Anthony Gibson v. Jeffrey Kilpatrick

Case: 12-60905 Document: 00512423273 Page: 1 Date Filed: 10/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2013
No. 12-60905 Lyle W. Cayce
Clerk
ANTHONY GIBSON,
Plaintiff-Appellee Cross-Appellant
v.
JEFFREY KILPATRICK, in His Individual Capacity,
Defendant-Appellant Cross-Appellee
Appeals from the United States District Court
for the Northern District of Mississippi
Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.
KING, Circuit Judge:
While serving as the Chief of Police in Drew, Mississippi, Anthony Gibson
reported Mayor Jeffrey Kilpatrick to outside law enforcement agencies for
misuse of the city gasoline card. Months later, Kilpatrick began issuing written
reprimands to Gibson for a panoply of alleged deficiencies. Gibson subsequently
filed a lawsuit alleging unconstitutional retaliation as well as state tort law
claims. Kilpatrick moved for summary judgment, raising the defense of qualified
immunity and arguing that the state tort law claims were barred because Gibson
failed to comply with state notice requirements. The district court denied the
motion with respect to qualified immunity, but granted it with respect to the
state tort claims. Kilpatrick now brings this interlocutory appeal of the district
Case: 12-60905 Document: 00512423273 Page: 2 Date Filed: 10/29/2013
No. 12-60905
court’s order denying qualified immunity, and Gibson cross-appeals the district
court’s dismissal of one of his tort claims. Kilpatrick moves to dismiss the cross-
appeal for lack of jurisdiction. We hold that Kilpatrick is entitled to qualified
immunity and reverse the district court’s order to the extent that it denied
qualified immunity. Additionally, because we lack jurisdiction to hear Gibson’s
cross-appeal, we grant Kilpatrick’s motion to dismiss the cross-appeal.
I. Factual and Procedural Background
In 2006, Anthony Gibson applied to be Chief of Police in Drew, Mississippi.
Mayor Jeffrey Kilpatrick opposed Gibson’s application and supported another
candidate. The city’s Board of Aldermen (“Board”) rejected Kilpatrick’s
recommendation and hired Gibson in August 2006. As Chief of Police, Gibson
reported directly to Kilpatrick and the Board.
Sometime within the first four months of Gibson’s employment, a
subordinate at the police department informed Gibson that Kilpatrick was
misusing the city gasoline card to fuel his vehicle for personal trips. Gibson
confidentially reported his suspicions to the Federal Bureau of Investigation
(“FBI”), Drug Enforcement Agency (“DEA”),1 Mississippi Office of the State
Auditor (“OSA”), and Mississippi Attorney General’s Office. His reports to the
FBI and DEA were through contacts with whom he had worked in an official
capacity on prior occasions. The OSA initiated an investigation, and Gibson
worked with Investigator Karen Swain to assist in the OSA’s efforts. Because
Kilpatrick had to come to the police department to obtain the gasoline card,
Gibson was able to monitor Kilpatrick’s activities. Gibson instructed two police
dispatchers to make log entries every time Kilpatrick asked to use the card, and
he ordered a police officer to observe Kilpatrick following receipt of the card.
1
Gibson heard rumors that Kilpatrick might be involved in illicit drugs; however, this
allegation was never investigated or substantiated. It did prompt his decision to contact at
least the DEA.
2
Case: 12-60905 Document: 00512423273 Page: 3 Date Filed: 10/29/2013
No. 12-60905
Gibson and Swain also directed the city clerk to monitor receipts from Drew’s
gasoline provider to compare them with the information recorded in the log. In
September 2008, the investigation concluded, finding that Kilpatrick had
misused the city gasoline card, and the OSA ordered Kilpatrick to repay
approximately $3,000 to the City of Drew for his unauthorized use of the card.
Approximately nine months after the conclusion of the investigation,
Kilpatrick began entering written reprimands into Gibson’s personnel file. The
first reprimand came on June 8, 2009, and the reprimands continued for over
two years.2 In addition to the reprimands, Kilpatrick recommended Gibson’s
termination to the Board on several occasions, including for insubordination,
lack of visibility in the community, and failure to work an adequate number of
hours.
On December 1, 2010, Gibson brought this action in federal court against
Kilpatrick in his individual capacity, alleging violations of his First Amendment
right to free expression under 42 U.S.C. § 1983, and malicious interference with
employment and intentional infliction of emotional distress under Mississippi
law. Less than a year later, on October 5, 2011, the Board voted to terminate
Gibson’s employment. Gibson subsequently amended his complaint to add the
City of Drew as a defendant, alleging that the city violated his First Amendment
rights in retaliation for his filing suit against Kilpatrick.
2
The record contains nine different reprimands of Gibson from Kilpatrick over this
period for, inter alia, Gibson’s tardiness to a meeting because he was driving to the emergency
room for medical care; assisting a neighboring police department with a domestic violence
stand-off without first obtaining prior approval from the Board; holding a staff meeting that
caused the city to incur overtime payments; and allowing citizens to play basketball in the new
community center after the Board had approved the center’s use for a luncheon for city
employees.
3
Case: 12-60905 Document: 00512423273 Page: 4 Date Filed: 10/29/2013
No. 12-60905
Kilpatrick and the City of Drew jointly moved for summary judgment on
Gibson’s First Amendment and state law claims.3 Kilpatrick asserted that he
was entitled to qualified immunity as to the First Amendment claim because
Gibson’s speech was not constitutionally protected nor were Kilpatrick’s actions
objectively unreasonable. As for the state law claims, Kilpatrick and the City of
Drew argued that Gibson failed to file a notice of claim in compliance with the
Mississippi Tort Claims Act (“MTCA”), so the claims were barred. See Miss.
Code Ann. § 11-46-11 (2013). The court “reserved judgment” as to whether
Kilpatrick had violated Gibson’s constitutional rights and whether Kilpatrick
was entitled to qualified immunity; however, it entered judgment in the
defendants’ favor with respect to the state law tort claims. Kilpatrick moved for
reconsideration of his qualified immunity defense, and the court held that
Kilpatrick was not entitled to qualified immunity because Gibson’s speech was
protected under the First Amendment and the right was clearly established.
Kilpatrick timely appealed the district court’s summary judgment and
reconsideration orders. Gibson timely cross-appealed the district court’s
dismissal of his state law tort claim for malicious interference with employment.
Kilpatrick moved to dismiss the cross-appeal for lack of jurisdiction, and the
court ordered that motion to be carried with the case.
II. Qualified Immunity
A. Standard of Review
Typically, a party may not immediately appeal a district court’s decision
to deny summary judgment, but the denial of a motion for summary judgment
based on qualified immunity is a collateral order capable of immediate review.
Brown v. Strain, 663 F.3d 245, 248 (5th Cir. 2011). This court has jurisdiction
3
The district court denied summary judgment as to both Kilpatrick and the City of
Drew. Since the City of Drew is not party to this appeal, we do not address the municipal
liability claim.
4
Case: 12-60905 Document: 00512423273 Page: 5 Date Filed: 10/29/2013
No. 12-60905
over such an order only “to the extent that the district court’s order turns on an
issue of law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). We may
not review a district court’s decision to deny qualified immunity based on
evidentiary sufficiency on an interlocutory appeal, because such a determination
is not considered a “final decision.” Johnson v. Jones, 515 U.S. 304, 313 (1995);
Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). This court “consider[s]
only whether the district court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported for purposes of
summary judgment.” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en
banc). “Where factual disputes exist in an interlocutory appeal asserting
qualified immunity, we accept the plaintiffs’ version of the facts as true.” Id. “In
reviewing the district court’s conclusions concerning the legal consequences—the
materiality—of the facts, our review is of course de novo.” Id. at 349.
B. Discussion
To rebut a defendant’s qualified immunity defense, the plaintiff must
show: “(1) that the official violated a statutory or constitutional right, and (2)
that the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011) (citation omitted). A court may
consider either prong of the qualified immunity analysis first. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). We begin by addressing the first prong—
whether Kilpatrick’s reprimands violated Gibson’s First Amendment right to
free expression.
The Supreme Court has long held that government employees are not
stripped of their right to freedom of expression by virtue of their employment.
Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968). This right is not absolute, though, and we utilize a four-pronged
test to determine whether the speech of a public employee is entitled to
constitutional protection. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.
5
Case: 12-60905 Document: 00512423273 Page: 6 Date Filed: 10/29/2013
No. 12-60905
2011). A plaintiff must establish that: (1) he suffered an adverse employment
decision; (2) his speech involved a matter of public concern; (3) his interest in
speaking outweighed the governmental defendant’s interest in promoting
efficiency; and (4) the protected speech motivated the defendant’s conduct. Id.
(citations omitted). In 2006, the Supreme Court added what we have
characterized as a “threshold layer” to the second prong of the retaliation test.
See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (describing Garcetti v.
Ceballos, 547 U.S. 410 (2006)). Under this prong, “when public employees 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, 547 U.S. at 421.
While the court must consider factual circumstances to determine whether
speech is official, the determination is still a question of law. Charles v. Grief,
522 F.3d 508, 513 n.17 (5th Cir. 2008). Functionally, this threshold layer has
transformed our test, inserting an additional prong at which we consider
whether the speech was pursuant to the employee’s duties or as a citizen.
In this case, our analysis begins and ends at this new prong.4 Because
4
Kilpatrick also argues that a reprimand is not an adverse employment action under
the first prong. We assume without deciding that a reprimand is an adverse employment
action for the purposes of a § 1983 claim. While the Supreme Court has clarified that, under
Title VII, a plaintiff must prove that a reasonable employee would have found the alleged
adverse employment action “materially adverse,” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006), this court has not yet decided whether the Burlington standard for
adverse employment actions also applies to First Amendment retaliation cases, see DePree v.
Saunders, 588 F.3d 282, 288 (5th Cir. 2009) (explaining that this circuit has not “formally
applied Burlington to First Amendment retaliation claims”). As for the third prong, Kilpatrick
did not challenge that in the district court, but the district court conducted a balancing of the
parties’ interests and concluded that they favored Gibson. Kilpatrick does not raise this prong
in his appeal. Regarding the fourth prong, Kilpatrick asserts that there are insufficient facts
in the record to show that the speech motivated his conduct. We lack jurisdiction to consider
Kilpatrick’s arguments regarding the fourth prong, since issues regarding the sufficiency of
evidence are factual issues that may not be considered in an interlocutory appeal. See Gobert,
463 F.3d at 344.
6
Case: 12-60905 Document: 00512423273 Page: 7 Date Filed: 10/29/2013
No. 12-60905
Gibson’s report to law enforcement agencies was official speech, we must
reverse.
We turn first to the source of this new prong—Garcetti. In Garcetti, a
deputy district attorney reviewed an affidavit supporting a search warrant and
concluded that the affidavit contained misrepresentations. See 547 U.S. at
413–14, 421. The attorney reported his concerns to his supervisors and provided
one with a memorandum. Id. at 414. The supervisors held a meeting on the
matter, but they decided to proceed with the prosecution despite the attorney’s
concerns. Id. The defense moved to challenge the warrant and called the
attorney to testify at the hearing regarding his observations. Id. at 414–15. The
attorney complied, allegedly prompting retaliation from his supervisors. Id.
The Supreme Court concluded that the First Amendment did not shield
the attorney’s speech from discipline. The Court began its analysis by clarifying
which facts were not dispositive. The fact that the attorney “expressed his views
inside his office, rather than publicly,” did not render his speech unprotected,
since “[m]any citizens do much of their talking inside their respective
workplaces.” Id. at 420. Likewise, the fact that the “memo concerned the
subject matter of [the attorney’s] employment . . . is nondispositive. The First
Amendment protects some expressions related to the speaker’s job.” Id. at 421
(citations omitted). Ultimately, “the controlling factor . . . [was] that his
expressions were made pursuant to his duties as calendar deputy.” Id. As a
calendar deputy, it was his duty to advise his supervisors about how to proceed
with prosecutions, and the investigation of charges and preparation of
memoranda were part of his “daily professional activities.”5 Id. at 421–22.
While Garcetti clearly added an additional inquiry into our freedom of
5
The Supreme Court was not required to review findings of fact as to the scope of the
attorney’s professional duties since it was undisputed that the attorney produced the
memorandum pursuant to his duties as a prosecutor. Garcetti, 547 U.S. at 421.
7
Case: 12-60905 Document: 00512423273 Page: 8 Date Filed: 10/29/2013
No. 12-60905
expression analysis, the Court “did not explicate what it means to speak
pursuant to one’s official duties, although we do know that a formal job
description is not dispositive . . . [,] nor is speaking on the subject matter of one’s
employment.” Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir.
2007) (per curiam) (internal citations and quotation marks omitted) (hereinafter
“Williams”). The Supreme Court acknowledged that Garcetti did not “articulate
a comprehensive framework for defining the scope of an employee’s duties in
cases where there is room for serious debate,” thus signaling that lower courts
must flesh out the distinction between official and citizen speech. 547 U.S. at
424. We have since undertaken this task.
In Williams, we considered whether a memorandum sent by a school
athletic director to a school principal about the misuse of athletic funds was
official speech. 480 F.3d at 689–94. It was undisputed that the director was not
required to write memoranda as part of his regular job duties, but we
nonetheless held that his speech was made pursuant to his official duties. Id.
at 693. We reasoned that “[a]ctivities undertaken in the course of performing
one’s job are activities pursuant to official duties.” Id. The memorandum
concerned matters immediately within his purview as the athletic director—the
use of funds for the school athletic teams and the related accounting procedures.
Thus, the speech was made as part of his official duties. Id. at 694.
A year later, in Davis, we held that an information systems auditor spoke
pursuant to her official duties and as a citizen when she sent a complaint letter
to her supervisors and to the Chancellor of the University of Texas. 518 F.3d at
307–16. Davis worked for the university, and she conducted an audit of
university computers and discovered pornography. 518 F.3d at 307–08. Davis
approached various administrators to address the issue, but she considered their
response to be inadequate. Id. at 308–09. She sent a complaint letter to her
immediate supervisors and to the Chancellor, in which she noted that she had
8
Case: 12-60905 Document: 00512423273 Page: 9 Date Filed: 10/29/2013
No. 12-60905
also filed complaints with the FBI regarding possible child pornography and the
EEOC about workplace discrimination. Id. at 309, 314. Since Davis’s
complaints to the FBI and EEOC were clearly made outside of the chain of
command, and since her duties as an auditor did not require that she
communicate with law enforcement, we held that the complaints constituted
citizen speech. Id. at 316.
Deciding whether the speech in the letter was made pursuant to Davis’s
official duties required more careful deliberation since the letter discussed
multiple topics and had multiple recipients. Id. at 314. We considered
additional factors, including the relationship between the speech and the
employee’s job, whether the speech was made within the employee’s chain of
command, and whether the speech stemmed from special knowledge the
employee gained as a result of the employee’s position. Id. A portion of Davis’s
letter discussed the “inadequate response to her investigation of employees
accessing pornography,” which we held amounted to official speech since it
involved work that she had performed as part of her duties. Id. at 315–16.
However, the remainder of the letter addressed university-wide discrimination,
favoritism, and the compensation of executives, which constituted citizen speech
since it did not concern Davis’s duties as an auditor. Id. at 316.
In addition to our own precedent, Kilpatrick urges us to adopt the
reasoning of the Ninth Circuit in Huppert v. City of Pittsburg, 574 F.3d 696 (9th
Cir. 2009), and apply it to Gibson’s speech. Huppert relied on a 1939 California
appellate court decision to conclude, as a matter of law, that a police officer acted
pursuant to his official duties in cooperating with the FBI and testifying before
a grand jury. Id. at 706–10 (relying on Christal v. Police Comm’n of City and
Cnty. of S.F., 92 P.2d 416 (Cal. Dist. Ct. App. 1939)). Kilpatrick advocates for
this analysis and argues that we may rely on Mississippi’s statutory definition
9
Case: 12-60905 Document: 00512423273 Page: 10 Date Filed: 10/29/2013
No. 12-60905
of a law enforcement officer to define Gibson’s official duties as the Chief of
Police.6
In a recent en banc decision, the Ninth Circuit overruled Huppert “to the
extent that it improperly relied on a generic job description and failed to conduct
the ‘practical,’ fact-specific inquiry required by Garcetti.” Dahlia v. Rodriguez,
— F.3d —, 2013 WL 4437594, at *7 (9th Cir. Aug. 21, 2013) (en banc). Garcetti
clearly warned against the use of a written job description to define an
employee’s duties, explaining that
Formal 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, 547 U.S. at 424–25. The Court was concerned that the use of a written
job description might lead to “employers . . . [restricting] employees’ rights by
creating excessively broad job descriptions.” Id. at 424. In Dahlia, the Ninth
Circuit held that Huppert’s reliance on “a broad court-created job description
applicable to every member of a profession” was equally as problematic as
relying on an employer-created job description. 2013 WL 4437594, at *7.
Yet, Huppert’s analysis raises a pertinent question—to what extent should
a court consider statutory duties of a police officer in identifying the scope of his
or her official duties? Garcetti was concerned with courts limiting their analysis
to the written description of an occupation, divorced from the actual function of
the employee. We have since interpreted Garcetti’s language as proscribing our
exclusive reliance on an employer’s written description of duties when
6
Mississippi law defines a law enforcement officer, which Gibson undoubtedly was, as
“any person . . . whose primary responsibility is the prevention and detection of crime, the
apprehension of criminals[,] and the enforcement of the criminal and traffic laws of this state
and/or the ordinances of any political subdivision thereof.” Miss. Code Ann. § 45-6-3(c).
10
Case: 12-60905 Document: 00512423273 Page: 11 Date Filed: 10/29/2013
No. 12-60905
evaluating the merits of a First Amendment retaliation claim. See Williams v.
Riley, 275 F. App’x 385, 389 (5th Cir. 2008) (unpublished) (per curiam)
(hereinafter “Riley”). In Riley, jailers at a sheriff’s office reported their
supervisor’s abuse of an inmate. Id. at 387. The only facts in the record
concerning the jailers’ duty to report incidents of force came from a policy
manual; outside of the manual, the job duties of the jailers were “scarcely
mentioned.” Id. at 389. We could have “presumed that an employee’s official job
duties at a reasonable sheriff’s department would include reporting crimes
perpetrated at work by department members,” but the record did not actually
include such facts, so we remanded the case for further proceedings. Id. at
389–90.
Riley does not completely preclude the use of written job descriptions in
a First Amendment inquiry. In Davis, we expressly considered a university
memorandum that outlined the reporting procedures to be used by auditors in
order to understand Davis’s duty to report as well as the chain of command. 518
F.3d at 316. Unlike Riley, the record contained additional facts concerning the
duties of auditors, so our analysis was not limited to the policy memorandum.
The memorandum was important to our determination that some of the speech
in Davis’s letter to the Chancellor was official, thus showing that there is a
proper place for the use of written descriptions of duties in a First Amendment
retaliation analysis. Id.
We decline to rely exclusively on a statutory description of a generic law
enforcement officer to determine the scope of a specific police officer’s official
duties. However, we do not exclude written descriptions of duties or statutory
definitions from our analysis. In order to heed Garcetti’s admonition against
solely relying on the written description of an individual’s occupation, we will
consider Mississippi’s statutory language, viewing it as one factor among many.
This is consistent with our holding in Davis.
11
Case: 12-60905 Document: 00512423273 Page: 12 Date Filed: 10/29/2013
No. 12-60905
Turning now to the present matter, the district court concluded that
Gibson had shown that Kilpatrick violated his First Amendment rights, and in
so doing, explained that under Davis, Gibson’s reports constituted citizen speech.
The court supported this legal conclusion with the following facts: (1) Gibson
reported his suspicions to agencies outside of his chain of command; (2) there
was no evidence to show that Gibson’s duties included making reports to the FBI
or DEA; and (3) there was a lack of evidence regarding the context in which
Gibson reported his suspicions other than that the reports were confidential.7
These facts make this case superficially resemble this court’s decision in Davis.
However, Gibson’s speech is complicated by additional factors not fully
discussed by the district court. Although Gibson’s precise job description is not
contained in the record, we can consider surrounding facts to determine whether
his speech is related to any conceivable job duties. See Charles, 522 F.3d at 514.
The circumstances surrounding the incident, from how Gibson learned of the
misuse of the gasoline card to his involvement in the investigation, speak
volumes about his actual duties as the Chief of Police. First, Kilpatrick’s use of
the city gasoline card was brought to Gibson’s attention through a subordinate.
The fact that the complaint came to him in a professional capacity and through
the chain of command reveals that managing and responding to allegations of
the misuse of civic funds was likely within the scope of his employment. See
Davis, 518 F.3d at 313 (citing Williams, 480 F.3d at 694) (considering whether
the speech reflects a “special knowledge” gained by virtue of one’s employment);
see also Briscoe v. Jefferson Cnty., 500 F. App’x 274, 278 (5th Cir. 2012)
(unpublished) (per curiam) (holding that the appellant’s use of her “special
7
The district court also held that, in the absence of evidence regarding Gibson’s
duties, he was “more likely involved [in] responding to complaints from private citizens than
making them himself.” However, this is speculation, and not based on facts in the record. We
may not base our decisions on presumptions, regardless of how logical they may be. See Riley,
275 F. App’x at 389.
12
Case: 12-60905 Document: 00512423273 Page: 13 Date Filed: 10/29/2013
No. 12-60905
knowledge” of a record-keeping policy in order to substantiate a complaint is a
factor indicating that her speech was official).
Second, Gibson’s decision to report to agencies outside of his chain of
command does not necessarily show that he spoke as a citizen. Given his
position, there was arguably no one else to whom Gibson could confidentially
report the information. Gibson was the “chief law enforcement officer,” see Miss.
Code Ann. § 21-21-1, and according to the district court’s findings of fact, the
only entities to which he could have reported within the chain of command were
Kilpatrick and the Board. Reporting to Kilpatrick—the suspected
perpetrator—clearly was undesirable, while reporting to the Board might have
required public disclosure of Gibson’s suspicions, perhaps endangering the
subsequent investigation. Indeed, it appears that once Board members learned
of the investigation, one of them informed Kilpatrick. The state agencies Gibson
contacted may well have been the most appropriate entities to receive the
information, a fact other courts have found instructive. See Patterson v. City of
Earlington, 650 F. Supp. 2d 674, 680 (W.D. Ky. 2009) (holding that a police
chief’s report of a mayor’s alleged election law violations to state police is not
protected because state police were the most appropriate authority to carry out
the investigation); Mantle v. City of Country Club Hills, No. 4:07-CV-55 (CEJ),
2008 WL 3853432, at *4 (E.D. Mo. Aug. 15, 2008) (holding that a police chief’s
report of a mayor’s criminal conduct to a municipal court judge is not protected
because the police chief had no departmental supervisor and the judge was the
most appropriate authority to whom he could report).8
8
Kilpatrick argues that Gibson’s decision to contact individuals at the FBI and DEA
with whom he had previously worked indicates that he went through professional channels
to make the report. However, this is unpersuasive. Gibson could have contacted these
individuals because he had a personal relationship with them by virtue of the fact that they
met while working together, which would indicate that the speech was private. It is also
possible that these were the only people that Gibson could contact due to a limited regional
presence of these federal agencies. We simply do not know. Since there is little evidence as
13
Case: 12-60905 Document: 00512423273 Page: 14 Date Filed: 10/29/2013
No. 12-60905
Third, it appears that Gibson was able to monitor Kilpatrick’s use of the
gasoline card only because Kilpatrick was required to come to the police
department to collect it. Gibson fully took advantage of the authority afforded
to him as Chief of Police, and he instructed his police officers to participate in
the investigation by monitoring Kilpatrick’s activities; he even sent a copy of the
official police logs to the OSA. Although Gibson does not allege that his
participation in the investigation is protected, we consider his involvement
because it reflects his actual authority and ability to investigate and detect
crime. It supports our conclusion that Gibson was acting as a law enforcement
officer doing his job, not as a private citizen fulfilling his civic duty.
Finally, Mississippi law reinforces what the facts surrounding the
investigation show—that his “primary responsibility [was] the prevention and
detection of crime . . . [and] the apprehension of criminals.” See Miss. Code Ann.
§ 45-6-3(c). Gibson, as Chief of Police, was the City of Drew’s “chief law
enforcement officer” and had “control and supervision of all police officers
employed by” the city. Id. § 21-21-1. While we are not exclusively relying on the
statute’s definition to understand the duties of the Chief of Police, the statute
weighs in favor of finding Gibson’s speech as part of his professional
responsibilities.
Gibson’s argument that reporting illegal activity is the duty of all citizens,
and therefore must constitute protected citizen speech, does not alter our
conclusion. See Garcetti, 547 U.S. at 419 (“So long as employees are speaking as
citizens about matters of public concern, they must face only those speech
restrictions that are necessary for their employers to operate efficiently and
effectively.”). Other courts have rightly rejected similar arguments. In
particular, the D.C. Circuit in Bowie v. Maddox stated that:
to how Gibson knew these individuals and why he contacted them, we cannot say that this fact
weighs in favor of either official or citizen speech.
14
Case: 12-60905 Document: 00512423273 Page: 15 Date Filed: 10/29/2013
No. 12-60905
The critical question under Garcetti is not whether the speech at
issue has a civilian analogue, but whether it was performed
“pursuant to . . . official duties.” A test that allows a First
Amendment retaliation claim to proceed whenever the government
employee can identify a civilian analogue for his speech is about as
useful as a mosquito net made of chicken wire: [a]ll official speech,
viewed at a sufficient level of abstraction, has a civilian analogue.
653 F.3d 45, 48 (D.C. Cir. 2011) (citations omitted). Gibson’s argument
functionally reads an unsupported exception into Garcetti’s holding that “when
public employees 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.”
547 U.S. at 421. He would reverse this language, and instead of looking to
whether statements were made as part of an employee’s official duties, he would
ask only whether the speech could be classified as citizen speech and, if so, end
the inquiry. This is not Garcetti’s holding. See Bowie, 653 F.3d at 48.
Gibson acted as the Chief of Police when he contacted various federal and
state law enforcement agencies to report misuse of the city gasoline card.
Because we conclude that Gibson acted pursuant to his official job duties in
making the reports, we need not consider the remaining prongs of the First
Amendment retaliation test, since he cannot show that Kilpatrick violated his
First Amendment rights. In the absence of such a showing, Gibson cannot
overcome Kilpatrick’s qualified immunity defense. Thus, the district court erred
in denying Kilpatrick’s motion for summary judgment premised on qualified
immunity, and we reverse.
III. Motion to Dismiss
The district court dismissed Gibson’s tort claims without prejudice for
failure to comply with the MTCA notice requirement. Gibson cross-appeals,
arguing that the district court erred in dismissing his malicious interference
with employment claim, but he does not appeal the dismissal with respect to his
15
Case: 12-60905 Document: 00512423273 Page: 16 Date Filed: 10/29/2013
No. 12-60905
other tort claims. Kilpatrick moved to dismiss this appeal for want of
jurisdiction. We agree. See Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,
565 (5th Cir. 2003) (declining to exercise pendent appellate jurisdiction over a
state law tort claim in an interlocutory appeal of the district court’s order
denying qualified immunity). Accordingly, we grant Kilpatrick’s motion to
dismiss Gibson’s cross-appeal for lack of jurisdiction.
IV. Conclusion
For the foregoing reasons, we REVERSE the district court’s order denying
Kilpatrick’s motion for summary judgment based on qualified immunity and
GRANT the motion to dismiss Gibson’s cross-appeal for lack of jurisdiction.
Finally, we REMAND the case to the district court for further proceedings
consistent with this opinion. Gibson shall bear the costs of this appeal.
16