UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-11206
DEBORAH A. BRANTON
Plaintiff - Appellant
v.
THE CITY OF DALLAS; BENNIE R. CLICK, Chief of Police Individually
& in His Official Capacity
Defendants - Appellees
- - - - - - - - - - - - - - - - - - - -
DEBORAH A. BRANTON
Plaintiff - Appellant
v.
THE CITY OF DALLAS
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
November 9, 2001
Before POLITZ, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
An internal affairs investigative officer in the Dallas
1
Police Department filed this 42 U.S.C. § 1983 suit for employment
retaliation in violation of her First Amendment right to free
speech. The officer was downgraded in performance rating,
removed from investigative and supervisory duties, and
effectively disqualified for promotions and overtime pay because
of her alleged improper ex parte communication with a hearing
officer, an assistant city manager, in a police disciplinary case
in which she served as investigator. The internal affairs
officer appealed from the district court’s grant of summary
judgment in favor of the Chief of Police and the Police
Department. We conclude that the statements made by the internal
affairs officer addressed a matter of public concern; that the
statements are entitled to First Amendment protection; and that
the internal affairs officer’s right to speak was clearly
established at the time the Chief acted. Whether the internal
affairs officer was subjected to adverse employment action
because of the exercise and content of her speech or because her
speech was improperly made in the form of an ex parte
communication is a genuinely disputed issue of material fact. We
therefore reverse the summary judgment and remand the case for
further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
2
In this case, before us for the second time,1 Plaintiff,
Deborah A. Branton, has been employed by the Dallas Police
Department since 1977. She has been a sergeant in the Office of
Professional Standards, Internal Affairs Division (“IAD”), since
1989. After nearly two decades, her departmental resume
contained twenty-one commendations and no indication of any
reprimands for misconduct. Prior to the events leading up to
this action, her duties included the investigation of internal
and external complaints filed against sworn and non-sworn
employees of the Dallas Police Department, supervising detectives
assigned to the IAD, and appearing at administrative appeal
hearings. At such hearings it was her duty as an internal
affairs investigator to present the findings of her investigation
of the case, to turn over her investigative file to the presiding
officer, an assistant city manager, and to observe and ensure
that no false or inaccurate information was offered.
In July 1995, Branton was assigned to investigate a
complaint filed by Officer DeLois Thomas against Officers Thomas
Popken and Billy Hattaway. In her complaint, Thomas alleged that
Popken, an “International Instructor” in the use of police
batons, had improperly accepted a fee of $125 from Hattaway for
baton instructions and training, partially while on duty.
Branton’s investigation and report indicated that Popken admitted
1
See Branton v. City of Dallas, No. 97-11352 (5th Cir. Dec.
10, 1998).
3
accepting a $125 check from Hattaway but claimed that he later
tore it up; he said he only accepted the check so that he could
honestly inform the international baton association that he had
complied with what he thought was its rule when he certified that
Hattaway had completed the course.
According to Branton’s investigation, Thomas and Popken had
apparently developed some animosity towards each other stemming
from their common ambition to become certified as an
International Instructor in police baton, of which there were
only thirty-five in the world. Popken had been invited by
Monadnock, the baton vendor who certified police officers
according to their level of knowledge and proficiency in the use
of the baton, to try out for certification. He applied to the
city for funds to finance his travel to Colorado for that
purpose. The officer in charge denied Popken’s application,
however, because Thomas had earlier been turned down for a
similar request after she claimed she had been invited to apply
for certification. The officer said that it would be unfair for
the city to pay Popken’s way after it refused to do so for
Thomas. Popken called Monadnock and was told that Thomas had
never been invited or told that she would be recommended for
certification. Subsequently, Popken traveled to Colorado at his
own expense and became certified as an International Instructor.
Popken’s new status authorized him to recertify Intermediate
4
Instructors such as Hattaway and Thomas to give baton
instructions to recruits or beginners.
Thomas’s internal affairs complaint against Popken
apparently arose out of their mutual animosity and her perception
that Popken had unduly delayed her recertification. When Thomas
told Branton that she had been invited by Lieutenant Art Sapp to
become an International Instructor, Branton called Sapp to
confirm this story. Sapp, however, denied “inviting” Thomas to
become an International Instructor, but said he had only
responded to her inquiry expressing interest in becoming one and
replied that she would first have to complete additional training
before he would consider nominating her.
Based on Branton’s investigation and report, Chief Click
suspended Popken for one day. Popken appealed the discipline
imposed. On November 26, 1996, a hearing on the appeal was held
before an Assistant City Manager, Levi Davis, the ultimate
decision-maker in the matter; his decision was final and
unappealable.
At the hearing, Thomas testified (not under oath) that Sapp
had invited her to become an International Instructor. Branton,
who attended the hearing as the investigating IAD officer,
considered the testimony of Thomas to be false and in
contravention of Chief Click’s departmental ethical policy
statement regarding truthfulness. Although Branton had, in
5
accordance with her responsibilities, submitted her investigative
report to Davis, Branton had personal knowledge that Davis did
not read reports prior to hearings and, therefore, would be
unaware that Thomas had testified falsely. Because one of her
duties as an IAD investigator was to ensure that the testimony
given at an official hearing was truthful, Branton said she felt
obliged to protect the integrity of the investigative process and
to report her concern about Thomas’s testimony.
Branton testified that it was her intent to tell Davis about
her concerns with Thomas’s testimony during the hearing, but she
was reluctant to create a confrontation with Thomas. Branton had
already corrected Thomas’s testimony on a different point during
the hearing after Thomas created the impression that some sort of
collusion was involved in the investigation of Popken’s
misconduct. Thomas testified that Executive Assistant Chief
Manuel Vasquez had reduced one of the allegations of misconduct
against Popken. Branton corrected this impression, stating that
Chief Click had instructed her to change the allegation. Branton
testified that when she brought this matter to Davis’s attention
during the hearing, the City Attorney appeared to be disturbed
and upset. Therefore, she intended to raise her other concerns
about Thomas’s testimony after Thomas left the stand and asked
the City Attorney when Thomas would be excused from the stand.
The City Attorney, apparently still “irritated” that Branton had
6
once before corrected Thomas’s testimony, dismissively informed
Branton that such a concern was “not [her] problem” but the
problem of Popken’s attorney.
Immediately after Thomas was excused, Davis closed the
hearing. As those in attendance began to leave, Branton, in the
presence of the City Attorney, requested the opportunity to speak
with Davis. Davis excused the City Attorney, and Branton
informed him of the inconsistency between Thomas’s statement and
Lieutenant Sapp’s disclosures and her belief that Thomas’s
testimony on that matter had been false. Branton made no attempt
to influence the outcome of the hearing or to persuade Davis as
to the appropriateness of Popken’s punishment. Davis made no
indication that their conversation was inappropriate.
On December 3, 1996, Mr. Davis issued his decision reducing
Popken’s one-day suspension to a “letter of counseling.” In
addition, Davis ordered that Popken be reimbursed for his out-of-
pocket expenses related to his International Instructor training,
if the Department continued to request that he certify
Intermediate baton instructors. Shortly after he received the
decision, Chief Click informed Branton that she was being
transferred out of IAD because of the post-hearing statement she
had made to Davis. Although the Chief rescinded the transfer
after conferring with the City Attorney, he stripped Branton of
her duties and responsibilities as an investigator and
7
supervisor, rescinded her authority to supervise detectives and
other personnel, and assigned her to handle the “walk-in”
complaints, a job viewed by IAD investigators as highly
undesirable. More importantly, perhaps, the Chief placed an
administrative disciplinary report in her file which is open to
the public, jeopardizes her ability to receive a promotion or
recover investigator status for at least three years, and
prevents her from earning overtime pay.
Branton claimed she had never been advised of a policy
against reporting a witness’s misconduct to an assistant city
manager, and she produced deposition testimony from Senior
Corporal Nancy Wallace and IAD Investigator Crista Walker that
they too had no knowledge and were given no training on such a
policy. In fact, both Chief Click and Assistant City Manager
Davis testified that there was no rule, regulation, or policy of
the Dallas Police Department that prohibited Branton’s post-
hearing communication. Moreover, post-hearing communication
between IAD investigators and assistant city managers does not
appear to have been an unknown practice in Dallas. Both Senior
Corporal Wallace and IAD Investigator Walker, in addition to
Sergeant Margie Cunningham of the IAD, testified that they too
had had communications and conversations with assistant city
managers after the conclusion of a hearing and outside the
presence of the appellant and his attorney. Sergeant Cunningham
8
and Senior Corporal Wallace testified that after an appeal
hearing before Davis, he invited them and a city attorney to his
office for further questioning. Crista Walker testified that
Assistant City Manager Mary Suhm had initiated such a post-
hearing conversation with her.2
Branton also contends that she thought it was her duty as
the IAD officer on the case to inform the Assistant City Manager
of any discrepancies in witnesses’ testimony and that it was her
duty to the City, the Department, and the public to do so.
Again, the testimony of other IAD investigators supports
Branton’s claim. IAD Investigator Walker testified that it was
“part of [her] responsibility” to bring false testimony to light;
Senior Corporal Wallace testified similarly.
Branton testified that she, at all times, believed she was
carrying out the goals and policies of Chief Click, as outlined
by the Chief in his honesty and truthfulness policy statement on
January 11, 1995, long before this case arose. Chief Click’s
memorandum on the subject of “Ethical Standards of Conduct” was
sent to all personnel and was clear and unequivocal.3 After
2
Walker, however, testified that the extent of the
conversation was one question by Suhm as to how long an officer had
been in the department. Further discussion was interrupted by
Assistant City Attorney Prema Velu.
3
Chief Click’s memorandum on the ethical standards of conduct
states as follows:
The Dallas Police Department Code of Conduct, Chapter
VIII, Section 8.3, 8.4, and 8.5 specifically address
9
citing the pertinent sections of the Dallas Police Department
Code of Conduct regarding honesty and truthfulness, the Chief
informed all personnel that the mission statement of the
standards of employees’ behavior and ethical conduct in
regards to honesty and truthfulness. The mission
statement of the Dallas Police Department which is being
prepared for distribution and display specifically states
that employees will:
Be examples of honesty and integrity in their
professional and personal lives, thereby earning
public trust.
The ethical standards of truthfulness and honesty form
the basis of public confidence. Every sworn officer not
only takes an oath of office to “faithfully” execute the
duties of the office of Police Officer for the City of
Dallas, but this oath is reaffirmed when we, as police
officers, are called to testify in any case and we swear
to tell the whole truth and nothing but the truth. This
standard for truthfulness applies to all aspects of our
duties, not only courtroom testimony, but in the
preparation of offense and arrest reports, administrative
internal statements, and in everything we say and write
while performing our duties. This standard will be
adhered to by all members of the Department, both sworn
and non-sworn employees.
I recognize that an overwhelming majority of the members
of this Department are honest and hardworking. As a
result of this, each member should take pride in the
Department’s outstanding reputation for integrity and
honesty, both internally and throughout the community.
We must all take responsibility for protecting this
standard of professional conduct. Untruthfulness or
dishonesty cannot and will not be tolerated. Therefore,
any employee found to be untruthful or dishonest will, in
most cases, be terminated.
The Dallas Police Department will remain committed to
providing the finest in police service.
/s/ Bennie R. Click
Bennie R. Click
Chief of Police
10
Department being prepared would state that employees will: “Be
examples of honesty and integrity in their professional and
personal lives, thereby earning public trust.” To this the Chief
added statements of his own stressing complete honesty by police
officers as a means of earning public confidence and trust:
(1) “The ethical standards of truthfulness and honesty form
the basis of public confidence.”
(2) “This standard for truthfulness [set forth in each
officer’s oath of office and court testimony] applies to all
aspects of our duties, not only courtroom testimony, but in the
preparation of offense and arrest reports, administrative
internal statements, and in everything we say and write while
performing our duties.” (emphasis added).
(3) “This standard will be adhered to by all members of the
Department, both sworn and non-sworn employees.”
(4) “We must all take responsibility for protecting this
standard of professional conduct. Untruthfulness or dishonesty
cannot and will not be tolerated. Therefore, any employee found
to be untruthful or dishonest will, in most cases, be
terminated.”
A printed motto appeared at the bottom: “The Only Reason You
And I Are Here Is To Serve The Citizens of Dallas.”
Chief Click described in his deposition what had caused him
to issue the Ethical Standards Conduct policy statement to all of
11
his personnel: “[After I became chief of police,] I was concerned
that I saw . . . too frequently what I felt were officers that,
particularly during internal investigations, were less than
truthful, either evasive, don’t know, don’t remember, wasn’t
there or in some cases just out and out lying about what
happened.”
On February 6, 1997, Branton filed suit under 42 U.S.C. §
1983 against the City of Dallas and Chief Click, alleging that
Chief Click had violated her First Amendment rights by punishing
her for the exercise and content of her free speech concerning
the false testimony by a police officer. The district court
granted Chief Click’s partial motion to dismiss under Rule
12(b)(6) on qualified immunity grounds. A panel of this court
reversed and remanded. After discovery, the district court
issued summary judgment in favor of the defendants, holding that
Branton’s speech was not protected by the First Amendment.
Branton’s present appeal followed.
II. STANDARD OF REVIEW
We review de novo the district court’s conclusion that
summary judgment was proper. Victor v. McElveen, 150 F.3d 487,
453-54 (5th Cir. 1998). In reviewing the district court’s grant
of summary judgment, we must view all the disputed facts and
reasonable inferences in a light most favorable to the non-
12
movant, Branton, and determine whether she has set forth
sufficient evidence to demonstrate that her speech concerned a
matter of public import and, if so, whether Branton’s interest in
speaking outweighed the city’s interest in efficiency. Id.
Summary judgment is appropriate if the movant shows that there is
no genuine issue of material fact for trial. Fed. R. Civ. P.
56(c). To withstand summary judgment, Branton must show, by
affidavits, depositions, answers to interrogatories, and
admissions on file, that there are specific facts that create a
genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986).
III. FIRST AMENDMENT CLAIM
It is well established that a governmental employer “cannot
condition public employment on a basis that infringes the
employee’s constitutionally protected interest in freedom of
expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). We
review the plaintiff’s First Amendment retaliation claim under
the four-step test derived from Connick and Pickering v. Board of
Education, 391 U.S. 563 (1968). Teague v. City of Flower Mound,
179 F.3d 377, 380 (5th Cir. 1999)(quoting Harris v. Victoria
Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999)).
The first two questions are legal in nature and are for the
court to resolve. See Connick, 461 U.S. at 147-48, n.7; Teague,
13
179 F.3d at 380; Coughlin v. Lee, 946 F.2d 1152, 1156 (5th Cir.
1991). Initially, we must determine whether the employee’s
speech can be “fairly characterized as constituting speech on a
matter of public concern.” Connick, 461 U.S. at 146. If it can,
we must then balance the employee’s interest, as a citizen, in
commenting upon matters of public concern against “the interest
of the State, as an employer, in promoting the efficiency of the
public service[s] it performs through its employees.” Rankin,
483 U.S. at 388 (citing Pickering, 391 U.S. at 568).
It is for a jury to resolve any remaining factual disputes
as to whether plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment decision, or whether
the employer would have made the same employment decision in the
absence of the protected speech. Gardetto v. Mason, 100 F.3d 803,
811 (10th Cir. 1996).
A. Public Concern
Matters of public concern are those which can “be fairly
considered as relating to any matter of political, social, or
other concern to the community.” Connick, 461 U.S. at 146.
While speech pertaining to internal personnel disputes and
working conditions ordinarily will not involve public concern,
id. at 148, speech “complain[ing] of misconduct within the police
department . . . [is] speech addressing a matter of public
14
concern.” Thompson v. City of Starkville, Mississippi, 901 F.2d
456, 463 (5th Cir. 1990); Wallace v. Texas Tech. Univ., 80 F.3d
1042, 1051 (5th Cir. 1992). “Speech which discloses any evidence
of corruption, impropriety, or other malfeasance on the part of
city officials . . . concerns matter of public import.”
Thompson, 901 F.2d at 463 (quoting Conaway v. Smith, 853 F.2d
789, 796 (10th Cir. 1998) (per curiam)). In making this
determination, we consider the “content, form, and context of a
given statement, as revealed by the whole record.” Connick, 461
U.S. at 147-48.
The content of a public employee’s speech may relate to a
public concern for purposes of First Amendment analysis if it
does not involve solely personal matters or strictly a discussion
of management policies that is only interesting to the public by
virtue of a manager’s status as an arm of government. Connick,
461 U.S. at 147; Kennedy v. Tangipahoa Parish Library Bd. of
Control, 224 F.3d 359, 372 (5th Cir. 2000)(citing Wilson v. UT
Health Ctr., 973 F.2d 1263, 1269 (5th Cir. 1992); Terrell v.
Univ. of Texas Sys. Police, 792 F.2d 1360, 1365 n.5 (5th Cir.
1986)). “If releasing the speech to the public would inform the
populace of more than the fact of an employee’s employment
grievance, the content of the speech may be public in nature.”
Kennedy, 224 F.3d at 372 (citing Thompson, 901 F.2d at 463 n.5).
“Public employees by virtue of their public employment, may make
15
valuable contributions to public debate.” Gonzales v. Benavides,
774 F.2d 1295, 1299 (5th Cir. 1985). The nature of their
employment does not exclude the possibility that an issue of
private concern to the employee may also be an issue of concern
to the public. Id. at 1305. “Neither the [First] Amendment
itself nor our decisions indicate that . . . freedom [of speech]
is lost to the public employee who arranges to communicate
privately with his employer rather than to spread his views
before the public.” Givhan v. Western Line Consolid. Sch. Dist.,
439 U.S. 410, 415-16 (1979); see also Kennedy, 224 F.3d at 374;
Thompson, 901 F.2d at 467; Wilson, 973 F.2d at 1265; Benningfield
v. City of Houston, 157 F.3d 369, 373-74 (5th Cir. 1998); Brown
v. Texas A & M Univ., 804 F.2d 327, 337 (5th Cir. 1986).
It is undisputed that, at the time the adverse employment
action was taken, speech related to improper acts by public
officers qualified as a matter of public concern. Schultea v.
Wood, 27 F.3d 1112, 1120 (5th Cir. 1994) (“No reasonable public
official in 1992 could have assumed that he could retaliate
against an employee because of the employee’s disclosure of
instances of misconduct by a public official.”), superseded on
other grounds, 47 F.3d 1427 (1995)(en banc); see also
Benningfield, 157 F.3d at 375-77; Wilson, 973 F.2d at 1270;
Thompson, 901 F.2d at 463. Exposure of official misconduct,
especially within the police department, is generally of great
16
consequence to the public. Brawner v. City of Richardson, 855
F.2d 187, 191-92 (5th Cir. 1988). “There is perhaps no subset of
‘matters of public concern’ more important, [for purposes of
First Amendment protection of speech of public employees,] than
bringing official misconduct to light.” Davis v. Ector County,
40 F.3d 777, 782 (5th Cir. 1995); see also Denton v. Morgan, 136
F.3d 1038, 1043 (5th Cir. 1998); Thompson, 901 F.2d at 463.
Applying the relevant principles of law to the evidence with
reasonable constructions and inferences drawn in favor of the
non-mover, Branton, we conclude that the content, form, and
context of her statements to the Assistant City Manager,
reporting what she perceived to be dishonest testimony of another
police officer at a disciplinary hearing, was a matter of public
concern. Although Branton’s speech occurred at work, because her
job required her to report false testimony at official hearings,
Branton had not only an invitation but a duty to speak. Thus,
“the context factor weighs in h[er] favor.” Victor v. McElveen,
150 F.3d 451, 458 (5th Cir. 1998)(citing Bickel v. Burkhart, 632
F.2d 1251, 1252 (5th Cir. 1980)). According to Chief Click’s own
written statement of Police Department policy it is extremely
important to the public that police officers be truthful in all
aspects of their duties, not only in the courtroom, but in
“everything [they] say,” including “administrative internal
statements.” In the words of Chief Click, “[T]ruthfulness and
17
honesty form the basis of public confidence.” The Chief’s policy
is admirable and important itself, because police officers who
are constantly trained and reminded to be truthful in “everything
[they] say” will be less likely to give false evidence in court
or fabricate statements that might endanger the liberty of
innocent citizens.
B. Pickering Balancing Test
Because Branton’s statement addressed a matter of public
concern, Pickering next requires that we balance Branton's
interest in making her statement 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. The employee’s statement is not considered in a vacuum,
however. Rankin, 483 U.S. at 388. "In performing the balancing,
... the manner, time, and place of the employee’s expression are
relevant, as is the context in which the dispute arose.” Id.
(citing Connick, 461 U.S. at 152-53; Givhan, 439 U.S. at 415
n.4). “The Supreme Court has recognized as pertinent
considerations ‘whether the statement impairs discipline by
superiors or harmony among co-workers, has a detrimental impact
on close working relationships for which personal loyalty and
confidence are necessary, or impedes the performance of the
speaker’s duties or interferes with the regular operation of the
18
enterprise.’” Victor, 150 F.3d at 457 (quoting Pickering, 391
U.S. at 570-73).
The state interest considerations focus on the “effective
functioning of the public employer’s enterprise.” Rankin, 483
U.S. at 388. “Interference with work, personnel relationships,
or the speaker’s job performance can detract from the public
employer’s function; avoiding such interference can be a strong
state interest.” Id. “[R]eal, not imagined, disruption is
required, and the ‘close working relationship’ exception cannot
serve as a pretext for stifling legitimate speech. . . .”
McKinley v. City of Eloy, 705 F.2d 1110, 1115 (5th Cir. 1983).
In this respect, the defendants fail to demonstrate, without
dispute as to material facts, a state interest that outweighs
Branton’s First Amendment rights. Although Branton’s statement
was made at the workplace, there is a genuine dispute as to
whether it interfered with the efficient functioning of the
police department.
Viewed in the light most favorable to Branton, the evidence
of record shows that Branton’s statement caused no unanticipated
delays or disruption or interference with the disciplinary
proceedings or the functioning of the police department. Chief
Click admitted in his deposition that he had no evidence and
could cite no facts which showed that Branton’s statement
adversely affected the efficiency or morale of the police
19
department. Chief Click and Assistant City Manager Davis
testified that there were no rules, regulations, or standard
operating procedures that prohibited IAD investigating officers
from reporting misconduct or false testimony to an Assistant City
Manager as Branton had done. Moreover, they testified that there
had been no effort to train or instruct the IAD officers on what
was expected of them in connection with disciplinary hearings.
Although Chief Click said he had not been aware of other such
communications between IAD officers and assistant city managers,
there was evidence that the assistant city managers and city
attorneys had allowed such communications to occur.
Consequently, a reasonable trier of the facts could find or infer
that, despite the Chief’s claim of lack of knowledge, the actual
custom and practice of the department permitted post-hearing
conferences between IAD officers and the assistant city managers.
There was no evidence that the efficiency or morale of the
department or its officers had been adversely affected by that
custom or practice.
Further, Davis testified that, in addition to being the
hearing officer in Officer Popken’s case, he was primarily
responsible for administering the day-to-day operations of the
police and fire departments; that in effect he had been delegated
executive authority over the police department and its chief by
the city manager. Thus, the record does not establish that the
20
chief of police had exclusive or autonomous authority to
discipline officers for their conduct while acting as witnesses
or investigators assisting the assistant city managers in
disciplinary appeals, especially if the officers were innocently
acting in accord with procedures established by the assistant
city managers.
Although Chief Click professed to have no knowledge of
previous post-hearing communications between IAD investigators
and assistant city managers at disciplinary appeals, he did not
inquire into the practices or procedures established by the
assistant city managers or ascertain whether he had the authority
to modify their procedures unilaterally.4 The record reflects
that he consulted the city attorney only after he had ordered
Branton transferred out of the IAD; a sanction he modified after
receiving legal advice. Assuming the Chief had been allocated
the authority to regulate the conduct of IAD officers during
disciplinary appeals or related conferences, he offered no
evidence or explanation as to why he could not have remedied the
perceived institutional shortcoming by providing the IAD officers
with training, instructions, or regulations on the subject.
There was no evidence that the IAD officers knew or should have
4
The Dallas City Charter provides that the chief of police’s
“control of the police department, [is] subject to the supervision
of the city manager and also [is] subject to the rules,
regulations, and orders as the city manager may prescribe. . . .”
Dallas City Charter, Ch. XII, § 2 (emphasis added).
21
known that the practice was contrary to police department rules,
regulations, or policy. There was no evidence that Branton
knowingly acted improperly or in bad faith. Consequently, a
reasonable trier of fact could find that the Chief’s imposition
of severe punishment on Branton individually, instead of adopting
or recommending a new rule, regulation, instruction, or operating
procedure governing investigator-city manager communications in
disciplinary cases, was in fact retaliation against Branton for
the exercise and content of her speech that may have contributed
to the reduction of the Chief’s suspension of Popken, rather than
discipline for the time and manner of her post-hearing statements
to the assistant city manager.
Although Branton did not violate any known police department
rule, regulation, or policy, Chief Click testified that the
action taken against her was warranted because she should have
known through her common sense and her experience that ex parte
IAD officer/assistant city manager communications would lead to
unfair hearings and loss of confidence and morale among police
officers. In addition to all of the other factors recited above
that tend to undermine this argument, the assumption upon which
it is based, i.e., that the police department’s internal
disciplinary appeal closely replicates a trial or an appeal in a
court of law, is not borne out by the record. Testimony at the
disciplinary hearings is not taken under oath. The IAD
22
investigating officer presents to the assistant city manager her
total investigative file in support of the disciplinary charges
against the appellant. The IAD officer’s investigative file
consists of summaries of her interviews with various persons
having knowledge relevant to the case. The appellant, with or
without the assistance of counsel, is offered an opportunity to
respond. At the end of the hearing, the assistant city manager
takes the case under advisement, considers the investigative file
and the testimony heard, and in due course renders decision,
which is not further appealable. The police department’s
disciplinary appeal resembles a less than formal administrative
hearing more than a fully adversarial formal court proceeding.
Moreover, concerns about maintaining harmony and eliminating
disruption cannot be the sole measure of government interest when
the employee’s speech furthers other important state interests.
For example, in Wilson v. UT Health Center, 973 F.2d 1263, 1270
(5th Cir. 1992), the defendant argued that a police officer’s
interest in reporting sexual harassment within the department was
outweighed by the police force’s interest in eliminating
dissension and providing efficient police protection. This court
concluded, however, that if a jury determines that the police
officer “reported sexual harassment in good faith,” then the
state’s “interest in maintaining a police force that is free of
sexual intimidation, which [her] good faith reports would serve,
23
outweighs any interest in departmental efficiency and harmony.”
Id.
Similarly, Branton’s good faith comments serve a very
important state interest--the prevention or elimination of
perjury, other false testimony, and corruption within municipal
law enforcement departments. In fact, Chief Click agrees that it
would be entirely proper and salutary for an IAD officer to
present such information to the Assistant City Manager during the
disciplinary hearing. The Chief and the city attempt to justify
the severe adverse actions taken against Branton by arguing that
ex parte communications from the IAD investigators to the
assistant city managers may affect the integrity of the
disciplinary hearings and the morale of the police force. We
agree that their goals are laudatory, but these objectives
doubtlessly could be achieved more constructively and effectively
by adopting rules and regulations, or by providing the IAD
officers with instructions and training, instead of imposing
harsh employment sanctions that violate the First Amendment
rights of an innocent, well-intentioned individual government
employee.
Construed in the light most favorable to Branton, the record
contains no evidence that Branton made statements in bad faith or
with an intent to disrupt the hearing or the department’s
operations for an improper reason. Branton’s remarks were made
24
in response to what she considered her duty as a police officer,
pursuant to the Chief’s memo urging individual responsibility for
honest law enforcement and in her special capacity as the IAD
investigating officer assigned to the case to assist in seeking
the truth.
Viewing the facts from the summary judgment record and
inferences therefrom in a light most favorable to Branton, we
conclude not only that Branton’s speech addressed a matter of
public concern but also that under the Pickering balancing test,
Branton’s interest in speaking outweighs the defendants’ interest
in efficiency. Consequently, her conduct falls under the
protective aegis of the First Amendment. Accordingly, the
district court erred in granting summary judgment to the City and
Chief Click on these grounds.
IV. QUALIFIED IMMUNITY
Because Branton has established for purposes of summary
judgment practice that Chief Click violated her First Amendment
right to free speech under current law, we next turn to Click’s
argument that he is entitled to qualified immunity because the
law governing his conduct was not clearly established when the
conduct occurred; and, alternatively, if it was, that a
reasonable officer could have believed, in light of the clearly
established law, that his conduct was lawful.
25
A court required to rule upon the qualified immunity issue
must consider this threshold question: “Taken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right? This
must be the initial inquiry.” Saucier v. Katz, 533 U.S. 991,___,
121 S.Ct. 2151, 2156 (2001) (citing Siegert v. Gilley, 500 U.S.
226, 232 (1991)); see also Price v. Roark, 256 F.3d 364, 369 (5th
Cir. 2001). “If no constitutional right would have been violated
were the allegations established, there is no necessity for
further inquiries concerning qualified immunity.” Saucier, 531
U.S. at ___, 121 S.Ct. at 2156. “On the other hand, if a
violation could be made out on a favorable view of the parties’
submissions, the next, sequential step is to ask whether the
right was clearly established.” Id.; see also Price, 256 F.3d at
369. The Supreme Court has emphasized “‘that the right the
official is alleged to have violated must have been clearly
established in a more particularized, and hence more relevant,
sense: The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right.’” Saucier, 531 U.S. at ___, 121 S.Ct. at
2156 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
“The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation
26
he confronted.” Id. (citing Wilson v. Layne, 526 U.S. 603, 615
(1999)).
This does not require that the courts must have agreed upon
the precise formulation of the standard. Id. “Assuming, for
instance, that various courts have agreed that certain conduct is
a constitutional violation under facts not distinguishable in a
fair way from the facts presented in the case at hand, the
officer would not be entitled to qualified immunity based simply
on the argument that courts had not agreed on one verbal
formulation of the controlling standard.” Id. at ___, 121 S.Ct.
at 2157.
Although we have just determined above that under present
law Chief Click’s punitive employment action against Branton
because of her speech pointing out dishonest conduct by another
officer violated the First Amendment, the question remains
whether this was clearly established in January of 1997, when
Click decided to strip her of all internal affairs investigative
duties and to relegate her to taking down walk-in complaints. We
conclude that, at that time, Branton’s right had been defined at
the appropriate level of specificity so that a court could
determine that it was clearly established and that its contours
had become sufficiently clear so that a reasonable official,
identically situated, would understand that what he was doing
violated that right.
27
For at least thirty-four years, it has been settled that a
state cannot condition public employment on a basis that
infringes the employee’s constitutionally protected interest in
freedom of expression. See Keyishian v. Bd. of Regents, 385 U.S.
589 (1967). In Pickering, 391 U.S. at 573-75, the Supreme Court
held that the public interest in having free debate on matters of
public concern--the core value of the Free Speech Clause of the
First Amendment--is so great that a public school teacher’s right
to speak on matters of public importance may not furnish the
basis for his dismissal from public employment. The Court’s
cases following Pickering also involved protecting speech of
government employees on matters of public concern. Perry v.
Sindermann, 408 U.S. 593 (1972) (state college teacher’s right to
testify before legislative committees in public debate regarding
whether college should be elevated to four-year status); Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977) (public school teacher’s right to leak administration’s
bond issue related dress code for teachers to radio station);
Givhan, 439 U.S. 410 (1979) (public employee’s right to private
expression to employer of views on school district’s racial
policies). In Connick, 461 U.S. at 147, the Court found that
improper pressure on assistant district attorneys to work in
political campaigns is a matter of public concern but concluded
that when a public employee speaks on matters only of personal
28
interest, such as an employee’s grievance on a job transfer and
not on a matter of public concern, that speech is unprotected,
absent the most unusual circumstances.
This Court of Appeals has further clarified the contours of
public employees’ First Amendment free speech rights to report
misconduct by fellow employees and officers. We have held that
public employees’ speech reporting official misconduct,
wrongdoing, or malfeasance on the part of public employees
involves matters of public concern. Wilson, 973 F.2d at 1269
(reporting sexual harassment by superiors); Schultea, 27 F.3d at
1119-20 (reporting suspected criminal activity of city council
member), superseded on other grounds, 47 F.3d 1427 (1995)(en
banc). In Brawner, 855 F.2d at 191, we held that a police
officer’s communication in his attorney’s letter accusing the
police department of non-criminal investigations of journalists,
citizens, and candidates for city council addressed matters of
public concern. “The disclosure of misbehavior by public
officials is a matter of public interest and therefore deserves
constitutional protection, especially when it concerns the
operation of a police department.” Id. at 191-92 (citing
Gonzalez v. Benavides, 712 F.2d 142 (5th Cir. 1983); Solomon v.
Royal Oak Township, 842 F.2d 862, 865 (6th Cir. 1988); O’Brien v.
Town of Caledonia, 748 F.2d 403, 407 (7th Cir. 1984); Brockell v.
Norton, 732 F.2d 664, 668 (8th Cir. 1984))(footnotes omitted).
29
In Denton, 136 F.3d at 1038, we held that in September of
1991 and January of 1992, when juvenile probation officers were
fired by a school district for going over its heads to report
perceived wrongdoing by the district to the state education
agency, they had a constitutional right to address that matter of
public concern. “[S]peech reporting official misconduct,
wrongdoing, or malfeasance on the part of public officials
involves matters of public concern.” Id. at 1043 (citing Wilson,
973 F.2d at 1269; Schultea, 27 F.3d at 1120; Brawner, 855 F.2d at
192).
In Warnock v. Pecos County, Texas, 116 F.3d 776, 781-82 (5th
Cir. 1997), we held that state judges’ decision not to reappoint
the county auditor violated the First Amendment, that the
relevant First Amendment law was clearly established when the
judges made their decision in 1993, and that firing a county
auditor for reporting violations of the law is objectively
unreasonable. And, in Frazier v. King, 873 F.2d 820, 827 (5th
Cir. 1989), we denied qualified immunity to the warden of a state
correctional center who fired a registered nurse in violation of
her clearly established right to report violations of nursing
practices in the infirmary. See also Thompson, 901 F.2d at 468-
70 (denying qualified immunity to police officials who terminated
a police officer for filing written grievances related to the
department’s promotion policy and for making oral complaints
30
about police misbehavior); Harris, 168 F.3d at 223-24 (denying
qualified immunity to school superintendent for reprimanding two
teachers who made critical remarks in 1995 about the school’s
principal and stating that “[t]he Defendants are not insulated
from their unconstitutional conduct merely because a balancing
test is involved in our [First Amendment] analysis”); 2 Ivan E.
Bodensteiner & Rosalie Berger Levinson, State & Local Government
Civil Rights Liability § 1A:05 n.88 (2000) (citing cases from all
circuits).
After reviewing the foregoing cases, we conclude that, at
the time Branton spoke out, it was clearly established under
facts “not distinguishable in a fair way from the facts in the
case at hand,” that Branton’s speech revealing false testimony by
a fellow police officer was protected and that “the officer would
not be entitled to qualified immunity based simply on the
argument that courts had not agreed on one verbal formulation of
the controlling standard.” Saucier, 531 U.S. at ___, 121 S.Ct.
at 2157. Consequently, a reasonably objective public official,
identically situated in Chief Click’s position, would have known
that adverse employment action against an employee for her speech
concerning false testimony by a fellow officer would violate a
clearly established constitutional right. Therefore, the
defendants here are not entitled to summary judgment on their
claim of qualified immunity.
31
While Branton must ultimately prove that the exercise and
content of her speech, rather than its time and manner, was the
motivating factor in the adverse employment action she suffered,
the determination of that issue turns on a genuine dispute of
material fact, and is a proper issue for trial, not for
resolution by summary judgment. We intimate no opinion on the
ultimate merits of the litigation. We simply hold that the
district court incorrectly granted summary judgment at this time
on the record before us.
For these reasons, the summary judgment is REVERSED and the
case is REMANDED for further proceedings.
32
JERRY E. SMITH, Circuit Judge, dissenting:
Defendants argue, and the district court found, that
Branton's report to Davis was of no concern to the public.
Agreeing with that assessment, I respectfully dissent and would
affirm.
Branton merely communicated her opinion that Thomas had lied
regarding an invitation to become an International Instructor.
As an independent matter, that content is obviously of no public
import, for the public is not concerned with Thomas's ambitions
regarding baton instruction. If the communication involved
serious police misconduct or corruption, however, it would be of
public concern. Thus, in Brawner v. City of Richardson, 855 F.2d
187, 191-92 (5th Cir. 1988), this court stated that “[t]he
disclosure of misbehavior by public officials is a matter of
public interest and therefore deserves constitutional protection,
especially when it concerns the operation of a police
department.”
Defendants correctly urge that an alleged lie during
testimony at an administrative hearing concerning a purely
internal police matter (i.e., a matter that did not concern the
public safety mission of the police department) is not of public
concern. Defendants point out that even if a lie at such a
hearing potentially could be of public concern, it is of no such
concern when it is completely tangential and irrelevant to the
purpose of the hearing. For example, if an officer lied
about his age, the fact that it occurred at a police
administrative hearing would not elevate that content to a matter
of public concern. Here, whether Thomas was requested to become
an International Instructor is irrelevant to Popken's wrongdoing.
Branton, citing language of this court, counters that any
falsehood during testimony at a police administrative hearing,
regardless of relevance, is police misconduct and therefore is of
public concern. The majority apparently agrees, emphasizing that
“because police officers who are constantly trained and reminded
to be truthful in 'everything [they] say' will be less likely to
give false evidence in court or fabricate statements that might
endanger the liberty of innocent citizens.”
In Brawner, this court held that speech regarding illegal
police investigations of citizens and politicians was of public
concern. See Brawner, 855 F.2d at 189-90. “Because the speech
at issue complained of misconduct within the police department,
it should be classified as speech addressing a matter of public
concern.” Id. at 192.
In Thompson v. City of Starkville, 901 F.2d 456, 463, 466
(5th Cir. 1990), we held that there was a fact issue whether
speech alleging theft of confiscated property and racial
34
discrimination in a police department constituted a matter of
public concern:
This court has held, albeit under different facts, that
where speech 'complained of misconduct within the
police department, it should be classified as speech
addressing a matter of public concern' [citing
Brawner]. If released to the public, Thompson's
affidavit would expose possible corruption in the
police force of the City.
The Thompson court went on to note that the case involved
allegations of widespread misbehavior within the police force
“which could potentially affect public safety,” such as the
allegation that certain officers might not respond to a request
for backup of a black officer. Id. at 466. Thompson's
recognition that the facts of Brawner were different, and its
discussion of the potential public interest in the specific
speech under consideration, demonstrate that Branton's broad
reading of Brawner is not the law of this circuit.
Branton's contention that every breach of internal employee
rules is of public concern merely because it takes place within a
police department is supported neither by our precedent nor by
logic. Even accepting all of Branton's factual
assertionsSSnamely, that she truly thought Thomas had lied, that
she breached no specific department guidelines by speaking when
she did, and that she acted in good faith and out of no ill
motiveSSthe content of her speech was not of public concern, and
therefore her First Amendment claim fails, without the need to
address the issue of the interests of the employer or of
35
qualified immunity.
This court should not sit in judgment of personnel actions
that do not violate the Constitution. I respectfully dissent.
36