United States Court of Appeals,

                                             Fifth Circuit.

                                            No. 91–1817.

                            Floyd D. ARRINGTON, Plaintiff–Appellee,

                                                   v.

                            COUNTY OF DALLAS, et al., Defendants,

                               Jack Richardson, Defendant–Appellant.

                             Timothy HAMMOND, Plaintiff–Appellee,

                                                   v.

                            COUNTY OF DALLAS, et al., Defendants,

                  Jack Richardson and Rick Richardson, Defendants–Appellants.

                                            Sept. 8, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

       E. GRADY JOLLY, Circuit Judge:

       Two constables of Dallas County, Texas, alo ng with the county government, bring this

interlocutory appeal seeking to overturn the district court's denial of qualified immunity from suits

by two former deputy constables, who seek redress for loss of jobs, allegedly because they failed to

support the constables' election campaigns. For the reasons set forth below we affirm in part, and

reverse in part, and remand for trial.



                                                   I

       Jack Richardson is constable for Precinct 2 of Dallas County, Texas. Rick Richardson is

constable for Precinct 3. Both were elected to their current terms of office in 1989, two years after

the two districts were formed from old Precinct 2. Jack Richardson had been Precinct 2's constable

prior to the precinct partition. Rick is Jack's son.
        Floyd Arrington was employed as a Deputy Constable in Precinct 2 from October 1981 until

July 27, 1988, when Jack fired him. Timothy Hammond was Deputy Constable in Precinct 2 from

February 1986. Hammond was initially stationed in Richardson, Texas, but was transferred to the

Irving, Texas office in May 1988. He was transferred back to Richardson on January 1, 1989. He

was employed as a probationary employee by then Constable–Elect Rick Richardson in Precinct 3

until being fired on February 3, 1989.



        Both Arrington and Hammond allege that Jack asked them to help in his March 1988

reelection campaign but that they did not become involved. After the campaign, they claim, they

were treated less favorably than were the others who had supported the Richardsons' elections. Also

during this time, Arrington and Hammond obtained office records that are said to show that Jack had

used his access to police records for political purposes and that he spied on Hammond. Arrington

and Hammond say that they found the files in the course of their ordinary duties and that they only

retained the files as evidence of possible criminal activity by the Richardsons.



        Jack Richardson, however, co ntends that the papers were stolen from locked office files.

Accounts of events vary, but during his investigation of the files' removal, Jack Richardson fired

Arrington. Richardson asserts that he fired Arrington for refusing to cooperate with a police

investigation of the stolen office files.



        Shortly after the election, Jack Richardson transferred Hammond to his Irving, Texas office.

This action, Hammond contends, was a punishment for his failure to support Richardson's reelection.

At the end of 1988, Hammond left the Precinct 2 constabulary and started working for Rick

Richardson in Precinct 3. One month later, Rick Richardson fired Hammond, allegedly for

unauthorized possession of stolen office files. (Arrington apparently provided Hammond with some

of the contested office files, which included records from Hammond's personnel file.) Hammond

contends that he was fired for telling a newspaper reporter about official improprieties committed by
Jack Richardson.



        Arrington initially sought a declaratory judgment against Jack Richardson in Texas state court.

In November 1988, that court held that deputy constables are not subject to the county civil service

rules. Arrington then filed this federal suit under 42 U.S.C. § 1983 against Jack Richardson and

Dallas County, seeking damages for deprivations of his right to free speech caused by retaliation for

refusing to assist in the election campaign. He also asserted claims under the Fifth and Sixth

Amendments, alleging that he was fired for refusing to waive his rights during a criminal investigation.

He further alleged that, under the Fourteenth Amendment, he was wrongly deprived of a liberty

interest because he was denied a name-clearing hearing in circumstances that impaired his reputation.

Arrington also sought damages for state law claims for deprivation of his right to procedural due

process, wrongful discharge, slander, defamation of character, and breach of contract.



        Hammond filed a separate action against Jack and Rick Richardson and Dallas County,

alleging that, because he was fired for speaking with a newspaper reporter on a matter of public

significance, his termination was in violation of his rights to free speech. Hammond also alleged that

Jack and Rick conspired to deprive him of his rights to free speech.



        The district court consolidated the two actions and granted part ial summary judgment.

Applying Harlow v. Fitzgerald, 

, 

, 

(1982), the court held

that the qualified immunity of public officials against suits for damages barred Arrington's claims for

the taking of a pro perty interest, breach of contract, and wrongful discharge; it also barred

Hammond's claims for the taking of a property interest, breach of contract, wrongful discharge, and

intentional infliction of emotional distress. The court specifically denied each motion for summary

judgment on all remaining grounds.



        The defendants appeal, arguing that the district court should have barred the plaintiffs'
remaining claims: first, those based on a taking of a liberty interest in violation of both the Fourteenth

Amendment of the United States Constitution and Article One, section 19, of the Texas Constitution;

second, those based on a violation of the plaintiffs' rights under the First Amendment; third, those

based on violations of Arrington's rights secured under the Fifth and Sixth Amendments, and finally,

those based on conspiracy to violate their rights under the First Amendment.1



                                                    II

         We review de novo a summary judgment, applying the same standards of law as those

available to the district court. Trial v. Atchison, T. & S.F.R. Co., 

, 122 (5th Cir.1990).

Therefore, to sustain the partial summary judgment rendered below, we must find that there is "no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

law" concerning the issues decided. Fed.R.Civ.P. 56(c); Dunn v. State Farm Fire & Casualty Co.,

, 872 (5th Cir.1991).



                                                   III

         Qualified immunity bars suits for damages against public officials for conduct within the

scope of their discretionary duties, performed with an objectively reasonable belief that the conduct

does not violate the clearly established statutory or constitutional rights of another. 

, 102 S.Ct. at 2738. It follows that the district court is obligated to grant summary judgment

if the law at the time of the actions giving rise to the complaint did not clearly establish a cause of

   1
    The defendants argue that the court, in effect, granted summary judgment to bar all claims but
those in four groups identified by the court. The court, however, granted judgment barring the
enumerated claims described above, and denied judgment on "all remaining claims." Other claims,
such as Arrington's Fifth and Sixth Amendments claims and Hammond's claim for retaliatory
transfer, were not rejected by the partial summary judgment.

                The defendants first presented several of their arguments on appeal—particularly
        that the district court erred in not barring the claims unaddressed in its opinion—in their
        reply brief. The Fifth and Sixth Amendments arguments, however, are closely related to
        the liberty interest argument raised in the defendants' original brief, and the retaliatory
        transfer argument is related to the First Amendment argument. Given the related original
        arguments, and to speed resolution of this case, we consider these arguments to be before
        us on appeal.
action for the violation of statutory or constitutional rights, which the official should have known then

existed. 

Richardsons were public officials, and the transfer and firing of their employees

were within their discretion as public officials. Arrington was an employee of Jack Richardson, and

Hammond was an employee of both Jack and Rick, although he was only a probationary employee

of Rick Richardson. Therefore, the conduct on which the plaintiffs base their action for damages is

against public officials acting within the scope of their discretion. We must, therefore, determine

whether the conduct alleged, if proved, violated any of the plaintiffs' statutory or constitutional rights

clearly established at the time of the conduct.



                                                    A

        The district court, in applying the doctrine of qualified immunity, barred Arrington's claims

for t he taking of a property interest, for breach of contract, and, under state law, for wrongful

discharge. It barred Hammond's claims for the taking of a property interest, for breach of contract,

for wrongful discharge under state law, and for intentional infliction of emotional distress. The

defendants now argue that the remaining claims should likewise be barred.



        Arrington and Hammond do not now challenge the district court's judgment. We are thus

concerned only with those claims that remain following partial summary judgment, namely, the Fifth

and Sixth Amendments claims; the liberty interest claims under the Fourteenth Amendment to the

United States Constitution and Article One of the Texas Constitution; and the First Amendment and

related conspiracy claims.



                                                    B

        We turn first to Arrington's claims that his rights under the Fifth and Sixth Amendments were

violated. In his amended complaint, he alleged he
       would show that while conducting a criminal and internal investigation of his deputies in July
       of 1988, Defendant [Jack] RICHARDSON requested Plaintiff to respond to certain questions
       concerning alleged criminal conduct. Once it was made clear to Plaintiff that he could be
       criminally prosecuted if his answers incriminated him, Plaintiff refused to participate further
       in the investigation and demanded the right to confer with legal counsel. Plaintiff was then
       immediately terminated by Defendant [Jack] RICHARDSON for Plaintiff's refusal to waive
       his rights against self-incrimination under the 5th Amendment to the United States
       Constitution, and his right to counsel under the 6th Amendment to the United States
       Constitution. Termination of Plaintiff's employment with Defendants under such
       circumstances amounts to a violation of Plaintiff's civil rights.

The district court did not address this claim, and the defendants argue that they are entitled to its

dismissal.



                                                (1)

        Initially, we segregate the claims Arrington makes in this argument into one claim asserted

under the Fifth Amendment and one asserted under the Sixth. The Sixth Amendment right to counsel

is distinct from that protected under the Miranda–Edwards doctrine2 and does not attach until the

initiation of an adversary judicial process in respect to a specific crime. McNeil v. Wisconsin, –––

U.S. ––––, 

, 

(1991). Such a proceeding had not been commenced

at the time Jack Richardson interviewed Arrington. Thus, Arrington's rights under the Sixth

Amendment were not implicated by either refusal of access to counsel or termination of employment

in response to a demand for counsel at that interview. We therefore find that the defendants are

entitled, at least, to qualified immunity from Arrington's claims under the Sixth Amendment.



                                                (2)

        In general, under the Fifth Amendment, a state may not discharge an employee solely for

invoking the privilege against self-incrimination. Lefkowitz v. Cunningham, 

, 

, 

(1977). On the other hand, public employees may be required to answer

potentially incriminating questions "if they have not been required to surrender their constitutional

   2
    The right asserted under Miranda v. Arizona, 

, 

, 

(1966), is based on the Fifth Amendment right against self-incrimination and must be respected
from the moment it is asserted. Edwards v. Arizona, 

, 

, 

(1981).
immunity." 

, 97 S.Ct. at 2136; cf. Hoover v. Knight, 

(5th

Cir.1982) (policewoman asserted Fifth Amendment privilege, and no violation of her rights occurred).



         If a public employer has not requested its employee to surrender protected rights, the

employee's refusal to answer the employer's questions is a valid ground for dismissing the employee.

. We noted in Gulden v. McCorkle, 

(5th Cir.1982), cert.

denied 

, 

, 

(1983) (choice between polygraph or

discharge was no violation of employee's Fifth Amendment rights), that four Supreme Court cases

culminating in the Lefkowitz decision emphasize that the employee's rights are imperilled only by the

combined risks of both compelling the employee to answer incriminating questions and compelling

the employee to waive immunity from the use of those answers. 

.3 The

government's mere failure to tender immunity cannot amount to an attempt to compel a waiver of

. Thus, we held in Gulden, an invocation of Fifth Amendment rights

must be based on (1) the public employer's refusal to allow immunity for the use of potentially

incriminating answers that (2) the employer has compelled the employee to provide. Id.; cf.

Benjamin v. City of Montgomery, 

, 962 (11th Cir.1986) cert. denied 

, 

, 

(police officers could not be fired for refusing to waive their Fifth

Amendment privilege).



        Returning to Arrington's Fifth Amendment claim, we find he has pleaded a violation of clearly

identified rights: his right to consult with counsel and his right to remain silent in the face of criminal

prosecution. He alleges that he was commanded to answer questions and that Richardson warned

that the answers to these questions could be used to prosecute Arrington. Upon such warning that

he could be prosecuted based upon his answers, he invoked his right to counsel and also refused to

   3
    Lefkowitz v. Turley, 

, 

, 

(1973); Gardner v.
Broderick, 

, 

, 

(1968); Uniformed Sanitation Men
Asso., Inc. v. Commissioner of Sanitation of the City of New York, 

, 

,

(1968); Garrity v. New Jersey, 

, 

, 

(1967).
answer the questions; then he was fired. Thus, he has stated a case in which his public employer not

only sought to compel him to answer questions but also refused to grant him immunity from the use

of the answers. In short, the allegations of the complaint allow a conclusion that Richardson sought,

not merely Arrington's cooperation—but sought his criminal prosecution as well; and when

Arrington asserted his constitutional rights, Richardson fired him. Such a case runs afoul of the

limited but carefully drawn standard set forth in Lefkowitz and Gulden. Although questions of fact

remain as to whether Arrington can prove that these events occurred as he described them, for the

reasons he alleges, such questions of fact render the qualified immunity question inappropriate as a

matter for summary judgment.



                                                  C

       We next consider both plaintiffs' claims that the defendants' actions resulted in a taking of a

liberty interest protected by the Constitutions of the State of Texas and the United States. Arrington

asserted in his amended complaint that he would prove that Jack Richardson, and thus Dallas County,

deprived him of a liberty interest protected by the Fourteenth Amendment.



       In firing the Plaintiff, Defendant [Jack] RICHARDSON accused Plaintiff of engaging in
       criminal conduct, to wit: stealing property belonging to another, being in possession of stolen
       property, and unlawfully carrying a firearm. Plaintiff ... was entitled ... to a name clearing
       hearing prior to any discharge. Despite Plaintiff's numerous written and oral requests for a
       pretermination hearing, [these were denied]. Defendant Richardson further refused to reveal
       the names of the individuals who purportedly had knowledge of the criminal conduct allegedly
       engaged in by Plaintiff. Defendants' failure to grant Plaintiff such a hearing constitutes a
       violation of Plaintiff's liberty rights under the 14th Amendment to the United States
       Constitution without due process of law.

Hammond asserted that Rick Richardson, and thus Dallas County, also denied him of a liberty interest

protected under the Fourteenth Amendment. Hammond, in essentially the same language as that used

by Arrington, pleaded that Rick Richardson had accused him of possessing stolen property and of

violating departmental policy.



        A public employer may unconstitutionally deprive its employee of a liberty interest if it
discharges him under stigmatizing circumstances without giving the employee an opportunity to clear

his name. Rosenstein v. City of Dallas, 

, 395 (5th Cir.1989), reinstated in part 

, cert. denied ––– U.S. ––––, 

, 

(1990). To assert a claim for

the deprivation of this constitutional right to a name-clearing hearing, a plaintiff must allege that he

was a public employee, that he was discharged, that stigmatizing charges were made against him in

connection with his discharge, that the charges were false, that the charges were made public, that

he requested a name-clearing hearing, and that the hearing was denied. 

–396.



        Simply analyzed, neither Arrington's nor Hammond's complaints alleged any publication of

the stigmatizing charges, as required in Rosenstein.4 Although they allege that they were innocent,

fired for a stigmatizing reason, and requested but were denied a name-clearing hearing, they have not

alleged a violation of a clearly established right, i.e., the right to a name-clearing hearing that

comports with due process under the Fourteenth Amendment—unless they also allege that the

defendant published these charges.



       The plaintiffs' pendant state law claims for the violation of their rights to procedural due

process under Article I, section 19, of the Texas Constitution are identical to the federal claims for

deprivation of a liberty interest. Price v. City of Junction, 

, 590 (5th Cir.1983). For

the reasons set forth above relating to the claim under the Fourteenth Amendment, we find that the

defendants have likewise failed to state a cognizable claim under Article I, section 19, of the Texas

Constitution.



                                                   D

   4
    Although Arrington has made some attempt to prove that Jack Richardson published the
allegedly stigmatizing claims, he has failed to present sufficient proof that any voluntary act of
Richardson caused these charges to be published. Moreover, his unsuccessful attempt in this
regard cannot remedy his failure, in both his original and amended complaints, to allege
publication of a defamatory statement.
        We next consider the plaintiffs' claims that the defendants violated their First Amendment

rights. These claims rest on three distinct grounds. First, Arrington and Hammond each contend that

their firings were motivated by their failure to engage in the election campaigns of their employers.

Hammond also contends that his transfer was similarly retaliatory. Second, Arrington alleges that

he was fired for communicating information of public interest to a newspaper reporter. Third,

Hammond alleges that Jack and Rick Richardson conspired to engage in a reprisal for his exercise of

his right to free speech.



        The defendants urge us to find that Arrington's and Hammond's speech was not protected

because it was known by the plaintiffs to be false or in reckless disregard of the truth. Such speech

is not protected under the First Amendment. Gates v. City of Dallas, 

(5th Cir.1984).

In this respect, however, the district court found that questions of fact precluded summary judgment.

We agree and hold that the defendants are not entitled to summary judgment on the basis of qualified

immunity with respect to the plaintiffs' claims based on the First Amendment.



                                                 IV

        In sum, Arrington's surviving claims are reduced to his allegations that Jack Richardson fired

him for refusing to work on Jack's campaign and for refusing to waive his privilege against

self-incrimination. Hammond's surviving claims are his allegations that Rick and Jack Richardson

retaliated against him for exercising protected rights to speak with a reporter on a matter of public

interest and to abstain from the election campaign. Therefore, the following claims survive for trial:

Arrington's claim against Jack Richardson and Dallas County for violation of his First Amendment

rights; Arrington's claim against Jack Richardson and Dallas County for termination because of his

refusal to waive his Fifth Amendment rights; Hammond's claim against Jack Richardson and Rick

Richardson for conspiracy to violate his First Amendment rights; Hammond's claims against Rick

Richardson and Dallas County for deprivation of his First Amendment rights by his transfer and by

his termination. All other claims are barred.
       We therefore AFFIRM in part the district court's partial summary judgment but REVERSE

the district court's denial of partial summary judgment on all the remaining claims and REMAND for

further proceedings.



       AFFIRMED in part, REVERSED in part, and REMANDED.