Filed: Oct. 16, 2000
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT OCTOBER 16, 2000 THOMAS K. KAHN No. 98-6665 CLERK _ D. C. Docket No. 91-00196-CV-AR-S VALINDA F. OLADEINDE, PATRICIA L. FIELDS, Plaintiffs-Counter-Defendants- Appellees-Cross-Appellants, versus BIRMINGHAM, CITY OF, a municipal corporation, Defendant-Counter-Claimant- Appellant-Cross-Appellee, RICHARD ARRINGTON, individually and in his capacity as Mayor of the City of Birmingham,
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT OCTOBER 16, 2000 THOMAS K. KAHN No. 98-6665 CLERK _ D. C. Docket No. 91-00196-CV-AR-S VALINDA F. OLADEINDE, PATRICIA L. FIELDS, Plaintiffs-Counter-Defendants- Appellees-Cross-Appellants, versus BIRMINGHAM, CITY OF, a municipal corporation, Defendant-Counter-Claimant- Appellant-Cross-Appellee, RICHARD ARRINGTON, individually and in his capacity as Mayor of the City of Birmingham, D..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_________________________ ELEVENTH CIRCUIT
OCTOBER 16, 2000
THOMAS K. KAHN
No. 98-6665 CLERK
_________________________
D. C. Docket No. 91-00196-CV-AR-S
VALINDA F. OLADEINDE, PATRICIA L. FIELDS,
Plaintiffs-Counter-Defendants-
Appellees-Cross-Appellants,
versus
BIRMINGHAM, CITY OF, a municipal corporation,
Defendant-Counter-Claimant-
Appellant-Cross-Appellee,
RICHARD ARRINGTON, individually and in his
capacity as Mayor of the City of Birmingham,
Defendant-Counter-Claimant,
ARTHUR DEUTSCH, individually and in his
capacity as Provisional Captain of Administrative
Vice-Narcotics Division,
JULIUS WALKER, individually and in his capacity
as Provisional Captain of Administrative Vice-
Narcotics Division,
Defendants-Appellants-Cross-
Appellees,
R. L. Webb, individually and in his capacity as
Provisional Captain of Internal Affairs Division,
Defendant.
________________________
Appeals from the United States District Court for the
for the Northern District of Alabama
________________________
(October 16, 2000)
Before BIRCH, BARKETT and ALARCÓN*, Circuit Judges.
ALARCÓN, Circuit Judge:
Former Police Chief Arthur Deutsch and Captain Julius Walker appeal from
the denial of their motions for a judgment as a matter of law filed pursuant to Rule
50 of the Federal Rules of Civil Procedure. The Rule 50 motions were filed by
Chief Deutsch and Captain Walker following the jury’s verdict awarding damages
to the plaintiffs, Valinda F. Oladeinde (“Sergeant Oladeinde”) and Patricia Fields
(“Officer Fields”), in this 28 U.S.C. § 1983 civil rights action. Chief Deutsch and
Captain Walker contend, inter alia, that the evidence produced at trial demonstrated
that the action should have been dismissed pursuant to the defense of qualified
*
Honorable Arthur L. Alarcón, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
2
immunity. They also assert that the district court improperly allowed the jury to
determine whether the plaintiffs engaged in any protected speech.
The City of Birmingham (“the City”) appeals from the district court’s order
granting Sergeant Oladeinde’s motion for injunctive relief and requiring the City to
promote her. The City maintains that the injunctive relief ordered by the district
court was contrary to the jury’s factual findings in its special verdict.
Sergeant Oladeinde cross-appeals from the judgment entered against her on
the City’s counterclaim for breach of implied contract. She argues that the
judgment resulted from improper jury instructions and argument.
We reverse the denial of Chief Deutsch’s and Captain Walker’s motions for
judgment as a matter of law because we conclude that the plaintiffs’ speech was
not protected under the First Amendment. We reverse the order requiring the City
to promote Sergeant Oladeinde because her First Amendment rights were not
violated. We affirm the judgment against Sergeant Oladeinde for breach of
implied contract because any error in the jury instructions or argument was
harmless.
I
FACTUAL BACKGROUND
A. Events that Occurred Prior to January 4, 1991
3
Officer Fields became a member of the Birmingham Police Department
(“BPD”) in June of 1970 as a citation officer. Her initial assignment was to issue
citations for parking meter violations. In 1972, she was promoted to the position
of police officer and assigned to patrol duty. In March 1989, Officer Fields was
assigned to the Administrative Vice-Narcotics Unit (“Narcotics Unit”). Her team
leader was Sergeant Oladeinde.
Sergeant Oladeinde joined the BPD in July of 1981. In November of 1985,
she was promoted to sergeant and assigned to the Narcotics Unit. Sergeant
Oladeinde and Officer Fields were assigned to the Organized Crime Drug
Enforcement Task Force (“Task Force”). The Task Force consisted of local, state,
and federal officers whose mission was to investigate drug trafficking, money
laundering, crimes of violence and firearms violations.
Beginning in 1988, Sergeant Oladeinde and Officer Fields were told by
informants that certain drug traffickers had suspicious contacts with city officials
and officers of the BPD. Sergeant Oladeinde filed a written report in 1988 with her
commanding officer setting forth alleged improper conduct of several BPD
officers.
In the summer of 1989, Sergeant Oladeinde participated in a meeting with
members of the Federal Bureau of Investigation and the United States Attorney’s
4
Office. Also present was Captain R. L. Webb (“Captain Webb”) of the BPD
Internal Affairs Division (“IAD”).1 The purpose of the meeting was to discuss
police corruption. The BPD representatives requested federal resources and
manpower to investigate allegations from informants that BPD police officers were
extorting money from drug dealers.
As a team leader, Sergeant Oladeinde was responsible for funds to be used
by officers in her group to purchase drugs in undercover operations. In the latter
part of 1989, Sergeant Oladeinde discovered that she could not account for some of
these funds. She reported this problem to her commanding officers. An internal
audit was conducted in January of 1990. The audit disclosed that Sergeant
Oladeinde could not account for $4,484 expended between March 1, 1986 and
December 31, 1989.
As a result of the internal audit, the BPD requested that the auditors from the
City’s Internal Audit Division examine the Narcotic Unit’s records. On February
21, 1990, Sergeant Oladeinde discovered that one of the city’s auditors, Mitchell
Smith (“Smith”), was “on deferred prosecution for drugs.” Sergeant Oladeinde
reported to the commander of the Narcotics Unit, Captain Johnnie Johnson, that
1
IAD is the unit of the BPD charged with the responsibility of investigating corruption by
members of the BPD.
5
Smith had access to records containing the names of confidential informants. At
Captain Johnson’s request, Smith was removed from the audit of the Narcotics
Unit’s records. The City’s Internal Audit Division determined that Sergeant
Oladeinde failed to account for $2,056 in BPD funds. Sergeant Oladeinde testified
that she could not explain what happened to this money. On advice of its counsel,
the City did not write a letter to Sergeant Oladeinde at that time to request that she
repay the money.
On May 10, 1990, Officer Nicholas Mazzarella filed a complaint alleging
widespread corruption in the Narcotics Unit. Chief Deutsch ordered the IAD to
question more than a dozen officers including Sergeant Oladeinde. On May 21,
1990, Sergeant Oladeinde and Captain Webb went to the United States Attorney’s
office. There, Sergeant Oladeinde reported that there was corruption in the BPD.
On June 14, 1990, Sergeant Oladeinde was interviewed by Officer V. O.
Little of IAD regarding the missing Narcotics Unit funds. On June 21, 1990,
Sergeant Oladeinde was subjected to three polygraph examinations by Officer
Little. Officer Little informed Sergeant Oladeinde that the tests revealed that she
was “having trouble” with questions concerning money, stealing, and the sale of
information.
6
Officer Little gave Sergeant Oladeinde another polygraph examination on
June 26, 1990. On June 27, 1990, Officer Daugherty also gave her a polygraph
examination. On July 2, 1990, Captain Webb met with the United States Attorney,
Frank Donaldson. The United States Attorney requested that the BPD temporarily
suspend the investigation of Sergeant Oladeinde because she was assisting the
United States Attorney’s Office with its case against Curtis Motley, an alleged
drug dealer. The United States Attorney wanted to make sure that Sergeant
Oladeinde was available to assist in prosecuting Motley and that her credibility was
not damaged by an active investigation of her. Captain Webb agreed to the
request. On July 19, 1990, Sergeant Oladeinde wrote a letter addressed to Chief
Deutsch complaining about the length of the IAD’s investigation of the Narcotics
Unit stemming from Officer Mazzarella’s complaint.
On July 31, 1990, Captain Webb and Captain Walker testified under
subpoena during the trial of Ricky Germany that they would not believe the
testimony of Sergeant Oladeinde. Captain Walker’s opinion was based upon
hearing Sergeant Oladeinde’s testimony in two depositions, her responses during
polygraph examinations, and her failure to account for funds she had received for
the purchase of narcotics in the undercover work of her unit. The following day,
Sergeant Oladeinde complained to members of the United States Attorney’s Office.
7
She reported that Captain Webb was involved with a known felon, David Swanson,
and had improperly informed him that he was under investigation.
Captain Walker was assigned as the Commander of the Narcotics Unit in
September 1990. On October 2, 1990, Mr. Swanson complained to the
Birmingham City Council during a public meeting that Sergeant Oladeinde was
harassing him. On October 3, 1990, Sergeant Oladeinde reported to Captain
Walker that she had observed Lieutenant James Hope’s car parked at Regina
Hunter’s house for several hours. Regina Hunter, the wife of a convicted drug
dealer, had previously been convicted of possession of cocaine. Captain Walker
told Sergeant Oladeinde to do her job and “[n]o retribution would occur.”
In November 1990, Officer Fields, while undergoing a polygraph
examination, told Sergeant Daugherty that she would not tell Lieutenant Hope
anything because of his alleged personal involvement with Regina Hunter. Officer
Fields filed a complaint with the IAD concerning Lieutenant Hope. When Officer
Fields returned to the Narcotics Unit, Captain Walker told her he was very angry
and stated that he was “like a snake fixing to strike.” Officer Fields testified that
she felt intimidated by Captain Walker’s demeanor.
On November 6, 1990, Sergeant Oladeinde was questioned about Lieutenant
Hope. Lieutenant Hope and Captain Walker were questioned on November 7,
8
1990, about Officer Field’s complaint about Lieutenant Hope. On November 8,
1990, Sergeant Oladeinde was given a polygraph examination by Officer
Daugherty. He telephoned Sergeant Oladeinde the next day to inform her that she
passed the polygraph examination. Officer Fields and Captain Walker were not
asked to submit to a polygraph examination. Later that month, Lieutenant Hope
was removed from the Narcotics Unit and demoted because he refused to
discontinue his contacts with Regina Hunter.
B. Events that Occurred on January 4, 1991 and Thereafter
On January 4, 1991, Sergeant Oladeinde requested permission to meet with
Captain Walker. When she and Officer Fields arrived in Captain Walker’s office,
he placed a derringer, a short barreled pocket pistol, on his desk and set up two
bullets next to it. The derringer was broken down so that you could see through
the barrels. Captain Walker then stated: “I don’t need my gun to talk to you ladies,
do I?” Officer Fields replied: “Captain Walker, are you planning on committing
suicide?” Shortly thereafter, Captain Walker put the derringer back in the desk
drawer.
9
This exchange occurred before Sergeant Oladeinde and Officer Fields
disclosed the purpose of their visit.2 The record discloses the following testimony
regarding the derringer:
Q. [Cross-examination of Sergeant Oladeinde by Mr.
Thomas, counsel for Captain Walker]. Now as I
understand – as I have understood your testimony today
in trial and your deposition, the derringer was placed –
pulled out of the drawer and placed on the table prior to
anything being said?
A. That’s right, Mr. Thomas. I hadn’t said a word other than walk
in the captain’s office where he invited me to come in there, and
he pulled a gun out of his desk at me.
Q. And you had not said one word?
A. I hadn’t uttered a word before he got the gun out.
Officer Fields asked Captain Walker for permission to talk to the district
attorney about the “records case” because she had seen something involving two
police officers. Captain Walker asked Officer Fields to describe the information
she wished to report to the district attorney. Officer Fields refused. Sergeant
Oladeinde informed Captain Walker that Officer Fields had revealed the facts to
2
At this time, an investigation was ongoing regarding whether Chief Deutsch had
tampered with the records pertaining to the arrest of the mayor’s daughter.
10
her. Sergeant Oladeinde refused Captain Walker’s order that she reveal the
information to him.
Captain Walker asked Officer Fields and Sergeant Oladeinde whether they
had information that an officer had committed a crime, or may have done so.
Officer Fields said: “No.” Following their refusal to disclose the nature of the
conduct observed by Officer Fields, Captain Walker denied their request to go to
the district attorney. Instead, he directed them to make their report to the IAD.
After leaving Captain Walker’s office, Sergeant Oladeinde and Officer
Fields went to Deputy Chief Howard Miller’s office and asked him to seize the
derringer from Captain Walker. He refused. Captain Walker informed Deputy
Chief Miller later that same day about the derringer incident. Captain Walker
stated that it was a stupid mistake and that he “messed up . . . cracked a joke and it
didn’t work.” Sergeant Oladeinde wrote a letter to Deputy Chief Miller
complaining about the incident.
Upon the recommendation of Deputy Chief Miller, Joe Whatley, an attorney
for the City, met with Sergeant Oladeinde and Officer Fields on January 8, 1991
regarding the derringer incident. On January 10, 1991, Sergeant Oladeinde wrote a
follow-up letter to Mr. Whatley, documenting their conversation and stating, “I do
not AT THIS TIME wish to make a complaint.” Sergeant Oladeinde reported to
11
Chief Deutsch on January 11, 1991, in a written memorandum, that she had been in
contact with Mr. Whatley regarding “the documents case.” Captain Walker’s
conduct was investigated. He received command discipline for displaying the
derringer.
On January 16, 1991, Captain Walker sent a memorandum recommending
that Sergeant Oladeinde be transferred from the Narcotics Unit. The memorandum
stated:
One of the supervisors currently assigned to the Administrative Vice
Division-Narcotics Detail is Sergeant V. F. Oladeinde. It is my
request that for the good of the Department as well as the good of the
Sergeant that consideration be given to the possible transfer of this
supervisor into another Unit. Sergeant Oladeinde has been assigned
to Narcotics since her promotion to the rank of Sergeant. She has, for
the most part, done an adequate job. However, I have noticed from
the inception of my command that there are several deficiencies in this
supervisors performance. It appears that this sergeant has an “ax to
grind” either with me or with other superior officers.
It is my concern that this Unit operate in an effective, efficient and
professional manner. This cannot be achieved with the turmoil from
within.
This supervisor appears to run her team in such a manner that it is not
conducive to a smooth running operation. I feel that this sergeant’s
lack of supervisory skills is the prime reason for this.
I recommend that this sergeant be put in a patrol atmosphere where
she would undoubtedly learn supervisory skills in a structured
environment. With this type training this supervisor may one day
become a well rounded supervisor and possibly may be able to see a
12
broader picture concerning this Department as opposed to the narrow
minded view she has exhibited in the past.
On or about January 24, 1991, Captain Walker met with Sergeant Oladeinde,
Officer Fields, and Lieutenant J.J. Todd. Sergeant Oladeinde stated that a reliable
confidential informant had reported to her that Erica Arrington, the daughter of
Birmingham’s mayor, Jeff Germany, a Jefferson County Commissioner, and
William Bell, a city council member, were seen at a party around a table that had
cocaine on it. Captain Walker asked Sergeant Oladeinde to identify her informant.
She refused to do so.
Captain Walker then instructed Sergeant Oladeinde and Officer Fields not to
make this information public unless it was verified and then submitted to him.
Captain Walker explained to them that informants sometimes lie “[s]o make real
sure that you verify this information before you destroy lives.”
On January 25, 1991, Captain Walker received a memorandum from
Sergeant Oladeinde in which she informed him that she planned to present the
information regarding Erica Arrington, Jeff Germany, and William Bell to the
Federal Task Force. Prior to that date, Sergeant Oladeinde had not complied with
Captain Walker’s order that the information must be verified before she made the
information public. On the same date, Deputy Chief Miller transferred Sergeant
13
Oladeinde to a patrol unit. Chief Deutsch, as department head, signed the
personnel transfer form.
Sergeant Oladeinde and Officer Fields filed this action on January 29, 1991.
They alleged inter alia that they were harassed and punished for exercising their
First Amendment rights in violation of federal and state law.
On February 1, 1991, Officer Fields was transferred “due to the current
conflict with supervision within [her] unit . . . .” In March 1991, Sergeant
Oladeinde applied for a promotion to police lieutenant. It was the first time she
was certified as eligible for a promotion to lieutenant. The BPD utilized the
following procedure in promoting an officer. The chief of police would request
from the Personnel Board a list of persons certified as eligible for the promotion.
The chief would then call a meeting of deputy chiefs and captains to decide which
candidates on the list should be promoted. The names of the candidates selected
for promotion would be forwarded to the mayor for final approval. The mayor
testified that he had always accepted the recommendations from Chief Deutsch
regarding promotions. At trial, an officer who participated in the meeting testified
that when Sergeant Oladeinde’s name was mentioned Chief Deutsch said, “no,
scratch her” and there was no further discussion of her candidacy. Sergeant
Oladeinde was not promoted. On June 3, 1991, the plaintiffs filed an amended
14
complaint which alleged facts regarding Officer Fields’s transfer and Sergeant
Oladeinde’s failed promotion request.
II
PROCEDURAL BACKGROUND
Our resolution of the issues presented in this appeal has been hampered by
the failure of the plaintiffs to specify which, if any, of the numerous written reports
and verbal statements made by Sergeant Oladeinde and Officer Fields were
protected by the First Amendment. This confusion and lack of specificity in the
plaintiffs’ theory of their case continued up to the time of oral argument. The
district court’s failure to perform its duty to determine which of plaintiffs’ speech,
if any, was protected, and to instruct the jury accordingly, unnecessarily
complicated our task.
The defendants named in the initial complaint filed a motion to dismiss it, or
in the alternative, to certify the following questions for an interlocutory appeal
pursuant to 28 U.S.C. § 1292(b): (1) whether the district court erred in denying the
defendants of certain discovery requests? (2) whether the district court erred in
ruling that “under the Task Force arrangement in effect between the United States
and defendant City of Birmingham, plaintiffs had the right to give paramount
loyalty to the United States rather than to the defendant City and its superior police
15
officials”? and (3) whether the district court erred in denying the defendants access
to in camera materials and the names of confidential informants?
On April 5, 1991, the district court denied the motion to dismiss and granted
the alternative motion for a certification to this court of the issues raised by the
defendants. This court denied the petition for permission to appeal pursuant to
§ 1292(b). In explaining the basis for its order, this court noted that “the complaint
presented to us with the petition – is a typical ‘shotgun’ pleading, in that in one
count the plaintiffs have presented multiple claims for relief, supporting them with
a rambling set of factual allegations that may or may not be relevant to each
claim.” Oladeinde v. City of Birmingham, No. 91-2063 (11th Cir. May 8, 1991)
(citation omitted). Citing Pelletier v. Zweifel, 921 F.2d 1465 (11th Cir. 1991), this
court commented that where a plaintiff fails to comply with the requirement of
Rule 8 of the Federal Rules of Civil Procedure to provide a short, clear, and
concise statement of the claim, “then the burden shifts to the trial judge; acting sua
sponte, the judge should require a repleader.” Oladeinde, No. 91-2063 (11th Cir.
May 8, 1991).
On June 3, 1991, the plaintiffs filed an amended complaint seeking damages
and equitable relief for the deprivation of their rights to free speech, equal
protection, and freedom of association. On June 12, 1991, the defendants filed
16
motions for a dismissal based on (1) the plaintiffs’ failure to conform to Rule 8 of
the Federal Rules of Civil Procedure, (2) the plaintiffs’ failure to state a claim for
which relief might be granted, (3) the argument that the substance of the alleged
activity was privileged from discovery, (4) the argument that the individual
defendants were entitled to qualified immunity, and (5) the argument that the
district court should not exercise pendent jurisdiction. The district court denied the
motions. It concluded that the plaintiffs’ complaint conformed to procedural rules.
It did not explain the bases for the denial of the defense of qualified immunity.
The individual defendants filed an interlocutory appeal.
This court began its analysis of the issues raised by the individual defendants
by stating: “Many factors complicate our review of defendants’ three claims, but
no factor plays as dominant a complicating role as the long and wordy nature of
plaintiffs’ amended complaint.” Oladeinde v. City of Birmingham, 963 F.2d 1481,
1484 (11th Cir. 1992). This court also commented that “[w]e are perplexed and
frustrated by the fact that, despite clear guidance from this court, ‘the complaint
presented to us . . . [continues to be] a typical ‘shotgun’ pleading.’”
Id.
Nevertheless, this court concluded that it would review the defendants’ contentions
and would not remand for future repleading “in light of the fact the case is
presented to us for the third time (although the case has yet to advance much
17
beyond the initial pleading stage) and in the interest of judicial economy and
efficiency.” Id.
This court rejected the defendants’ contention that the plaintiffs had violated
the requirement that a pleading contain a short and plain statement of the claim
notwithstanding “serious doubt that the complaint complies with Rule 8.”
Id. This
court held that the plaintiffs had failed to plead sufficient facts to support their
claims of a denial of due process, equal protection and freedom of association. See
id. at 1485. This court concluded, however, that the plaintiffs had pleaded
sufficient facts, when taken as true, to state a First Amendment claim against Chief
Deutsch, Captain Walker, and Captain Webb, for which relief might be granted.
See
id. at 1486. The court held that the plaintiffs had failed to state a § 1983 claim
against the mayor, Richard Arrington. See
id. at 1486-87.
This court next addressed the question whether Chief Deutsch, Captain
Walker, and Captain Webb were entitled to qualified immunity. This court
affirmed the district court’s order denying qualified immunity for the remaining
individual defendants. This court explained its ruling as follows:
[A]t this stage in the proceedings, the qualified immunity defense of
Deutsch, Walker and Webb fails because the limited record before us
does not support defendants’ contention that, in light of prevailing
legal standards, their interest in efficiently operating the police
department arguably outweighed plaintiffs’ free-speech rights on a
matter of public concern. We stress, however, that defendants retain
18
the right to assert the qualified-immunity defense at the next stage of
the proceedings (and, for that matter, throughout the proceedings) as
more facts are developed.
Id. at 1487.
On July 1, 1993, the individual defendants filed a motion for summary
judgment, again asserting the defense of qualified immunity. In denying the
motion, the district court relied on this court’s conclusion that the limited record at
the motion to dismiss stage in the proceedings did not support the individual
defendants’ contention that their interests in efficiently operating the police
department outweighed the plaintiffs’ First Amendment rights. The district court
stated that, since the 1992 opinion of the 11th Circuit, the “defendants have offered
no significant new evidence . . . to justify their qualified immunity defense.”
The individual defendants filed an interlocutory appeal from the denial of
their motion for summary judgment on qualified immunity. On June 14, 1996, this
court affirmed the district court’s order in an unpublished disposition without
19
setting forth its rationale, pursuant to Eleventh Circuit Rule 36-1.3 Oladeinde v.
City of Birmingham, No. 95-6352 (11th Cir. June 14, 1996).
The case proceeded to trial on June 22, 1998, on the plaintiffs’ First
Amendment claims against the City, Chief Deutsch, Captain Walker, and Captain
Webb. The plaintiffs testified as summarized above. At the close of the plaintiffs’
case in chief, the individual defendants moved for judgment as a matter of law,
pursuant to Rule 50(a)(1)(2) of the Federal Rules of Civil Procedure based on the
defense of qualified immunity. The district court did not rule on the motion until
after the jury returned its verdict.
3
Rule 36-1 states:
When the court determines that any of the following circumstances exist:
(a) the judgment of the district court is based on findings of fact that are not clearly
erroneous;
(b) the evidence in support of a jury verdict is sufficient;
(c) the order of an administrative agency is supported by substantial evidence on the
record as a whole;
(d) a summary judgment, directed verdict, or judgment on the pleadings is supported
by the record;
(e) the judgment has been entered without an error of law;
and an opinion would have no precedential value, the judgment or order may be affirmed
or enforced without opinion. 11th Cir. R. 36-1.
20
The district court did not instruct the jury regarding which instances of
plaintiffs’ speech were protected. Instead, the court instructed the jury as follows:
Where the speech activity that each plaintiff engaged in
was protected and where it was not protected, where it
was guaranteed by the First Amendment and where it
was not, I’m not going to try to go through everything
they said and did in every context to tell you this was
protected; this was not protected; this was. It’s going to
be for you to determine based on whether it was a matter
of public concern, not just internal private matters . . . I
am saying that in this case, at least to some degree, the
speech they engaged in, or the activities that could be
described expression, were protected . . . .
Following the court’s charge to the jury, the defendants objected to this instruction
on the ground that the court had improperly required the jury to decide which
speech, if any, was protected. The court declined to reinstruct the jury.
The court requested that the jury respond to special interrogatories. The
court inquired whether the plaintiffs had proved by a preponderance of the
evidence that each of the individual defendants “did something or failed to do
something with the intent to adversely affect Sergeant Oladeinde [or Officer
Fields] for the purpose of suppressing [their] exercise of constitutionally protected
speech or for the purpose of retaliating against [them] in response to any
constitutionally protected expression or expressions by [them]?” The jury was not
asked to specify which of the plaintiffs’ statements were constitutionally protected.
21
The jury responded affirmatively regarding Chief Deutsch and Captain Walker.
The jury found that Captain Webb did not suppress constitutionally protected
speech nor did he retaliate against Sergeant Oladeinde and Officer Fields for
exercising their freedom of expression.
The jury was also asked to respond to the following question:
[D]id Oladeinde [or Fields] prove by a preponderance of the evidence
that defendant City had some policy or policies that encouraged or
allowed some violation or violations of 42 U.S.C. § 1983 by Deutsch,
and/or by Webb, and/or by Walker, and or by Deputy Chief Miller?
The jury answered “No” to this interrogatory. The jury was questioned regarding
whether the individual defendants were policy makers for the City in committing
“any violation of 42 U.S.C. § 1983.” The jury gave a negative response to this
question.
The jury found that Chief Deutsch was liable to Sergeant Oladeinde in the
amount of $36,379.20. The jury found the that Chief Deutsch was not liable to
Officer Fields. The jury found that Captain Walker was liable to Sergeant
Oladeinde in the amount of $150,000 and liable to Officer Fields in the amount of
$125,000. The jury rendered a verdict in favor of the City and Captain Webb as to
the claims filed by each of the plaintiffs. The jury also found that Sergeant
Oladeinde owed the City “$2,056 plus 6% interest to date” on its counterclaim.
22
On July 8, 1998, the district court denied the individual defendants’ initial
motions for judgment as a matter of law. On the same date, Sergeant Oladeinde
filed a motion for judgment as a matter of law seeking equitable relief. The district
court treated Sergeant Oladeinde’s motion as a motion for additional relief
pursuant to Rule 59 of the Federal Rules of Civil Procedure.
Chief Deutsch and Captain Walker filed renewed motions for judgment as a
matter of law, or for a new trial, on July 14, 1998. They again asserted the defense
of qualified immunity. They also argued that the district court erred by failing to
instruct the jury as to which speech was protected.
In their opposition to the renewed motion for a judgment as a matter of law,
the plaintiffs maintained that the jury’s verdicts were based on the plaintiffs’
request to take information regarding tampering of the records to the district
attorney, the conduct of Captain Walker on January 4, 1991, and the transfer and
failure to promote Sergeant Oladeinde thereafter, as the suppression of protected
speech of public concern, and the defendants’ retaliatory acts.4 In arguing that the
4
The plaintiffs opposition reads as follows:
The distinction drawn in Morgan v. Ford, 6 F.3d 750 (11th
Cir. 1993), and Morris v. Crow, No. 97-2784, Slip. op. (11th Cir.
June 9, 1998) (per curiam) (two decisions which post-date the law
of this case), between speech for private advantage on one hand
(i.e., “upon matters of personal interest,” Morris, ante, and matters
of public concern raised in ways which show that private
23
admission of the testimony of witnesses from the United States Department of
Justice was harmless, the plaintiffs stated that their testimony “revealed only or
chiefly the DOJ’s witnesses’ knowledge of events through 1990. The liable
conduct of Walker and Deutsch, as reviewed above, took place after that time.”
advantage was not the main aspect of the speech, applies with full
force in the plaintiffs’ favor. The verdicts against Deutsch and in
Walker are consistent with the distinction and clearly supported by
it.
At the meeting in which Walker threatened and intimidated
them, the plaintiffs spoke of evidence of official wrongdoing,
namely Deutsch’s role in the so-called “jail records case.” The
plaintiffs testified that Walker ranted against them throughout the
meeting and continued to pose a derringer and bullets after they
asked him (unsuccessfully) for permission to take the evidence to
outside authority (the county D.A.). Walker denied the plaintiffs’
accounts, describing the gunplay as an “ice-breaker.” The jurors
believed the plaintiffs instead. (They may have also considered
rebuttal evidence which powerfully impeached Walker’s
credibility.)
The plaintiffs notified their superiors of Walker’s
possession and use of the derringer, an unauthorized firearm they
reported (speech also on official wrongdoing). Walker responded
by officially complaining against plaintiff Oladeinde, a step which
led, the circumstances indicate, to her transfer from narcotics duty.
(footnote omitted.) Deutsch authorized the transfer (the evidence
proves), a fact from which the jurors could infer Deutsch’s
knowledge of the instant events. (The inference could have been
drawn, and properly so, separate from or together with other
evidence.)
Even before Walker’s complaint, an emissary of the City of
Birmingham (City) and Mayor Arrington tracked the plaintiffs
down to question them about the information they communicated
to Walker during the meeting. (The emissary was attorney
Whatley, whom the Mayor conceded had been retained.) Again,
jurors could infer Deutsch’s knowledge of the events. Thereafter,
in short order (a matter of months), Deutsch denied Oladeinde’s
promotion to lieutenant. The evidence of that act showed it to be
retaliatory, or so the jury found.
24
(emphasis added). In footnote 8 of their opposition, the plaintiffs stated: “This
point refers only to jury findings on Walker and Deutsch’s conduct in January,
1991, and afterward which is the period of time for the specific events reviewed
above.” The plaintiffs also asserted that knowledge of what took place at the
meeting could be imputed to Chief Deutsch, and that their transfers and Sergeant
Oladeinde’s failed promotion request stemmed from their request for permission to
report Chief Deutsch’s involvement in tampering with the records of the arrest of
the mayor’s daughter.
The district court denied the renewed motions for judgment as a matter of
law. The court explained that “the big ticket item” supporting the jury’s finding
that Captain Walker violated the plaintiffs’ constitutional rights “was the derringer
incident,” and his conduct in testifying that Sergeant Oladeinde could not be
believed under oath in the Ricky Germany trial and the transfer of Sergeant
Oladeinde.5 The court communicated that “there was gracious plenty of evidence
to demonstrate that Captain Walker consciously intended to quiet Sergeant
Oladeinde and Officer Fields and that he undertook to accomplish that purpose in
5
Although the district court included Captain Walker’s testimony as one of the relevant
acts of retaliation, he testified in the Ricky Germany trial on July 31, 1990. This was over five
months before the plaintiffs’ meeting with Captain Walker, at which time, they requested
permission to report information regarding the records tampering case to the district attorney.
His testimony, therefore, could not have been in retaliation for that speech.
25
ways causing plaintiffs physic [sic] damage, by frightening and embarrassing
them.”
The court further concluded that “[i]t is an entirely permissible inference that
Chief Deutsch knew of plaintiffs’ visit to Captain Walker that occasioned the
display of the derringer.” The court did not set forth the facts in evidence that it
believed supported this inference. The court also observed that “[i]t was well
within the realm of reason for this jury to have found a causal connection between
Deutsch’s decision to deny Oladeinde a promotion and Oladeinde’s attempt to
speak out on matters of passing public concern.”
On July 29, 1998, the court granted Sergeant Oladeinde’s motion for
injunctive relief against the City, and ordered the City to promote her to the
position of lieutenant. The City, Chief Deutsch, and Captain Walker filed timely
notices of appeal from the final judgment entered against them. Sergeant
Oladeinde filed a cross-appeal challenging the validity of the judgment in favor of
the City on its counterclaim for $2,056.
We have jurisdiction over the appeals from the final judgments entered in
this matter pursuant to 28 U.S.C. § 1291. We will first address the appeal filed by
Chief Deutsch and Captain Walker. We will next consider the City’s appeal, and
conclude our review by deciding the merits of Sergeant Oladeinde’s cross-appeal.
26
III
APPLICABILITY OF THE DEFENSE OF QUALIFIED
IMMUNITY ON THIS RECORD
A. Law of the Case
Chief Deutsch and Captain Walker contend that the judgments against them
must be reversed because the trial record demonstrates that they are entitled to
qualified immunity. The plaintiffs maintain that Chief Deutsch and Captain
Walker are foreclosed from prevailing on this defense because this court has
previously decided the issue against them. They assert that this court’s prior
decisions regarding the applicability of the defense of qualified immunity
constitute the law of the case. Thus, before addressing the merits of the individual
defendants’ contention that they are entitled to qualified immunity, we must
determine whether we are precluded from reviewing this issue based on the law of
the case doctrine.
“Under the law of the case doctrine, both the district court and the appellate
court are generally bound by a prior appellate decision of the same case.” Venn v.
St. Paul Fire & Marine Ins. Co., 99 F.3d 1058, 1063 (11th Cir. 1996). The law of
the case doctrine, however, bars consideration of “only those legal issues that were
actually, or by necessary implication, decided in the former proceeding . . . .” In re
Justice Oaks II, Ltd.,
898 F.2d 1544, 1549 n.3 (11th Cir. 1990). Furthermore,
27
“[t]he doctrine ‘directs a court's discretion, it does not limit the tribunal's power.’”
Murphy v. Federal Deposit Ins. Co., 208 F.3d 959, 966 (11th Cir. 2000) (quoting
Arizona v. California,
460 U.S. 605, 618 (1983)). Therefore, we may reconsider
an issue already decided by this court in the same case if, since the prior decision,
new and substantially different evidence is produced, or there has been a change in
controlling authority. See
Venn, 99 F.3d at 1063. We may also reconsider an
issue if the prior decision was clearly erroneous and would result in a manifest
injustice. See
id.
This court first addressed the issue of qualified immunity in this case on an
appeal from the denial of a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure based on an alleged failure to plead a violation of
federal law and the denial of the qualified immunity defense. See
Oladeinde, 963
F.2d at 1485. As this court noted, that decision was based upon the facts as alleged
in the complaint. See
id. The complaint did not contain all of the facts related to
the circumstances of the plaintiffs’ meeting with Captain Walker, facts which, as
discussed below, bear upon a determination of whether the defendants violated a
clearly established right. Thus, as this court recognized when it published its first
opinion on this issue, the defendants were not precluded from asserting the
qualified immunity defense throughout the proceedings as the facts developed. See
28
id. at 1487. Indeed, the Supreme Court has recognized that “resolution of the
immunity question may ‘require more than one judiciously timed appeal,’ because
the legally relevant factors . . . will be different on summary judgment than on an
earlier motion to dismiss.” Behrens v. Pelletier,
516 U.S. 299, 309 (1996). Here,
because the complaint did not contain all of the relevant facts that were introduced
both at summary judgment and at trial, this court’s first opinion affirming the
denial of qualified immunity did not establish the law of the case.
The plaintiffs assert that, even if this court’s published opinion did not
establish the law of the case, Chief Deutsch and Captain Walker had an
opportunity to develop the facts and present evidence in support of the defense of
qualified immunity when they filed their motion for summary judgment. The
plaintiffs note that, despite the volumes of evidence submitted by the defendants
with their summary judgment motion, this court nevertheless affirmed the district
court’s denial of qualified immunity. The plaintiffs argue, therefore, that this
court’s second unpublished order affirming the denial of the motion for a summary
judgment established the law of the case. We conclude that it did not for several
reasons.
First, in ruling on the motion for summary judgment, the district court did
not consider Sergeant Oladeinde’s claim that she was denied a promotion because
29
of her speech.6 Thus, whether the defendants were entitled to qualified immunity
for the decision not to promote Sergeant Oladeinde to lieutenant was not before
this court in its order affirming the district court’s order denying summary
judgment. This court’s June 14, 1996, order is not the law of the case as to that
issue.
Furthermore, new and substantially different evidence was introduced at trial
regarding the incident in Captain Walker’s office when he placed a derringer on his
desk. During cross examination, Sergeant Oladeinde admitted that Captain Walker
placed the gun on his desk before anyone had said anything at the meeting. As
discussed further below, these facts are relevant to the question whether Captain
Walker is entitled to qualified immunity for his conduct.
Because this court did not set forth its reasons for affirming the district
court’s denial of summary judgment, it is unclear whether this court affirmed the
district court’s ruling because issues of fact as to the police department’s interests
6
The district court listed the plaintiffs’ contentions at the start of its memorandum
opinion accompanying its order denying the defendants’ summary judgment motion. Although it
listed several alleged retaliatory actions since the filing of the law suit, it did not include the
denial of the promotion. Later in its memorandum opinion, it made reference to the failed
promotion request, but noted that “[i]t is beyond this court’s ability to infer not only that
Oladeinde was ‘certified’ for promotion but also that this certification necessarily entitled her to
a promotion. Accordingly, the failure to promote Oladeinde may not be received as evidence
relevant to her First Amendment claim, depending upon what the condition of the evidence is at
the time.”
30
and the defendants’ motives in transferring the plaintiffs should be decided by the
jury, see Jennings v. Bic Corp., 181 F.3d 1250, 1254 (11th Cir. 1999), or whether,
in viewing the facts in the light most favorable to the non-moving party, summary
judgment was inappropriate, see Katz v. Comprehensive Plan of Group Ins.,
197
F.3d 1084, 1088 (11th Cir. 1999). Where a previous panel has given no
explanation for its decision, a subsequent appellate court panel is “not bound by
any ‘law of the case’ unless a determination by us concerning the propriety of [the
district court’s order] is necessarily inconsistent with every possible correct basis
for the earlier rulings of this court.” Key v. Wise,
629 F.2d 1049, 1054-55 (5th
Cir. 1980). One correct basis for this court’s earlier ruling is that there remained
genuine issues of material fact in dispute requiring a trial as to the police
department’s interests and the individual defendants’ motives in transferring the
plaintiffs. Such a ruling would present no binding conclusion of law as to the
defendants’ qualified immunity, but would simply allow the case to proceed to the
jury. A conclusion now, after the facts have been developed at trial, that the
defendants are entitled to qualified immunity would not be inconsistent with this
possibly correct basis for the earlier ruling of this court. We hold, therefore, that
we are not bound by the law of the case doctrine in deciding whether the individual
31
defendants were entitled to qualified immunity regarding their decision to transfer
the plaintiffs.
B. Applicability of Qualified Immunity for First Amendment Claims
Chief Deutsch and Captain Walker contend that they are entitled to qualified
immunity because they did not violate clearly established law. They argue that the
information regarding two police officers and Chief Deutsch that the plaintiffs
desired to present to the district attorney was the fruit of the plaintiffs’ work as
police officers and was not an appropriate matter of public concern. They assert
that the duty to disclose the details and source of information concerning non-
criminal activity by fellow police officers to a superior officer for a determination
whether it should be investigated by IAD, in order to maintain a loyal and cohesive
law enforcement agency, outweighed the plaintiffs’ freedom of expression. They
also maintain that reasonable officials in their position would have believed that
there were legitimate reasons, unrelated to the plaintiffs’ speech, for transferring
the plaintiffs and failing to promote Sergeant Oladeinde.
The plaintiffs contend that Chief Deutsch and Captain Walker are not
entitled to qualified immunity because it was clearly established on January 4,
1991, that their speech was protected, and because the jury expressly determined in
32
a special verdict that the defendants were motivated by a retaliatory motive and did
not act against the plaintiffs for appropriate reasons.
This court reviews a district court’s ruling on a motion for judgment as a
matter of law de novo, viewing the evidence in the light most favorable to the non-
moving party. See Gupta v. Florida Board of Regents, 212 F.3d 571, 582 (11th
Cir. 2000). In determining whether a government official is entitled to qualified
immunity following a jury verdict, we view the evidence in the light most
favorable to the party that prevailed at trial. See Priester v. City of Riviera Beach,
208 F.3d 919, 925 n.3 (11th Cir. 2000) (citing Iacobucci v. Boulter,
193 F.3d 14,
23 (1st Cir. 1999)). In so doing, we give deference to the jury’s “discernible
resolution of disputed factual issues.”
Iacobucci, 193 F.3d at 23 (citing Frazell v.
Flanigan,
102 F.3d 877, 886 (7th Cir. 1996)).
“Government officials performing discretionary functions are entitled to
qualified immunity ‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Hartley v. Parnell, 193 F.3d 1263, 1268 (11th Cir. 1999) (quoting
Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). In determining whether the
defense of qualified immunity is applicable, we must first consider whether the
plaintiffs established facts demonstrating a deprivation of an actual constitutional
33
or statutory right. See id. (citing Wilson v. Layne,
526 U.S. 603 (1999)). If so, we
must then determine whether that right was clearly established at the time of the
alleged violation. See
id. A right is clearly established if “the contours of the
right [violated are] sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” McElligott v. Foley,
182 F.3d 1248,
1260 (11th Cir. 1999) (quoting United States v. Lanier,
520 U.S. 259, 270 (1997))
We first examine whether the plaintiffs presented evidence of a deprivation
of an actual First Amendment right. A public employee has a limited right to free
speech. See Maggio v. Sipple, 211 F.3d 1346, 1351 (11th Cir. 2000). A public
employee’s speech is constitutionally protected if the speech may be “fairly
characterized as constituting speech on a matter of public concern,” and the
employee’s interest in commenting on the matter outweighs the government’s
interest “in promoting the efficiency of the public services it performs through its
employees.”
Id. (quoting Connick v. Myers,
461 U.S. 138, 142, 146 (1983)); see
also Pickering v. Board of Educ.,
391 U.S. 563 (1968) (establishing the balancing
test). In determining whether a government employee’s speech is related to a
matter of public concern, we must consider “the content, form, and context” of the
speech. See
id. at 1352 (quoting
Connick, 461 U.S. at 147-48). Even if the speech
is protected, the Government may prevail if it can prove that “it would have
34
reached the same decision . . . even in the absence of protected conduct.” Grigley
v. City of Atlanta, 136 F.3d 752, 754 (11th Cir. 1998) (quoting Bryson v. City of
Waycross,
888 F.2d 1562, 1566 (11th Cir. 1989)) (internal quotations omitted).
1. Speech Related to a Matter of Public Concern
As discussed above, the plaintiffs did not clearly specify the allegedly
protected speech until oral argument before this court. In response to a question
from the court, plaintiffs stated that the violation of plaintiffs’ right to speak out
about a matter of public concern at issue in this appeal occurred when “plaintiffs
approached Walker to present information regarding the jail records tampering.”7
Accordingly, our analysis of the alleged protected speech will be limited to the
request by Sergeant Oladeinde and Officer Fields for permission to make a report
to the district attorney, Captain Walker’s refusal, and the alleged retaliatory acts
that followed.8
7
In their responsive brief, the plaintiffs argued as follows: “The plaintiffs proved the
speech which grounds Deutsch’s and Walker’s liability. The verdicts rest on the tampering
information against Deutsch, which the defense referred to as the second area of speech.”
8
The plaintiffs include Captain Walker’s brandishing of the derringer as one of these
retaliatory acts. The record shows, however, that Captain Walker placed the derringer on his
desk before the plaintiffs disclosed that the purpose of the meeting was to request permission to
report Officer Fields’s observations to the district attorney concerning the conduct of the two
officers in looking at the records involved in the tampering case against Chief Deutsch. This act,
therefore, could not have been in retaliation against the plaintiffs’ exercise of their First
Amendment rights.
35
The record shows that Sergeant Oladeinde and Officer Fields requested
Captain Walker’s permission to report to the district attorney that Officer Fields
had seen two fellow officers looking at jail records concerning the arrest of Mayor
Arrington’s daughter. Officer Fields refused Captain Walker’s request that she
disclose what she had observed. Sergeant Oladeinde also refused to reveal what
Officer Fields had told her about the conduct of the two BPD officers regarding the
jail records. After Officer Fields informed Captain Walker that she had not
observed the commission of a crime by the two BPD police officers, Captain
Walker denied their request to go to the district attorney, and directed the plaintiffs
to make a report to the IAD.
While Officer Fields failed to disclose any facts concerning her
observations, including the names of the officers, she did inform Captain Walker
that it related to the investigation of Chief Deutsch’s alleged tampering of arrest
records. See Stanley v. City of Dalton, No. 99-10593, ___ F.3d ___ (11th Cir. July
26, 2000) (“Although the theoretical form of [the plaintiff’s] statements affects the
weight we give this speech in the Pickering balance, it does not defeat the public
concern nature of [his] speech.”). Clearly, it is a matter of public concern that a
police chief and members of his department would tamper with public records to
cover up the criminal conduct of a family member of the highest elected official of
36
a city. Such speech relates to a “matter of political, social, or other concern to the
community.” See Maggio, 211 F.3d at 1352 (quoting
Connick, 461 U.S. at 146)
(describing speech that constitutes a matter of public concern). An attempt to
disclose alleged corruption within a police department is speech related to a matter
of public concern because “a core concern of the first amendment is the protection
of the ‘whistle-blower’ attempting to expose government corruption.”
Bryson, 888
F.2d at 1566; see also Cooper v. Smith,
89 F.3d 761, 765 (11th Cir. 1996) (“There
can be no doubt that corruption in a police department is an issue of public
concern.”); Fikes v. City of Daphne,
79 F.3d 1079, 1084 (11th Cir. 1996) (same);
Stanley, No. 99-1053, ___ F.3d ___ (same).
Chief Deutsch and Captain Walker argue that the speech did not involve a
matter of public concern because Officer Fields made her observations in the
course of her work as a police officer. They also note that Officer Fields reported
her observations to her supervisor, Captain Walker, and not to the public. Chief
Deutsch and Captain Walker assert that this case is therefore controlled by Morris
v. Crow, 142 F.3d 1379 (11th Cir. 1998). In Morris, this court held that the
plaintiff’s speech did not involve a matter of public concern because his speech
“was generated pursuant to his official and customary duties as an accident
investigator with the sheriff’s office.”
Id. at 1382. This court based its conclusion
37
that the speech was not related to a matter of public concern, however, on the fact
that there was nothing in the record demonstrating that the plaintiff’s purpose “was
to bring to light any wrongdoing or to do any more than accurately report an
accident in the course of his employment.” Id.
Unlike the plaintiff in Morris, Officer Fields informed Captain Walker that
she observed two BPD police officers looking at records involved in the
investigation of Chief Deutsch’s alleged tampering with prison records. Sergeant.
Oladeinde’s and Officer Fields’s purpose was to bring possible wrongdoing to
light. Simply because the plaintiffs sought permission from their supervisor before
reporting the information to the district attorney does not remove their speech from
the public’s interest. Nor does the fact that the plaintiffs did not report Officer
Fields’s observations to the district attorney change the fact that the speech
suppressed by Captain Walker was related to a matter of public concern. See
Gonzalez v. Lee County Hous. Auth.,
161 F.3d 1290, 1296 (11th Cir. 1998)
(rejecting argument that a plaintiff’s speech was not related to a matter of public
concern simply because the speech was made solely in the confines of the
workplace) (citing
Connick, 461 U.S. at 149); Morgan v. Ford,
6 F.3d 750, 754 n.5
(11th Cir. 1993) (recognizing that, although it is a relevant factor, “a court cannot
determine that an utterance is not a matter of public concern solely because the
38
employee does not air the concerns to the public”); see also Dill v. City of
Edmond, 155 F.3d 1193, 1202 (10th Cir. 1998) (“[T]he fact that Plaintiff chose a
private forum within the police department and the district attorney’s office, rather
than a public forum, does not remove the speech from First Amendment
protection.”). We are persuaded that the plaintiffs’ speech in this case was related
to a matter of public concern.
2. Pickering Balancing Test
In order to establish that their speech was protected, a plaintiff must do more
than assert that the speech that relates to a matter of public concern. A plaintiff
must also demonstrate that his or her interest in speaking out on the matter is not
outweighed by the government’s interest “in promoting the efficiency of the public
services it performs through its employees.” Maggio, 211 F.3d at 1351 (quoting
Connick, 461 U.S. at 142); see also
Pickering, 391 U.S. at 568 (establishing the
balancing test). Several factors inform our analysis of the government’s interest in
the efficient provision of public services: “(1) whether the speech at issue impedes
the government’s ability to perform its duties efficiently, (2) the manner, time and
place of the speech, and (3) the context within which the speech was made.”
Bryson, 888 F.2d at 1567.
39
In considering these factors in a § 1983 action brought by police officers
against their public employer, we are required to consider the fact that members of
a law enforcement agency are part of a quasi-military organization. See Hansen v.
Soldenwagner, 19 F.3d 573, 577 (11th Cir. 1994) (“[T]he Pickering balance is also
affected . . . by the special concerns of quasi-military organizations such as police
departments.”). In a law enforcement agency, there is a heightened need for order,
loyalty, morale and harmony, which affords a police department more latitude in
responding to the speech of its officers than other government employers. See
Rogers v. Miller,
57 F.3d 986, 991 (11th Cir. 1995) (citing
Hansen, 19 F.3d at
577); see also O’Donnell v. Barry,
148 F.3d 1126, 1135 (D.C. Cir. 1998)
(“[B]ecause of the special degree of trust and discipline required in a police force
there may be a stronger governmental interest in regulating the speech of police
officers than in regulating the speech of other governmental employees.”);
Dill,
155 F.3d at 1203 (recognizing that the government’s interest is “particularly acute
in the context of law enforcement, where there is a heightened interest . . . in
maintaining discipline and harmony among employees”) (quoting Moore v. City of
Wynnewood,
57 F.3d 924, 934 (10th Cir. 1995)); Campbell v. Towse,
99 F.3d 820,
829-30 (7th Cir. 1996) (“It surely cannot be doubted that individuals who work in
the highest echelons of the command of a police department must be assured of the
40
loyalty of their immediate subordinates, as these subordinates are entrusted with
carrying out their orders, at times under the most trying conditions.”).
Here, Officer Fields refused to disclose any facts to Captain Walker other
than that she observed two police officers looking at the arrest records of the
mayor’s daughter and that they were not committing a crime. Sergeant Oladeinde
also refused Captain Walker’s request that she provide further detail regarding the
information they wanted to report. Given the fact that the plaintiffs provided no
details regarding the alleged misconduct, and that they refused to do so when asked
by their commanding officer, the plaintiffs’ speech was disruptive to the efficient
operation of the BPD.
Because they refused to name the BPD police officers observed by Officer
Fields, Captain Walker was unable to determine whether the officers observed by
Officer Fields were conducting an authorized investigation of Chief Deutsch’s
alleged misconduct, or if they were engaged in a non-criminal violation of
departmental regulations calling for administrative discipline. Without any
verifiable facts, the BPD had an interest in keeping Officer Fields’s allegations
against the BPD police officers within that agency until the IAD could investigate
their conduct, especially because Officer Fields stated that they were not
committing any crime.
41
In Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991), this court
recognized that “[i]n quasi-military organizations such as law enforcement
agencies, comments concerning co-workers’ performance of their duties and
superior officers’ integrity can directly interfere with the confidentiality, esprit de
corps and efficient operation of the police department.”
Id. at 774 (quoting Egger
v. Phillips,
710 F.2d 292, 327 (7th Cir. 1983)) (internal quotations omitted); see
also Stanley, No. 99-10593, ___ F.3d ___ (recognizing that a police department
has a strong interest in preventing its officers from making unfounded accusations
against a superior officer because it “could be considered disruptive and potentially
undermining to the mutual respect and confidence needed for fellow officers in a
police department”). In Busby, this court concluded that, in light of these interests
of a law enforcement agency, the defendants were entitled to qualified immunity
because the defendants “did not bar [the plaintiff] from voicing her complaints;
they merely sought to delay her access to a public forum until after the [] internal
affairs division could investigate her complaints.”
Id. Like the defendant in
Busby, Captain Walker did not order the plaintiffs not to disclose Officer Fields’s
observations. Rather, he directed the plaintiffs to report it to IAD.
Furthermore, the plaintiffs’ speech interfered with the efficient operation of
the BPD because they refused to disclose the nature of the information to Captain
42
Walker after he requested them to do so. Such a refusal of their commanding
officer’s order demonstrates that the plaintiffs’ speech interfered with the BPD’s
strong interest in maintaining discipline and loyalty of its officers. See Rogers, 57
F.3d at 991 (holding that, given the special need for order and loyalty, a
supervising officer in the sheriff’s department was entitled to qualified immunity
for transferring his subordinate where the supervisor expressed concern that he
could no longer supervise the subordinate because of his speech activities); see also
Campbell, 99 F.3d at 829-30 (“It surely cannot be doubted that individuals who
work in the highest echelons of the command of a police department must be
assured of the loyalty of their immediate subordinates, as these subordinates are
entrusted with carrying out their orders, at times under the most trying
conditions.”); Cochran v. City of Los Angeles, No. 98-56834, ___ F.3d ___ (9th
Cir. August 17, 2000) (concluding that a city has a significant interest in
responding to a police officer’s speech where the speech “impair[ed] discipline by
superiors.”) (citation omitted). Indeed, the record shows that the tension between
Captain Walker and the plaintiffs was a primary reason for transferring them out of
the Narcotics Unit. Thus, the plaintiffs’ interest in taking the information to the
district attorney was outweighed by the BPD’s interests in its efficient operation
given the disruption that might be caused if the plaintiffs reported Officer Fields’s
43
observations to the district attorney without a prior investigation by IAD.
Furthermore, a report by Officer Fields to the district attorney of her undisclosed
and unverified observations, prior to an investigation by the IAD, would have
created a risk of harming the reputation and careers of two BPD officers who may
not have committed any misconduct. Permitting such an injustice undoubtedly
would have harmed the morale of the members of the BPD.
We conclude that the plaintiffs’ speech was not protected because their
interest in speaking out was outweighed by the BPD’s interests in maintaining
order, loyalty, morale, and harmony. Because the plaintiffs have not demonstrated
a violation of a right protected by the First Amendment, we need not proceed to an
analysis of whether the law was clearly established. Likewise, we need not
consider whether their transfers, and the failure to promote Sergeant Oladeinde
were retaliatory. We conclude that Captain Walker and Chief Deutsch were
entitled to the protection of the defense of qualified immunity as a matter of law.
Thus, the district court erred in submitting this question to the jury, see Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (“The entitlement is an immunity from suit
rather than a mere defense to liability . . . .”), and in denying their renewed motions
for a judgment as a matter of law.
IV
44
THE CITY’S APPEAL
In response to the district court’s special interrogatories, the jury found that
Chief Deutsch and Captain Walker were not policy makers for the City, and that
the City did not have any policy that encouraged Chief Deutsch and Captain
Walker to violate § 1983. Based on these conclusions, the jury found that the City
was not liable to Sergeant Oladeinde or Officer Fields for money damages.
A city or local government agency “may not be held liable for constitutional
deprivations on the theory of respondeat superior. Rather, they may be held liable
only if such constitutional torts result from an official government policy, the
actions of an official fairly deemed to represent government policy, or a custom or
practice so pervasive and well-settled that it assumes the force of law.” Denno v.
School Bd. Of Volusia County, ___ F.3d ___ No. 98-2718, (11 Cir. July 20, 2000)
(citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978). An official
represents government policy if he or she is has final policy making authority. See
id. Furthermore, “[f]inal policy making authority over a particular subject area
does not vest in an official whose decisions in the area are subject to meaningful
administrative review.”
Id. (quoting Scala v. City of Winter Park,
116 F.3d 1396,
1401 (11th Cir. 1997). The opportunity for meaningful review will suffice to
divest an official of any policy making authority. See
id. at 9.
45
In response to a post trial motion filed by Sergeant Oladeinde, the district
court ordered the City to promote her to the rank of lieutenant based on the jury’s
implied finding that Chief Deutsch retaliated against her because of her exercise of
her right to speak regarding a matter of public concern. We have concluded that
Sergeant Oladeinde failed to prove that her speech was protected. Accordingly,
Chief Deutsch’s refusal to promote her was not in retaliation for the exercise of her
First Amendment rights. Thus, even if we assume that the court correctly
determined that the City was liable for Chief Deutsch’s conduct because he was a
policy maker, since the record does not show a violation of § 1983 by Chief
Deutsch, the court erred in granting injunctive relief to Sergeant Oladeinde.
V
JUDGMENT FOR DAMAGES AGAINST OLADEINDE
In her cross-appeal, Sergeant Oladeinde requests that we reverse the
judgment against her in the amount of $2,056. She contends that because the
counter-claim against her was founded on a theory of quasi-contract, or breach of
implied contract, the district court erred in instructing the jury concerning the
crimes of conversion and embezzlement. Sergeant Oladeinde further argues that
the City tried to trick the jury into believing that she had in fact been dishonest
46
about the missing money in her drug account by arguing that the polygraph
evidence demonstrated that Sergeant Oladeinde had been dishonest.
We review de novo the question whether the court’s instructions to the jury
misstated the law or misled the jury to the prejudice of the objecting party.9 See
Palmer v. Board of Regents, 208 F.3d 969, 973 (11th Cir. 2000). In determining
whether there was reversible error, we consider the jury instructions as a whole.
See Torcise v. Community Bank of Homestead,
116 F.3d 860, 868 (11th Cir.
1997). “We will not overturn a jury verdict because of an erroneous jury
instruction unless there is also a showing of prejudice.” Mosher v. Speedstar
Division of AMCA Int’l, Inc.,
979 F.2d 823, 826 (11th Cir. 1992).
The plaintiffs have failed to demonstrate that the court’s instruction on
embezzlement was prejudicial. In addition to instructing the jury on theories of
embezzlement and conversion, the district court instructed the jury on a theory of
money had and received. The district court admonished the jury as follows:
9
The City asserts that Sergeant Oladeinde waived her right to challenging the jury
instructions on appeal because she failed to object to them. The record reveals that Sergeant
Oladeinde filed a response to the defendants’ proposed jury instructions in which she objected to
the use of the instructions for embezzlement and conversion because they would be
inflammatory, prejudicial, and inconsistent with the counterclaim. Thus, even though she did
not object at the time the district court read the instructions to the jury, the trial court was
adequately informed as to her contentions. See Industrial Dev. Bd. v. Fuqua Indus., Inc., 523
F.2d 1226, 1238 (5th Cir. 1975).
47
The City seeks to recover from the plaintiff money which it contends
plaintiff Oladeinde received but which rightfully belongs to the City.
When a person receives money belonging to another, the law creates
an implied promise to repay it. The measure for damages for money
had and received is the amount of money belonging to the defendant .
. . which the defendant counterclaimant proves by a preponderance of
the evidence that it was received by Oladeinde and which she was
bound to return together with interest . . . .
This instruction captures the essence of the quasi-contract instruction that Sergeant
Oladeinde proposed to the court.10 See Schafer v. Time Inc., 142 F.3d 1361, 1368
(11th Cir. 1998) (“[T]he trial judge is entitled to wide discretion over the style and
wording employed as long as the instructions accurately reflect the law.”). The
interrogatory to the jury simply asked: “Did the City prove by a preponderance of
the evidence that Oladeinde owes some amount of money to the City?” The jury
answered affirmatively.
10
Sergeant Oladeinde requested that the instruction state, in part:
When because of the acts of the parties, or others, someone comes
into possession of money under such circumstances that in equity
and good conscience that person ought not to be allowed to retain
it and which in justice and fairness belongs to another, the law
implies the obligation to pay or deliver it to the one entitled
thereto.
If you are reasonably satisfied from the evidence that a quasi-
contract exists, and that Oladeinde received a benefit from the City
when she received the money (if you find that she received it); and
that she accepted and retained the benefit under such
circumstances that it would be unjust and unfair for her to retain it
without paying the value thereof, then the City would be entitled to
recover the reasonable value of the benefit received.
48
The jury could not have found Sergeant Oladeinde liable to the City unless,
at a minimum, it believed that Sergeant Oladeinde was owed money to the City
under a quasi-contract theory. The record supports such a finding because
Sergeant Oladeinde admitted that she had received the money from the City, that
she was responsible for it, and that she could not account for $2,056 of it. The
instructions did not allow the jury to find Sergeant Oladeinde liable under a theory
that imposed a lesser burden of proof on the City than that she requested.
Sergeant Oladeinde did not object to City’s argument to the jury regarding
the polygraph test. We review, therefore, only for plain error. See Oxford
Furniture Cos. v. Drexel Heritage Furnishings, Inc., 984 F.2d 1118, 1128 (11th Cir.
1993). In a civil trial, a finding of plain error is seldom justified in reviewing
counsel’s arguments. See
id. The district court did not commit plain error
because the jury could have found Sergeant Oladeinde liable to the City for $2,056
without also concluding that Sergeant Oladeinde was dishonest in failing to return
the money to the City.
VI
CONCLUSION
49
We REVERSE the judgment against Captain Walker and Chief Deutsch
because Sergeant Oladeinde and Officer Fields failed to present evidence that
demonstrates that they were engaged in speech protected by the First Amendment.
We REMAND with directions that the district court vacate its order denying the
renewed motions for a judgment as a matter of law and to enter an order granting
such motions. We REVERSE the judgment against the City requiring it to
promote Sergeant Oladeinde because Chief Deutsch did not retaliate against her for
the exercise of protected speech. We AFFIRM the judgment on the counterclaim
in favor of the City.
REVERSED in part, REMANDED in part, and AFFIRMED in part.
50
