Filed: Jun. 15, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1081 KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN, Plaintiffs – Appellees, v. TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his official capacity as Administrative Chief of Police of the Mocksville Police Department and in his individual capacity; CHRISTINE W. BRALLEY, in her official capacity as Town Manager of the Town of Mocksville and in her individual capacity, Defendants – Appellants. ------------------
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1081 KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN, Plaintiffs – Appellees, v. TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his official capacity as Administrative Chief of Police of the Mocksville Police Department and in his individual capacity; CHRISTINE W. BRALLEY, in her official capacity as Town Manager of the Town of Mocksville and in her individual capacity, Defendants – Appellants. -------------------..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1081
KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN,
Plaintiffs – Appellees,
v.
TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his
official capacity as Administrative Chief of Police of the
Mocksville Police Department and in his individual capacity;
CHRISTINE W. BRALLEY, in her official capacity as Town
Manager of the Town of Mocksville and in her individual
capacity,
Defendants – Appellants.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−
NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,
Amicus Supporting Appellees.
No. 14-1125
KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN,
Plaintiffs – Appellants,
v.
TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his
official capacity as Administrative Chief of Police of the
Mocksville Police Department and in his individual capacity;
CHRISTINE W. BRALLEY, in her official capacity as Town
Manager of the Town of Mocksville and in her individual
capacity,
Defendants - Appellees.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−
NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,
Amicus Supporting Appellants.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cv-00333-CCE-JEP)
Argued: December 9, 2014 Decided: June 15, 2015
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the majority
opinion, in which Judge Diaz joined. Judge Niemeyer wrote a
dissenting opinion.
ARGUED: Stephen John Dunn, VAN HOY, REUTLINGER, ADAMS & DUNN,
Charlotte, North Carolina, for Appellants/Cross-Appellees.
Robert Mauldin Elliot, Helen Parsonage, ELLIOT MORGAN PARSONAGE,
PLLC, Winston-Salem, North Carolina, for Appellees/Cross-
Appellants. ON BRIEF: Jaye E. Bingham-Hinch, Raleigh, North
Carolina, Patrick H. Flanagan, CRANFILL, SUMNER & HARTZOG, LLP,
Charlotte, North Carolina; Philip M. Van Hoy, VAN HOY,
REUTLINGER, ADAMS & DUNN, Charlotte, North Carolina, for
Appellants/Cross-Appellees. J. Michael McGuinness, THE
MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William J.
Johnson, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,
Alexandria, Virginia, for Amicus Curiae.
2
WYNN, Circuit Judge:
“Almost 50 years ago, th[e Supreme] Court declared that
citizens do not surrender their First Amendment rights by
accepting public employment.” Lane v. Franks, 134 S. Ct. 2369,
2374 (2014). A threshold question for determining “whether a
public employee’s speech is entitled to protection” is whether
the employee “spoke as a citizen on a matter of public concern.”
Id. at 2378 (quotation marks and citation omitted).
In this Section 1983 case alleging First Amendment rights
violations, viewing the evidence in their favor—as we must at
summary judgment, Plaintiffs—officers of the Mocksville Police
Department (“Mocksville PD”) in Mocksville, North Carolina—
reached out as concerned citizens to the North Carolina
Governor’s Office about corruption and misconduct at the
Mocksville PD. The district court therefore rightly rejected
Defendants’ argument that Plaintiffs’ outreach enjoyed no First
Amendment protection. For this and other reasons explained
below, we affirm the district court’s denial of summary judgment
to Defendants Robert W. Cook and Christine W. Bralley.
I.
Viewing the evidence in the light most favorable to
Plaintiffs, the non-movants, as we must at the summary judgment
stage, the evidence shows that Plaintiffs Kenneth L. Hunter
3
(“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin
(“Medlin”), served as police officers with the Mocksville PD.
Hunter, an assistant chief, had worked for the Mocksville PD
since 1985; Donathan, a lieutenant, had been with the Mocksville
PD since 1998; and Medlin had served as an officer since 2006.
All three Plaintiffs had distinguished careers with the
Mocksville PD, receiving honors and promotions throughout their
tenures.
Defendant Robert W. Cook (“Cook”) joined the Mocksville PD
as police chief in 2005. 1 Over time, Plaintiffs became concerned
about Cook’s behavior and leadership. For example, Plaintiffs
saw Cook drink alcohol publicly, excessively, and while in
uniform and feared that it reflected poorly on the Mocksville
PD. Plaintiffs also believed that Cook violated the law by
driving a police car with blue flashing lights and behaving as
if he were a certified law enforcement officer when, in reality,
he had never been certified and was only an “administrative”
chief. Plaintiffs suspected that Cook and his ally and deputy
chief, Daniel Matthews, were together mismanaging Mocksville PD
and other public funds and even using those funds for personal
gain. Plaintiffs perceived racial discrimination at the
1
Cook no longer serves as the Mocksville PD chief.
4
Mocksville PD. And Plaintiffs believed that Cook “fixed”
tickets for his friends.
Plaintiffs independently raised such concerns about Cook
with Mocksville Town Manager, Defendant Christine W. Bralley
(“Bralley”). Yet they noticed no improvement after reporting
their concerns to Bralley and instead perceived reasons to worry
about retaliation. Donathan, for example, raised his concerns
with Bralley and was soon thereafter criticized by Matthews
about a concern he had raised with Bralley. And a month after
Medlin sent Bralley a sealed letter detailing concerns about the
Mocksville PD, Cook demoted him. (That demotion was ultimately
reversed.)
In November 2011, the situation at the Mocksville PD
escalated. Cook reorganized the department, elevating Matthews
to second-in-command and stripping Hunter, one of only two
African-Americans at the Mocksville PD, of his supervisory
responsibilities. Hunter filed a grievance about his demotion,
but his grievance, and concerns, were dismissed. Donathan, on
the other hand, was invited to Cook’s home, instructed to
“adhere to the ‘politics’ of the MPD,” and promoted to
lieutenant. J.A. 161.
In early December 2011, five Mocksville PD officers,
including all three Plaintiffs, met privately to discuss their
concerns about Cook and his ally Matthews. At that meeting,
5
Plaintiffs decided to seek an investigation by an outside agency
into corruption at the Mocksville PD. According to Hunter,
Plaintiffs made this decision because they felt, “as citizens of
the community, that Mocksville deserved an effective police
force that served everyone equally” and not because they felt it
was “part of our job duties.” J.A. 137.
Plaintiffs set up a meeting with local representatives of
the National Association for the Advancement of Colored People
(“NAACP”), who, after hearing Plaintiffs’ concerns, advised them
to contact a state agency. Accordingly, Plaintiffs decided to
contact the North Carolina Attorney General. Hunter had his
“daughter purchase a disposable phone at Wal-Mart that could be
used to report our citizen complaints separately from our
affiliation with the MPD.” Id.
On December 14, 2011, Plaintiffs got together and used the
disposable phone to call the Attorney General’s Office. The
Attorney General, however, referred Plaintiffs to local
authorities who were closely aligned with Cook and whom
Plaintiffs therefore felt they could not contact. Plaintiffs
then called the North Carolina Governor’s Office, again using
the disposable phone. Without identifying either themselves or
the Mocksville PD, Plaintiffs conveyed some of their concerns,
including their suspicions that Cook embezzled funds, had a
drinking problem, and masqueraded as a certified officer with
6
powers to, for example, use blue lights and pull people over
even though he was only an administrative chief without the
authority to do so. The Governor’s Office representative asked
for a telephone number at which someone could return the call,
and Plaintiffs gave the number for the disposable phone.
Later that day, someone else from the Governor’s Office
called the disposable phone. Donathan answered the call, spoke
to the representative, and identified the Mocksville PD to the
representative. The Governor’s Office representative offered to
request that the State Bureau of Investigation (“SBI”)
investigate the Mocksville PD.
The next week, Medlin saw the local SBI Agent, D.J. Smith,
at the Mocksville PD offices. Plaintiffs knew that Smith had a
close relationship with both Cook and Matthews. Medlin saw
Smith show Matthews a piece of paper and saw the two men look
for Cook. On December 22, 2011, Plaintiffs received a message
from Smith, who called the disposable phone. Smith left a
message identifying himself and stating that he was following up
on the request for an investigation. Plaintiffs did not return
the call because “we did not trust any local authorities in
investigating our concerns because of Chief Cook’s influence”
and thus “disposed of the phone for fear that Chief Cook may
search the police department and find it.” J.A. 140.
7
As it turned out, the phone was nevertheless “found.”
Smith contacted the Davie County Sheriff’s Office, the county in
which Mocksville is located, and asked an officer there to check
whether the phone number used to make that complaint belonged to
anyone at the Sheriff’s Office. The Sheriff’s Department
officer contacted the Mocksville PD and asked an officer there
to run the number through Mocksville PD records. The officer
also called the disposable phone himself—though Plaintiffs did
not pick up.
On December 27, 2011, Bralley contacted Sprint customer
service to set up an online account, explaining that she wanted
to check call records for a specific telephone number. The
Sprint invoice issued that same day for the billing period
ending December 23, 2011 included phone calls to the disposable
phone’s number. Both Donathan and Medlin had placed calls to
and received calls from the disposable phone using their
Mocksville PD-issued mobile phones.
On December 29, 2011, Chief Cook fired all three
Plaintiffs. This was the first time Cook had fired anyone
during his tenure as the Mocksville PD chief. Officer
misbehavior—including illegal drug use and even criminal
activity—had previously occurred. But the officers in those
cases received lesser punishments or were allowed to voluntarily
resign rather than be fired.
8
All three Plaintiffs received similar termination letters
that gave performance justifications such as
“[i]nsubordinat[ion],” “[a]ttitude,” “[r]umored [f]alse [d]eter
mental [sic] [i]nformation,” and “other conduct unbecoming a
Officer.” J.A. 153, 178. Plaintiffs had been given no notice
of these performance issues before they were fired. In an
after-the-fact memo to the town attorney, Cook expressly
mentioned Plaintiffs’ telephone call to the Governor and SBI,
claiming Plaintiffs “conspire[d]” to discredit him, Bralley, and
others in calls to “SBI and Governor with false information”—
information Cook claimed “[t]he SBI and DA have determined . . .
to be slanderous and false.” J.A. 543. And around the time
Cook fired Plaintiffs, Cook called the local district attorney
and told him that “you can’t have people in-house that are
continually undercutting you and causing trouble.” J.A. 2009.
In April 2012, Plaintiffs brought suit against Cook,
Bralley, and the Town of Mocksville, alleging, among other
things, that their First Amendment rights were violated when
they were fired for speaking out about corruption and misconduct
at the Mocksville PD. Defendants answered, and discovery
ensued. Defendants then moved for summary judgment, which
Plaintiffs opposed. Initially, in October 2013, the district
court granted summary judgment to all Defendants on the Section
1983 claims but denied summary judgment as to the state law
9
wrongful discharge and constitutional claims. In January 2014,
however, the district court granted a motion for reconsideration
and reversed course as to Cook and Bralley, holding that neither
was entitled to qualified immunity.
The parties challenge aspects of both orders in this
appeal. We review these summary judgment rulings de novo,
viewing the evidence in the light most favorable to the non-
moving party—here, Plaintiffs—and drawing all reasonable
inferences in their favor. Miller v. Leathers, 913 F.2d 1085,
1087 (4th Cir. 1990) (en banc).
II.
Defendants argue that they are entitled to qualified
immunity, which shields government officials “who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). To successfully avail themselves of qualified
immunity, Defendants must show either that no constitutional
violation occurred or that the right violated was not clearly
established at the time it was violated.
Id. Defendants argue
primarily that no violation occurred.
A.
10
With their first argument, Defendants contend that the
district court erred in ruling that Plaintiffs spoke as citizens
and not as employees when they reached out to the Governor’s
Office. Accordingly, per Defendants, the First Amendment does
not protect Plaintiffs from retaliation. We disagree.
1.
“Speech by citizens on matters of public concern lies at
the heart of the First Amendment, which ‘was fashioned to assure
unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.’” Lane, 134
S. Ct. at 2377 (quoting Roth v. United States,
354 U.S. 476, 484
(1957)). This remains true when speech concerns information
related to public employment. “After all, public employees do
not renounce their citizenship when they accept employment, and
this Court has cautioned time and again that public employers
may not condition employment on the relinquishment of
constitutional rights.”
Id. (citing, inter alia, Pickering v.
Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill.,
391
U.S. 563, 568 (1968)).
In its most recent statement on public employee speech, a
unanimous Supreme Court underscored the “considerable value” of
“encouraging, rather than inhibiting, speech by public
employees. For government employees are often in the best
position to know what ails the agencies for which they work.”
11
Lane, 134 S. Ct. at 2377 (quotation marks, alterations, and
citation omitted). Were public employees not able to speak on
matters of public concern, “the community would be deprived of
informed opinions on important public issues.” San Diego v.
Roe, 543 U.S. 77, 82 (2004) (per curiam). Indeed, “[t]he
interest at stake is as much the public’s interest in receiving
informed opinion as it is the employee’s own right to
disseminate it.”
Id. The Supreme Court thus underscored last
year in Lane that “[i]t bears emphasis that our precedents . . .
have recognized that speech by public employees on subject
matter related to their employment holds special value precisely
because those employees gain knowledge of matters of public
concern through their
employment.” 134 S. Ct. at 2379.
Further, as the Supreme Court has recognized, “[t]he
importance of public employee speech is especially evident in
the context of . . . a public corruption scandal.” Id. at 2380.
Indeed “[i]t would be antithetical to our jurisprudence to
conclude that the very kind of speech necessary to prosecute
corruption by public officials—speech by public employees
regarding information learned through their employment—may never
form the basis for a First Amendment retaliation claim.”
Id.
That being said, precedent makes clear that courts must
also consider “the government’s countervailing interest in
controlling the operation of its workplaces.”
Id. at 2377.
12
“Government employers, like private employers, need a
significant degree of control over their employees’ words and
actions; without it, there would be little chance for the
efficient provision of public services.” Garcetti v. Ceballos,
547 U.S. 410, 418 (2006).
Accordingly, courts must “balance between the interests of
the [public employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an employer,
in promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568. As the
Supreme Court explained in Garcetti, this balancing test boils
down to a two-step inquiry: The first question is “whether the
employee spoke as a citizen on a matter of public concern. If
the answer is no,” First Amendment protections are not
implicated. 547 U.S. at 418. If, however, the answer is yes,
then we must ask whether the employee’s interest in speaking out
about the matter of public concern outweighed the government’s
interest in providing effective service to the public.
Id.
In determining whether the employee spoke as an employee or
as a citizen—the question at the heart of this appeal—the
Supreme Court has instructed us to engage in a “practical”
inquiry into the employee’s “daily professional activities” to
discern whether the speech at issue occurred in the normal
course of those ordinary duties.
Garcetti, 547 U.S. at 422,
13
424. The Supreme Court expressly rejected a focus on “formal
job descriptions,” eschewing “the suggestion that employers can
restrict employees’ rights by creating excessively broad job
descriptions.” Id. at 424. And just last year in Lane, the
Supreme Court unanimously admonished lower courts for “read[ing]
Garcetti” and its employee speech implications “far too
broadly.” 134 S. Ct. at 2379. The Court emphasized that “[t]he
critical question . . . is whether the speech at issue is itself
ordinarily within the scope of an employee’s duties, not whether
it merely concerns those duties.”
Id.
In Garcetti, the speech at issue was an internal memorandum
a deputy district attorney had prepared for his supervisors
recommending a particular disposition in a specific
case. 547
U.S. at 410. The Supreme Court noted that the deputy “did not
act as a citizen when he went about conducting his daily
professional activities, such as supervising attorneys,
investigating charges, and preparing filings. In the same way
he did not speak as a citizen by writing a memo that addressed
the proper disposition of a pending criminal case.”
Id. at 422.
Accordingly, the internal memorandum, which fell within the
scope of the deputy’s ordinary duties, did not constitute
protected speech.
Id. at 421-22.
By contrast, in Lane, the Supreme Court held that a public
employee’s sworn testimony in a judicial proceeding was
14
“quintessential” citizen speech—“even when the testimony relates
to . . . public employment or concerns information learned
during that employment.” 134 S. Ct. at 2378-79. The Court
recognized that a testifying public employee “may bear separate
obligations to his employer—for example, an obligation not to
show up to court dressed in an unprofessional manner.”
Id. at
2379. But any such obligation is distinct from “the obligation,
as a citizen, to speak the truth.”
Id. Further, the Supreme
Court left no doubt that the subject matter of the speech at
issue in Lane—“corruption in a public program and misuse of
state funds—obviously involves a matter of significant public
concern.”
Id. at 2380. And the defendants in Lane had failed
to demonstrate a governmental interest that could nevertheless
tip the balance in their favor.
Id. at 2381.
Similarly, in Pickering, a teacher was fired after he wrote
a letter to the editor of a local newspaper critical of how the
superintendent of schools had handled proposals to raise school
revenue. Pickering, 391 U.S. at 564. The Supreme Court held
that the letter, which neither “impeded the teacher’s proper
performance of his daily duties in the classroom” nor
“interfered with the regular operation of the schools
generally,” constituted protected speech.
Id. at 572-73. The
Supreme Court underscored that “whether a school system requires
additional funds is a matter of legitimate public concern.”
Id.
15
at 571. On such matters, “free and open debate is vital,” and
teachers are “most likely to have informed and definite opinions
as to how funds allotted to the operation of the schools should
be spent. Accordingly, it is essential that they be able to
speak out freely on such questions without fear of retaliatory
dismissal.”
Id. at 571-72.
Even in our own Circuit, we have made clear that the “core
First Amendment concern” is “the actual workings—not just the
speeches and reports and handouts—of our public bodies.” Andrew
v. Clark, 561 F.3d 261, 273 (4th Cir. 2009) (Wilkinson, J.,
concurring). Therefore, in Andrew, we reversed the dismissal of
a Section 1983 complaint in which a former police commander
alleged retaliation for disclosing to the news media an internal
report he had authored questioning both a police shooting and
the police investigation into the shooting. It would have been
“inimical to First Amendment principles to treat too summarily
those who bring, often at some personal risk, [the government’s]
operations into public view.”
Id.
Likewise, in Durham v. Jones, we upheld a jury verdict for
a plaintiff police officer terminated in retaliation for
speaking out about law enforcement misconduct.
737 F.3d 291
(4th Cir. 2013). In Durham, the plaintiff prepared a report
about an incident that had involved the use of force.
Id. at
294. Other officers and detectives aggressively interrogated
16
the plaintiff and ordered him to revise his incident report. He
refused. Id. Ultimately, the plaintiff decided to “bring to
light actual or potential wrongdoing on the part of his
superiors, calling for an external investigation and media
coverage.”
Id. at 300 (quotation marks and citation omitted).
He sent a letter and written materials to, among others, the
State’s Attorney and the Governor of Maryland.
Id. We made it
clear that this situation was “no ordinary workplace dispute,”
and that “where public employees are speaking out on government
misconduct, their speech warrants protection.”
Id. at 303
(quotation marks and citation omitted).
2.
Turning to the facts of this case, Defendants contend that
“Plaintiffs’ speech was not protected because they spoke as
employees, not as citizens.” Appellants’ Br. at 23. Defendants
argue that Plaintiffs’ “calling the Governor’s Office was
pursuant to their official duties . . . . When a police officer
reports a crime, he is literally just doing his job.” Id. at
30. With this characterization of Plaintiffs’ speech, we cannot
agree.
Nothing before us suggests that Plaintiffs’ “daily
professional activities,” Garcetti, 547 U.S. at 422, included
calling the Governor’s Office for any purpose, much less to
express concerns about the Mocksville PD. Nothing suggests that
17
Plaintiffs’ request that the Governor’s Office look into
suspected corruption and misconduct at the Mocksville PD was
“ordinarily within the scope of [Plaintiffs’] duties.” Lane,
134 S. Ct. at 2379. Indeed, a “practical” inquiry into
Plaintiffs’ day-to-day duties, Garcetti, 547 U.S. at 424,
manifestly does not lead to the conclusion that those included
reaching out to the Governor’s Office about anything at all.
Instead, the evidence viewed in the light most favorable
to Plaintiffs illustrates that Plaintiffs acted as private
citizens. It is undisputed that Plaintiffs first met, in their
free time and away from their Mocksville PD offices, with a non-
governmental organization—the NAACP—about perceived misconduct
and corruption at the Mocksville PD. The NAACP suggested
reaching out to a state agency. Accordingly, using a private
disposable phone away from the Mocksville PD, Plaintiffs first
contacted the North Carolina Attorney General’s Office and
ultimately the North Carolina Governor’s Office. Initially,
Plaintiffs identified neither themselves nor the Mocksville PD.
Only after a Governor’s Office representative offered to request
an SBI investigation did Plaintiffs name the Mocksville PD as
the subject of their concerns.
Defendants counter that Plaintiffs acted pursuant to their
official duties because all sworn police officers have a duty to
enforce criminal laws, and Plaintiffs, police officers,
18
suspected criminal conduct. While some of the suspected
corruption and misconduct at issue here, such as misusing public
funds for personal gain, might qualify as criminal, other
misconduct, such as racial discrimination within the Mocksville
PD, might not. Moreover, and more importantly, a general duty
to enforce criminal laws in the community does not morph calling
the Governor’s Office because the chief of police himself is
engaging in misconduct into part of an officer’s daily duties.
Defendants further argue that the Mocksville Police Manual
broadly obligated Plaintiffs to, among other things: “cooperate
with all Law Enforcement agencies, other City Departments, and
Public service organizations and . . . give aid and information
as such organizations may be entitled to receive,” J.A. 3306;
report in writing other “employees violating laws” (though
Defendants conveniently omit from their brief to whom such
written reports of employee malfeasance are to be submitted: “to
the Chief of Police”), J.A. 3318; and generally “enforce all
Federal, State, and City laws and ordinances coming within
departmental jurisdiction,” J.A. 3305. But the Supreme Court
has expressly rejected focusing on “formal job descriptions,” as
well as any “suggestion that employers can restrict employees’
rights by creating excessively broad job descriptions.”
Garcetti, 547 U.S. at 424.
19
In sum, privately reaching out to the Governor’s Office
about suspected corruption and misconduct at the Mocksville PD,
at the hands of the chief of police, cannot fairly or accurately
be portrayed as simply part of Plaintiffs’ “daily professional
activities.” Garcetti, 547 U.S. at 422. In reaching out to the
Governor’s Office, Plaintiffs were not “just doing [their] job.”
Appellants’ Br. at 30. Rather, Plaintiffs spoke as citizens, on
a matter of undisputedly public concern, 2 and no countervailing
government interest has even been suggested. Accordingly, the
district court rightly rejected Defendants’ motion for summary
judgment on this basis.
B.
With their next argument, Defendants contend that
Plaintiffs’ speech was not a motivating factor in their being
fired. Defendants contend that Plaintiffs therefore cannot
succeed with their First Amendment retaliatory discharge claims.
See, e.g., Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993)
(holding that a plaintiff claiming retaliatory discharge in
violation of his First Amendment rights “must show that his
protected expression was a ‘substantial’ or ‘motivating’ factor
2
Defendants do not even attempt to argue on appeal that
public corruption does not constitute a matter of public
concern.
20
in the employer’s decision to terminate him” (citation
omitted)). This issue is, however, not properly before us.
The Supreme Court has made clear that “a defendant,
entitled to invoke a qualified immunity defense, may not appeal
a district court’s summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a
‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S.
304, 319-20 (1995). 3 Stated differently, “[i]f summary judgment
was denied as to a particular claim solely because there is a
genuine issue of material fact, that claim is not immediately
appealable and we lack jurisdiction to consider it.” Iko v.
Shreve,
535 F.3d 225, 235 (4th Cir. 2008).
3
By contrast, the Supreme Court has left no doubt that “a
district court’s order denying a defendant’s motion for summary
judgment [is] an immediately appealable ‘collateral order’
(i.e., a ‘final decision’) . . . where (1) the defendant was a
public official asserting a defense of ‘qualified immunity,’ and
(2) the issue appealed concerned, not which facts the parties
might be able to prove, but, rather, whether or not certain
given facts showed a violation of ‘clearly established’ law.”
Johnson, 515 U.S. at 311 (citations omitted). Indeed, this kind
of summary judgment is otherwise “‘effectively unreviewable,’
for review after trial would come too late to vindicate one
important purpose of ‘qualified immunity’—namely, protecting
public officials, not simply from liability, but also from
standing trial.”
Id. at 312 (citation omitted).
21
Fatally for Defendants’ argument here, the district court
denied summary judgment because a material dispute of fact
existed on the causation issue:
The plaintiffs have offered sufficient evidence
to support a jury finding that the Town fired them for
reporting to the Governor’s office that the Mocksville
Police Department was experiencing corruption and
other issues. While the Town has offered evidence
that the plaintiffs were fired for performance issues,
that evidence does not entitle them to summary
judgment. It merely creates a disputed question of
material fact which a jury must decide. The
defendants are not entitled to summary judgment on
this basis.
Hunter v. Town of Mocksville, N.C., No. 1:12-CV-333, 2013 WL
5726316, at *4 (M.D.N.C. Oct. 21, 2013), vacated in part,
2014
WL 881136 (M.D.N.C. Jan. 22, 2014). Because the district court
rejected Defendants’ causation argument due to a dispute of
material fact, we must refrain from considering it. See
Iko,
535 F.3d at 234-35.
C.
With their final argument on appeal, Defendants contend
that even if Plaintiffs’ First Amendment rights were violated,
those rights were not clearly established at the time, i.e., in
December 2011. Accordingly, Cook and Bralley argue that they
are entitled to qualified immunity protecting them from suit.
Qualified immunity shields government officials “who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
22
were lawful.” Henry, 652 F.3d at 531. Regarding whether a
right was clearly established, “[t]he relevant, dispositive
inquiry . . . is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.”
Id. at 534 (quoting Saucier v. Katz,
533 U.S. 194,
202 (2001), overruled in part on other grounds, Pearson v.
Callahan,
555 U.S. 223 (2009)).
To ring the “clearly established” bell, there need not
exist a case on all fours with the facts at hand. In other
words, “the nonexistence of a case holding the defendant’s
identical conduct to be unlawful does not prevent the denial of
qualified immunity.” Edwards v. City of Goldsboro, 178 F.3d
231, 251 (4th Cir. 1999) (holding that First Amendment rights of
an off-duty officer communicating about concealed weapons were
sufficiently established by precedent regarding off-duty
officer’s entertainment performances). “Rather, the
unlawfulness must be apparent in light of pre-existing law.”
Trulock v. Freeh,
275 F.3d 391, 400 (4th Cir. 2001).
Turning to the right at issue here—namely First Amendment
expressive rights of public employees—we have expressly held
that “it was clearly established in the law of this Circuit in
September 2009 that an employee’s speech about serious
governmental misconduct, and certainly not least of all serious
misconduct in a law enforcement agency, is protected.” Durham,
23
737 F.3d at 303–04 (citation omitted). As discussed in greater
detail above, in Durham, a police officer claimed he was
terminated in retaliation for speaking out about law enforcement
misconduct. The plaintiff officer wrote a report about an
incident involving the use of force and refused to bow to
pressure to revise the report. After the plaintiff officer sent
written materials including the report to, among others, the
Governor of Maryland, he was fired. We called this situation
“no ordinary workplace dispute” and made clear that “where
public employees are speaking out on government misconduct,
their speech warrants protection.”
Id. at 303 (quotation marks
and citation omitted).
In holding that “it was clearly established in the law of
this Circuit” in 2009 that “an employee’s speech about serious
governmental misconduct,” and especially “serious misconduct in
a law enforcement agency, is protected,” Durham, 737 F.3d at
303–04, we relied on
Andrew, 561 F.3d at 266–68. In Andrew, we
concluded that an officer had stated a claim under the First
Amendment where he alleged retaliation for releasing to the
media an internal report he had authored questioning a police
shooting and the investigation into the shooting.
Id. at 261-
62. As Judge Wilkinson noted in his concurring opinion, it
would be “inimical to First Amendment principles to treat too
summarily those who bring, often at some personal risk, [the
24
government’s] operations into public view.” Id. at 273
(Wilkinson, J., concurring). In Judge Wilkinson’s lyrical
words, “[i]t is vital to the health of our polity that the
functioning of the ever more complex and powerful machinery of
government not become democracy’s dark lagoon.”
Id.
Andrew and Durham clearly established that, long before the
December 2011 speech and retaliation at issue here, “speech
about serious governmental misconduct, and certainly not least
of all serious misconduct in a law enforcement agency, is
protected.”
Durham, 737 F.3d at 303–04 (citation omitted).
Defendants attempt to make much of the fact that, in both Andrew
and Durham, the plaintiffs had reached out to the news media
(though in Durham, the plaintiff also reached out to others,
including the Governor’s Office). That may be. But nothing in
this Court’s reasoning or broadly-worded holdings in either
Andrew or Durham suggests that that fact was somehow
dispositive. Nothing in either Andrew or Durham stands for the
proposition that only speech to a media organization can qualify
for First Amendment protection. And we agree with Justice
Stevens that it would be “perverse to fashion a new rule that
provides employees with an incentive to voice their concerns
publicly,”
Garcetti, 547 U.S. at 427 (Stevens, J., dissenting)—
which is precisely what we would be doing, were we to adopt
Defendants’ position that exposing serious government misconduct
25
to the news media is protected, but exposing that same
misconduct to the Governor’s Office, as in this case, by
definition is not.
In sum, “it was clearly established in the law of this
Circuit” in December 2011 that speech about “serious misconduct
in a law enforcement agency[] is protected.” Durham, 737 F.3d
at 303–04. The district court therefore did not err in denying
qualified immunity to Cook and Bralley on this basis.
III.
In their lone argument on appeal, Plaintiffs contend that
“Bralley was the final decisionmaker with respect to the
employment of the plaintiffs, and that Cook was the final
policymaker of the MPD.” Appellees’ Br. at 47. Accordingly,
per Plaintiffs, the Town of Mocksville is liable for Cook’s and
Bralley’s unconstitutional retaliatory actions, and the district
court erred in holding otherwise and dismissing their claims
against the town. This issue is, however, not properly before
us.
“With a few exceptions not relevant here, this court has
jurisdiction of appeal from ‘final decisions’ only.” Cram v.
Sun Ins. Office, Ltd., 375 F.2d 670, 673 (4th Cir. 1967).
Generally, “a district court order is not ‘final’ until it has
resolved all claims as to all parties.” Am. Petroleum Inst. v.
26
Cooper, 718 F.3d 347, 353-54 n.7 (4th Cir. 2013) (quoting Fox v.
Baltimore City Police Dep’t,
201 F.3d 526, 530 (4th Cir. 2000)).
The district court’s disposal only of Plaintiffs’ claims
against the Town of Mocksville does not constitute a final
judgment. It is, therefore, not generally reviewable. See
Cram, 375 F.2d at 673 (noting that “a summary judgment as to one
of the parties is no exception to the rule” of finality and an
appeal thereof “must therefore be dismissed”).
A potential avenue for appealability nevertheless exists:
Civil Procedure Rule 54(b) “provides a vehicle by which a
district court can certify for immediate appeal a judgment that
disposes of fewer than all of the claims or resolves the
controversy as to fewer than all of the parties.” Fox, 201 F.3d
at 530. Under Rule 54, the district court “may direct entry of
a final judgment as to one or more, but fewer than all, claims
or parties”—but “only if the court expressly determines that
there is no just reason for delay.” Fed. R. Civ. P. 54(b).
Here, however, the record does not reflect that the
district court entered judgment for the Town of Mocksville under
Rule 54. On the contrary, the district court made plain in its
January 2014 order that “final judgment has not been entered as
to any party . . . pursuant to Rule 54.” Hunter, 2014 WL
27
881136, at *2. Accordingly, we must refrain from considering
this issue. 4
IV.
For the reasons explained above, the judgments of the
district court, to the extent they are reviewable at this
juncture, are
AFFIRMED.
4
Had the district court come down the other way on the
issue, moreover, it still would have been unreviewable. See
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 43 (1995) (holding
that a county commission’s assertion that the sheriff was not
the county policymaker was a defense to liability, not an
immunity from suit, and that denial of summary judgment for the
county commission was thus not immediately appealable).
28
NIEMEYER, Circuit Judge, dissenting:
I would grant qualified immunity to Police Chief Robert
Cook and Town Manager Christine Bralley because it was not
clearly established at the time that Chief Cook fired the
plaintiff-officers that the officers had complained to the North
Carolina Governor’s Office as citizens, rather than as
employees. If the officers had complained as employees, “the
Constitution does not insulate their communications from
employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421
(2006).
In December 2011, Police Officers Kenneth L. Hunter,
Rick A. Donathan, and Jerry D. Medlin of the Mocksville Police
Department in Mocksville, North Carolina, used a disposable
telephone to call the Governor’s Office to anonymously report
perceived corruption and misconduct within the Police
Department, including corruption by Chief Cook, and to request
that an investigation be initiated. Two weeks later, after
Chief Cook allegedly learned of the call and consulted with Town
Manager Bralley, he terminated the three officers’ employment.
The officers commenced this action under 42 U.S.C. § 1983
against Chief Cook, Town Manager Bralley, and the Town of
Mocksville, alleging that the defendants violated their First
Amendment rights by terminating their employment in retaliation
for their exercise of free speech rights in calling the
29
Governor’s Office. They sought compensatory and punitive
damages, reinstatement, and injunctive relief against future
violations of their rights.
On the defendants’ motion for summary judgment, the
district court denied Chief Cook and Town Manager Bralley’s
claim of qualified immunity and granted judgment to the Town of
Mocksville, concluding that the officers failed to state a claim
for municipal liability. Chief Cook and Town Manager Bralley
filed this interlocutory appeal, challenging the district
court’s denial of their qualified immunity, and the officers
cross-appealed the dismissal of their municipal liability claim.
The majority affirms the qualified immunity ruling,
concluding that the officers’ complaint to the Governor’s Office
about departmental misconduct was protected by the First
Amendment because it was clearly established that the officers
were not simply carrying on their “daily professional
activities” but rather were speaking as citizens on a matter of
public concern. But in reaching this conclusion, the majority
fails to identify any controlling precedent that would have
informed Chief Cook and Town Manager Bralley that they were
acting unlawfully in firing the officers for going over their
heads to the Governor’s Office to complain about departmental
misconduct. The question of whether police officers speak as
employees or as citizens when complaining to the Governor’s
30
Office about departmental corruption and misconduct was
undecided in this circuit -- and has remained so before today --
and the proper application of relevant principles is murky at
best. Therefore, the relevant case law was not clearly
established at the time of the defendants’ conduct. In such
circumstances, Chief Cook and Town Manager Bralley are entitled
to qualified immunity, which shields government officials from
suits for damages when acting in their personal capacity unless
(1) they violate a statutory or constitutional right (2) that
was “clearly established at the time of the challenged conduct.”
Lane v. Franks, 134 S. Ct. 2369, 2381 (2014) (quoting Ashcroft
v. al-Kidd,
131 S. Ct. 2074, 2080 (2011)) (internal quotation
marks omitted). Accordingly, I would reverse and remand with
instructions to grant Chief Cook and Town Manager Bralley
qualified immunity. ∗
In considering whether a right was clearly established at
the time of the challenged conduct, courts are guided by three
principles. First, “as long as [an official’s] actions could
reasonably have been thought consistent with the rights [he is]
∗
I agree with the majority that we do not have subject
matter jurisdiction to address the officers’ cross-appeal of the
dismissal of their municipal liability claim for failure to
demonstrate that either Chief Cook or Town Manager Bralley was
the final policymaker for the Town.
31
alleged to have violated,” he is entitled to qualified immunity.
Anderson v. Creighton, 483 U.S. 635, 638 (1987). Second, while
an official may be denied qualified immunity without “the very
action in question ha[ving] previously been held unlawful,”
id.
at 640, “existing precedent must have placed the statutory or
constitutional question beyond debate,” al-Kidd, 131 S. Ct.
at 2083 (emphasis added). Third, existing precedent is limited
to “the decisions of the Supreme Court, this court of appeals,
and the highest court of the state in which the case arose.”
Edwards v. City of Goldsboro,
178 F.3d 231, 251 (4th Cir. 1999)
(quoting Jean v. Collins,
155 F.3d 701, 709 (4th Cir. 1998) (en
banc)).
The test for evaluating a First Amendment retaliation claim
is well-established and inquires:
(1) whether the public employee was speaking as a
citizen upon a matter of public concern or as an
employee about a matter of personal interest;
(2) whether the employee’s interest in speaking upon
the matter of public concern outweighed the
government’s interest in providing effective and
efficient services to the public; and (3) whether the
employee’s speech was a substantial factor in the
employee’s termination decision.
McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998). In
Garcetti, the Supreme Court refined the test, making clear 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
32
their communications from employer discipline.” 547 U.S. at 421
(emphasis added). Thus, in the wake of Garcetti, the inquiry
whether an employee was speaking as a citizen is logically
independent from the inquiry whether the employee was speaking
on a matter of public concern. See
Lane, 134 S. Ct. at 2378–81
(determining first that the employee’s speech was “speech as a
citizen,”
id. at 2378, before turning to whether his speech was
“speech on a matter of public concern,”
id. at 2380).
Chief Cook and Town Manager Bralley concede that the law
was clearly established by December 2011 that the officers, when
complaining about criminal misconduct in their department, were
speaking on a matter of public concern and that their interest
in so speaking outweighed the Police Department’s interest in
providing effective and efficient services to the public. They
contend, however, that the officers’ “duties and obligations as
law enforcement officers included the reporting and
investigation of misconduct,” and therefore that the officers
“were speaking as employees rather than citizens” when they
complained to the Governor’s Office about such misconduct in the
Police Department. Recognizing the officers’ argument to the
contrary, Chief Cook and Town Manager Bralley maintain that,
“[a]t a minimum,” the state of the law in this circuit was
unsettled as to whether officers, complaining as these officers
did, speak as employees or as citizens.
33
I agree with the defendants that, as of December 2011, the
law was not clearly established -- nor, indeed, has it been at
any time before now -- that a police officer complaining to the
Governor’s Office of departmental corruption involving his
police chief speaks as a citizen. Given the lack of relevant
authority, it was entirely reasonable for Chief Cook and Town
Manager Bralley to have concluded that the officers were
complaining as employees in the course of their official duties
when making their complaints.
In deciding otherwise, the majority relies on two decisions
-- Andrew v. Clark, 561 F.3d 261 (4th Cir. 2009), and Durham v.
Jones,
737 F.3d 291 (4th Cir. 2013). But those cases only go so
far as to conclude unremarkably that exposing corruption within
a police department is a matter of public concern -- a
proposition with which Chief Cook and Town Manager Bralley
agree. Neither case addresses the independent inquiry of
whether the officers were speaking as citizens when reporting
departmental corruption for investigation.
In Andrew, a police officer alleged that his First
Amendment rights were violated when he was fired for leaking to
the press an internal memorandum that he had written regarding
whether the police department properly handled an investigation
of an officer-involved shooting. Andrew, 561 F.3d at 263. In
an apparent effort to insulate his claim from the argument that
34
he spoke as an employee, Andrew alleged in his complaint
(1) that he “was not under a duty to write the memorandum as
part of his official responsibilities”; (2) that “[h]e had not
previously written similar memoranda after other officer-
involved shootings”; (3) that he “would not have been derelict
in his duties . . . , nor would he have suffered any employment
consequences, had he not written the memorandum”; (4) that the
police commissioner characterized the memorandum as
“unauthorized” and ignored it; and (5) that he was not
responsible for investigating officer-involved shootings and did
not work with or have control over the units that bore that
responsibility. Id. at 264. The defendants replied that
because Andrew was the district commander, he was required to
write reports for all shootings within his district.
Id.
at 266-67 & n.1. In reversing the district court’s grant of
qualified immunity, we concluded that “the question whether the
Andrew Memorandum was written as part of his official duties was
a disputed issue of material fact that [could not] be decided on
a motion to dismiss pursuant to Rule 12(b)(6).”
Id. at 267
(emphasis added); see also
id. (“At this stage of the
proceedings in this matter, we must conclude that there is ‘room
for serious debate’ regarding whether Andrew had an official
responsibility to submit a memorandum . . .”). Thus, in the
context of that factual dispute, Andrew provides no guidance
35
regarding when a police officer speaks as a citizen rather than
as an employee.
Durham is no different. There, we affirmed the district
court’s denial of qualified immunity to a sheriff who fired his
deputy for sending a packet of materials describing corruption
within the sheriff’s office to the media and various state
officials. Durham, 737 F.3d at 294. In doing so, we focused on
whether the deputy sheriff spoke on a matter of public concern
and on whether his interest in speaking outweighed his
employer’s interest in maintaining an effective work
environment.
Id. at 298-304. We said nothing about whether the
deputy sheriff had been speaking as a citizen, an issue that the
sheriff never raised in his brief. See Br. of Appellant,
Durham,
737 F.3d 291 (No. 12-2303),
2013 WL 551533 (arguing
exclusively that the materials did not pertain to a matter of
public concern and that the interest of the sheriff’s office in
maintaining an efficient and effective law enforcement agency
outweighed any interest that the deputy sheriff claimed in
disseminating the materials).
Not only did Andrew and Durham not address whether police
officers speak as citizens when reporting corruption to a state
agency, but the facts of those cases also render them decidedly
distinguishable from the case before us. Whereas the terminated
officers in those cases had leaked information to members of the
36
media, either exclusively (Andrew) or in tandem with a
distribution to a broad spectrum of public officials (Durham),
the terminated officers in this case reported the corruption
exclusively to a single governmental agency that could have been
thought to have supervisory or investigatory responsibility over
the Police Chief and the Town Manager. In light of this factual
distinction, it can hardly be said that existing precedent
“placed the . . . constitutional question beyond debate,” al-
Kidd, 131 S. Ct. at 2083 (emphasis added).
The majority maintains that it would be “perverse” to hold
that employee speech regarding serious governmental misconduct
is protected when made publicly but not when made to the
Governor’s Office. Ante, at 25 (quoting Garcetti, 547 U.S.
at 427 (Stevens, J., dissenting)) (internal quotation marks
omitted). Maybe so, but that is not the proper inquiry.
Rather, the question is whether Durham and Andrew made it such
that a reasonable official would have understood that the
individual defendants’ conduct violated the plaintiffs’ First
Amendment rights. See Owens v. Balt. City State’s Attorney’s
Office,
767 F.3d 379, 398 (4th Cir. 2014), cert. denied, No. 14-
887,
2015 WL 275612 (U.S. Apr. 27, 2015). To the extent that
our prior case law suggested that a law-enforcement officer
speaks as a citizen when reporting corruption and misconduct to
the media for publication, it would not necessarily have been
37
apparent to a reasonable official that such an officer speaks as
a citizen when making such a report to a governmental agency for
investigation.
“Officials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.” Maciariello v.
Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Here, not only was
there no authority in this circuit holding that the defendants’
conduct was unlawful, but also there was no precedent regarding
when a police officer speaks as a citizen rather than as an
employee. Thus, Chief Cook and Town Manager Bralley were left
to speculate about and guess whether terminating the employment
of Officers Hunter, Donathan, and Medlin would violate their
First Amendment rights. Because those public officials are not
liable for incorrect guesses, I would grant them qualified
immunity and reverse the district court’s ruling denying that
immunity.
38
