Vose, Ronald v. Kliment, Donald ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1792
RONALD VOSE,
Plaintiff-Appellee,
v.
DONALD KLIMENT, Chief of Police of
the City of Springfield, in his individual
capacity, and WILLIAM ROUSE, Deputy
Chief of Police of the City of
Springfield, in his individual capacity,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 06 C 3022—Jeanne E. Scott, Judge.
____________
ARGUED SEPTEMBER 27, 2007—DECIDED OCTOBER 26, 2007
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Defendants-Appellants Donald
Kliment and William Rouse appeal from the district
court’s denial of their Motion to Dismiss on the basis of
qualified immunity. They assert that they are entitled to
qualified immunity against Plaintiff-Appellee Ronald
Vose’s § 1983 claims which allege violations of Vose’s
First Amendment free speech rights. Vose argues that
his speech was protected, and therefore Kliment and
2 No. 07-1792
Rouse’s retaliation in response to that speech violated
his constitutional rights. The district court determined
that Vose’s speaking out about fellow police officer mis-
conduct was not part of his job duties, and thus was
protected speech that was clearly established before the
events of this case. Based on this, the district court held
that Kliment and Rouse were not entitled to qualified
immunity. We disagree with the district court’s conclu-
sion that Vose’s speech was constitutionally protected, and
therefore reverse its denial of qualified immunity to
Kliment and Rouse.
I. Background
In 2004, Vose was a police sergeant in the narcotics unit
of the City of Springfield Police Department and had
been with the Department for more than 26 years, in-
cluding over 13 years in the narcotics unit. At that time,
Donald Kliment was the Chief of Police of the City of
Springfield, and William Rouse was the Deputy Chief
of Police in charge of the investigations unit. As a sergeant
in the narcotics unit, Vose supervised the narcotics
unit and reported directly to Lieutenant David Dodson,
who in turn reported to Rouse.
While working in the narcotics unit, Vose learned that
detectives in the major case unit were using alleged drug
investigations as a means to gather evidence by searching
garbage from specific residences or locations in order to
have a lawful basis to obtain search warrants for those
locations. This search technique is called a “trash rip.”
Vose was worried that the trash rips could compromise
ongoing drug investigations being conducted by his unit,
and he was also concerned with the lack of coordination
between the narcotics unit and the major case unit. Vose
reviewed various applications for search warrants made
by the major case unit and discovered that the major
No. 07-1792 3
case unit detectives were not following City of Springfield
Police Department procedures for obtaining search war-
rants, that the detectives were violating laws applicable
to the search warrant process, and that the detectives
filed false or misleading affidavits with the courts in
support of the search warrants. Vose also learned that
search warrants were being obtained by major case unit
detectives by claiming that the warrants were for the
purposes of obtaining information on drug investigations;
in fact, no such drug investigations were undertaken by
the narcotics unit. Vose brought these concerns to the
attention of his supervisors, including Rouse and Kliment
during the summer or early fall of 2004. Vose also voiced
his concerns about the detectives’ apparent misconduct
at Department meetings during the fall of 2004. To Vose’s
knowledge, neither Kliment nor Rouse had taken any
action on his complaints.
On November 16, 2004, Vose told Rouse that some of the
detectives from the major case unit were scheduled to
testify at a criminal trial and that there may be a problem
with their testimony. Rouse told Vose to attend the trial
and report back to him. At the trial, Vose learned that
documents possessed by the Springfield Police Depart-
ment had not been turned over to the defense, as required
by law. One of the detectives at the trial confronted Vose
and accused him of working for the defendant. Vose
reported back to Rouse what he had learned and the
accusation made by the major case unit detective. Approxi-
mately two weeks later, Vose was served with an internal
affairs complaint related to the incident at the trial. In
December 2004, Rouse sent Vose a letter ordering him to
report in writing about the alleged misconduct of the
major case unit detectives, which Vose received immedi-
ately before he was scheduled for an approved vacation
leave. Vose advised Rouse and Kliment that he would
respond upon his return on January 3, 2005.
4 No. 07-1792
On February 14, 2005, Vose told Rouse that due to the
sensitive nature of his written report on the detectives’
alleged misconduct, which included criticism of Rouse’s
inaction, he would deliver the written report directly to
Kliment. Vose delivered the report on March 2, 2005.
Around that time, two newspaper articles were pub-
lished regarding the alleged misconduct and perjury by
the major case unit detectives.
Between the summer of 2004 and March 2, 2005, Rouse
began interfering with the operations of the narcotics
unit by revising work schedules and assigning another
sergeant to the narcotics unit, which resulted in action
taken by the narcotics unit without the supervision of
Vose.
On April 12, 2005, Vose met with Kliment, Rouse, and
two other police officers. Kliment told Vose to either “get
along” with the detectives and supervisors about whom
Vose had voiced concern or to request a transfer out of
the narcotics unit to the patrol division. Vose was ap-
parently instructed to make that decision and to report
it to Kliment on Friday, April 15, 2005.1 Worried that
Kliment and Rouse were going to cover up his com-
plaints about the misconduct, Vose met with the Mayor
of the City of Springfield on April 14, 2005 to discuss his
concerns.
At 4:50 pm on April 15, 2005, Vose delivered a memoran-
dum to Kliment with his decision to transfer out of the
narcotics division, noting that he considered the transfer
1
The complaint is unclear as to exactly what Vose was re-
quired to present to Kliment on Friday, April 15, 2005. Based on
Vose’s presentation of a memorandum with his decision on
Kliment’s ultimatum, we reasonably infer that he was in-
structed to document his decision in writing to Kliment on that
date.
No. 07-1792 5
to be involuntary. Four days later, Rouse issued a written
reprimand to Vose for delivering his memorandum to
Kliment later than ordered. Rouse ordered Vose to sign the
reprimand, and on April 25, 2005, Vose sent another
memorandum to Kliment contesting the reprimand.
Pursuant to Kliment’s directive, Rouse advised Vose that
he would be transferred from the narcotics unit to the
patrol division effective May 1, 2005. On May 14, 2005,
Vose was issued a written reprimand arising out of the
incident at the trial in November 2004.2
Three days after Vose delivered his decision to involun-
tarily transfer to the patrol division to Kliment, Vose
found two empty boxes with his name on them outside his
office, insinuating that Vose was to be “sent packing.”
After Vose transferred to the patrol division, a command
officer advised other Springfield police officers that Vose’s
“career in [the criminal investigation division] is history”
and that Vose had “burned his bridges.” Vose felt forced
to resign from the Springfield Police Department, and
did so on January 19, 2006.
On February 1, 2006, Vose filed a complaint in the
district court alleging violations of his constitutional
rights. Specifically, Vose alleged that his First Amend-
ment rights were violated when Kliment and Rouse
retaliated against him for voicing his concerns about the
conduct of the major case unit detectives. Vose claimed
that Kliment and Rouse retaliated against him through
the written reprimands, the interference with his role as
supervisor of the narcotics unit operations, and the
demotion to the patrol division. Kliment and Rouse moved
to dismiss the case, asserting that they were entitled to
2
Vose was subjected to an internal affairs interrogation on
February 23, 2005 regarding the November 2004 confrontation
with the detective at trial.
6 No. 07-1792
qualified immunity against Vose’s claims because the
applicable law on the rights of government employees to
speak out was not clearly established at the time of the
events. Kliment and Rouse hinged this argument on the
fact that the United States Supreme Court clarified and
narrowed the applicable law in Garcetti v. Ceballos, ___
U.S. ___, 126 S.Ct. 1951 (2006), which was decided after
the alleged violation in this case. On March 8, 2007, the
district court denied their motion, finding that Vose’s
right to speak out on matters relating to police miscon-
duct without being subjected to retaliatory employment
actions was clearly established before the events of this
case, and that Garcetti did not affect nor create this
right. Therefore, the district court held that Kliment and
Rouse were not entitled to qualified immunity against
Vose’s claims. Kliment and Rouse now appeal that deter-
mination, and additionally argue that Vose did not have
a constitutionally protected right to speak.
II. Discussion
On appeal, Kliment and Rouse present two arguments
in support of their position that they are entitled to
qualified immunity. First, they assert that Vose’s speech
was not constitutionally protected. Secondly, they claim
that the rights Vose alleges were violated were not
clearly established at the time of the relevant events.
To determine whether an official is entitled to qualified
immunity, we look to two issues. First, taken in the light
most favorable to the plaintiff, the facts must show
the official violated a constitutional right. Finsel v.
Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003) (citing
Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). Second, we
look to see if the right was clearly established at the
time of the alleged violation. Finsel, 326 F.3d at 906 (cit-
ing Doyle v. Camelot Care Centers, Inc., 305 F.3d 603,
616 (7th Cir. 2002)).
No. 07-1792 7
We review the district court’s ruling on a motion to
dismiss de novo. Sigsworth v. City of Aurora, 487 F.3d 506,
508 (7th Cir. 2007); Chi. Dist. Council of Carpenters
Welfare Fund v. Caremark, Inc., 474 F.3d 463, 471 (7th
Cir. 2007). We accept all well-pleaded factual allegations
in the complaint as true and construe all reasonable
factual inferences in favor of the plaintiff. Sigsworth, 487
F.3d at 508.
We begin our inquiry with whether Kliment and Rouse
violated Vose’s constitutional right to free speech. Kliment
and Rouse argue that Vose’s speech was not constitu-
tionally protected because Vose was speaking pursuant
to his official duties as the supervisor of the narcotics
unit, and not as a citizen. Vose argues that he spoke as
a citizen in reporting the alleged misconduct to Kliment
and Rouse, because he discovered the alleged misconduct
in an independent investigation that was not part of
his duties, and that the detectives were not under his
supervision and were in a separate police unit.
The First Amendment protects a public employee’s
right to speak as a citizen addressing matters of public
concern under certain circumstances. Garcetti v. Ceballos,
___ U.S. at __, 126 S.Ct. at 1957 (2006); see, e.g., Connick
v. Myers, 461 U.S. 138, 147-48 (1983); Pickering v. Bd. of
Educ., 391 U.S. 563, 568 (1968). “[W]hen public em-
ployees make statements pursuant to their official duties,
the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.”
Garcetti, ___ U.S. at ___-, 126 S.Ct. at 1960. Determining
the official duties of a public employee requires a practical
inquiry into what duties the employee is expected to
perform, and is not limited to the formal job description.
See id. at 1962-63 (explaining that formal job descriptions
rarely resemble the actual duties of an employee for
First Amendment purposes).
8 No. 07-1792
We focus our analysis exclusively on the initial oral
statements made by Vose to Kliment and Rouse because
all other speech regarded the same alleged misconduct
and most of it was pursuant to direct orders of Rouse
and Kliment. While Vose alleged that newspaper articles
were published on the alleged misconduct, he did not
allege in his complaint that he spoke to the newspapers.
Instead, it appears that Vose included this information
to bolster his position that the alleged misconduct is a
matter of public concern. We accept that police miscon-
duct is a matter of public concern, but as this analysis
illustrates, that is no longer the initial inquiry on First
Amendment retaliation claims. See Garcetti, ___ U.S. at
___, 126 S.Ct. at 1958 (“The first [inquiry] requires deter-
mining whether the employee spoke as a citizen on a
matter of public concern.”) (emphasis added).
Furthermore, we acknowledge that Vose has pleaded
that he had a discussion with the Mayor of Springfield
and that he believes Kliment was aware of this discus-
sion. However, taking the facts in the light most favor-
able to Vose, we cannot find that Vose’s discussion with
the Mayor on April 14, 2005 was a motivating factor for
the retaliation.3 See Mt. Healthy City Sch. Dist. Bd. Educ.
v. Doyle, 429 U.S. 274, 287 (1977) (employee must show
that his conduct was constitutionally protected and was
a “substantial” or “motivating” factor in the retaliation);
see also Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
2006) (“To make out a prima facie case of first amend-
ment retaliation, a public employee must present evid-
ence that: (1) his speech was constitutionally protected,
(2) he has suffered a deprivation likely to deter free
speech, and (3) his speech was at least a motivating
factor in the employer’s action.”). Vose contends that the
3
Nor does Vose assert this argument.
No. 07-1792 9
retaliation took four forms: (1) the interference with Vose’s
control over operations of the narcotics unit; (2) the
written reprimand for late submission of Vose’s response
to the ultimatum to transfer or “get along”; (3) the demo-
tion to the patrol division; and (4) the written reprimand
regarding the trial incident. While the meeting with
the Mayor took place on April 14, 2005, the alleged
retaliatory act of interference began sometime between
the summer of 2004 and March of 2005.
Likewise, the ultimatum to “get along” or transfer to the
patrol division was given on April 12, 2004. The written
reprimand for the trial incident was issued after the
meeting with the Mayor, but an internal affairs complaint
regarding this incident was filed on November 30, 2004. As
such, it would simply appear to be a natural sequence
of events: that the written reprimand followed the com-
plaint filing and the interrogation process described by
Vose’s complaint.
Lastly, although Vose received a written reprimand for
allegedly turning in a late memorandum, he had already
requested (albeit forced) the transfer to the patrol division,
and Vose contested the reprimand. Vose does not allege
any further retaliatory action taken based on an alleged
tardiness of his memorandum or his decision to contest
the written reprimand. See Massey, 457 F.3d at 716
(employee must suffer a deprivation). Therefore, we can-
not reasonably infer that the alleged retaliation was
motivated by Vose’s meeting with the Mayor.
Vose’s initial statements regarding the alleged miscon-
duct of the detectives in the major case unit were pursuant
to his official duties as supervisor of the narcotics unit.
Vose’s complaint states that Vose learned of the major
case unit detectives’ trash rips when he was working in the
narcotics unit, and that based on learning of the trash rips,
he reviewed various applications for search warrants made
10 No. 07-1792
by the major case unit detectives because he was con-
cerned about “the possibility of these trash rips [compro-
mising] ongoing investigations being conducted by his unit”
and “the lack of coordination between the activities of the
major case unit and the narcotics unit.”
While Vose contends that his official duties as supervisor
of the narcotics unit did not include responsibility for
investigating potential misconduct of officers in another
unit, this argument fails to consider his own admitted
interests in the investigation: that the alleged miscon-
duct could directly affect his narcotics unit. As a supervi-
sor of the narcotics unit, it can hardly be said that Vose
did not have a duty to make sure his unit’s investiga-
tions were not compromised by some outside influence, or
that Vose did not have a duty to coordinate his unit’s
work with other related units in the police department.
Vose may have gone above and beyond his routine duties
by investigating and reporting suspected misconduct in
another police unit, but that does not mean that he
spoke as a citizen and not as a public employee. “Th[e]
focus on ‘core’ job functions is too narrow after Garcetti,
which asked only whether an ‘employee’s expressions
[were] made pursuant to official responsibilities.’ ” Spiegla
v. Hull, 481 F.3d 961, 966 (7th Cir. 2007) (quoting Garcetti,
___ U.S. at ___, 126 S.Ct. at 1961). Because Vose was
responsible for the operations of the narcotics unit, his
speech regarding alleged misconduct that may affect
his unit was made pursuant to his official responsibilities,
and not as a private citizen, despite not having explicit
responsibility for the detectives involved or the search
warrants at issue.
Vose seeks to distinguish three post-Garcetti Seventh
Circuit cases in arguing that he spoke as a citizen, and not
as a public employee. First, in Mills v. City of Evansville,
452 F.3d 646 (7th Cir. 2006), an on-duty sergeant criticized
her superior’s plan to reduce the number of officers under
No. 07-1792 11
her supervision. The Mills Court held that the sergeant’s
criticism was not the speech of a citizen because her
speech was her “contributi[on] to the formation and
execution of official policy.” 452 F.3d at 648.
Vose asserts that his speech, unlike the sergeant’s
speech in Mills, was not a criticism of official policy, but
instead was speech designed to expose the wrongdoings
of officers beyond his control, and therefore Vose spoke
as a citizen, not a public employee. Vose misses the point.
It is not the negative or policy-oriented content of the
speech that is the focus of the inquiry post-Garcetti; it is
whether the speech was pursuant to his official duties or
whether the expression was that of a private citizen.
Garcetti, ___ U.S. at ___, 126 S.Ct. at 1959-60.
Next, Vose argues that his case is distinguishable from
Spiegla v. Hull, 481 F.3d 961 (7th Cir. 2007). In Spiegla,
a corrections officer responsible for maintaining prison
security reported a breach of a prison security policy by
another prison employee to her superior. 481 F.3d at 962-
63. The Spiegla Court held that the corrections officer
was speaking pursuant to her official duties—not as a
citizen—when she reported the security policy breach
because ensuring compliance with prison security policy
was part of what she was employed to do. Id. at 965-66.
Vose asserts that Spiegla differs because the correc-
tions officer was responsible for prison security, which
is what her speech addressed, but Vose was not responsi-
ble for policing the major case unit detectives. This
distinction fails as well, since Vose was employed to
oversee the narcotics unit’s investigations, which Vose
himself stated could have been compromised by the alleged
misconduct of the major case unit detectives. Like the
corrections officer, Vose was merely doing his job when he
reported to his superiors his suspicions of the detectives’
misconduct. A public employee’s more general responsi-
12 No. 07-1792
bilities are not beyond the scope of official duties for
First Amendment purposes. See Garcetti, ___ U.S. at ___,
126 S.Ct. at 1961; Spiegla, 481 F.3d at 966.
Finally, Vose attempts to distinguish Sigsworth v. City
of Aurora, 487 F.3d 506 (7th Cir. 2007). Sigsworth in-
volved a police investigator working on a multi-jurisdic-
tional task force investigating gang and drug activity. 487
F.3d at 508. Sigsworth, the police investigator, suspected
that certain task force members were tipping off the
targets in a task force drug raid, and reported this con-
cern to his supervisors. Id. This Court found that
Sigsworth “was merely doing what was expected of him” as
a member of the task force with supervisory responsibili-
ties and pursuant to task force policy, and therefore his
speech was not entitled to First Amendment protection.
Id. at 511.
Vose claims that the voluntary and independent nature
of his investigation into the suspected wrongdoings of the
major case unit detectives was not expected of him as a
supervisor in the narcotics unit, which distinguishes
him from Sigsworth. Again, Vose ignores his own state-
ments that his independent investigation stemmed from
his concerns about how the detectives’ misconduct might
affect his work in the narcotics unit. Ensuring the law-
ful operations of narcotics investigations was clearly
expected of Vose.
In his final argument, Vose asserts that Garcetti was
a narrow decision limited to the facts of the case.4 Vose
4
Garcetti involved a deputy district attorney who alleged that
he was subjected to employment retaliation for writing a
disposition memorandum in which he recommended dismissal of
a case on the grounds of government misconduct. The Supreme
Court held that the deputy district attorney’s memorandum was
(continued...)
No. 07-1792 13
asks us to interpret the holding in Garcetti to mean that
only speech pursuant to a public employee’s ordinary
daily job duties are unprotected by the First Amend-
ment. Such a reading, Vose claims, will foster the free
flow of ideas as constitutionally guaranteed by the First
Amendment. We decline to read beyond the text of Garcetti
since we consider the Garcetti standard of “official duties”
to be clear enough. While Vose may have gone beyond his
ordinary daily job duties in reporting the suspected
misconduct outside his unit, it was not beyond his offi-
cial duty as a sergeant of the narcotics unit to ensure the
security and propriety of the narcotics unit’s operations.
For the reasons stated, we find that Vose’s speech, albeit
an honorable attempt to correct alleged wrongdoing, was
not protected by the First Amendment. Kliment and
Rouse are entitled to qualified immunity. Because no
constitutional right was violated, Vose’s complaint fails
to state a claim under § 1983.
III. Conclusion
We REVERSE the district court’s holding that Kliment
and Rouse were not entitled to qualified immunity.
4
(...continued)
work product created while performing his official duties, and
therefore was not entitled to First Amendment protection. See
generally Garcetti, ___ U.S. ___, 126 S.Ct. 1951.
14 No. 07-1792
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-26-07