Case: 17-40754     Document: 00514625809    Page: 1   Date Filed: 08/31/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                  No. 17-40754                       FILED
                                                               August 31, 2018

MARCUS MOTE,
                                                                Lyle W. Cayce
                                                                     Clerk

             Plaintiff–Appellee

v.

DEBRA WALTHALL,

             Defendant–Appellant.




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      The opinion issued August 31, 2018 is withdrawn, and the following is
substituted therefor:
      Police Chief Debra Walthall challenges the district court’s rejection of
her qualified immunity defense. Walthall asserted this defense to a suit by
Police Officer Marcus Mote under 42 U.S.C. § 1983 for wrongfully terminating
him for exercising his First Amendment rights in connection with his efforts to
organize a police association of members of the City of Corinth, Texas, Police
Department. We agree with the district court that Mote’s association and
speech rights to engage in the activities he alleged were clearly established.
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                                          No. 17-40754
We therefore AFFIRM the district court’s denial of summary judgment on the
basis of qualified immunity.
                                     I.     Background
       Marcus Mote (“Mote”) served as a police officer for the City of Corinth,
Texas, Police Department (“Corinth PD” or “the department”) from 2009 to
2015. 1 During this time, Debra Walthall (“Walthall”) served as Chief of Police
for the Corinth PD. In January of 2015, Mote and his colleague Corporal Jason
Foutch approached Walthall about starting a new Corinth police officers’
association affiliated with the Texas Municipal Police Association (“TMPA”),
which would ultimately be known as the Corinth Police Officers’ Association
(“CPOA”). Mote met with Walthall to request her support for the organization
of the association. At the meeting, Mote detailed the association’s vision and
mission statement, explaining that the association would exist to “support the
officers, their families, and the community.” Walthall indicated at the meeting
that, as long as the association “stayed positive and true to this mission
statement,” she would support it.                  Mote then emailed the department
employees—including all sergeants, corporals, and rank-and-file officers—
stating the association’s mission statement and seeking their support. Mote
represented that Walthall had given her support. In the next few days, several
sergeants came to Mote stating that they had taken a copy of Mote’s email to
Walthall, who had denied having had a discussion with Mote either about the
association’s mission statement or about her support of the association.
       Mote again met with Walthall. In that meeting, Walthall denied having
had the earlier discussion with Mote about the association and its mission and
denied offering her support. Again, Mote reiterated the mission statement of



       1We accept Mote’s factual account as true for the purposes of this interlocutory appeal.
See Kinney v. Weaver, 

, 348 (5th Cir. 2004) (en banc).
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                                 No. 17-40754
the association, and, again, Walthall gave her blessing, contingent on the
association staying positive, but noted that if the association became negative
“things will get ugly.” Mote asked Walthall to issue a statement or email to
the department to clarify her position, which she agreed to do, but never did.
In the days following Mote’s email, Sergeants Clint Ventrca and Kevin Tyson
expressed their displeasure about the association to Mote in heated
conversations.
      On February 11, 2015, Mote held an informational meeting for interested
officers at a local restaurant. At this meeting, conducted with assistance from
the TMPA, the prospective membership voted to establish the CPOA and its
bylaws, limited its membership to corporals and lower-ranked officers, and
selected its board members, with Mote being elected to the board as treasurer.
On March 30, 2015, Mote filed the CPOA’s certificate of formation with the
Texas Secretary of State. He included the purpose of the new non-profit
corporation in the certificate, which reads as follows:
      The corporation shall be a voluntary nonprofit organization
      composed of peace officers and civilian employees of the Corinth
      Police Department, Corinth, Denton County, Texas.                  The
      corporation is organized for the general purposes of promoting
      benevolent, charitable, educational, civic, and fraternal activities
      among its members. In addition, the corporation is organized to
      preserve and strengthen camaraderie among its members; to
      improve the wages, hours of work, job security, working conditions,
      and living conditions of its members and their families; to promote
      the health, security, economic, cultural, legislative, educational,
      social, political, and recreational interest of its members and their
      families; to protect the civil rights and liberties of its members and
      their families; to assert a positive influence on the citizens and the
      community in which we serve; and to receive, gather, and
      disseminate such information as might be helpful to the members
      in the performance of their duties.
      Soon after Mote began organizing the CPOA, Mote and other CPOA
board members began getting written reprimands by the Corinth PD for what
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                                 No. 17-40754
Mote considered petty violations, such as having a dirty squad car and failing
to notify communications about off-duty assignments. Also, Mote alleges that
several of his superior officers were strongly opposed to the association and
complained to him about his efforts to organize it. He further alleges that the
sergeants intimidated the rank-and-file and pressured them not to join the
CPOA. Several officers approached Mote to tell him that, though they were
interested in becoming a part of the CPOA, they feared retaliation for doing so.
       Mote was also disciplined for two more serious incidents. In the first
incident, Mote received a written reprimand on July 30, 2014, for using the
Texas Law Enforcement Telecommunication System without permission to
review the driver’s licenses of approximately forty guests attending Lake
Dallas High School’s prom while Mote was serving as the high school’s School
Resources Officer (“SRO”). As a result, he was removed from the position of
SRO.
       In the second incident, Corinth PD determined, pursuant to an internal
affairs investigation, that Mote violated several department policies by failing
to act properly in the investigation of two intoxicated juveniles he observed
outside a resident’s home while on patrol. On the recommendation of internal
affairs and after a pre-disciplinary hearing on the second incident, Walthall
terminated Mote on October 20, 2015. The Acting City Manager upheld Mote’s
termination on appeal on December 23, 2015.
       In February 2016, Mote filed suit against Walthall, alleging that he was
terminated for exercising his First Amendment association and speech rights,
as well as his procedural due process and equal protection rights pursuant to
42 U.S.C. § 1983. He also alleged statutory violations of Texas Government
Code § 614.021 and Texas Labor Code § 101.301.            He later withdrew his
procedural due process claim.


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                                      No. 17-40754
       Walthall filed a motion for summary judgment seeking dismissal of all
of Mote’s claims. The district court, in a lengthy opinion, granted summary
judgment in favor of Walthall on Mote’s equal protection and Texas
Government Code § 614.021 claims but denied summary judgment as to Mote’s
Texas Labor Code § 101.301 claim, his First Amendment claims, and
Walthall’s qualified immunity defense.             The district court found material
issues of fact as to whether Mote’s speech and association rights were a
substantial motivating factor for Mote’s termination.                 The district court
specifically held that Mote’s association and speech rights were clearly
established.     This appeal is limited to Walthall’s challenge to that legal
conclusion.
       Walthall timely filed a notice of appeal disputing the district court’s
denial of qualified immunity with respect to Mote’s First Amendment claims.
                  II.    Jurisdiction and Standard of Review
       Pre-trial denials of qualified immunity are immediately appealable as
collateral orders because “qualified immunity includes immunity from suit—a
right not to stand trial that would be ‘effectively lost if a case is erroneously
permitted to go to trial.’” 2        Thus, this Court has limited interlocutory
jurisdiction “to review pure questions of law arising from the denial of motions
to dismiss and motions for summary judgment in which public officials
asserted qualified immunity as a defense.” 3
       The only pure legal question we may answer at the qualified immunity
stage is “whether a given course of conduct would be objectively unreasonable
in light of clearly established law.” 4 This Court has “jurisdiction only to decide



       2Carroll v. Ellington, 

, 167 (5th Cir. 2015) (quoting Mitchell v. Forsyth,

, 526–27 (1985)).
      3 

at 168 (quoting Hogan v. Cunningham, 

, 731 (5th Cir. 2013)).

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                                          No. 17-40754
whether the district court erred in concluding as a matter of law that officials
are not entitled to qualified immunity on a given set of facts . . . . ‘[W]e can
review the materiality of any factual disputes, but not their genuineness.’” 5
          Within this limited appellate jurisdiction, “[t]his court reviews a district
court’s denial of a motion for summary judgment on the basis of qualified
immunity in a § 1983 suit de novo.” 6
                                III.    Qualified Immunity 7
          “Qualified immunity shields a government official from liability based on
his performance of discretionary functions.” 8 Our two-step qualified-immunity
inquiry determines whether a plaintiff has shown: “(1) that the official violated
a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” 9 Generally, the Court
exercises its “sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in the light of the
circumstances in the particular case at hand.” 10 Walthall has confined her




          5   

(quoting Wagner v. Bay City, 

, 320 (5th Cir.
2000)).
          Collier v. Montgomery, 

, 217 (5th Cir. 2009).
          6
          7Mote also argues that Walthall failed to move for summary judgment on her
qualified-immunity defense of Mote’s First Amendment association claims below. “The
general rule of this [C]ourt is that arguments not raised before the district court are waived
and will not be considered on appeal.” Celanese Corp. v. Martin K. Eby Constr. Co., Inc., 

, 531 (5th Cir. 2010). In her district court summary-judgment motion, Walthall
references “forming an association,” and, throughout her arguments in that motion, she
refers collectively to Mote’s “First Amendment” rights. As his First Amendment rights
encompass both his free speech and his association rights, Walthall sufficiently raised her
qualified immunity defense below as to Mote’s association rights. See Collins v. Ainsworth,

, 539 (5th Cir. 2004) (citing Roberts v. United States Jaycees, 

, 622
(1984)); U.S. CONST. amend I (states may not “abridg[e] the freedom of speech”).
        8 Haverda v. Hays Cty., 

, 598 (5th Cir. 2013).
        9 Trent v. Wade, 

, 377 (5th Cir. 2015) (quoting Morgan v. Swanson, 

, 371 (5th Cir. 2011) (en banc)).
        10 Pearson v. Callahan, 

, 236 (2009).

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                                       No. 17-40754
interlocutory appeal entirely to the clearly-established prong of the qualified
immunity analysis, and we confine our analysis accordingly.
       “A right is clearly established only if ‘the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.’” 11                The Supreme Court has
admonished courts “not to define clearly established law at a high level of
generality.” 12 Indeed, “existing precedent must have placed the statutory or
constitutional question” confronted by the official “beyond debate.” 13 Although
we need not have a case that is directly on point, 14 the contours of the right
must be established by controlling authority or a “robust consensus of
persuasive authority.” 15       The fundamental concept promoted by requiring
particularity is “fair warning” to government officials. 16 The law can be clearly



       11 

(quoting Plumhoff v. Rickard, --- U.S. --- , 

,
2023 (2014)).
       12 Ashcroft v. al-Kidd, 

, 742 (2011) (internal quotation marks omitted).

It may be that this high standard is not applicable in First Amendment cases. We recently
remarked in another First Amendment case, Davidson v. City of Stafford, 

(5th
Cir. 2017):
       On the second prong of the qualified immunity defense, recent Supreme Court
       decisions addressing claims for excessive force have “reiterate[d] the
       longstanding principle that ‘clearly established law’ should not be defined ‘at a
       high level of generality.’” White v. Pauly, --- U.S. --- , 

, 551–52,
       

(2017) (per curiam) (quoting 

, 

); see also Mullenix v. Luna, --- U.S. --- , 

, 308, 193 L.
       Ed. 2d 255 (2015). Our cases outside the excessive force area involving
       warrantless arrests and limits on speech have not specifically mentioned this
       aspect of Supreme Court cases. See, e.g., Deville v. Marcantel, 

,
       166 (5th Cir. 2009); Evett v. DETNTFF, 

, 687 (5th Cir. 

. But we recited the “high level of generality” standard in another First
Amendment case soon thereafter. See Turner v. Lieutenant Driver, 

, 686
(5th Cir. 2017). Because we believe, as shown below, that the First Amendment law here
meets this higher standard, we need not analyze whether the “high level of generality”
language perforce applies to cases outside of the excessive force line of cases.
       13 

.
       14 

; 

.
       15 

.
       16 

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                                       No. 17-40754
established “despite notable factual distinctions between the precedents relied
on and the cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional
rights.” 17
                                    A. Freedom of Association
       Though not expressly included in the text of the amendment, “[i]mplicit
in the right to engage in First Amendment-protected activities is ‘a
corresponding right to associate with others in pursuit of a wide variety of
political, social, economic, educational, religious, and cultural ends.’” 18 The
Supreme Court has identified two classes of associations endowed with First
Amendment protection: expressive associations and intimate associations. 19
       The record reflects beyond dispute that, if the CPOA is protected by
freedom of association at all, it is protected as an expressive association.
Intimate associations generally refer to the kinds of relationships that “attend
the creation and sustenance of a family,” such as marital or parental
relationships. 20 Expressive associations exist “for the purpose of engaging in
those activities protected by the First Amendment—speech, assembly, petition
for the redress of grievances, and the exercise of religion.” 21 Such associations
involve “collective effort on behalf of shared goals.” We therefore analyze
whether the CPOA is a protected expressive association.
       In determining whether the First Amendment shields a particular
association, courts first “determine whether the group engages in ‘expressive




       17  

(quoting Hope v. Peizer, 

, 740 (2002)).
       18  

(quoting 

); see U.S. CONST. amend I
(states may not “abridg[e] the freedom of speech”).
        19 Kipps v. Caillier, 

, 204–05 (5th Cir. 2000).
        20 

.
        21 

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                                       No. 17-40754
association,’” whether public or private. 22 Though an expressive association
includes political advocacy, classification as such “is not reserved” for political
advocacy groups. 23 But the Constitution does not recognize a “generalized
right of ‘social association.’” 24 The First Amendment protects the right of all
persons to associate together in groups to “advanc[e] beliefs and ideas.” 25 Put
another way, “the [F]irst [A]mendment protects the right of all persons to
associate together in groups to further their lawful interests.” 26 When groups
gather together for this purpose, “it cannot be seriously doubted” that they
comprise associations protected by the First Amendment. 27
       Additionally, “[a] fundamental proposition in our constitutional
jurisprudence is that government employment may not be conditioned upon a
relinquishment of a constitutional right, including the rights to speech and
association guaranteed under the First Amendment.” 28                     It is also well
established in this Circuit that:
       Th[e] right of association encompasses the right of public
       employees to join unions and the right of their unions to engage in
       advocacy and to petition government in their behalf. Thus, the
       First Amendment is violated by state action whose purpose is
       either to intimidate public employees from joining a union or from
       taking an active part in its affairs or to retaliate against those who
       do. 29




       22  Boy Scouts of Am. v. Dale, 

, 648 (2000).
       23  

of Dallas v. Stanglin, 

, 25 (1989).
        25 Abood v. Detroit Bd. of Ed., 

, 233–34 (1977) (citing, inter alia, NAACP

v. Ala. ex rel. Patterson, 

, 460–61 (1958)); Healy v. James, 

, 181
(1972).
        26 Prof'l Ass'n of Coll. Educators, TSTA/NEA v. El Paso Cty. Cmty. Coll. Dist., 

, 262 (5th Cir. 1984).
        27 Bhd. of R. R. Trainmen v. Va. ex rel. Va. State Bar, 

, 5–6 (1964).
        

. Taylor, 

, 1027 (5th Cir. Unit B. Oct. 13, 1981).
        29 Hitt v. Connell, 

, 249 (5th Cir. 2002) (quoting Boddie v. City of

Columbus, 

, 749 (5th Cir. 1993)).
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                                       No. 17-40754
These “protected First Amendment rights flow to unions as well as to their
members and organizers.” 30
       Walthall and Mote agree that unions are protected organizations under
the First Amendment. However, Walthall argues that this is irrelevant in this
case because the CPOA could not engage in collective bargaining under Texas
law so it was not a union. In light of its non-union status, she argues, the
CPOA is not protected as an association because there is “no controlling or
persuasive authority holding that a local, non-union, non-labor association” is
a protected association. Mote responds by citing precedent concerning unions
and other organizations that he contends clearly establishes that the
association with the CPOA is protected by the First Amendment,
notwithstanding the CPOA’s inability to engage in collective bargaining.
       We agree with Mote that Walthall’s argument that First Amendment
protection must be denied to Mote because the CPOA cannot collectively
bargain and may not meet the technical definition of a union must be rejected.
       In Professional Association of College Educators (“PACE”) v. El Paso
Community College District, PACE, an association of college faculty members,
sued a Texas state college for “engag[ing] in a deliberate program to retaliate
against [its] members and officers for the purpose of destroy[ing] the
effectiveness and proper functioning of PACE as an agent for its members.” 31
A former dean at the college and founder of the El Paso Community College
District Association of Administrators (“AA”), PACE’s sister organization of
college administrators, also sued, alleging that he had been terminated in
violation of his First Amendment association rights. 32 PACE’s claims were



       30 Prof'l Ass'n of Coll. 

(quoting Allee v. Medrano, 

, 819 n.13 (1974)).
       31 

marks omitted).
       32 

263–64.

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                                      No. 17-40754
dismissed before trial. 33 The former dean went to trial and was awarded
damages but was denied reinstatement. 34                PACE and the former dean
appealed.
       In finding that PACE had successfully stated a claim upon which relief
could be granted, the panel reasoned:
       The issue is not, as the defendants appear to argue, whether a
       public employer is required to deal with a union or other employee
       association but whether . . . the state may set out to injure or
       destroy an association of public employees for the purpose of
       preventing the exercise of their First Amendment rights. 35
Reasoning that the “[F]irst [A]mendment protects the right of all persons to
associate together in groups to further their lawful interests,” the Court
concluded that the state may not set out to injure or destroy such a group. 36
The Court also upheld the former dean’s damages award, reasoning that a jury
was entitled to conclude that his termination was motivated by his exercise of
associational rights with AA. 37         The opinion leaves no doubt that public
employees are entitled to First Amendment protection for their membership in
“association[s] of public employees.” 38
       In Vicksburg Firefighters Assoc., Local 1686 v. City of Vicksburg, we
concluded that, based on the Connick v. Myers line of cases, the City of
Vicksburg could prevent captains in the Vicksburg Fire Department from
associating with “a voluntary unincorporated labor organization” comprised of



       33  

       34  

at 262 (emphasis added).
        36 

        37 See 

(noting that the decision in Mt. Healthy City Sch. Dist. v.

Doyle, 

(1977) overturned an earlier Fifth Circuit case, Robison v. Wichita Falls
& N. Tex. Comty. Action Corp., 

(5th Cir. 1975), which held that a discharged
public employee who had received due process in a hearing was not entitled to a full trial on
his claim that the discharge was motivated by his exercise of First Amendment rights).
        38 See generally 

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                                       No. 17-40754
rank-and-file officers because Vicksburg had a legitimate concern with
maintaining the loyalty of its supervisors. 39 The Court, however, made it clear
that nothing would prevent the captains from forming their own association. 40
       The question for us, similar to that which we addressed in PACE, is not
whether the City of Corinth is required to collectively bargain with the CPOA
but whether Walthall may interfere with or injure this association of public
employees and prevent the rank-and-file members of the Corinth PD from
enjoying the benefits of the association. 41 PACE, AA, and the CPOA are
strikingly similar in function and design; each are or were comprised of public
employees gathered to protect and promote their own interests. 42 Here, as in
PACE, we conclude that Mote’s right to associate does not depend on the City’s
obligation to collectively bargain with the CPOA. 43                 Further, Vicksburg
demonstrates that Mote had a clearly established First Amendment right to
associate with the CPOA, a employee association. 44
       The reasoning in PACE reinforces the Supreme Court’s admonition that,
though union and associational rights are protected, “the First Amendment
does not impose any affirmative obligation on the government to listen, to
respond or, in this context, to recognize the association and bargain with it.” 45




       39  Vicksburg Firefighters Ass’n, Local 1686 Int’l Ass’n of Firefighters, AFL-CIO, CLC
v. City of Vicksburg, 

, 1039, 1041 n.4, 1043 (5th Cir. 1985) (citing Connick v.
Myers, 

, 140 (1983)); see also 

–52 (noting that the
“efficient and successful” operation of the government office in that case was an important
government interest permitting intrusion on First Amendment rights).
        40 Vicksburg Firefighters 

–42.
        41 See Prof’l Assoc’n of Coll. 

.
        42 See 

Vicksburg Firefighters 

; see also 

;

.
        45 Smith v. Ark. State Highway Emps., Local 1315, 

, 465 (1979).

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                                        No. 17-40754
       As an extension of that principle, First Amendment associational
protection does not turn on whether a group meets the statutory technical
definition of a labor union. 46 Here, the CPOA organized to:
       improve the wages, hours of work, job security, working conditions,
       and living conditions of its members and their families; to promote
       the health, security, economic, cultural, legislative, educational,
       social, political, and recreational interest of its members and their
       families; [and] to protect the civil rights and liberties of its
       members and their families.
These reflect the classic goals of an expressive association gathered “to further
[its members’] lawful interests.” 47 As a result, whether First Amendment
protection attends to Mote’s association rights with the CPOA “cannot be
seriously doubted.” 48       Therefore, the district court did not err in denying
Walthall qualified immunity as to Mote’s First Amendment freedom-of-
association claim.
       We turn now to Walthall’s arguments regarding Mote’s closely related
freedom-of-speech claims.
                                       B. Freedom of Speech 49
       Our sole inquiry here is whether Mote’s rights were “clearly established”
at the time of the challenged conduct. We conclude that Mote’s right to speak


       46 In fact, the Texas Supreme Court recognized in City of Round Rock v. Rodriguez,
that—generally—unions of public employees are prohibited from entering into collective
bargaining agreements. 

, 134–35 (Tex. 2013) (citing TEX. GOV’T CODE
§§ 617.001–.003). This strongly suggests that, under Texas law, the ability to collectively
bargain is not necessary to establish the existence of a protected expressive association. Id.;
see also TEX. LAB. CODE § 101.101(3) (defining a labor union as “an incorporated or
unincorporated association, group, union, lodge, local, branch, or subordinate organization of
a union of working persons organized and existing to protect those persons and to improve
their working conditions, wages, or employment relationships, but does not include an
organization not commonly regarded as a labor union” (emphasis added)).
       47 See Prof'l Ass’n of Coll. 

.
       48 See Bhd. of R. R. 

–6.
       49 Walthall also argues that the district court failed to define Mote’s speech rights with

the requisite particularity. In Haverda v. Hays County, we found that a corrections officer
was unlawfully terminated due to political opinions expressed in a letter to the local
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                                       No. 17-40754
in furtherance of forming the CPOA was clearly established as an integral part
of his association rights. The speech Mote alleges—his communication of the
mission statement and purpose of the CPOA in two in-person meetings, his
speech in the email to his colleagues, and his speech while participating in the
CPOA meetings cannot be separated from his association rights. After all, this
kind of speech is required to organize an expressive association of this nature
and is subsumed within his association claim.
                                   IV.     Conclusion
       For the above reasons, we agree with the district court that Mote’s
association and speech rights to engage in the activities he alleged were clearly
protected. We therefore AFFIRM the denial of summary judgment as to Mote’s
First Amendment association and speech rights.

–98. In reversing the district court’s grant of qualified immunity,
the panel noted only that “there is no doubt that [the officer] had a clearly established
constitutional right not to be fired for engaging in protected speech.” 

(citing
Charles v. Grief, 

, 511 (5th Cir. 2008)). The district court’s formulation below is
nearly indistinguishable—in fact, it gives more detail. This argument fails.
                                             14