a matter of important social interest; however, in this qualified
immunity context, we must focus on what Clifton knew. Even when
viewing the evidence in the light most favorable to the plaintiffs,
it is clear that Clifton knew the plaintiffs went to the grand jury
after they knew they were being investigated, and hoped to gain
from a grand jury indictment or report. It is obvious to us that
Clifton viewed their actions as intended to put pressure on him to
prevent him from following through with the investigation which had
already commenced and which led to the ultimate discipline. In
light of the information available to Clifton, we cannot conclude
that clearly established law told him that the plaintiffs' grand
jury testimony was a matter of public concern rather than personal
gain. We know of no case which might have clearly told Clifton
that he could not take the disciplinary action indicated by an
investigation which was initiated before he even knew about the
allegedly protected speech, and in circumstances where the public
concern implication was doubtful. Thus, we conclude that Clifton
is entitled to qualified immunity.
IV. CONCLUSION
Applying the analysis required by Supreme Court precedent, we
conclude that Clifton's conduct did not violate clearly established
law and so he is entitled to the protection provided by qualified
immunity. We vacate the order of the District Court and remand
with instructions that summary judgment be entered in favor of the
appellant.
VACATED and REMANDED with instructions.