United States Court of Appeals
For the First Circuit
No. 05-1195
RONALD JORDAN, ROBERT MACKAY AND
THE MBTA POLICE PATROLMAN'S UNION,
Plaintiffs, Appellees,
v.
JOSEPH C. CARTER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Mark W. Batten, with whom Proskauer Rose LLP was on brief, for
appellant.
James W. Simpson, Jr., with whom Douglas I. Louison and
Merrick, Louison & Costello, LLP, were on brief, for appellees.
November 4, 2005
COFFIN, Senior Circuit Judge. Appellant Joseph C. Carter is
chief of the Massachusetts Bay Transit Authority (MBTA) police
department. Two officers (plaintiffs-appellees) sued Carter in
both his individual and official capacities, alleging, inter alia,
that he violated their First Amendment rights by disciplining them
for comments they made to each other and to other officers about
various police department matters. As part of a motion seeking
judgment on the pleadings, Carter moved to dismiss the individual
claims on the ground that he was immune from suit under the
doctrine of qualified immunity. The district court’s denial of
that motion, in a ruling from the bench following oral argument, is
the sole subject of this interlocutory appeal.1
In reviewing the disposition of a motion for judgment on the
pleadings under Fed. R. Civ. P. 12(c), we may consider only the
facts as alleged in the complaint, viewed in the light most
favorable to the appellees. Pasdon v. City of Peabody, 417 F.3d
225, 226 (lst Cir. 2005). With that constraint on our analysis, we
conclude that the district court reached the correct result.
1
The two officers, along with the MBTA Police Patrolman’s Union,
sued the MBTA as well as Carter, and also alleged violations of the
officers’ rights to due process and freedom of association under
state and federal law, and additionally asserted state law claims
for intentional infliction of emotional distress. The MBTA
voluntarily dismissed all of its claims, and the individual
plaintiffs voluntarily dismissed their due process claims. The
district court dismissed the freedom of association claims and
granted judgment for defendant on the emotional distress claims.
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I. Background
The pertinent facts are few, as we are limited to the
allegations in the complaint and the complaint is sparsely drafted.
It states that the plaintiffs, Ronald Jordan and Robert McKay, were
suspended with pay in the spring of 2004 after the defendants
“illegally search[ed] and analyz[ed] recorded telephone
conversations between other officers and superiors.”2 The
conversations at issue, which were recorded on the MBTA’s telephone
system, pertained to four matters:
(1) requesting criminal offender record information
(“CORI”) about several individuals;
(2) criticizing the deputy chief and other department
management;
(3) discussing the chief’s absenteeism and referring to
him as “No Show Joe”;
(4) discussing safety issues concerning the Dudley
Station of the MBTA.
Plaintiffs alleged that appellant Carter “personally disciplined
and caused damages to the plaintiffs because of their criticism of
his job performance and the job performance of his deputies,” in
violation of their First Amendment right to free speech.
As noted above, the district court rejected appellant’s
qualified immunity defense, which shields government actors from
damages based on their conduct unless a reasonable official would
have known, in light of clearly established law, that he was acting
2
Defendants submitted transcripts of the recorded conversations to
the district court for possible consideration in connection with
their motion, but both sides on appeal treat the transcripts as
outside the record, and thus so do we.
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unconstitutionally. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982); Wagner v. City of Holyoke, 404 F.3d 504, 509 (lst Cir.
2005) (per curiam), petition for cert. filed, 74 U.S.L.W. 3121
(U.S. Aug. 17, 2005) (No. 05-234); Dirrane v. Brookline Police
Dep’t, 315 F.3d 65, 69 (lst Cir. 2002). On appeal, appellant
continues to pursue such protection, emphasizing that immunity is
the norm in public employee First Amendment cases because the
constitutional question requires fact-intensive balancing – making
it unlikely that a reasonable official “must have known that he was
acting unconstitutionally,” Dirrane, 315 F.3d at 71 (emphasis in
original).
Although appellant is correct that the relevant qualified
immunity case law is generally in his favor, his argument fails to
appreciate that, because this case comes before us at such a
preliminary stage, the immunity analysis is weighted toward the
plaintiffs’ version of events, as depicted by the allegations in
the complaint. See Pasdon, 417 F.3d at 226 (motion for judgment on
the pleadings should not be granted “‘unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief’”) (citation omitted).
As we review below the legal frameworks that govern our decision,
it will become apparent why appellant’s immunity defense must at
this point be rejected.
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II. Discussion
A. Qualified Immunity
In deference to the sensitive discretionary judgments that
government officials are obliged to make, qualified immunity
safeguards even unconstitutional conduct if a reasonable officer at
the time and under the circumstances surrounding the action could
have viewed it as lawful. See Malley v. Briggs, 475 U.S. 335, 341
(1986); Wagner, 404 F.3d at 508-09. The ultimate question before
us, therefore, is not whether appellant Carter committed an
unconstitutional act, but whether his disciplinary action against
the plaintiffs is entitled to immunity from liability even if that
action violated plaintiffs’ First Amendment rights.
To answer the immunity question, we employ a three-part test
that examines both the state of the relevant law and the nature of
the alleged conduct. Mihos v. Swift, 358 F.3d 91, 102 (lst Cir.
2004). First, we consider whether plaintiffs' allegations, if
true, establish a constitutional violation. Second, we look at
whether the right allegedly violated was clearly established at the
time of the challenged conduct. Finally, if the prior two
questions are answered affirmatively, we determine “whether a
similarly situated reasonable official would have understood that
the challenged action violated the constitutional right at issue.”
Id. If the final answer is “no,” a defendant will be entitled to
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qualified immunity notwithstanding constitutional injury to the
plaintiff.
The Supreme Court has directed us, in the absence of special
circumstances, to take up these questions in order, even though it
might be easier at times to bypass the substantive constitutional
question and conclude that, at a minimum, the law was not clearly
established when the challenged conduct occurred. See Saucier v.
Katz, 533 U.S. 194, 200-01 (2001); Fabiano v. Hopkins, 352 F.3d
447, 453 (lst Cir. 2003). With such a sequential approach, the law
continues to develop and become more “clearly established” over
time. Saucier, 533 U.S. at 201 (“This is the process for the law’s
elaboration from case to case, and it is one reason for our
insisting upon turning to the existence or nonexistence of a
constitutional right as the first inquiry. The law might be
deprived of this explanation were a court simply to skip ahead [to
the other questions].”).
Thus, we turn first to the first question: do plaintiffs’
allegations establish a constitutional violation? Our review is de
novo. See Mihos, 358 F.3d at 102.
B. First Amendment
To determine whether the facts as alleged state a violation of
the plaintiffs’ First Amendment rights, we confront a second three-
part inquiry:
(1) whether the speech involves a matter of public
concern; (2) whether, when balanced against each other,
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the First Amendment interests of the plaintiff and the
public outweigh the government’s interest in functioning
efficiently; and (3) whether the protected speech was a
substantial or motivating factor in the adverse action
against the plaintiff.
Id.(noting that these inquiries derive, respectively, from the
Supreme Court’s decisions in Connick v. Myers, 461 U.S. 138 (1983);
Pickering v. Bd. of Educ., 391 U.S. 563 (1968); and Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); see
also Fabiano, 352 F.3d at 453; Mullin v. Town of Fairhaven, 284
F.3d 31, 37-38 (lst Cir. 2002). We need address only the first two
questions, as appellant acknowledges that the complaint satisfies
the third element by alleging that appellant disciplined plaintiffs
in retaliation for protected speech.
(1) Matter of Public Concern
Our first step is to determine, based on “‘the content, form,
and context of a given statement, as revealed by the whole record,’
whether the employee was speaking ‘as a citizen upon matters of
public concern,’ or, alternatively, ‘as an employee upon matters
only of personal interest,’” O’Connor v. Steeves, 994 F.2d 905, 912
(lst Cir. 1993) (quoting Connick, 461 U.S. at 147-48). See also,
Tripp v. Cole, 425 F.3d 5, 11 (lst Cir. 2005); Mihos, 358 F.3d at
102. If only personal speech is involved, “‘then its First
Amendment value is low, and a “federal court is not the appropriate
forum in which to review the wisdom” of internal decisions arising
therefrom.’” Fabiano, 352 F.3d at 453 (citations omitted).
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In some instances, the subject matter of the speech, alone,
may resolve the “public concern” question, as when the employee
“expresses himself on a subject that is ‘clearly a legitimate
matter of inherent concern to the electorate,’” id. at 454 (quoting
O’Connor, 994 F.2d at 913-14). In other instances,
public-employee speech on a topic which would not
necessarily qualify, on the basis of its content alone .
. . (e.g., internal working conditions, affecting only
the speaker and co-workers), may require a more complete
Connick analysis into the form and context of the public-
employee expression . . . .
O’Connor, 994 F.2d at 914 (emphasis in original).
The terseness of the instant complaint precludes us from
performing a close analysis of the targeted speech. We have
available only the general subject matter of the statements at
issue, plus the fact that they were made in conversations with
“other officers and superiors” on a police department telephone
line. Nonetheless, working with what we have, our task is to
consider whether the categories of statements listed in the
complaint qualify as addressing matters of public concern.
Drawing all inferences in favor of the plaintiffs, we cannot
reject the possibility that at least some of the speech would fall
within an area of public concern. Indeed, appellant admits as
much. Criticism of the chief and other management, as well as
expressions of concern about safety at one of the MBTA passenger
stations, could – depending upon the particulars of content, form
and context – constitute “a matter of legitimate public concern,”
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O’Connor, 994 F.2d at 915.3 Certainly, if either official
misconduct or neglect of duties was asserted to be responsible for
unsafe conditions for the general public, this would be a matter of
public importance. If, however, the performance critiques
concerned only matters of internal working conditions, and the
discussion of “safety issues” at the Dudley Station likewise
reflected an employee workplace concern rather than the public
interest, plaintiffs’ constitutional claim would falter at the
threshold inquiry. With the record undeveloped, and the facts thus
still capable of tilting in either direction, we accept for present
purposes that the public concern prong is satisfied.
(2) Balancing the Interests
The second step in determining whether appellant committed a
First Amendment violation is to balance the plaintiffs’ and
public’s interests in the plaintiffs’ speech against 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. Although this is intended to be a
“particularized” inquiry, see Fabiano, 352 F.3d at 455 (“[I]f the
3
We do not address the first category of conversations –
“[r]equesting CORI records.” Putting aside the question whether
such requests would constitute relevant “speech,” plaintiffs appear
to acknowledge that they would not implicate a matter of public
concern. In addition, the complaint explicitly attributes the
discipline imposed by appellant Carter to plaintiffs’ criticism of
appellant’s job performance and the job performance of his
deputies, and not to the records requests.
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plaintiff’s constitutional claim is relatively weak, . . . the
government need show less to counter it.”), we have little to
assess at this point on either side of the scale.
On plaintiffs’ side, our inquiry considers their interests in
communicating the safety concerns and performance criticism that we
have deemed potentially of public concern, as well as the interests
of the public in receiving such information. See Mihos, 358 F.3d
at 107. While our starting point is that such information about
public welfare and public officials is of significant weight, we
must factor in particulars such as the nature of the comments and
the motivation behind the speech. For example, when public-
employee expression is done in a “‘vulgar, insulting, and defiant’
manner,” Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1290 (llth
Cir. 2000), or is motivated by self-interest rather than by a
desire to serve the public interest, see O’Connor, 994 F.2d at 915,
it is entitled to less weight in the Pickering balance. On the
other hand, the fact that statements are made in private
conversations and not disseminated to the public at large does not
necessarily weigh against them. See id. at 916-17. Here, we have
no information about the particulars of plaintiffs’ comments, other
than that they were made on MBTA phone lines; we thus have no basis
for discounting plaintiffs’ and the public’s interests.
Meanwhile, in examining appellant’s side of the balance, we
acknowledge that the government’s interest “is particularly acute
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in the context of law enforcement, where there is a ‘heightened
interest . . . in maintaining discipline and harmony among
employees,’” Moore v. Wynnewood, 57 F.3d 924, 934 (l0th Cir. 1995)
(citation omitted); see also, Oladeinde v. City of Birmingham, 230
F.3d 1275, 1293 (llth Cir. 2000); Kokkinis v. Ivkovich, 185 F.3d
840, 845 (7th Cir. 1999); O’Donnell v. Barry, 148 F.3d 1126, 1135
(D.C. Cir. 1998). But motivation is important here, too, and the
allegations of the complaint tell us that appellant retaliated
because of plaintiffs’ criticism of his and his deputies’ job
performance. If appellant did so entirely out of self-interest to
silence legitimate criticism, the government interest would be
weakened.
We believe our discussion makes it evident that, without the
particulars relevant to both sides of the balance, we cannot
definitively resolve the constitutional question. Still, given
that we must at this juncture indulge all inferences in favor of
the plaintiffs, we conclude that, on the record before us, the
complaint sufficiently states a constitutional violation. Having
so resolved, and with appellant’s concession that plaintiffs’
allegations satisfy the “substantial factor” prong of the
constitutional inquiry, we now return to the qualified immunity
inquiry and the question whether plaintiffs’ First Amendment rights
were clearly established at the time appellant disciplined them for
their speech.
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C. Clearly Established Right
The second stage of the qualified immunity inquiry requires us
to determine whether the right we have identified was “‘reasonably
well settled at the time of the challenged conduct,’” Mihos, 358
F.3d at 109 (quoting Martinez v. Colon, 54 F.3d 980, 988 (lst Cir.
1995)). Because that analysis “‘must be undertaken in light of the
specific context of the case, not as a broad general proposition,’”
Suboh v. Dist. Attorney’s Office of Suffolk Dist., 298 F.3d 81, 93
(lst Cir. 2002) (quoting Saucier, 533 U.S. at 201), we again
encounter the undeveloped state of the record as an obstacle. If
we simply considered whether the law clearly established that a
public employer may not penalize an employee for speech about a
matter of public concern, it would be beyond debate that ample
legal precedent existed to guide appellant’s conduct. But using
such a broad formulation to deny immunity is precisely what we have
been told not to do. See, e.g., Wagner, 404 F.3d at 509 (“The
general right invoked by Wagner – to engage in speech on matters of
public concern without retaliation – was clearly established prior
to 1994. But qualified immunity requires that the general right be
placed in a reasonably specific context . . . .”).
Appellant, however, urges us to award him immunity based on a
similarly generic argument. He emphasizes the abundant case law
recognizing that it is rare for immunity to be denied when the
constitutional right at issue involves weighing various factors.
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We and other circuits have noted that the Pickering balancing is
“‘subtle, yet difficult to apply, and not yet well defined,’” Pike
v. Osborne, 301 F.3d 182, 185 (4th Cir. 2002) (citation omitted),
and that, consequently, only in the extraordinary case will it have
been clearly established that a public employee’s speech merited
constitutional protection. See, e.g., Fabiano, 352 F.3d at 457;
Chesser v. Sparks, 248 F.3d 1117, 1124 (llth Cir. 2001); Bartlett
v. Fisher, 972 F.2d 911, 916-17 (8th Cir. 1992) (citing similar
cases); O’Connor, 994 F.2d at 917 n.11.
Appellant claims that this cannot be the rare case because the
complaint depicts disciplinary conduct imposed for a mixture of
protected and unprotected speech, a combination that would engender
uncertainty in any attempt to balance interests. In support, he
cites our decision in Dirrane, 315 F.3d at 70-71, and asserts that
it similarly involved “arguably protected statements ‘nestled in a
morass of complaints’ that were not protected speech.” In Dirrane,
the plaintiff had complained over a number of years about abuses in
the Brookline police force, ranging from minor issues to serious
charges of falsification and destruction of evidence. He alleged
that his supervisors had failed to seriously investigate his
complaints and transferred him in retaliation for making them. We
held that the plaintiff had made out “a colorable First Amendment
violation,” id. at 70, but because his years of petty complaints
gave his superiors a basis for distrusting his judgment – and in
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the absence of equivalent precedent – we found the individual
defendants entitled to qualified immunity. See id. at 71.
Although Dirrane also presented an appeal of a motion to
dismiss, it provides limited support for appellant’s immunity
request. We described the complaint there as “very lengthy,” id.
at 70, and we noted allegations detailing the statements that
plaintiff made, to whom, and, at least to some extent, their
timing. We have none of those particulars here. Appellant could
have, but did not, move for a more definite statement. See Fed. R.
Civ. P. 12(e); Educadores Puertorriqueños En Acción v. Hernández,
367 F.3d 61, 67 (lst Cir. 2004). We therefore cannot eliminate the
possibility that the facts once developed will show a violation of
clearly established law. As we have intimated above, if
plaintiffs’ criticism consisted of serious expressions of concern,
voiced in an appropriate manner, about the effect of their
supervisors’ poor performance on public safety or other public
matters, and appellant’s retaliation was primarily aimed at
silencing their criticism for his own advantage, precedent would
have clearly established that the balance of interests tipped
decisively in plaintiffs’ favor. Appellant is thus not entitled to
immunity based on prong two.
(3) The Understanding of a Reasonable Official
In the third step of the qualified immunity analysis, we
consider whether an objectively reasonable officer in the
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defendant’s position would have understood his action to violate
the plaintiff’s rights. Mihos, 358 F.3d at 110; Suboh, 298 F.3d at
95. At this stage, as we have noted, the record requires us to
look upon plaintiffs’ speech as significantly involving matters of
public concern. Similarly, we must assess and balance the
interests of the parties, favoring plaintiffs in our reading of the
allegations. And, since appellant concedes that the allegations
establish that plaintiffs’ speech was the motivating factor for
imposing sanctions, the required inquiry leads to but one result.
We cannot award immunity to appellant on the basis that a
reasonable officer would not have realized the impropriety of his
conduct.
III. Conclusion
We are fully aware that the doctrine of qualified immunity is
intended to protect government officials not only from personal
liability but also from the burdens of litigation, see Saucier, 533
U.S. at 200-01, and that immunity is often appropriate in cases
involving public employee speech. It is not an automatic
entitlement, however, and a court may not cut off a plaintiff’s
claims based simply on the odds. Here, the record is
insufficiently developed to permit a reasoned assessment of either
the speech or conduct at issue, and we accordingly must draw all
inferences in the plaintiffs’ favor. From that perspective, we
conclude that the district court properly denied appellant’s motion
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for dismissal of the individual claims based on the defense of
qualified immunity. We do not mean to imply any likely outcome as
this case further proceeds.4
Affirmed.
4
As we noted in Mihos, denial of immunity at the motion-to-dismiss
stage does not preclude renewal of the defense in a subsequent
motion for summary judgment or at trial. See 358 F.3d at 110 n.16.
If, however, “the trial court denies the request for summary
judgment because of a genuine issue as to any material fact,
including motive, that ruling would not permit an interlocutory
appeal.” Id.
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