LEVAL, Circuit Judge.
Defendant Margaret Ackley, Chief of the New London Police Department ("NLPD"), appeals from the order of the United States District Court for the District of Connecticut (Shea,J.) denying her motion for summary judgment on the ground of qualified immunity. The plaintiff, Todd Lynch, a police officer and a member and officer of the police union, alleges under 42 U.S.C. § 1983 (as well as making claims based on Connecticut law) that Ackley violated his First Amendment rights by retaliating against him for various episodes of speech critical of Ackley's performance as Chief. Ackley moved for summary judgment dismissing the § 1983 claims by reason of qualified immunity. The district court concluded that Lynch made a prima facie case for unconstitutional retaliation and that factual issues in dispute prevented the court from ruling on whether Ackley was entitled to qualified immunity under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The court therefore reserved decision on Ackley's qualified immunity defense until a jury could resolve the factual issues at trial.
The court did not correctly apply the law for determining whether a state actor is entitled by reason of qualified immunity to dismissal of a suit charging her under § 1983 with unconstitutional conduct. The defendant was entitled to have the court construe disputed facts in the light most favorable to the plaintiff and dismiss the claim if, at the time of the defendant's conduct, the law was unclear whether the facts, so construed, constituted a violation of the plaintiff's constitutional rights. We conclude that Ackley established her entitlement to summary judgment on Lynch's § 1983 claims by reason of her qualified immunity.
Plaintiff Lynch has been a New London patrolman and canine handler (K-9) since 2007, having previously served in the Connecticut State Police. In March 2011, he became Vice President of the New London Police Union, AFSCME Local 724 (the "Union"), and became President in November 2011. Defendant Ackley has been
(1) In August 2010, Lynch advocated among the union membership that the Union assert a grievance protesting Ackley's uninvited presence at a union meeting convened to discuss the NLPD's flex-time policy. Lynch asserts that, as retaliation, the department, claiming to be acting in compliance with the terms of the Union's collective bargaining agreement (the "CBA"), revoked compensation time accrued by him and by two other K-9 officers.
(2) At a September 2010 union meeting, Lynch asked that the Union consider a no-confidence vote against Ackley, expressing lack of confidence in her leadership. Later that month, Lynch was denied paid leave to attend the funeral of a former state police classmate, and was not allowed to attend a K-9 conference. He was also advised in October that he would not receive a $500 insurance stipend because he had not properly opted out of his insurance plan during the open enrollment period.
(3) In June 2011, the Union, with Lynch now serving as Vice President, endorsed the mayoral candidacy of City Councilor Michael Buscetto, who was an openly avowed critic of Ackley. In August and September 2011, in alleged retaliation Ackley sent emails to Kathleen Mitchell, a local political commentator, suggesting that Mitchell submit Freedom of Information requests to obtain civilian complaints filed against Lynch and the NLPD's K-9 unit.
(4) In September 2011, the Union sponsored a paid advertisement in The Day, a New London newspaper, titled "Open Letter to the Citizens of New London," which questioned Ackley's leadership and asserted that her lack of judgment was negatively affecting police operations and public safety. The following day, Ackley sent Mitchell an email suggesting that she investigate Lynch's time sheets from the time of his service in the Connecticut State Police. In October, Ackley eliminated the day shift to which Lynch was assigned.
(5) In February 2012, Lynch wrote to the mayor accusing Ackley of violating New London Executive Order No. 004, which prohibits officers from inquiring about an individual's immigration status
(6) In September 2012, Lynch wrote to the mayor on behalf of the Union, expressing the Union's concern that the NLPD's depleted officer ranks were jeopardizing public safety, and later, at the city council's request, Lynch participated in an October 2012 public safety committee ("PSC") meeting discussing the issues raised in Lynch's letter. Ackley then denied Lynch overtime pay for attending the PSC meeting, and in November removed certain K-9 unit records from his control.
(7) In May 2013, Lynch spoke at a PSC meeting on whether civilian complaints against officers should be discussed in open or executive session. Ackley later revoked Lynch's union business leave and placed him on AWOL status when he did not return to work as ordered after a collective bargaining meeting broke down.
(8) Finally, in June 2013, speaking at another PSC meeting, Lynch spoke of low police department morale and a high turnover rate of officers, and expressed concern that two dogs from the K-9 unit had been forced to retire. Ackley then limited K-9 unit training. In addition, when asked for guidance by a mayoral assistant who had received a Freedom of Information request from a reporter for The Day, Ackley advised him to proceed in accordance with City policy. The reporter then published an article discussing racial disparity in bites by K-9 dogs, focusing on an incident involving Lynch and his K-9 dog.
On March 15, 2012, Lynch filed a complaint in Connecticut Superior Court alleging, inter alia, a claim against Ackley and the City of New London (the "City") under § 1983 for First Amendment retaliation.
At the conclusion of discovery, Ackley moved for summary judgment, arguing, with respect to Lynch's § 1983 claims, that her conduct did not violate the First Amendment and that, in any event, she was entitled to have the case against her dismissed by reason of her qualified immunity. The district court denied Ackley's motion. Lynch v. Ackley, No. 3:12-CV-537 (MPS), 2014 WL 4782812 (D.Conn.Sept. 24, 2014). The court ruled that Lynch's speech was protected from retaliation by the First Amendment and that Lynch raised genuine issues of fact as to whether Ackley's conduct amounted to an adverse employment action, whether Ackley had a retaliatory motive for taking those actions, and whether, under the Pickering balancing test, Ackley's interests in preventing disruption of the operations of the department clearly outweighed Lynch's interests in speaking on matters of public concern. As the result of these disputed issues of fact, the court reasoned that it could not yet determine whether Ackley violated Lynch's First Amendment rights. With respect to Lynch's claim of qualified immunity, the court similarly ruled that, because there were disputed issues of fact, it could not determine whether Lynch's actions contravened law that was clearly established at the time. The court denied Ackley's motion. Ackley then brought this interlocutory appeal challenging the district court's denial of qualified immunity.
Before reaching the merits of Ackley's appeal, we must address Lynch's contention that we lack jurisdiction to review the district court's ruling at this stage. Lynch argues that there was no appealable final decision below because the district court rested its denial of qualified immunity on its finding that factual disputes underlying the Pickering balancing test precluded it from determining whether there was a constitutional violation as a matter of law. We disagree.
"A district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is deemed an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This exception is justified by the fact that because qualified immunity is not only a defense to liability, but also provides immunity from suit, an important part of its benefit is effectively lost if a case is erroneously permitted to go to trial; thus, the defendant's entitlement to qualified immunity should be resolved "at the earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 231-32, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Whether an asserted constitutional violation was clearly established at the time of the defendant's challenged conduct may be a purely legal question. Martinez v. Simonetti, 202 F.3d 625, 632 (2d Cir.2000). "[A]s long as the defendant can support an immunity defense on stipulated facts, facts accepted for purposes of the appeal, or the plaintiff's version of the facts that the district judge deemed available for jury resolution, an interlocutory appeal is available to assert that an immunity defense is established as a matter of law." Smith v. Edwards, 175 F.3d 99, 104-05 (2d Cir. 1999) (quotation marks omitted). Adjudication of Ackley's motion for qualified immunity does not need to await jury resolution of disputed factual issues. If on Lynch's version of disputed facts—accepting reasonable inferences most favorable
The Supreme Court has long recognized that the First Amendment affords a degree of protection to public employees to exercise the right of free speech without risk of retaliation by the State employer if the employee's speech in question is "on matters of public interest." See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. At the same time, however, "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. Thus, while those who "accept[] public employment. . . do[] not check all of their First Amendment rights at the door," nonetheless "a citizen, upon entering government service, by necessity must accept certain limitations on his or her freedom." Jackler v. Byrne, 658 F.3d 225, 234 (2d Cir. 2011) (internal quotation marks and citations omitted). In adjudicating the rights of public employees to speak without facing retaliation from a government employer, courts attempt "to arrive at a balance between the interests of the [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, 88 S.Ct. 1731. Courts must weigh the employee's speech interests against the government's interest in "effective and efficient fulfillment of [its] responsibilities to the public, including promoting efficiency and integrity in the discharge of official duties, and maintain[ing] proper discipline in public service." Lane v. Franks, ___ U.S. ___, 134 S.Ct. 2369, 2381, 189 L.Ed.2d 312 (2014) (internal quotation marks and alterations omitted).
The Supreme Court has identified a further limitation on the public employee's First Amendment right to be free of retaliation for speech. In Garcetti v. Ceballos, the Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). "When a public employee speaks pursuant to employment responsibilities, . . . there is no
In pursuit of this balance the Supreme Court has identified three circumstances in which public employee speech is not protected from retaliation by State employers. First, speech about personal matters, as opposed to "matters of public concern," is not protected from retaliation. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Second, even speech on matters of public concern is not protected from retaliation unless the employee's First Amendment interests outweigh government employers' legitimate interests in efficient administration. Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Third, speech made by employees "pursuant to . . . official duties" rather than "as a private citizen" is not protected from retaliation.
A state actor charged under § 1983 with violating a plaintiff's constitutional rights is entitled to have the action dismissed on the basis of qualified immunity if at the time of the challenged conduct there was no "clearly established law" that such conduct constituted a constitutional violation. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This is so even if the court would conclude that, under law at the later time of the court's ruling, the defendant's conduct would be found to violate the Constitution. Id. at 818-19, 102 S.Ct. 2727. This rule is based on the proposition that public officers should freely act in pursuance of their duties without fear of being held liable for damages under constitutional standards of which they have no notice because the standards were not yet developed at the time of their conduct. See Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011). We have ruled that the need for "clearly established" law is satisfied if the law on the subject was defined at the time with reasonable clarity or clearly foreshadowed in rulings of the Supreme Court or the
Ackley contends she is entitled as a matter of law to dismissal of Lynch's First Amendment claims by reason of qualified immunity. She argues that, construing the facts in the light most favorable to Lynch, her allegedly retaliatory actions did not violate constitutional standards that were clearly established at the time. We agree that there was no clear law at the time of the events establishing that Ackley's conduct constituted a First Amendment violation, and we express no view on whether Ackley's alleged conduct should be found to violate the First Amendment.
With respect to what may be Lynch's strongest claim for protection from retaliation—his claim that Ackley retaliated against him for his perceived role in the Union's endorsement of Buscetto for mayor—there was no clear law as to whether Ackley's alleged retaliatory actions constituted prohibited retaliation because Ackley's alleged retaliatory acts were limited to her exercise of her own First Amendment right to defend herself against Lynch's attacks. Her speech in defending herself involved core First Amendment issues of public importance. With respect to Lynch's claim relating to retaliation for a union grievance, the grievance he expressed was not clearly a matter of public
Lynch claims that Ackley's retaliation for his perceived role in the Union's endorsement of Councilman Steve Buscetto for Mayor of New London failed to satisfy the three-pronged test described above. The endorsement undoubtedly expressed a matter of public concern. Endorsements of candidates for political office are at the core of First Amendment protected speech. Lynch's role in the Union endorsement constituted speech as a citizen, rather than as an employee speaking pursuant to employment duties, and an employee's First Amendment interest in expressing support for a candidate for election to public office will, in most circumstances,
For his role in the Union's endorsement of Buscetto, Lynch alleges that Ackley encouraged an investigative reporter to seek out and publish derogatory information about Lynch relating to civilian complaints on his conduct as a K-9 officer. This allegedly retaliatory conduct, however, consisted of Ackley's exercise of her own core First Amendment rights in a public forum about a matter of public importance relating to employment to defend herself against Lynch's attacks. It is hard to see why in this context Ackley has any less entitlement to First Amendment protection than Lynch.
To the extent Lynch argues that, notwithstanding his employment in government, he retained free-speech rights guaranteed by the First Amendment, it appears to us that the same argument is available to Ackley. Lynch contends Ackley was forbidden by the First Amendment from taking retaliatory action against him, but it is hardly the conventional role of the First Amendment to bar Ackley from exercising her free-speech rights in defense against Lynch's attacks on her. In any event, we need not decide the issue. It suffices for our purposes that, given the nature of Ackley's allegedly retaliatory speech, there was no clear law or precedent communicating to Ackley that her exercise of free-speech rights about a matter of public importance relating to employment in an effort to defend herself publicly against Lynch's attacks violated Lynch's First Amendment rights. That absence of authority compels the grant of qualified immunity to Ackley on this claim.
We recognize that adverse employment actions may include adverse actions taken outside the employment context as well as harm to the incidents of employment. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). But it seems highly improbable that the anti-retaliation component of the First Amendment may muzzle an employer's
The few arguably precedential rulings we have found have not tried to specify the limits of the First Amendment's protection of retaliatory speech by public officials, and neither do we. Nonetheless, the fact that Ackley's allegedly retaliatory speech involved efforts to defend herself against the verbal attacks of an employee accusing of her of incompetence and bad administration, and addressed matters of public importance relevant to the attacker's public employment duties, tends to support her entitlement to First Amendment protection. We know of no authority establishing the contrary. We therefore hold, in the absence of any clear authority for Ackley's liability, that Ackley is entitled to qualified immunity as to this claim.
Lynch also claims that Ackley retaliated against him for various incidents of his union activity, which included his filing a union grievance protesting Ackley's presence at a union meeting discussing the Department's flex-time policy. It is far from clear that this grievance asserted a matter of public concern, rather than a "personal grievance[]." Ruotolo v. City of N.Y., 514 F.3d 184, 189 (2d Cir.2008). Lynch contends his grievance expressed a matter of public concern because management intrusion in union matters can "chill and deter union members from openly discussing their positions." Joint App'x at 169. Labor versus management disputes, needless to say, almost invariably involve a conflict between the labor force and management over an issue that concerns the terms and conditions of employment. Such disputes often have a strong flavor of "personal grievance" notwithstanding that the personal grievance is shared by numerous employees. On the other hand, especially in the case of employment in a public agency, which renders service to the general public, it is rarely difficult for a plaintiff to construct an argument that the dispute is a matter of public concern, either because it relates to the delivery of services to the public, or because it invokes basic aspects of the right to unionization.
Lynch's reliance on Hoyt v. Andreucci, 433 F.3d 320 (2d Cir.2006), and Clue v. Johnson, 179 F.3d 57 (2d Cir.1999), is unavailing. The issue in Hoyt was very different from this case. That case involved an employee who alerted the Albany County legislature that one of the county's employees was disciplining corrections officers in an unlawful manner. The court found that "concerns raised to the government about the lawfulness of public officials' actions" were issues of public concern. 433 F.3d at 330. Lynch's grievance against Ackley does not clearly implicate concerns remotely similar to Hoyt.
Clue gives Lynch no better support. Clue involved a claim of management retaliation against a minority faction of the Transit Workers' Union, which sought to unseat union leadership. The court held that the activity in question did implicate matters of public concern because "[t]he intraunion dispute here did not merely involve internal union affairs," but rather involved "a struggle over the labor policies of the Transit Authority and what role the [union] ought to play in changing those policies." 179 F.3d at 61. The issue in Clue was nothing like Lynch's grievance. Though the court said in dicta that "retaliation solely for union activity clearly raises a public concern under Connick," id., it obviously did not mean that all activities undertaken through a union necessarily become matters of public concern merely by virtue of their collateral connection to the union. Cf. Borough of Duryea v. Guarnieri, 564 U.S. 379, 428, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) ("A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context."). Indeed, it recognized that some union activity was likely unprotected from retaliation. Clue, 179 F.3d at 61.
The remainder of Lynch's claims involve retaliation for communication with town leaders or the public at large concerning Lynch's and the Union's contentions that Ackley was a bad chief, and that her continuing presence in that position endangered
Under Pickering, Ackley was permitted to retaliate against Lynch's speech if Lynch's speech interests were out-weighed by the government's interest in "promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Lynch's speech obviously threatened to disrupt Ackley's ability to administer the NLPD effectively. Indeed, the whole purpose of Lynch's speech, as a union officer, was to undermine and impair her authority over the Department. Lynch's opposition to Ackley was hostile and very public, and included his efforts to persuade the executive and legislative authorities of New London to block and countermand her policies. Even construing the evidence in the light most favorably to Lynch, his actions were sufficiently disruptive as to render at least unclear whether his free-speech interest outweighed Ackley's interest in the effective management of the Police Department.
Because no authority clearly establishes that Lynch's interest in speech as a union officer attacking Ackley's competence as chief outweighed Ackley's governmental interest in effective administration of her department, Ackley is entitled to summary judgment on the ground of qualified immunity.
Lynch also claims unlawful retaliation for his associations with City Councilor Buscetto and the Union. The sole associative activity with Buscetto cited by Lynch to justify his claim is the union's endorsement of Buscetto as a mayoral candidate. This claim based on Lynch's First Amendment association rights is subject to the same analysis as set forth above for Lynch's First Amendment free-speech right based on the same incident.
As for Lynch's claim based on his association with the Union, he has made no showing that Ackley retaliated against him because of his union membership, particularly as he has presented no evidence that she retaliated against any other police officer for membership or for holding office in the Union. We recognize that Lynch's evidence was sufficient to show that Ackley retaliated against him for the things he said in the framework of the Union. There was no showing, however, that she retaliated because of his association with the Union.
For the foregoing reasons, the district court's ruling denying Ackley's motion to
The Supreme Court's later ruling in Lane v. Franks arguably narrowed the scope of ineligible employee speech. But Lane was decided subsequent to Ackley's conduct. It therefore had no bearing on the crucial issue for purposes of qualified immunity—whether the law at the time of Ackley's conduct gave her clear notice that her conduct violated Lynch's rights under the First Amendment.
