Schad, George C. v. Jones, Arthur L. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3396
GEORGE C. SCHAD,
Plaintiff-Appellee,
v.
ARTHUR L. JONES, Police Chief,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 544—J.P. Stadtmueller, Judge.
____________
ARGUED MAY 3, 2005—DECIDED JULY 15, 2005
____________
Before FLAUM, Chief Judge, and KANNE and SYKES, Circuit
Judges.
FLAUM, Chief Judge. Plaintiff-appellee George C. Schad,
a police officer with the Milwaukee Police Department
(“MPD”), filed suit pursuant to 42 U.S.C. § 1983, alleging
that the City of Milwaukee, Wisconsin, and Arthur L. Jones,
former Chief of Police for Milwaukee, violated the First
Amendment to the United States Constitution by trans-
ferring Schad in retaliation for his statements to a fellow
officer. The district court denied defendants’ motion for
summary judgment, holding that Schad’s speech was
2 No. 04-3396
constitutionally protected and that Chief Jones was not en-
titled to qualified immunity. Chief Jones appeals and, for
the reasons stated herein, we reverse.
I. Background
From November 1999 through February 2001, Officer
Schad served as a member of the Warrant Squad of the
MPD. The Warrant Squad, which is responsible for locating
and arresting people wanted on outstanding warrants, is a
desirable assignment within the MPD for which officers are
specially selected.
In late January or early February 2001, the MPD’s
Tactical Enforcement Unit was in a 24-hour standoff with
a suspect named Lesmes Rivera. Members of the Unit suc-
ceeded in arresting Rivera only after using teargas to draw
him out of the house in which he had barricaded himself.
On February 14, 2001, Rivera posted bail and was
released.1 The same day, Chief Jones transmitted Rivera’s
name to all MPD district stationhouses, stating that Rivera
was wanted on three felony warrants.
At the February 14, 2001 Warrant Squad roll call, Schad
and the other squad members on duty were instructed to
locate and arrest Rivera. They were given Rivera’s photo-
graph and possible addresses where he might be found. Fol-
lowing roll call, the acting Criminal Investigation Bureau
shift commander, Lieutenant William Jessup, called Schad
and told him that he had received an anonymous tip about
Rivera’s location. When Lieutenant Jessup asked him to
check the address located in Milwaukee’s district no. 2,
Schad responded that neither he, nor any of the other
Warrant Squad officers on duty, were available to follow up
1
It is not clear from the record whether Rivera was released in
error.
No. 04-3396 3
on the tip at that time. The call ended with Lieutenant
Jessup saying “we have to get somebody out there,” or
something to that effect.
Following Lieutenant Jessup’s call, another Warrant
Squad officer suggested that Schad call Officer Matthew
Knight who was assigned to district no. 2 and who was
familiar with the Rivera case. Rather than relaying this
suggestion to Lieutenant Jessup, Schad called Knight
directly. Knight agreed to follow up on the tip and, after
receiving permission from his sergeant, went with his
partner to the address provided by Schad. Upon entering
the building at that address, Knight found Rivera in the
hallway and told him that he was under arrest. When
Rivera reached for a pistol in his waistband, Knight
knocked it away and a “major struggle” ensued. Rivera
eventually was subdued and taken into custody.
Soon after Rivera’s arrest, Schad learned that Chief Jones
was angry that he had disclosed the Rivera tip to Knight.
The earlier standoff with Rivera made Chief Jones con-
cerned about officer safety and he wanted the specially
trained Tactical Enforcement Unit to make the arrest.
Lieutenant Jessup had in fact contacted the Tactical
Enforcement Unit after his call to Schad, but Knight and
his partner arrested Rivera before officers from the Unit
could arrive on the scene. Schad later heard rumors that
the real reason Chief Jones had wanted the Tactical
Enforcement Unit to make the arrest was that he hoped it
would make up for the Unit’s earlier standoff with Rivera
that had made the chief look bad.
Two days after Rivera’s arrest, Chief Jones transferred
Schad from the Warrant Squad to patrol duty, a much less
desirable assignment. Chief Jones stated that he trans-
ferred Schad because he had breached the MPD’s confiden-
tiality rule by disclosing Rivera’s whereabouts to someone
outside of the Warrant Squad. He said that he believed that
4 No. 04-3396
Schad “placed officers’ lives in danger by releasing informa-
tion to those officers [to whom] he was not authorized to
release [it].”
On June 4, 2002, Schad filed a First Amendment retalia-
tion suit in federal court against Chief Jones and the City
of Milwaukee. Defendants moved for summary judgment,
arguing that Schad’s speech was not protected by the First
Amendment because it was not on a matter of public con-
cern, and asserting Chief Jones’s entitlement to qualified
immunity. The district court held that Schad’s speech was
protected and denied Chief Jones’s claim of qualified
immunity.
II. Discussion
Although the denial of summary judgment did not end
this case in the district court, we have jurisdiction to review
whether the district court properly denied defendant-
appellant Jones’s claim of qualified immunity. See Kiddy-
Brown v. Blagojevich, 408 F.3d 346, 352 (7th Cir. 2005);
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[A] district
court’s denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291 notwith-
standing the absence of a final judgment.”). Where a
defendant has asserted entitlement to qualified immunity,
we review de novo a district court’s denial of summary
judgment. Leaf v. Shelnutt, 400 F.3d 1070, 1077 (7th Cir.
2005). Summary judgment is appropriate if the evidence
presented by the parties “show[s] that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
Government officials enjoy qualified immunity and are
shielded from civil liability, “as long as their actions could
reasonably have been thought consistent with the rights
No. 04-3396 5
they are alleged to have violated.” Anderson v. Creighton,
483 U.S. 635, 638 (1987). To determine whether an official
is entitled to qualified immunity, we ask: (1) whether the
facts alleged, taken in the light most favorable to the party
asserting the injury, demonstrate that the official’s conduct
violated a constitutional right; and (2) whether the right
was “clearly established” such that it would have been clear
to a reasonable official “that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201-
02 (2001). We need not address the second question in this
case because, for the reasons explained below, we answer
the first in the negative. See id. at 201 (“If no constitutional
right would have been violated were the allegations estab-
lished, there is no necessity for further inquiries concerning
qualified immunity.”).
Schad contends that Chief Jones violated his First
Amendment right to freedom of speech by retaliating
against him for disclosing the Rivera tip to Knight. “A gov-
ernment employee does not relinquish all First Amendment
rights otherwise enjoyed by citizens just by reason of his or
her employment.” City of San Diego v. Roe, 125 S. Ct. 521,
523 (2004). Because “the government as an employer has an
interest in conducting its operations as effectively as
possible,” however, “public employees do not have an unfet-
tered right to express themselves on matters related to
their jobs, and courts must give due weight to the govern-
ment’s interest in efficient employment decisionmaking
when evaluating retaliation claims.” Brooks v. Univ. of Wis.
Bd. of Regents, 406 F.3d 476, 479 (7th Cir. 2005) (citing
Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092, 1098 (7th Cir.
2004); Waters v. Churchill, 511 U.S. 661, 675 (1994)). To
establish a claim of First Amendment retaliation, a plaintiff
must prove “that the speech in question is constitutionally
protected and that it was a substantial, or motivating,
factor in the employer’s retaliatory actions.” Brooks, 406
F.3d at 479. “If the plaintiff establishes these elements, the
6 No. 04-3396
burden shifts to the government to prove that it would have
taken the same action in the absence of the protected
speech.” Id. In this case, there is no dispute that
Chief Jones transferred Schad to a less desirable assign-
ment because he disclosed the Rivera tip to Knight, and
that the transfer would not have occurred had Schad not
done so. Therefore, the only issue before us is whether
Schad’s speech was constitutionally protected.
In determining whether a government employee’s speech
is constitutionally protected, we apply the two-step
Connick-Pickering test. Cygan, 388 F.3d at 1099 (citing
Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of
Educ. of Township High Sch. Dist. 205, 391 U.S. 563(1968)). First, under Connick, we must determine whether
the employee spoke “as a citizen upon matters of public
concern.” Connick, 461 U.S. at 147; see also Cygan, 388 F.3d
at 1099. In making this determination, we examine “the
content, form, and context of a given statement, as revealed
by the whole record.” Connick, 461 U.S. at 147-48. Second,
under Pickering, we balance “the interests of the [em-
ployee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568; see also
Cygan, 388 F.3d at 1099. The parties, as well as the district
court, addressed only the Connick part of the test, and so
shall we. See Spiegla v. Hull, 371 F.3d 928, 940 (7th Cir.
2004) (appellate court will not apply the Pickering balanc-
ing test where arguments on the application of the test
were not presented in the defendant’s motion for summary
judgment and the district court was silent on the issue).
We begin our inquiry into whether Schad spoke as a citi-
zen on a matter of public concern by examining the content
of his speech. “Speech by a government employee relating to
ordinary matters of internal operation and lacking connec-
tion to ‘any matter of political, social, or other concern to
No. 04-3396 7
the community’ is not entitled to First Amendment protec-
tion.” Spiegla, 371 F.3d at 936 (quoting Connick, 461 U.S.
at 146). The speech at issue here consists only of Schad’s
telephone call to Knight in which he disclosed the anony-
mous tip about Rivera’s location. Although “police protec-
tion and public safety are generally a matter of public
concern,” Delgado v. Jones, 282 F.3d 511, 517 (7th Cir.
2002), not all speech by police department employees is
“upon matters of public concern” under the Connick analy-
sis. See, e.g., Gonzalez v. City of Chicago, 239 F.3d 939 (7th
Cir. 2001) (reports regarding instances of police misconduct
written by a police department employee were not upon
matters of public concern). As we observed in
Kuchenreuther v. City of Milwaukee:
While speech addressing matters of police protection
and public safety are matters of public concern, we have
cautioned that if every facet of internal operations
within a governmental agency were of public concern,
and therefore any employee complaint or comment upon
such matters constitutionally protected, no escape from
judicial oversight of every government activity down to
the smallest minutia would be possible.
221 F.3d 967, 974 (7th Cir. 2000) (internal quotations and
citations omitted). Rather than relying on the fact that
Schad’s speech concerned the general topic of law enforce-
ment, we must “delve deeper into the precise content” to
determine whether what was said on this topic was of pub-
lic concern. Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7th Cir.
1999).
In Connick, the Supreme Court considered a retaliation
claim by assistant district attorney Sheila Myers, whose
employment was terminated after she circulated a question-
naire to coworkers asking about their confidence and trust
in various supervisors, the level of office morale, and the
need for a grievance committee. 461 U.S. at 140-42. Myers
8 No. 04-3396
had distributed the questionnaire after learning that she
was slated for an unwanted transfer, and the Court deter-
mined that her questions were “mere extensions of Myers’
dispute over her transfer.” Id. at 148. The Court went on to
explain why the content of her speech was not of public
concern even though the general topic of employee satisfac-
tion in a prosecutor’s office might be of interest to the
community:
Myers did not seek to inform the public that the District
Attorney’s office was not discharging its governmental
responsibilities in the investigation and prosecution of
criminal cases. Nor did Myers seek to bring to light
actual or potential wrongdoing or breach of public trust
on the part of [the District Attorney] and others. . . .
While discipline and morale in the workplace are
related to an agency’s efficient performance of its
duties, the focus of Myers’ questions is not to evaluate
the performance of the office but rather to gather
ammunition for another round of controversy with her
superiors.
Id.Based on this guidance, “our cases have consistently held
that speech alleging government corruption and malfea-
sance is of public concern in its substance.” Spiegla, 371
F.3d at 937 (collecting cases). For instance, correctional
officer Nancy Spiegla was transferred after she questioned
a new vehicle search policy and reported the suspicious
conduct of two of her superiors who appeared to be using
that policy to facilitate unlawful behavior. Id. at 936. Al-
though the content of Spiegla’s speech was “comfortably on
the socially valuable side of the constitutional line,” we
explained that the case might have been different had
Spiegla merely questioned the policy pursuant to which the
officials were acting and had not disclosed the officials’
suspicious conduct. Id. at 937. We emphasized that “[t]here
No. 04-3396 9
must be a communicative element to speech that puts the
listener on alert that a matter of public concern is being
raised,” and that “the specificity and seriousness of the
allegations against [Spiegla’s superiors]” were essential to
our conclusion that her speech was protected. Id. at 937,
939.
In this case, the content of Schad’s speech was the tip
about Rivera’s possible location, the type of information
typically transmitted between officers in a police depart-
ment. As in Connick, Schad did not seek to inform the
public that the police department was not discharging its
governmental responsibilities in the arrest of wanted in-
dividuals. He did not bring to light actual or potential
wrongdoing, nor did he set out to remedy the flawed func-
tioning of the department by reporting needed changes to a
superior. Nothing in Schad’s speech could have alerted
Knight, or anyone else, that a matter of public concern was
being raised.
Although the public is generally concerned with the safe
arrest of dangerous suspects, the focus of Schad’s call to
Knight was not the evaluation of the MPD’s performance in
accomplishing this task. Rather, he agreed with Chief Jones
about the importance of arresting Rivera and disclosed the
tip to Knight in an effort to accomplish this goal. That
Schad chose a course different from the one preferred by
Chief Jones is of no consequence because, unlike Spielga,
Schad did not follow his standard transmission of informa-
tion with a civic-minded critique of Chief Jones’s strategy
for arresting Rivera or report that the chief was not acting
with the best interest of the community in mind. Schad let
the matter rest after his routine call to Knight, suggesting
that his speech was an ordinary part of the internal
operation of the police department, and indicating that he
did not speak as a citizen addressing a matter of public
concern.
10 No. 04-3396
The form of Schad’s speech supports the same conclusion.
Although we have held that speech need not be addressed
to the general public to be protected, see Delgado, 282 F.3d
at 518, choosing a form of speech routinely used for intra-
office communications may suggest that the employee did
not set out to speak as a citizen. In Gonzalez v. City of
Chicago, we considered the discharge of Gerardo Gonzalez,
a newly recruited police officer who formerly served as a
civilian employee of the Chicago Police Department’s Office
of Professional Standards investigating and writing reports
on police misconduct. 239 F.3d at 940. Gonzalez alleged
that he received poor job evaluations in retaliation for
several negative reports he had written about police officers
who later became his coworkers. In concluding that Gonza-
lez’s earlier work activities did not constitute protected
speech, we emphasized that he had written the reports
“merely as an employee.” Id. at 941. “The form of his speech
(routine official reports),” we concluded, “indicate[d] that
Gonzalez did not speak ‘as a citizen’ on a matter of public
concern.” Id. Similarly, Schad made an informal telephone
call to provide another officer with information typically
shared between officers. The form of Schad’s speech does not
distinguish it from everyday employment-related communi-
cations or indicate that Schad was speaking as a citizen
rather than as an employee.
Finally, we turn to the context of the speech, considering
Schad’s motive for speaking and the circumstances in which
he spoke. See Spiegla, 371 F.3d at 938. In Gonzalez, the fact
that the employee’s reports were written “pursuant to
duties of the job” indicated to us that he had not spoken as
a citizen. 239 F.3d at 941. In this case, Schad called Knight
in the context of the MPD’s efforts to locate and arrest
Rivera. Schad admits that he was “doing his job,” and that
his speech “was meant to complete the Warrant Squad’s
main mission for that shift which was to arrest Rivera.”
Nevertheless, he emphasizes that “there is no indication
No. 04-3396 11
that he was discharging an assigned duty.” The district
court also relied on the fact that Lieutenant Jessup did not
expressly assign to Schad the task of calling Knight, and
that it took some initiative on Schad’s part to call Knight
directly.
This distinction has no significance in the context of this
case. A police officer’s job entails the use of judgment and
discretion in performing his or her duties. Demonstrating
initiative in carrying out one’s responsibilities does not
transform ordinary employment speech into speech on a
matter of public concern. Gonzalez used discretion in com-
pleting his reports on police misconduct, but the reports
were not protected because he wrote them “merely as an
employee.” Gonzalez, 239 F.3d at 941. Like Gonzalez, Schad
acted entirely in his employment capacity. Whether Chief
Jones was more concerned about officer safety or his own
image, the result is the same. There is no evidence that
Schad’s motivation for calling Knight was anything other
than that of an officer engaged in the performance of his
everyday duties, and no evidence that the circumstances in
which Schad spoke differed in any way from the ordinary
internal operations of the police department. Thus, like its
content and form, the context of Schad’s speech indicates
that it was not that of a citizen addressing a matter of
public concern.
Furthermore, Schad and Chief Jones both wanted the safe
arrest of Rivera and disagreed, if at all, only as to how this
goal should be accomplished. Schad’s speech, however, did
not concern this disagreement. He did not comment on the
merits of his decision to call Knight directly, nor did he
suggest that the chief was wrong to prefer that the Tactical
Enforcement Unit make the arrest. Rather, Schad merely
made a judgment call in the course of his work, something
police officers do daily. Schad’s position, followed to its
logical conclusion, would require us to find that almost
everything said in the course of police work is constitution-
12 No. 04-3396
ally protected and that a chief of police can never treat
adversely an officer he believes used poor judgment. The
Constitution does not require this result and it is not the
province of federal courts to interfere with a police chief’s
everyday tactical decisions in this way. Cf. Kuchenreuther,
221 F.3d at 974-75.
In reaching the opposite conclusion, the district court’s
relied on Delgado v. Jones, 282 F.3d 511 (7th Cir. 2002).
There, we considered a report by police officer Octavio
Delgado, in which he stated that there was evidence that a
relative of a public official frequented a drug house and that
the chief of police was a close personal friend of that public
official. Delgado, 282 F.3d at 513-15. Delgado sued for First
Amendment retaliation when the chief of police transferred
him to a less desirable assignment in retaliation for his
report. Id. at 515. We distinguished the case from Gonzalez,
noting that while Delgado’s job required that he report
information about suspected crimes, he went further by
including in his report “additional facts” that called into
question “the department’s ability to conduct an objective
investigation.” Id. at 519 (emphasis in original). Unlike
Gonzalez, Delgado went beyond his normal job responsibili-
ties by acting as a concerned citizen in disclosing informa-
tion relevant to whether the police chief could perform his
job effectively under the circumstances. Schad, by contrast,
added nothing to the information that he passed along to
Officer Knight as a matter of course. He merely carried out,
without comment, a typical aspect of his job as a police
officer. The district court’s reliance on Delgado was mis-
placed.
III. Conclusion
The content, form, and context of Schad’s speech indicate
that he did not speak as a citizen on a matter of public
No. 04-3396 13
concern. We hold, therefore, that the speech was not con-
stitutionally protected and that Jones did not violate
Schad’s First Amendment rights. Accordingly, we REVERSE
the district court’s order denying defendants’ motion for
summary judgment and REMAND for proceedings consistent
with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-15-05