Morales, Alfonso v. Jones, Arthur ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1463
ALFONSO MORALES and
DAVID KOLATSKI,
Plaintiffs-Appellees,
v.
ARTHUR JONES, MONICA RAY,
and CITY OF MILWAUKEE,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-C-618—David R. Herndon, Judge.
____________
ARGUED JANUARY 11, 2007—DECIDED JULY 17, 2007
____________
Before BAUER, FLAUM, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. The Milwaukee Police Depart-
ment employed David Kolatski and Alfonso Morales as
police officers in its Vice Control Division (“VCD”).
Kolatski and Morales were reassigned to street patrol
duties after informing an Assistant District Attorney
about allegations that Police Chief Arthur Jones and
Deputy Chief Monica Ray had harbored the Deputy
Chief ’s brother, who was wanted on felony warrants.
Kolatski and Morales brought suit under 42 U.S.C. § 1983,
alleging that Jones and Ray violated their First Amend-
ment rights. After a four-day trial, a jury returned a
2 No. 06-1463
verdict for Morales and Kolatski, awarding them compen-
satory and punitive damages. Jones and Ray filed a
motion for judgment as a matter of law, which the district
court denied. Jones and Ray appeal from that denial. For
the following reasons, we reverse the district court’s
judgment.
I. BACKGROUND
On March 22, 1998, Lieutenant Edward Liebrecht
received a phone call from a landlord complaining that
one of his tenants, Vincent Ray, was altering his property
to make it suitable for selling drugs. The landlord in-
formed Liebrecht that he knew Vincent Ray was Deputy
Chief Ray’s brother because of his rental application.
Liebrecht spoke about the complaint with Chief Jones, who
told Liebrecht to investigate the matter immediately.
Liebrecht subsequently notified Deputy Chief Ray of the
call. She confirmed that Vincent Ray was her brother and
that he was a heroin addict. She also told Liebrecht that
her brother might be wanted on warrants.
Liebrecht assigned the case to Morales and Detective
Joseph Link. Morales ran a warrants check on Vincent Ray
and discovered that he was wanted on two felony war-
rants. Link and Morales then met with Vincent Ray’s
landlord who showed them the altered property and
informed them that he had asked Ray to vacate the
premises. After speaking with Ray’s landlord, the officers
drove to each of the addresses Ray provided in his rental
application in an attempt to locate him or his car.
Liebrecht’s shift ended at 3 p.m. that day, and Lieuten-
ant James Shepard relieved him. Before the end of his
shift, Liebrecht called Chief Jones to update him on the
investigation. At 4 p.m. the landlord informed Morales
and Link that Vincent Ray had called him. The landlord
No. 06-1463 3
also told the officers that he had set up a meeting with
Ray to return his security deposit at 5 p.m. the following
day, March 23. The landlord also provided the detectives
with the phone number from which Ray called. The
detectives planned on arresting Ray at this meeting.
Shepard instructed Link to write a report detailing
the investigation. Link included the landlord’s allega-
tions, his and Morales’ efforts to locate Ray, the names,
addresses, and phone numbers from Ray’s rental applica-
tion, Ray’s outstanding warrants, and the detectives’ plans
to arrest him on March 23 at 5 p.m.
On March 23, 1998, Link and Morales attempted to
arrest Ray at the scheduled meeting with his landlord, but
Ray did not show up. Ray set up two more meetings to
get his security deposit, and both times the detectives
informed Shepard that they planned to arrest him. How-
ever, Ray failed to appear at those meetings as well.
On April 6, 1998, the landlord called Morales and told
him that Ray was working on his car around the 3000
block of West Burleigh Street. Morales informed Link, but
Link was executing a search warrant in another investi-
gation. Morales decided not to inform Shepard about the
tip because the three previous meetings had fallen
through. Instead, he asked Kolatski to help him arrest
Ray. Morales and Kolatski arrested Ray on two felony
warrants. The detectives found a knife, marijuana, and
three rocks of cocaine in Ray’s car. The detectives took
him to the police administration building and then made
arrangements to meet Link.
Morales and Kolatski met Link at Gold Rush Chicken to
pick up dinner. After ordering dinner at the counter,
Morales went to the restroom. Kolatski and Link stayed
at the counter discussing the details of Ray’s arrest,
although they did not use his name. Kolatski told Link
that “he had a bad feeling about the situation.” Gold Rush
4 No. 06-1463
Chicken’s owner, John Mullarkey, who was a friend of
Deputy Chief Ray, overheard the conversation and asked
Kolatski, “what did you do, throw the Chief in jail?”
Kolatski said no. Mullarkey then asked whether they
had thrown Deputy Chief Ray in jail. Kolatski again said
no and explained that they had arrested the relative of a
higher ranking department member. Mullarkey told the
detectives that two weeks earlier he delivered food to
Deputy Chief Ray’s house and that Chief Jones was
there when a man came out of a back room. Mullarkey
explained that had he not been in the presence of two
police officers, he would have been worried that the man
might rob him. Link and Kolatski asked Mullarkey to
describe the individual. Mullarkey identified him as a
black man with a dark complexion and a tattoo on his
upper body. Mullarkey also said that Deputy Chief Ray
introduced him as her brother.
Morales returned from the restroom. After leaving the
restaurant, Kolatski told Morales about Mullarkey’s story.
The three detectives agreed that the allegations were
serious because, if true, the Chief and Deputy Chief had
harbored a felon.
After returning to the police administration building,
Link told Lieutenant Habeck, the on-duty supervisor, that
Vincent Ray had been arrested. Habeck informed Deputy
Chief Ray that her brother was in custody. Link, Kolatski,
and Morales listened to a phone call between Habeck
and Deputy Chief Ray, in which the Deputy Chief asked
what address Vincent Ray gave the officers when they
arrested him. When Habeck said that Ray had provided
Deputy Chief Ray’s address, she instructed Habeck not to
include that address on the arrest report. Habeck relayed
the instruction not to list Deputy Chief Ray’s name or
No. 06-1463 5
address on Vincent’s arrest or pedigree reports to Link.1
Link refused to falsify the reports and included Deputy
Chief Ray’s name but simply listed her address as “County
of Milwaukee.”
On the evening of April 6, 1998, Morales reviewed
Vincent Ray’s arrest reports, made copies of them, and
filed them with his supervisor, leaving the reports on his
desk for the evening. The next morning, Morales returned
to take the reports to the District Attorney’s (“D.A.”) office,
and discovered that the first page of the pedigree report,
listing Deputy Chief Ray’s name, was missing. Morales
searched for the missing report, did not locate it, and
decided to proceed to the D.A.’s office anyway.
Morales met with Assistant D.A. John Chisholm and
provided him with a synopsis of Ray’s arrest and the
possible charges. Chisholm asked Morales why the first
page of the pedigree report was missing. Morales said
that to the best of his knowledge the page had been
ordered not to include any information related to Deputy
Chief Ray and that he had pages two and three of the
report, but did not know where page one was located.
Chisholm inquired further, and Morales told him about
the investigation and Ray’s arrest. Morales also told
Chisholm that he and Link had notified Shepard on three
separate occasions of arranged meetings to arrest Vincent
Ray, but that all three meetings fell through. Morales
then recounted Mullarkey’s conversation with Kolatski
and Link, as well as Deputy Chief Ray’s instructions to
leave her information out of the arrest reports. Morales
told Chisholm that he believed that prior to Ray’s arrest,
someone had known Vincent Ray’s location and informed
1
A pedigree report is a report that lists an arrestee’s name, age,
gender, physical description, race, family members, home ad-
dress and phone number, among other information.
6 No. 06-1463
Ray to avoid meeting with the landlord to receive his
security deposit.
Chisholm met with Deputy District Attorney Jon Reddin
and relayed Morales’ information. Reddin instructed
Chisholm to interview Mullarkey. Chisholm and another
investigator spoke with Mullarkey who confirmed that
he told Kolatski and Link about his delivery to Deputy
Chief Ray, but was now certain that the delivery occurred
in January 1998. Mullarkey stated that one of his em-
ployees made a delivery to Deputy Chief Ray’s home
within the past two weeks and provided the employee’s
name.
On April 8, 1998, Link and Morales met with Chisholm
and Reddin. Chisholm and Reddin spoke to Link who
confirmed that Habeck instructed him to omit Deputy
Chief Ray’s name and address from the pedigree report,
but that he refused to do so. Link verified his discussion
with Mullarkey as well.
Link and Morales reported the D.A.’s investigation to
Liebrecht. Liebrecht informed a superior who met with
Chief Jones, Deputy Chief Ray, and Link. Deputy Chief
Ray then met with Morales to discuss the D.A.’s investiga-
tion.
During the same day, Chisholm went back to
Mullarkey’s restaurant and discovered that Mullarkey
had made food deliveries on March 19 and 23, 1998,
though he had previously denied making any food deliver-
ies since January 1998. In addition, another investigator
interviewed the driver who delivered food to Deputy Chief
Ray’s home on March 28th. The driver denied seeing a
male at Deputy Chief Ray’s residence. Additionally,
Chisholm discovered that there were no food deliveries
on March 29, and all of the April food delivery receipts
were off premises at Mullarkey’s home. As a result, the
D.A.’s office concluded that Mullarkey’s allegations against
Chief Jones and Deputy Chief Ray were false.
No. 06-1463 7
On April 17, 1998, Chief Jones transferred Kolatski
from VCD to District No. 1 night-shift patrol duty. No
one in the police department explained why Kolatski was
transferred, and he was performing well at the time. On
December 8, Link and Morales gave depositions in
Kuchenreuther v. Jones, a case in which Chief Jones was
accused of transferring a police officer in violation of the
officer’s First Amendment rights. During Morales’ deposi-
tion, he testified about the Mullarkey information and
opined that Kolatski was transferred as a result of events
connected with Vincent Ray’s arrest. Within days of the
December 8 depositions, Chief Jones reassigned Link to
the VCD’s prostitution section. Nearly two months
later, on January 22, 1999, Chief Jones transferred
Morales to District No. 6 night-shift patrol duty.
On May 20, 2000, Morales and Kolatski filed a complaint
in the Eastern District of Wisconsin under 42 U.S.C.
§ 1983, alleging that Chief Jones and Deputy Chief Ray
violated their First Amendment rights by transferring
them to patrol duties. The defendants filed a motion for
judgment on the pleadings, which the district court denied.
After the close of discovery, the defendants filed a motion
for summary judgment. The district court also denied that
motion. On November 19, 2005, after a four-day trial, the
jury returned a special verdict in the plaintiffs’ favor. The
jury awarded both plaintiffs $20,000 in compensatory
damages and $65,000 in punitive damages, finding that
the defendants’ actions were wilful, wanton and malicious.
On December 6, 2005, the defendants filed motions for
judgment as a matter of law. On February 1, 2006,
the district court denied those motions and granted the
plaintiffs’ motions for attorneys’ fees and costs. The
defendants now appeal.
8 No. 06-1463
II. DISCUSSION
The defendants argue that the district court erred by
not granting them judgment as a matter of law because
Kolatski’s and Morales’ speech was not protected by the
First Amendment. This Court reviews de novo the district
court’s denial of a motion for judgment as a matter of law.
LaFollette v. Savage, 63 F.3d 540, 543-44 (7th Cir. 1995).
The defendants argue that their actions did not vio-
late the plaintiffs’ First Amendment rights because the
plaintiffs’ speech was made pursuant to their official
duties. The Supreme Court has made clear that public
employees do not surrender all of their First Amendment
rights by reason of their employment. Rather, the First
Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of
public concern. See, e.g., Rankin v. McPherson, 483 U.S.
378 (1987); Connick v. Myers, 461 U.S. 138 (1983);
Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will
County, Ill., 391 U.S. 563 (1968). The Supreme Court
recently clarified, however, that “when public employees
make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amend-
ment purposes, and the Constitution does not insulate
their communications from employer discipline.” Garcetti
v. Ceballos, __ U.S. __, 126 S.Ct. 1951, 1960 (2006).2
In Garcetti, the Court evaluated the First Amendment
claims of a deputy district attorney (Ceballos). Believing
that a search warrant affidavit contained misrepresenta-
tions, Ceballos wrote two memoranda recommending
the dismissal of pending charges. Id. at 1955-56. He was
2
The district court ruled in this case on February 1, 2006. The
Supreme Court decided Garcetti on May 30, 2006. As a result, the
district court did not have the opportunity to consider Garcetti
in its analysis.
No. 06-1463 9
later transferred from his calendar deputy position to a
trial deputy position and assigned to work at another
location. Id. at 1956. He sued under § 1983, alleging
retaliation for his speech. Focusing on the “citizen” prong
of the First Amendment analysis, the Court determined
that Ceballos “wrote his disposition memo because that
is part of what he, as a calendar deputy, was employed to
do.” Id. at 1960. Because his expression was “pursuant to”
his official duties, he was not speaking as a citizen for
First Amendment purposes. Id. The Court stated,
“[r]estricting speech that owes its existence to a public
employee’s professional responsibilities does not in-
fringe any liberties the employee might have enjoyed as
a private citizen. It simply reflects the exercise of em-
ployer control over what the employer itself has com-
missioned or created.” Id.
In light of Garcetti, the crux of our inquiry is whether
Morales’ and Kolatski’s speech was made pursuant to
their official duties. Because both parties in Garcetti
agreed that Ceballos’ speech was made pursuant to his
official duties, the Court “had no occasion to articulate a
comprehensive framework for defining the scope of an
employee’s duties in cases where there is room for
serious debate.” 126 S.Ct. at 1961. Lower courts, includ-
ing this one, have applied Garcetti in an attempt to
define the scope of an employee’s duties. See Haynes v. City
of Circleville, Ohio, 474 F.3d 357 (6th Cir. 2007); Mayer v.
Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir.
2007); Green v. Bd. of County Comm’rs, 05-6297, 2007 WL
4210 (10th Cir. Jan. 2, 2007); Freitag v. Ayers, 468 F.3d
528 (9th Cir. 2006); Battle v. Bd. of Regents for the State of
Ga, 468 F.3d 755 (11th Cir. 2006); Mills v. City of Evans-
ville, 452 F.3d 646 (7th Cir. 2006).
Those courts have followed the Supreme Court’s gen-
eral guidance that “the inquiry is a practical one” and
10 No. 06-1463
should focus on “the duties an employee actually is ex-
pected to perform.” Id. at 1962. For example, in Battle, the
plaintiff was the financial aid counselor at Fort Valley
State University. Her job required her to verify the
completion and accuracy of student files as well as report
any perceived fraudulent activity. 468 F.3d at 758. The
plaintiff reviewed several student files, discovering
that her supervisor had been falsifying information and
awarding financial aid to ineligible recipients. The plain-
tiff spoke to the supervisor, the University president, and
finally to the University’s Vice-President of Student
Affairs. Shortly after her final meeting, the University
decided not to renew the plaintiff ’s contract. The Eleventh
Circuit held that because the plaintiff ’s specific job re-
sponsibilities included ensuring the accuracy and com-
pleteness of student files and reporting any mismanage-
ment or fraud, her speech was made pursuant to her
official employment responsibilities. The court also noted
that Department of Education Guidelines require all
financial aid workers to report suspected fraud. Id. at 761.
Lower courts have also been careful to recognize that,
under Garcetti, “public employees retain the prospect of
constitutional protection for their contributions to the
civic discourse.” 126 S.Ct. at 1960. In Freitag, the plaintiff,
a corrections officer, was sexually harassed by several
inmates at the Pelican Bay State Prison. She complained
to her supervisors that her documentation of the in-
cidents was denied or thrown away. After she complained
to her state senator and the State Office of the Inspector
General, the prison warden terminated her. The Ninth
Circuit held that the plaintiff ’s “right to complain both to
an elected public official and to an independent state
agency is guaranteed to any citizen in a democratic society
regardless of his status as a public employee.” 468 F.3d at
545. The court stated that “it was certainly not part of her
official tasks to complain to the [s]enator or the IG about
No. 06-1463 11
the state’s failure to perform its duties properly . . . .
Rather, it was [the plaintiff ’s] responsibility as a citizen
to expose such official malfeasance to broader scrutiny.” Id.
The plaintiffs first contend that their statements were
not a part of their official duties because they learned of
Mullarkey’s unfounded allegations after they arrested
Ray. Yet the plaintiffs admit that their duties included
“processing arrests through [the] District Attorney’s
office, requesting [the] [D]istrict [A]ttorney’s office for
advice on certain methods to utilize on investigations, and
completing it through the court system, whether it be a
trial or through guilty pleas.” Therefore, by their own
admission, the plaintiffs’ official duties did not end when
they arrested Ray.
Second, the plaintiffs maintain that their speech was
not made pursuant to their official duties because Chief
Jones ended his own internal investigation into whether
Kolatski disclosed confidential information to Mullarkey.
Chief Jones reasoned that because the arrest had al-
ready taken place, the detectives’ discussion with
Mullarkey did not pose a threat to the investigation. The
plaintiffs argue that this demonstrates that their official
duties concluded as soon as they arrested Vincent Ray. As
explained above, however, the plaintiffs concede that
their duties continue after a suspect’s arrest. Moreover,
Chief Jones’ investigation does not bear on whether the
plaintiffs’ speech was made pursuant to their official
duties.
Finally, Kolatski and Morales argue that their speech
was not made pursuant to their official duties because
they were unsure about how to handle Mullarkey’s allega-
tions. However, the plaintiffs’ confusion about which
course of conduct to take in dealing with Mullarkey’s
allegations does not indicate that they were not acting
pursuant to their official duties as police officers.
12 No. 06-1463
After reviewing the record, we conclude that Kolatski’s
speech was not protected under the First Amendment
because it was made pursuant to his official duties.
Kolatski told Morales about Mullarkey’s allegations
because Morales recruited Kolatski to assist him in
arresting Ray. As a result, Kolatski had a duty to
apprise Morales of any information pertinent to the
investigation. Consequently, the judgment in favor of
Kolatski must be reversed.
As for Morales, his conversation with A.D.A. Chisholm
was made pursuant to his official duties because he met
with Chisholm in his capacity as a VCD officer. They met
to discuss Vincent Ray’s arrest and review the arrest
report. It was Morales’ duty to assist Chisholm in the
proper presentation of charges by providing him with the
arrest reports and details of his investigation. Morales
informed Chisholm of Mullarkey’s allegations against
Chief Jones and Deputy Chief Ray in response to Chis-
holm’s inquiry into the pedigree report’s missing page.
Morales did not meet with Chisholm on his own time to
report information that was unconnected to anything
he was working on. Indeed, Morales’s speech concerned
a case that he was assigned to investigate. Furthermore,
the Milwaukee Police Department requires officers to
report all potential crimes.3 By informing A.D.A. Chisholm
of the allegations against Chief Jones and Deputy Chief
Ray, Morales was performing that duty as well. Accord-
ingly, his conversation with A.D.A. Chisholm is not
protected under the First Amendment after Garcetti.
Morales’ December 8 deposition testimony is a differ-
ent story. In his deposition, Morales testified about
3
The dissent emphasizes the fact that Morales testified that he
had the discretion whether or not to investigate Mullarkey’s
allegations. However, when Morales chose to exercise that
discretion he did so pursuant to his job duties.
No. 06-1463 13
Mullarkey’s allegations, his conversation with A.D.A.
Chisholm, and his opinion that Kolatski was transferred
because they had reported the allegations against the
Chief and Deputy Chief. Being deposed in a civil suit
pursuant to a subpoena was unquestionably not one of
Morales’ job duties because it was not part of what he
was employed to do. Nonetheless, Morales testified about
speech he made pursuant to his official duties and we must
determine whether that fact renders his deposition
unprotected. We hold that it does not.
The purpose of Garcetti was to allow government employ-
ers greater influence over speech that owes it existence to
a public employee’s professional responsibilities and that
is damaging to the government’s capacity to conduct public
business. 126 S.Ct. at 1958 (“Government employers . . .
need a significant degree of control over their employees’
words and actions . . . .”). Here, because the substance of
Morales’ speech is the same, it poses the same threat to
the MPD regardless of whether it is said to A.D.A. Chis-
holm or in a deposition. We recognize the oddity of a
constitutional ruling in which speech said to one individual
may be protected under the First Amendment, while
precisely the same speech said to another individual is not
protected. Indeed, this is exactly the concern that Justice
Stevens voiced in his dissent in Garcetti: “[I]t is senseless
to let constitutional protection for exactly the same words
hinge on whether they fall within a job description.” 126
S.Ct. at 1963. Despite Justice Stevens’ admonishment,
Garcetti established just such a framework, and we are
obliged to apply it. As a result, although we hold that
Morales’ conversation with Chisholm was unprotected
speech, his deposition testimony was protected.
Thus, we are faced with a difficult situation because
Morales presented the jury with evidence of both his
protected and unprotected speech. We do not know
14 No. 06-1463
whether the jury found that Chief Jones and Deputy
Chief Ray retaliated against Morales solely on the basis
of protected speech, unprotected speech, or a combination
of both.4 Because of our uncertainty, we remand to the
district court for a new trial on Morales’ claims.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s ruling denying the defendants’ motion for judg-
ment as a matter of law with regard to Kolatski, and we
REMAND for a new trial on Morales’ claims.
ROVNER, Circuit Judge, concurring in part and dissent-
ing in part. A jury found that these officers were reas-
signed to undesirable posts in retaliation for their
speech. After Garcetti, the first question we must answer
4
The dissent contends that “it is highly unlikely that the jury
relied” on Morales’ conversation with A.D.A. Chisholm as the
cause of Morales’ demotion. The dissent relies solely on timing,
stating that Morales was transferred “shortly” after his Decem-
ber 8 deposition testimony. In fact, Morales was transferred
almost two months after he gave his deposition testimony.
Moreover, the trial transcript reveals that the focus of Kolatski’s
and Morales’ testimony dealt with the Ray investigation and
Morales’ conversation with A.D.A. Chisholm, not Morales’
deposition testimony. In short, we cannot determine which
speech the jury relied upon to find that the defendants re-
taliated against Morales.
No. 06-1463 15
is whether the speech at issue was “made pursuant to the
employee’s official duties.” Garcetti, 126 S. Ct. at 1955. But
before we answer that question, we must discern exactly
what speech is at issue. Green v. Board of County Comm’s,
472 F.3d 794, 799 (10th Cir. 2007) (as a starting point
in a Garcetti analysis, the court must determine what
speech and conduct are at issue). As the majority notes,
the speech at issue for Detective Kolatski was his con-
versation with Officer Link and Mr. Mullarkey in the Gold
Rush restaurant, and his subsequent conversation with
Lieutenant Morales on the way back to the police station
after picking up dinner.1 These discussions both occurred
on a single day in April 1998. In each instance of speech,
Detective Kolatski was either investigating a possible
crime or conveying information about a possible crime to
other officers who were more intimately involved in the
investigation and arrest of Vincent Ray. The defendants
demoted Detective Kolatski only a few days later and a
jury found that the demotion was retaliation for his
speech. Because I agree that Detective Kolatski’s speech
was made pursuant to his official duties, I concur in the
majority’s holding that his speech was not protected by
the First Amendment. The Supreme Court remarked
that “[e]xposing governmental inefficiency and misconduct
is a matter of considerable significance.” Garcetti, 126
S. Ct. at 1962. Detective Kolatski was performing his job
admirably at the time of these events, and although his
demotion for truthfully reporting allegations of misconduct
may be morally repugnant, after Garcetti it does not offend
the First Amendment. In Garcetti, after all, the Court
wished to avoid a rule that would mandate “judicial
1
At the time of the events at issue here, Detective Kolatski and
Lieutenant Morales both held the rank of police officer. They
received their respective promotions prior to the time of trial
and I will use their more current designations here.
16 No. 06-1463
oversight of communications between and among gov-
ernment employees and their superiors in the course of
official business.” 126 S. Ct. at 1961.
The case of Lt. Morales is another story. The speech at
issue for Lt. Morales consisted primarily of his discussions
with the district attorney’s office and the deposition he
gave many months later in an unrelated civil case. We
review de novo the district court’s denial of the defendants’
motion for judgment as a matter of law. Erickson v.
Wisconsin Dept. of Corr., 469 F.3d 600, 601 (7th Cir. 2006);
Davis v. Wisconsin Dept. of Corr. 445 F.3d 971, 975 (7th
Cir. 2006); Byrd v. Illinois Dept. of Pub. Health, 423 F.3d
696, 712 (7th Cir. 2005). In conducting that review, we
must view the facts in the light most favorable to Lt.
Morales, the party opposing the motion, and we must
disregard all evidence favorable to the moving parties
that the jury was not required to believe. Erickson, 469
F.3d at 601; Davis, 445 F.3d at 975. We may overturn a
jury verdict in favor of Lt. Morales only if no reasonable
jury could have found for him. Erickson, 469 F.3d at 601;
Davis, 445 F.3d at 975. See also Byrd, 423 F.3d at 712 (in
reviewing a district court’s decision to deny a Rule 50
motion, we must review all of the evidence in the record,
drawing all reasonable inferences in favor of the non-
moving party, and assure that the jury was presented
with a legally sufficient basis to support the verdict).
Recall that Lt. Morales’s discussions with the district
attorney’s office arose when he attempted to deliver
Vincent Ray’s incomplete arrest report to that office. The
arrest report was missing the first page of the so-called
“pedigree report” that identified the Deputy Chief of Police,
Monica Ray, as Vincent Ray’s sister and listed her address
as Milwaukee County. The evidence at trial demonstrated
that this rather vague address was due to Monica Ray’s
directive not to list her name or address on the report and
to change Ray’s address to that of “a fucking light pole” if
No. 06-1463 17
necessary. R. 145, at 723. The officers who were attempt-
ing to comply with the directive of the Deputy Chief
while simultaneously trying to avoid filing a false report
decided that “Milwaukee County” was a specific enough
address for both Ray and the light pole. R. 145, at 727. All
of Lt. Morales’s comments about the Chief and Deputy
Chief to the district attorney came in response to questions
about the missing page of the pedigree report. At the time,
Lt. Morales was on duty, delivering a report he was obliged
to deliver, and assisting the district attorney in Vincent
Ray’s prosecution. However, as Lt. Morales testified,
although he was obliged to deliver the report and assist in
Ray’s prosecution, he was not obliged to report his suspi-
cions about why the report page was missing. R. 144, at
628, 641, 646. In disclosing his suspicions, he went beyond
his work duties.
The majority relies in large part on an assumption that
Lt. Morales was obliged under department policy to
report all potential crimes and thus was speaking pursu-
ant to his job duties when he reported possible miscon-
duct by the Chief and Deputy Chief to the district attor-
ney. But Lt. Morales testified that, although that was
the department rule, in practice, he had considerable
discretion in determining whether to report or pursue
investigation of a potential crime. See R. 143, at 500-03. At
trial, Lt. Morales was asked, “In the course of conducting
an investigation, what kind of discretion do you as a
police officer have to do the investigation? In other
words, if you come upon information, what discretion do
you have to even investigate?” He answered, “I have
discretion not to investigate it.” R. 143, at 501-02. Lt.
Morales also testified that he is “not duty bound” to
investigate when he receives information about potential
wrongdoing. R. 143, at 502. Rather, he has the discretion
to weigh the facts at hand, and in light of other investiga-
tions he is conducting, may elect not to pursue the infor-
18 No. 06-1463
mation further. R. 143, at 502-03. Thus, when he saw that
Vincent Ray failed to show up for three scheduled meet-
ings that had been reported to commanding officers, when
he learned about Mr. Mullarkey’s allegations that the
Chief and Deputy Chief had been present with Vincent Ray
at a time they both knew he was wanted on warrants, and
when he heard the Deputy Chief ’s directive to keep her
name and address off the pedigree report, he was not
obliged to report his suspicion that the missing report
page was related to these events. In short, he had the
“option to ignore it.” R. 144, at 549. See also R. 144, at 551
(“Again, I had the discretion. I could have ignored all of
this.”). In fact, he testified that, as a police officer, he could
not do anything with this information or his suspicions:
I couldn’t do anything with it. I’m a police officer at
that time. The allegations are against the third person
in command and the Chief of Police. I had to give it
to someone outside of the police department.
R. 144, at 547. The Chief himself testified that he was
unsure what he would have done if he had been in Lt.
Morales’s position, where someone had told him the Chief
of Police had possibly been involved in criminal activity:
[W]hat would I do? I don’t know. I ask myself that.
Would I go back and tell somebody within the police
department? No.
I think if the officer felt that that was the place that he
needed to reveal any information he had, the District
Attorney’s Office was an appropriate place for it to
happen. The District Attorney has investigators that
have arrest powers that they could send out to investi-
gate. Obviously, the District Attorney, the Deputies,
can do some investigation themselves or inquiries
themselves.
R. 143, at 365.
The Garcetti majority was not faced with the situation
No. 06-1463 19
we have here and admittedly gave us no “comprehensive
framework for defining the scope of an employee’s duties
in cases where there is room for serious debate.” Garcetti,
126 S. Ct. at 1961. The Court did offer some hints on how
this analysis should be performed. The Court instructed
that “[t]he proper inquiry is a practical one.” Garcetti, 126
S. Ct. at 1961. The Court rejected the notion that we
were limited to job descriptions in determining the
nature of official duties because “[f]ormal job descriptions
often bear little resemblance to the duties an employee
actually is expected to perform, and the listing of a given
task in an employee’s written job description is neither
necessary nor sufficient to demonstrate that conducting
the task is within the scope of the employee’s professional
duties for First Amendment purposes.” Garcetti, 126 S. Ct.
at 1962. Such appears to be the case here where the
departmental rule differed from the manner in which the
officers actually performed their duties. Because the
evidence that the jury was entitled to believe on this point
contradicts the majority’s assumption, I would not rely
on Lt. Morales’s supposed duty to report all potential
wrongdoing in determining whether this speech was
protected by the First Amendment.
There are other hints in Garcetti that help dictate the
analysis here. The Court was concerned, for example, that
“[o]fficial communications have official consequences,” and
that “[s]upervisors must ensure that their employees’
official communications are accurate, demonstrate
sound judgment, and promote the employer’s mission.”
Garcetti, 126 S. Ct. at 1960. The Court opined that employ-
ees may receive protection for expressions made at
work rather than publicly, and that it also is not
dispositive that the speech concerns the subject matter of
the plaintiff ’s job. 126 S. Ct. at 1959. In Garcetti, the Court
found that the significant factor was that Cebellos’ memo
20 No. 06-1463
was written pursuant to his official duties:
Restricting speech that owes its existence to a public
employee’s professional responsibilities does not
infringe any liberties the employee might have enjoyed
as a private citizen. It simply reflects the exercise of
employer control over what the employer itself has
commissioned or created.
Garcetti, 126 S. Ct. at 1960. The Court noted that Cebellos
did not act as a citizen when he conducted his daily
professional activities; rather when “he went to work and
performed the tasks he was paid to perform, Cebellos
acted as a government employee.” 126 S. Ct. at 1960. The
Court also characterized Cebellos’s memo as the “work
product” of a government employee. The Court com-
mented that government employees who make public
statements outside the course of performing their duties
retain First Amendment protection because that is the
kind of activity engaged in by persons who do not work
for the government. Thus, a letter to a local newspaper
is protected as is a discussion of politics with a co-worker.
Garcetti, 126 S. Ct. at 1961.
We must consider, then, whether Lt. Morales’s comments
to the district attorney constitute “work product,” whether
his words owed their existence to his professional responsi-
bilities, whether it is speech that his employer commis-
sioned or created, or whether it is the kind of activity
engaged in by persons who do not work for the govern-
ment. Lt. Morales certainly became aware of the facts that
he reported and formed the opinions that he expressed
because of his work in investigating and arresting Vincent
Ray. But for his job duties, Lt. Morales would not have
known that Vincent Ray failed to show up for three
meetings that had been reported up the chain of command;
he would not have been aware of Mr. Mullarkey’s allega-
tions; he would not have been privy to Monica Ray’s
No. 06-1463 21
directive to keep her name and address off the pedigree
report. The fact that his speech concerned the subject
matter of his employment is not dispositive, though,
because in Garcetti, the Court reaffirmed the principle that
the First Amendment protects some speech related to the
speaker’s job, at least in part because front line workers
like teachers (as was the case in Pickering) or police
officers (as we have here) are, as a class, most likely to
have informed and definite opinions about matters of
public concern related to their jobs. Garcetti, 126 S. Ct. at1959 (citing Givhan v. Western Line Consol. Sch. Dist., 439
U.S. 410 (1979), and Pickering v. Board of Educ. of Twp.
High Sch. Dist. 205, Will County, Ill., 391 U.S. 563 (1968)).
When he spoke to the district attorney, Lt. Morales was on
duty and responding to questions about papers he was
obliged to present to the state’s attorney as part of his
official job duties. However, because Lt. Morales was not
required, as a practical matter, to report these allegations,
this is a close case under Garcetti. The information that Lt.
Morales conveyed was work product only in the sense that
he learned the information while at work. But the work he
was paid to perform that day, to paraphrase Garcetti, was
the prosecution of Vincent Ray. Both government employ-
ees and persons who do not work for the government may
report possible wrongdoing or crimes by government
officials. In this case, reporting possible wrongdoing was
beyond the scope of Lt. Morales’s required job duties.
Construing the facts in favor of Lt. Morales, he may have
begun his conversation with the district attorney as a
police officer, but when he went beyond his obligations
as a police officer and decided to disclose his suspicions
about the Chief and Deputy Chief, he was speaking to the
district attorney as a witness to public corruption, in the
same fashion any citizen who witnessed suspicious con-
duct by a government official might speak. See Freitag v.
Ayers, 468 F.3d 528, 545 (9th Cir. 2006), cert. denied, 127
22 No. 06-1463
S. Ct. 1918 (2007) (where it was not part of jail guard’s
official tasks to complain to a senator or inspector general
about the failure of jail officials to respond to charges of
sexual harassment at the jail, the guard was speaking as
a citizen when she exposed official malfeasance to broader
scrutiny and thus her speech was protected by the First
Amendment). In Garcetti, the Supreme Court noted that
“when a public employee speaks pursuant to employment
responsibilities . . . there is no relevant analogue to
speech by citizens who are not government employees.” 126
S. Ct. at 1961. In this case, unlike Garcetti, there is
a relevant analogue to speech by citizens who are not
public employees. Any citizen may report suspicions of
public corruption to the district attorney’s office, which, as
I noted above, had the ability and the authority to investi-
gate allegations of wrongdoing at the highest levels of the
police department. A reasonable jury could find, and
I would find, on balance, that Lt. Morales spoke as a
private citizen when he conveyed his suspicions to the
district attorney and his speech was therefore protected
by the First Amendment.
But even if the discussions with the district attorney
were unprotected, I am not convinced that the jury found
those discussions to be the sole, or even the primary,
motivating factor in the defendants’ retaliation. In fact,
it is highly unlikely that the jury relied on those stale
conversations as the cause of Lt. Morales’s demotion. The
discussions with the district attorney occurred in April
1998 and no action was taken against Lt. Morales until
approximately nine months later, shortly after he gave
a deposition in an unrelated civil case. Approximately
seven months after Lt. Morales met with the district
attorney, in December 1998, he and Officer Link gave
depositions in the case of Kuchenreuther v. Jones. In
Kuchenreuther, another officer sued Chief Jones for
retaliating against her for exercising her First Amend-
No. 06-1463 23
ment rights. At his deposition, Lt. Morales testified about
the Mullarkey incident and stated that he believed Detec-
tive Kolatski was transferred as a result of events con-
nected with the arrest of Vincent Ray and the aftermath of
the Mullarkey allegations. Lt. Morales was transferred
approximately six weeks after that deposition. Officer
Link, who was not a plaintiff here, also was transferred
(albeit temporarily) to a considerably less desirable
position shortly after the depositions.
The key question, then, is whether that deposition
testimony was given pursuant to Lt. Morales’s official
duties. The district court found that Lt. Morales’s deposi-
tion could not be tied to any of his required duties as a
police officer. The majority does not address that finding
by the district court and thus does not address whether
and to what extent we should defer to the district court’s
fact-finding. Even assuming that we need not defer to the
district court at all, though, I would find, as the majority
has found, that Lt. Morales’s deposition was given as a
citizen and not pursuant to official duties.
The defendants make no attempt to demonstrate that
testifying at a civil deposition for a co-worker’s lawsuit
was part of Lt. Morales’s job duties. Nor could they. There
is nothing in the record below to suggest that the deposi-
tion testimony was work that Lt. Morales was expected to
perform as part of his formal or informal job duties, that
it was conducted pursuant to his job duties or at his
employer’s behest, that it was work product of the police
department, that it was official speech, or that it was
one of the tasks he was paid to perform. Although the
subject matter of the deposition related to information Lt.
Morales learned on his job, his testimony owed its exis-
tence not to his job but rather to a subpoena in a lawsuit.
See Fairley v. Fermaint, 482 F.3d 897, 902 (7th Cir. 2007).
In Fairley, county jail guards brought § 1983 claims
against the county sheriff and other guard personnel,
24 No. 06-1463
claiming they were harassed for exercising their First
Amendment right to speak out against abuse of prison
inmates. 482 F.3d at 899. The defendants sought to
invoke Garcetti for the proposition that the plaintiffs’
speech in the workplace is not protected by the First
Amendment. We noted that, under the plaintiffs’ theory,
the “defendants reacted adversely to two kinds of speech:
not only statements made as part of their duties at work
(the kind of speech to which Garcetti applies) but also to
testimony that plaintiffs gave in inmates’ suits.” Fairley,
482 F.3d at 902. Because “[a]ssistance to prisoners and
their lawyers in litigation is not part of a guard’s official
duties,” we needed to determine what part of the defen-
dants’ retaliation could be traced to the plaintiffs’ litigation
activity as opposed to events at work. 482 F.3d at 902.
Fairley applies directly to the circumstances we have here,
where it was not part of Lt. Morales’s job duties to
assist his fellow officer in her suit against the Chief.
Because they cannot demonstrate that the deposition
was given pursuant to Lt. Morales’s job duties, the defen-
dants rely entirely on an argument that deposition testi-
mony about unprotected speech does not constitute
protected speech. Unlike the majority, I would find that
the underlying speech was protected but I will assume
for the sake of argument that it was not. The defendants
rely on Morris v. Crow, 142 F.3d 1379 (11th Cir. 1998), and
Kirby v. City of Elizabeth City, N.C., 388 F.3d 440 (4th
Cir. 2004), for the proposition that Lt. Morales’s deposi-
tion testimony was unprotected speech. Neither of these
cases supports the defendants’ position. Morris was an
employee of the sheriff ’s department who was called upon
to investigate an accident in which an unmarked sheriff ’s
car, en route to an emergency call, collided with a citizen’s
vehicle, killing the citizen. Morris investigated the accident
and wrote an official report where he concluded that the
officer driving the unmarked squad car was traveling more
No. 06-1463 25
than 130 mph in a 50 mph zone without using his blue
warning lights, in contravention of department policy.
After Morris filed that report, the citizen’s personal
representative brought a wrongful death suit against the
sheriff ’s department and Morris was deposed in connection
with that suit. At the deposition, he reiterated the allega-
tions of his report and opined that if the officer had been
traveling the posted speed limit, there was a great possibil-
ity the accident would not have occurred. Morris, 142 F.3d
at 1381.
The appeals court found that the accident report was
generated pursuant to Morris’s official and customary
duties. In that respect, the court appeared to have antici-
pated Garcetti. But the court then distinguished Morris’s
case from two others that closely resemble the facts we
have here in Lt. Morales’s case. See Morris, 142 F.3d at
1382, citing Fikes v. City of Daphne, Tex., 79 F.3d 1079(11th Cir. 1996), and Warnock v. Pecos County, 116 F.3d
776 (5th Cir. 1997). In Fikes, an officer who had no obliga-
tion to do so reported two instances of misconduct by
fellow officers. In that case, the Morris court found, the
plaintiff was not speaking pursuant to work duties but
was trying to bring to light actual or potential wrongdoing
on the part of government officials. In Warnock, a county
auditor reported a number of violations of law or fiscal
improprieties committed by county officials to her superi-
ors and to appropriate law enforcement officers. Although
Warnock generated her report in the normal course of her
duties as an auditor, the Morris court distinguished her
case because the plaintiff ’s purpose was to raise issues of
public concern. Morris, on the other hand, wrote his report
not to bring to light any wrongdoing but rather to accu-
rately report an accident in the course of his employment.
The court found that Morris’s deposition could not “be
characterized as an attempt to make public comment on
sheriff ’s office policies and procedures, the internal
26 No. 06-1463
workings of the department, the quality of its employees or
upon any issue at all.” Morris, 142 F.3d at 1382. The
Morris court thus concluded that the “mere fact that
Morris’s statements were made in the context of a civil
deposition cannot transform them into constitutionally
protected speech.” 142 F.3d at 1383. Like Fikes, Lt.
Morales was not obliged to report possible wrongdoing by
the Chief and Deputy Chief. And like both Fikes and
Warnock, Lt. Morales was attempting to bring to light
issues of public concern. When read in whole, the Morris
court found that Morris’s accident report was unprotected
because it was an official report made in the normal course
of his duties, and his deposition was unprotected because
he was not attempting to bring to light matters of public
concern. It is thus difficult to see how Morris helps the
cause of the defendants in the instant case where Lt.
Morales was not obliged to report the wrongdoing and was
in fact trying to bring to light a matter of grave public
concern. Under Morris, a pre-Garcetti case, Lt. Morales’s
speech would be protected because he had no work-
related duty to speak and he was motivated by a desire
to bring to light possible government corruption. I note,
however, that the Morris court’s use of the speaker’s
motive as a factor that overrides the citizen/employee
distinction cannot survive Garcetti. In sum, Morris does
not aid the defendants’ cause, and I also believe that
Morris, at least in part, is no longer good law.
As for Kirby, another pre-Garcetti case on which the
defendants rely, the issue was not whether the plaintiff
police officer was speaking as a citizen but rather whether
his speech addressed a matter of public concern. Kirby, 388
F.3d at 446-47. Kirby testified at a hearing before a City
Personnel Appeals Committee regarding a grievance filed
by a fellow officer. That officer had been disciplined for
damaging his police car by failing to properly maintain it.
Kirby testified about the maintenance history of the fellow
No. 06-1463 27
officer’s car and provided an opinion about the mainte-
nance and driving habits of that officer. 388 F.3d at 443.
The court found that Kirby’s speech did not involve a
matter of public concern but rather related only to the
interests of the officers involved. Moreover, the court
found, the fact that Kirby’s testimony was given in a public
hearing did not transform it into a matter of public
concern. No one could argue in the instant case that
allegations of wrongdoing against the two highest ranking
members of the Milwaukee Police Department did not
touch on a matter of public concern. Kirby is irrelevant
to the issue before this court. See also Green v. Barrett,
2007 WL 754634 (11th Cir. Mar. 14, 2007).2
Because I would find that Lt. Morales’s speech was
protected in its entirety by the First Amendment, I will
briefly address the question of qualified immunity. I say
briefly because it should be obvious to anyone and cer-
tainly to the Chief and Deputy Chief of Police that it is
illegal to retaliate against a person for reporting a possible
crime or for testifying under oath in a deposition as part
of a judicial proceeding. In the federal system, we call such
retaliation “witness tampering” or “obstruction of justice,”
and these principles were established long before the
2
In that case, a jailer was called to testify pursuant to her
official duties, at the behest of her employer, in the normal
course of work. The court found that the jailer’s testimony was
therefore not protected by the First Amendment. Her testimony
was her work that day. Lt. Morales was not called to testify
pursuant to his official duties. He had no work-related obliga-
tion to testify. There is no evidence in the record indicating that
Lt. Morales testified at that deposition at the behest of the Chief
or Deputy Chief. And, finally, there is no evidence that the
deposition was given in the normal course of Lt. Morales’s work.
On the contrary, he was essentially testifying as a witness in a
civil lawsuit unrelated to his duties as a police officer.
28 No. 06-1463
events in this case. See Fairley, 482 F.3d at 902. As we
noted in Fairley, “no public official could think the con-
duct proper.” Id. I would therefore find that the defen-
dants were not entitled to qualified immunity. For the
same reason, I would not disturb the award of punitive
damages.
If, as the majority finds, Lt. Morales’s discussion with
the district attorney was not protected, I would still affirm
the judgment rather than grant a new trial. First, given
that the demotions of both Lt. Morales and Officer Link
came hot on the heels of their depositions, it is reason-
able to assume that the jury found that the defendants
demoted Lt. Morales because of his recent deposition and
not because of a conversation he had with the district
attorney some nine months earlier. As I noted above, we
may overturn a jury verdict in favor of Lt. Morales only
if no reasonable jury could have found for him. Erickson,
469 F.3d at 601; Davis, 445 F.3d at 975. A reasonable
jury could and did find in favor of Lt. Morales and I would
affirm that judgment.
Second, the majority’s decision to remand Lt. Morales’s
case for a new trial gives the defendants a gift for which
they did not ask. In their request for relief on appeal, the
defendants asked that we reverse the decision of the trial
court and hold as a matter of law that all of the relevant
speech is not protected by the First Amendment. In the
alternative, the defendants asked that we find that they
are entitled to qualified immunity. And finally, if we
determined that the speech was protected and that they
were not entitled to qualified immunity, the defendants
asked that we reverse the award of punitive damages. At
no time in the appeal did the defendants request a new
trial. At no time did they argue that they would be entitled
to a new trial if the jury was presented with evidence of
both protected and unprotected speech. The majority states
that we do not know whether the jury found the retaliation
No. 06-1463 29
was due to protected speech, unprotected speech or a
combination of both. Even if the majority is correct that
some of the speech was unprotected, that uncertainty is
irrelevant. Having failed to make such an argument, the
defendants waived any claim for a new trial on that basis.
See Kramer v. Banc of Am. Sec. LLC, 355 F.3d 961, 964 n.1
(7th Cir. 2004) (the absence of any supporting authority or
development of an argument constitutes a waiver on
appeal); Hildebrandt v. Illinois Dep’t of Natural Res., 347
F.3d 1014, 1025 n.6 (7th Cir. 2003) (when a party presents
no argument in its brief with respect to a particular claim,
any arguments with respect to that claim are waived);
Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir.
2003) (holding that claims not argued on appeal are
abandoned, and collecting cases). The defendants took an
all or nothing approach in their appeal of the judgment in
favor of Lt. Morales; they are entitled to nothing. For these
reasons, I concur in the judgment with respect to Detective
Kolatski and respectfully dissent from the judgment with
respect to Lt. Morales.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-17-07