John Meyers v. City of Cincinnati, Scott Johnson, Individually and as City Manager David E. Rager, Individually and as Director of Safety , 979 F.2d 1154 ( 1992 )

MERRITT, Chief Judge.

We must determine whether the defendants here, two municipal officials, are entitled to the affirmative defense of qualified immunity following their dismissal of a public employee for his exercise of protected free speech under the First Amendment. The District Court reasoned that the law concerning public employees’ free speech rights appeared to be settled at the time of their actions. The Court then held that the defendants Johnson and Ragan should have been reasonably aware of restrictions on their powers to discipline employees for the exercise of those rights. The trial court therefore found the defendants to be ineligible for the shield of qualified immunity. For the following reasons, we disagree, and we accordingly reverse and remand the case to the District Court.

The essential facts underlying this appeal are described at length in this Court’s earlier decision. That appeal concerned whether the City of Cincinnati and defendants Scott Johnson and David Rager — the city’s manager and director of safety, respectively — demoted or constructively discharged the plaintiff, an assistant fire chief, in violation of his First Amendment rights. We held that such a violation occurred. See 934 F.2d 726 (6th Cir.1991). We therefore reversed the case in part and remanded it to the District Court to determine whether the three defendants were entitled to any affirmative defenses.¹

On remand the defendants Rager and Johnson asserted the defense of qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The District Court determined that they were not entitled to its protection:

The sole question, therefore, is whether or not defendants Rager and Johnson can appropriately say that they as “reasonable persons” did not know of a public employee’s First Amendment rights and that an employee could not be disciplined for exercising such rights. The law on which the Sixth Circuit relied in determining that plaintiff’s First Amendment rights were violated has been settled for over twenty years_ Both Mr. Rager and Mr. Johnson were supervisory employees of a high order and both must be deemed to have been aware of the restrictions imposed upon employers by [Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)] and [Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)] in terms of First Amendment rights of employees. The Court finds that the assertion of qualified immunity is meritless.

Order at 2-3 (S.D.Ohio, Nov. 18, 1992). Following the denial of their affirmative defense, the defendants brought this interlocutory appeal under 28 U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (holding a district court’s denial of qualified immunity, to the extent that it turned on a question of law, to be an appealable “final decision” under § 1291).

The application of qualified immunity is a question of law. Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988). Our review is undertaken accordingly under a de novo standard. Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 187, 116 L.Ed.2d 148 (1991).

As a rule, “governmental officials performing discretionary tasks generally are shielded from liability from 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, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987), and Mitchell, 472 U.S. at 517, 105 S.Ct. at 2810. This immunity is premised upon sound policy grounds: where governmental officials have duties that “legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Harlow, 457 U.S. at 819, 102 S.Ct. at 2738, quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967).

The doctrine of qualified immunity represents “an attempt to balance competing values: not only the importance of a damages remedy to protect the right of citizens ... but also ‘the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous-exercise of official authority.’ ” Harlow, 457 U.S. at 807, 102 S.Ct. at 2732, quoting Butz v. Economou, 438 U.S. 478, 504-06, 98 S.Ct. 2894, 2909-10, 57 L.Ed.2d 895 (1978). Moreover, the doctrine provides officials with an immunity from suit, rather than a simple affirmative defense to liability that serves to rebut effectively a plaintiff’s claims. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. The official who seeks the immunity bears the initial burden of showing that public policy requires such an exemption. Harlow, 457 U.S. at 808, 102 S.Ct. at 2732. Once a defendant raises this defense, however, the plaintiff then bears the burden of showing facts that, if true, defeat the assertion of the doctrine. Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987):

For an official’s discretionary actions to be protected under the doctrine, the inquiry “generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson, 483 U.S. at 639, 107 S.Ct. at 3038, quoting Harlow, 457 U.S. at 818 & 819, 102 S.Ct. at 2738. A reviewing court must therefore examine first, whether a plaintiff has demonstrated a “clearly established” right that was violated by the defendant; and second, whether a reasonable official in the defendant’s position should have known that the conduct at issue violated that right. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; see also Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir.1991); Guercio v. Brody, 911 F.2d 1179, 1184 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1681, 114 L.Ed.2d 76 (1991).

Rather than conduct our examination with the wisdom of hindsight, we must keep in mind the existing state of the law at the time of Meyers’ discharge, its relative clarity, and the appropriate balance to be struck between the interests in vindicating citizens’ constitutional rights and in the effective performance of public duties. See generally Anderson, 483 U.S. at 639, 107 S.Ct. at 3038; Johnson, 935 F.2d at 111 (unlawfulness of official’s actions is to be judged in light of preexisting law). Hence, to make these determinations, we must now examine the state of the law concerning public employees’ First Amendment rights at the time of the plaintiff’s demotion in March 1988.

To a large degree, our. inquiry here is much simplified by our prior decision on this case. In Meyers I, we began our First Amendment analysis in the following manner:

Under the current somewhat imprecise standard, speech of a public employee is protected if (1) the speech addresses a matter of public concern, and (2) the employer has no overriding state interest in efficient public service that would be undermined by the speech.

934 F.2d at 729, citing Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 289, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 146-50, 103 S.Ct. 1684, 1689-92, 75 L.Ed.2d 708 (1983); Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977); Pickering v. Board of Educ. of Township High School Dist., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Langford v. Lane, 921 F.2d 677, 680 (6th Cir.1991).

Our reasoning in that opinion establishes that the contours of public employee speech were by no means “clearly established” in early 1988. Rather, we referred to the “current somewhat imprecise standard.” Examining the same line of cases that formed the basis of our opinion, the District Judge had reasoned earlier that Meyers’ speech was merely personal opinion that was not a matter of public concern and that his demotion and constructive discharge did not infringe his right to free speech. Judges reached opposite conclusions on the First Amendment issue after reviewing the same legal materials. Thus, the requisite “clarity” of the law on this issue in March 1988 seems hardly to have been well established.

While we concluded in Meyers I that the actions taken by Rager and Meyers violated the First Amendment, nevertheless their disciplinary actions were undertaken within the scope of their discretion. Although their motivation was prompted by a desire \- to remove the plaintiff from the “limelight” (in Rager’s words), the evidence suggests that both defendants believed their actions to be necessary to uphold the city’s affirmative action policy. In the balance between vindication of citizens’ rights and the effective performance of public officials duties — see Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 — however, the lack of clarity in the existing law and the discretionary nature of their decisions stand in favor of the application of qualified immunity. We therefore hold that the defendants Rager and Johnson are entitled to the protection of qualified immunity.

Accordingly, the judgment of the District Court is REVERSED and REMANDED for further proceedings not inconsistent with this opinion.

1 . The plaintiff’s case against the City of Cincinnati has proceeded separately, with some $380,-000 in damages being awarded to the plaintiff. Only the qualified immunity judgment concerning defendants Rager and Johnson is on appeal here.