Seifert v. Unified Government

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 27, 2015

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

MAX SEIFERT,

Plaintiff - Appellant,

v.

UNIFIED GOVERNMENT OF No. 13-3153
WYANDOTTE COUNTY/KANSAS
CITY, KANSAS; SHERIFF DONALD
ASH; UNDERSHERIFF LARRY
ROLAND,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:11-CV-02327-JTM-JPO)

Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri, for Plaintiff – Appellant.

Carl A. Gallagher (Teresa A. Mata with him on the brief), of McAnany, Van Cleave &
Phillips, P.A., Kansas City, Kansas, for Defendants – Appellees.

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.
 Plaintiff Max Seifert brings civil-rights claims under 42 U.S.C. §§ 1983 and 1985

and state-law retaliation claims against Defendants Unified Government of Wyandotte

County and Kansas City, Kansas (the Unified Government), Wyandotte County Sheriff

Donald Ash, and Wyandotte County Undersheriff Larry Roland. Plaintiff, a former

reserve deputy for the Wyandotte County Sheriff’s Department (WCSD), alleges that

Defendants removed him from investigations and revoked his reserve commission

because of his testimony supporting allegations by a former criminal defendant of

mistreatment by federal law-enforcement officers. The district court granted Defendants

summary judgment, holding that Plaintiff’s testimony was not legally protected speech,

that Defendants’ actions were not unconstitutionally motivated, and that Defendants

would have taken the same actions regardless of his testimony. See Seifert v. Unified

Gov’t of Wyandotte Cnty./Kan. City Kan., No. 11-2327-JTM, 2013 WL 2631632, at

*11‒12 (D. Kan. June 12, 2013) (unpublished).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part,

and remand. We affirm the dismissal of Plaintiff’s state-law claims because federal law

provides an adequate alternative remedy; and we affirm the qualified-immunity dismissal

of the § 1983 claims against Sheriff Ash and Undersheriff Roland because at the time of

the alleged retaliatory actions the law was not clearly established that the First

Amendment protected Plaintiff’s testimony. In all other respects we reverse and remand,

holding that Plaintiff’s testimony was constitutionally protected and a jury could

reasonably find that the explanations Defendants gave for their actions were pretextual.
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I. BACKGROUND

A. The Facts

On July 10, 2003, Barron Bowling was involved in a minor car accident with

Agent Timothy McCue of the federal Drug Enforcement Administration (DEA).

Bowling later sued McCue and other individuals and entities in federal district court for

injuries that arose out of this incident, and our recitation of facts regarding the incident

relies on the court’s findings of fact in the bench trial of that suit (the Bowling findings).

See Bowling v. United States, 740 F. Supp. 2d 1240 (D. Kan. 2010). For the remaining

facts, we recite the evidence in the light most favorable to Plaintiff. See Kramer v.

Wasatch Cnty. Sheriff’s Office, 743 F.3d 726, 731 (10th Cir. 2014) (“On review of

summary judgment, we recite the facts in the light most favorable to . . . the

nonmovant.”).

Bowling was driving his personal automobile near his house when Agent McCue

in an unmarked vehicle attempted to pass him illegally on the right. Bowling accelerated,

both because the street began to go uphill and to prevent McCue from passing him.

McCue sped up as well to try to get around Bowling. A sideswipe collision resulted,

which was McCue’s fault. The vehicles did not stop after the collision. McCue radioed

another agent who joined McCue in following Bowling. Bowling stopped after McCue

activated his siren. McCue and the other agent rushed Bowling’s car and pulled him

from it. Bowling was forced face-down on the hot pavement while shirtless; and he was

pummeled, kicked, insulted, and arrested. Plaintiff, then a detective with the Kansas
3
City, Kansas Police Department (KCKPD), investigated the incident and documented the

agents’ misconduct, despite pressure from others in the KCKPD to cover up the facts.

Bowling was prosecuted on a felony and a misdemeanor charge arising out of the

incident. At the trial in 2005, Plaintiff, who was subpoenaed as a defense witness,

testified about Bowling’s injuries. Bowling was acquitted of the felony charge and

convicted of the misdemeanor (possession of a marijuana pipe). According to the

Bowling findings, “[F]or crossing the ‘thin blue line,’” Bowling, 740 F. Supp. 2d at 1262

n.75, Plaintiff “was shunned, subjected to gossip and defamation by his police colleagues,

and treated as a pariah,” id. at 1262. “He was castigated by his superiors, by the

prosecutor, by the DEA, and upon his forced retirement [on December 21, 2005,] . . .

denied a commission that would allow him to obtain work as a security guard, something

police retirees typically rely upon to supplement their limited retirement income.” Id. at

1262 n.75.

Plaintiff moved on, obtaining a reserve commission from the WCSD soon after his

retirement. In exchange for his commission he was required, like other reserve deputies,

to volunteer 16 hours per month with the WCSD. From January 2006 until June 2009,

Plaintiff assisted the WCSD with criminal investigations to meet his reserve hours. He

was also hired by the WCSD in June 2008 as a civilian employee in the jail classification

unit, where he continues to work today. Meanwhile, as already mentioned, Bowling

sued the DEA agents involved in his arrest, as well as the United States, the Unified

4
Government, and various members of the KCKPD. As that case moved toward trial in

2009 and ultimately was tried in 2010, the events giving rise to this appeal occurred.

On April 7, 2009, Defendant Donald Ash was elected Wyandotte County Sheriff.

He appointed Defendant Larry Roland as Undersheriff. Sheriff Ash had previously

served in the KCKPD for 34 years, where he became close friends with the two KCKPD

police chiefs in charge during the Bowling affair, both of whom, according to Plaintiff,

were hostile toward his involvement in that affair. On June 5, 2009, the Unified

Government and KCKPD defendants agreed to settle the claims against them in the

Bowling civil case, but the claim against the United States was tried in April and May

2010, and Plaintiff was a witness. Additional relevant events are recounted differently by

the parties and other witnesses.

1. Plaintiff’s Removal from Investigations

a. Plaintiff’s Account

According to Plaintiff’s declaration in this case and his testimony at the Bowling

civil trial, on June 11, 2009 (six days after the agreement to settle with the Unified

Government and the KCKPD), he was summoned to meet with Undersheriff Roland in

his office. Roland told him that he would no longer be permitted to serve on

investigations. Roland explained that he and Sheriff Ash had met with Wyandotte

County District Attorney (DA) Jerome Gorman, who told them that his office would not

accept cases involving Plaintiff because of concerns about his credibility. Roland also

told Plaintiff that he would be unable to testify in federal court and that a federal
5
prosecutor, Assistant U.S. Attorney (AUSA) Terra Morehead, did not find him credible.

These credibility concerns were ostensibly based on the judge’s comments in a 1998

order in United States v. Elam, No. 98-20037-01 (D. Kan. Sept. 15, 1998). The order

suppressed evidence obtained under a search warrant for drug evidence because Plaintiff

had seized a large number of allegedly stolen items not covered by the warrant. The

judge stated that she did not believe Plaintiff’s account of his conversation with the

defendant concerning those items. Plaintiff asked Roland why the federal ruling would

also prevent his testimony in state court, given that he had testified in state court many

times since 1998 and Gorman himself had obtained search warrants for him. Roland

responded that Gorman had just become aware that the ruling prevented Plaintiff’s

testimony in state court and that he (Roland) was going to receive a copy of the ruling

from a federal prosecutor. Plaintiff thought Roland’s decision puzzling because, only a

week before, his superiors had accepted a high-level case from him that resulted in

criminal charges.

Roland went on to state that he had been told by unnamed others that Plaintiff

could not serve as a reserve deputy, a law-enforcement position, while working

simultaneously as a classification technician in the jail, a civilian position. Even so,

Roland said that Plaintiff could keep his commission and another reserve assignment

would be found for him.

After the meeting Plaintiff encountered Sheriff Ash. Plaintiff said to Ash that Ash

had never had problems with him before. Ash agreed, stating that he had never had
6
problems with Plaintiff before and did not have any now. Plaintiff then met with Captain

James Eickhoff to inquire regarding Roland’s statements that Plaintiff could not work as

both a reserve deputy and a civilian employee. Eickhoff told Plaintiff that there was no

such rule, that several others worked as reserve deputies while holding other jobs, and

that he would come to Plaintiff’s defense if the issue came up again.

Less than a week later, Plaintiff saw DA Gorman at the courthouse. Plaintiff

asked Gorman if he had told Ash and Roland that he would no longer accept cases

involving him. Gorman became uncomfortable and stated that it was not his office that

had problems with Plaintiff but prosecutors from other jurisdictions. Plaintiff took this as

a reference to AUSA Morehead.

b. Undersheriff Roland’s Account

Roland’s account is largely consistent with Plaintiff’s, although with less emphasis

on Gorman’s concerns. Roland recalled that sometime in the first half of 2009 he spoke

with Chief Deputy Rickey Whitby, who told him that AUSA Morehead had some kind of

problem with Plaintiff’s credibility. Roland called Morehead, who confirmed that she

had a problem with Plaintiff because of the Elam order. Morehead then sent Roland the

order. Because Roland misplaced it, Morehead emailed him a second copy several

months later, on June 29, 2009. It was prefaced with the following message:

Here is the order from the federal case. They have the hearing
transcript on order and I’ll forward that to you when we get it. I never
knew about this ruling until I came over in 2002, but since I’ve been here,
and before Max retired from KCKPD, we had several issues with him
bungling investigations that he knew were going to be federal cases.
7
Id., Vol. V at 1188.

Before Plaintiff was removed from investigations, Roland had a conversation with

Gorman, who said that Plaintiff had a problem with Morehead and that he had a concern

that there might be a credibility issue if his office received cases from Plaintiff. (Roland

said that Ash met with Gorman regarding Plaintiff but could not recall if he himself

attended.)

The WCSD’s executive staff, including Roland and Ash, decided that Plaintiff

should be removed from investigations, particularly because Morehead had said that

federal prosecutors would not accept his cases. When Roland met with Plaintiff, he told

him that he had a copy of the Elam decision and that a federal prosecutor, whom he may

have named as Morehead, had concerns about his credibility issues in court and his

having bungled a few cases. Roland informed Plaintiff that Ash had decided he should

be removed from investigations.

c. Chief Deputy Whitby’s Account

The testimony of Chief Deputy Whitby corroborates Roland’s account of their

interaction. According to Whitby, shortly after the election in early 2009 he spoke with

AUSA Morehead. She spontaneously brought up the subject of Plaintiff, asking if he was

still “doing cases” for the WCSD. Id. at 1272. When told that he was, Morehead advised

Whitby that federal prosecutors would decline any case from Plaintiff because he had a

“Giglio problem” that would require disclosure to defendants of evidence of his lack of

veracity. Id. (In Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court
8
held that prosecutors should have disclosed to the defense information that contradicted

the principal witness’s testimony that he had received no promise of immunity from

prosecution if he testified against the defendant.) Whitby reported the Giglio issue to

Sheriff Ash and Undersheriff Roland.

d. Sheriff Ash’s Account

Sheriff Ash’s testimony tracks Roland’s in most respects. He recalled that Roland

had been informed by AUSA Morehead, DA Gorman, or both that there were concerns

about Plaintiff’s continuing to work as an investigator because of questions about his

credibility in court. Morehead had forwarded information about Plaintiff to Roland that

she viewed as Giglio material that would have to be disclosed to the defense if Plaintiff

testified in a prosecution. Ash and Roland met with Gorman to discuss the issue.

Gorman told them that they should not send his office any case files from Plaintiff

because he also viewed Plaintiff as falling under the provisions of Giglio. Ash and

Roland concluded that Plaintiff would no longer be able to work on cases. Thereafter,

Roland or Sergeant David Thaxton met with Plaintiff and told him that he could no

longer do investigative work but could retain his reserve-deputy position by performing

volunteer work in the jail, which Plaintiff refused to do.

e. AUSA Morehead’s Account

AUSA Morehead’s testimony indicated that she had not taken any initiative

regarding Plaintiff. She said that Roland called her to ask if there was a federal court

opinion involving Plaintiff. Morehead replied that there was; and on June 29, 2009 (three
9
weeks after Plaintiff was removed from investigations), she emailed the Elam order to

him with the message about Plaintiff’s “bungling” investigations. Aplt. App., Vol. V at

1188. Morehead did not recall speaking with anyone else at the WCSD before speaking

with Roland and did not know why he had called her.

Morehead did say, however, that in 2009 she conducted a series of law-

enforcement training sessions with the DA’s office, including Gorman. The subject of

the training was testifying in court. During these sessions she identified Plaintiff by

name and used the Elam order to illustrate how an officer can develop a Giglio problem.

f. District Attorney Gorman’s Account

Gorman’s testimony calls into question the timing of events in the accounts of

Roland and Ash and suggests that he was not the cause of Plaintiff’s removal from

investigations. In May 2009 (a month before Plaintiff was removed), Gorman received a

memorandum from one of his employees advising that Giglio obligations usually do not

apply to police officers because they are not key witnesses at trial. After reviewing the

memo at his deposition, Gorman stated his agreement with its conclusion that Giglio

obligations apply only to key witnesses.

Gorman recalled conducting law-enforcement training sessions with Morehead on

the subject of officer testimony. At the sessions Morehead spoke about how officers

could develop a Giglio problem, and she used Plaintiff and the Elam order as an example.

In early February 2010 (eight months after Plaintiff’s removal from investigations)

Gorman received a letter from Plaintiff’s attorney demanding that he stop the attacks on
10
Plaintiff’s reputation, including the circulation of the Elam order and the references to

him as “Giglioed” at the training sessions. Id., Vol. VI at 1317. At this point Gorman

had no opinion about whether Plaintiff had a genuine Giglio problem, but he requested

the Elam order from Morehead so he could review the issue for himself. On February 10,

AUSA David Plinsky emailed Gorman the Elam order.

Sometime after receiving the order, Gorman was approached by representatives of

the sheriff’s office to discuss Plaintiff and the Elam order. Gorman told them that he had

read the order and had concluded that it would need to be disclosed to defense counsel

under Giglio if Plaintiff was used in a case, a fact that he would need to take into

consideration when deciding whether to accept a case from Plaintiff.

2. Plaintiff’s Commission Revoked

The trial of Bowling’s claims against the United States (all other defendants had

settled) began on March 1, 2010. Plaintiff testified for Bowling on March 4 and March 9.

Meanwhile Plaintiff, having been removed from investigations, was without an

assignment as a reserve deputy. Before the trial, in early 2010, the reserves supervisor,

Sergeant Thaxton, had asked Undersheriff Roland if Plaintiff could conduct training for

the reserve deputies since he had no other reserve position. Roland declined the request,

citing Plaintiff’s Giglio issue. On March 31, Thaxton followed up with an email to

Roland notifying him that Plaintiff “would like to be involved with the program and

would like to know when he can assist.” Id. at 1467. He received no response.

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 On April 8 the Bowling trial concluded. Five days later Plaintiff received a

memorandum signed by Roland and Thaxton, with Sheriff Ash copied, stating in its

entirety:

Your Service as a Reserved Deputy is no longer needed at this time. Your
tenure as a Reserve for the Wyandotte County Sheriff’s Office has been
greatly appreciated. This is an Administrative action; please address all
concerns or questions to the Undersheriff Larry Roland.

Please return all agency issued items including your commission card to me
the Reserve Unit Coordinator.

Id., Vol. V at 1003. Thaxton testified that he had been advised by Roland that if Plaintiff

questioned his decommissioning, Thaxton should cite “the Fair Standards Labor [sic] Act

[FLSA] where you can’t be employed by a company and then do free labor for them.”

Id. at 1013. When Thaxton asked Roland, “Where is that in there for my educational

purposes,” Roland referred him to a major, who initially referred him back to Roland,

who then said to just tell Plaintiff it was an “administrative decision.” Id. (internal

quotation marks omitted).

According to Ash and Roland, Plaintiff lost his commission because he refused to

work in the short-staffed jail, as required for all reserve deputies at the time. There is no

dispute that Plaintiff refused to work in the jail. But there is a dispute about when he was

told that he would have to. Plaintiff states that it was in July or August 2010, months

after his commission had been revoked. Defendants’ brief offers no date for the meeting,

though Roland stated his belief that it occurred in 2009 and Ash testified that it occurred

before Plaintiff received the April 2010 memorandum terminating his commission.
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 B. Procedural History

Plaintiff sued Defendants on June 9, 2011, in the United States District Court for

the District of Kansas. All his claims—under 42 U.S.C. §§ 1983 and 1985 and under

Kansas law—were predicated on the allegation that the actions against him were taken to

deter him from testifying for Bowling or to punish him for doing so. In particular, his

claim under § 1983 was that Defendants’ actions violated his rights under the First

Amendment, and his § 1985 claim was under that statute’s prohibition against

conspiracies “to deter, by force, intimidation, or threat, any . . . witness in any court of the

United States . . . from testifying . . . or to injure such . . . witness in his person or

property on account of his having so . . . testified.” 42 U.S.C. § 1985(2). On Defendants’

motion to dismiss, the district court held that the two-year statute of limitations applicable

to 42 U.S.C. §§ 1983 and 1985 barred all claims resulting from actions preceding June 9,

2009. See Mem. & Order, Seifert v. Unified Gov’t of Wyandotte Cnty./Kan. City, Kan.,

No. 11-2327-JTM, 2012 WL 2448932, at *5–7 (D. Kan. June 26, 2012). Thereafter, the

district court granted Defendants summary judgment on the remainder of Plaintiff’s

claims. See Seifert, 2013 WL 2631632, at *14.

II. DISCUSSION

We hold that under Lane v. Franks, 134 S. Ct. 2369 (2014), Plaintiff’s testimony

was protected by the First Amendment; that there is a triable issue of fact about whether

Plaintiff was removed from investigations and had his commission revoked because of

his testimony in Bowling; and that the Unified Government is potentially liable because
13
the actions of Sheriff Ash represented municipal policy. On the other hand, we hold that

Sheriff Ash and Undersheriff Roland are entitled to qualified immunity on Plaintiff’s

§ 1983 claim because when they acted the law was not clearly established that Plaintiff’s

testimony was protected by the First Amendment. As for Plaintiff’s § 1985 claim, we

hold that a triable issue of fact exists about whether Defendants conspired both to remove

Plaintiff from investigations and to revoke his commission because of his testimony.

(Ash and Roland have not raised a qualified-immunity defense to this claim.) Finally, we

hold that Plaintiff’s state-law claim fails because an adequate remedy exists under federal

law.

A. Standard of Review

We review the district court’s grant of summary judgment de novo. See Veile v.

Martinson, 258 F.3d 1180, 1184 (10th Cir. 2001). “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Under this

standard, we view the evidence and draw reasonable inferences in the light most

favorable to the nonmovant.” Id.

B. First Amendment Claim under 42 U.S.C. § 1983

Under 42 U.S.C. § 1983, a plaintiff is entitled to recover damages from a person

acting under color of state law who violates his constitutional rights. Plaintiff has sued

Defendants for infringing his First Amendment rights. As a reserve deputy he enjoyed

First Amendment rights, but not to the same extent as a private citizen. Because
14
“[g]overnment employers, like private employers, need a significant degree of control

over their employees’ words and actions,” Garcetti v. Ceballos, 547 U.S. 410, 418

(2006), not every restriction on a public employee’s speech amounts to a deprivation of

First Amendment rights. “[T]he First Amendment protection of a public employee’s

speech depends on a careful balance between the interests of the employee, as a citizen,

in commenting upon matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its

employees.” Lane, 134 S. Ct. at 2374 (brackets and internal quotation marks omitted).

We apply what we have termed the Garcetti/Pickering test, see Garcetti, 547 U.S.

410; Pickering v. Bd. of Educ., 391 U.S. 563 (1968), to First Amendment retaliation

claims by government employees. The test has five elements:

(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.

Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014) (internal quotation marks

omitted). The first three elements are typically questions of law (though they can turn on

disputed issues of fact), while the last two are typically questions of fact. See id.

Defendants dispute the first, fourth, and fifth elements.

15
 1. Element One: Employee Official Duties

We must first determine whether Plaintiff’s testimony was protected speech.

Garcetti holds that “when public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer discipline.” 547 U.S.

at 421. The official-duties question is a practical one that turns on “whether the speech

was commissioned by the employer,” Thomas v. City of Blanchard, 548 F.3d 1317, 1323

(10th Cir. 2008) (internal quotation marks omitted), and “reasonably contributes to or

facilitates the employee’s performance of the official duty,” id. at 1324 (internal

quotation marks omitted); see Green v. Bd. of Cnty. Comm’rs, 472 F.3d 794, 801 (10th

Cir. 2007) (speech activities not protected because they “stemmed from and were the type

of activities that [the employee] was paid to do”).

The special case of employee testimony was recently addressed by the Supreme

Court in Lane. Lane, the director of a youth program sponsored by a community college,

had discovered that one of the program’s employees had been drawing a salary despite

not reporting to work. See Lane, 134 S. Ct. at 2375. He fired the employee, then testified

against her before a federal grand jury and at her federal public-corruption trials. See id.

Thereafter, he was fired, allegedly because of his testimony against the employee. See id.

at 2376. The Supreme Court reinstated Lane’s § 1983 suit against his employer, holding

that “the First Amendment . . . protects a public employee who provided truthful sworn

16
testimony, compelled by subpoena, outside the course of his ordinary job

responsibilities.” Id. at 2374–75.

In general, said the Court, testimony is a duty performed as a citizen:

Sworn testimony in judicial proceedings is a quintessential example of
speech as a citizen for a simple reason: Anyone who testifies in court bears
an obligation, to the court and society at large, to tell the truth. When the
person testifying is a public employee, he may bear separate obligations to
his employer—for example, an obligation not to show up to court dressed
in an unprofessional manner. But any such obligations as an employee are
distinct and independent from the obligation, as a citizen, to speak the truth.
That independent obligation renders sworn testimony speech as a citizen
and sets it apart from speech made purely in the capacity of an employee.

Id. at 2379 (citations omitted). Moreover, the Supreme Court’s “precedents dating back

to Pickering have recognized that speech by public employees on subject matter related

to their employment holds special value precisely because those employees gain

knowledge of matters of public concern through their employment.” Id. And that

rationale is “especially evident” in a case like Lane. Id. at 2380. It involved “the very

kind of speech necessary to prosecute corruption by public officials—speech by public

employees regarding information learned through their employment.” Id. To refuse First

Amendment protection under such circumstances “would place public employees who

witness corruption in an impossible position, torn between the obligation to testify

truthfully and the desire to avoid retaliation and keep their jobs.” Id.

Nevertheless, the Court did not hold that all testimony is protected. It did not

address “whether truthful sworn testimony would constitute citizen speech under Garcetti

when given as part of a public employee’s ordinary job duties.” Id. at 2378 n.4; see also
17
id. at 2384 (Thomas, J., concurring) (“For some public employees—such as police

officers, crime scene technicians, and laboratory analysts—testifying is a routine and

critical part of their employment duties.”). Rather, the Court concluded:

[T]he mere fact that a citizen’s speech concerns information acquired by
virtue of his public employment does not transform that speech into
employee—rather than citizen—speech. The critical question under
Garcetti is whether the speech at issue is itself ordinarily within the scope
of an employee’s duties, not whether it merely concerns those duties.

Id. at 2379.

Here, Plaintiff’s testimony was protected speech. It concerned his work but was

not part of it. Although Defendants assert that testifying was a routine part of Plaintiff’s

job as a reserve deputy, they cite no supporting evidence. And the testimony he gave at

the Bowling trial was nothing like the routine testimony of law-enforcement agents in

support of criminal prosecutions. Plaintiff testified for a private party, not his public

employer; in a civil lawsuit, not a criminal prosecution; against law-enforcement entities,

not for them; and in compliance with a subpoena, not an employer mandate. His

testimony was not among “the type of activities that [he] was paid to do.” Green, 472

F.3d at 801; see Morales v. Jones, 494 F.3d 590, 598 (7th Cir. 2007) (“Being deposed in

a civil suit pursuant to a subpoena was unquestionably not one of [police officer]

Morales’ job duties because it was not part of what he was employed to do.”); see also id.

at 603 (Rovner, J., concurring in part and dissenting in part) (“There is nothing in the

record below to suggest that the deposition testimony was work that Lt. Morales was

expected to perform as part of his formal or informal job duties, that it was conducted
18
pursuant to his job duties or at his employer’s behest, that it was work product of the

police department, that it was official speech, or that it was one of the tasks he was paid

to perform.”). Plaintiff has satisfied the first element of the Garcetti/Pickering test.

2. Element Four: Motivating Factor

Defendants do not contest that Plaintiff has met elements two and three of the

Garcetti/Pickering test, so we move on to the fourth element: “whether the protected

speech was a motivating factor in the adverse employment action.” Trant, 754 F.3d at

1165 (internal quotation marks omitted). Plaintiff argues that he has provided sufficient

evidence that both his removal from investigations and the revocation of his commission

were motivated by his testimony in Bowling. We discuss each in turn.

a. Removal from Investigations

Plaintiff has presented sufficient circumstantial evidence that his speech was a

motivating factor in his removal from investigations. According to him, he was called

into Roland’s office on June 11, 2009, and told he could no longer work on

investigations. Roland said that he and Sheriff Ash had met with DA Gorman, and

Gorman had informed them that because of Plaintiff’s credibility issues, he could not

testify in federal court and Gorman’s office would not accept any cases in which

Plaintiff’s name appeared. Plaintiff asked why the federal court’s Elam order prevented

his testimony in state court, when he had testified in state and municipal court numerous

times since Elam’s issuance in 1998. Roland responded that Gorman had just learned, 11

years after the fact, that Elam prevented Plaintiff’s state-court testimony. Roland also
19
stated that he had spoken with AUSA Morehead as well, that she did not consider

Plaintiff credible, and that she was going to send Roland a copy of the Elam order.

A reasonable factfinder could be dubious of the Giglio explanation. In Giglio the

defendant forged money orders and his coconspirator, a bank teller, supplied a signature

card and processed the money orders. See 405 U.S. at 151. The teller, obviously the key

witness in the case, was promised by a prosecutor that he would not be prosecuted if he

testified against Giglio, but the defense was never informed about this arrangement. See

id. at 152–53. At trial the teller denied that he had been told he would not be prosecuted.

See id. at 151–52. The Supreme Court reversed and remanded for a new trial because the

prosecution had not disclosed the promise of immunity. See id. at 153–55. It observed

that “[w]hen the reliability of a given witness may well be determinative of guilt or

innocence, nondisclosure of evidence affecting credibility” will require a new trial. Id. at

154 (internal quotation marks omitted). It held that this was certainly the case in Giglio’s

trial:

Here the Government’s case depended almost entirely on [the teller’s]
testimony; without it there could have been no indictment and no evidence
to carry the case to the jury. [The teller’s] credibility as a witness was
therefore an important issue in the case, and evidence of any understanding
or agreement as to a future prosecution would be relevant to his credibility
and the jury was entitled to know of it.

Id. at 154–55.

The immunity agreement in Giglio was relevant, admissible evidence because it

provided a motive for the witness to lie or embellish. It would be powerful evidence to

20
impeach the government’s chief witness. In contrast, if the prosecution saw fit to

disclose to defense counsel the judge’s order in Elam or was ordered to do so by the trial

judge (we need not consider the propriety of such an order), the defense could do little

with it. At most, the order discloses that Plaintiff had lied in court more than 10 years

before he was removed from investigations. A prior lie would suggest that his character

trait of veracity was questionable. (Judges, including members of this court, take a very

dim view of perjury.) But there are strict limits on using a prior lie to impeach the

veracity of a witness.

The order itself (or testimony about what the judge said) would not be admissible

in federal court. See Fed. R. Evid. 608(b) (“[E]xtrinsic evidence is not admissible to

prove specific instances of a witness’s conduct in order to attack or support the witness’s

character for truthfulness.”). An attorney cross-examining Plaintiff could only ask about

the alleged dishonest act and would be “stuck with” his answer, even a denial. United

States v. Frost, 914 F.2d 756, 767 (6th Cir. 1990) (internal quotation marks omitted); see

Fed. R. Evid. 608(b) (“[T]he court may, on cross-examination, allow them [(acts

suggesting a bad character for truthfulness)] to be inquired into . . . .”). (We note that at

the Bowling civil trial, Plaintiff denied that he had lied in the Elam case.) And the

alleged lie was an old event; even convictions are not routinely admitted for

impeachment after 10 years. See Fed. R. Evid. 609(b). We question whether a federal

court would have permitted cross-examination on such an old statement, particularly in

light of the more recent ringing endorsement of Plaintiff’s character for truthfulness by
21
the federal judge in Bowling. See United States v. Woodard, 699 F.3d 1188, 1195 (10th

Cir. 2012) (whether witness can be cross-examined regarding past judicial credibility

determination depends in part on “how much time ha[s] elapsed since the lie was told and

whether there ha[s] been any intervening credibility determination regarding the witness”

(internal quotation marks omitted)).

Moreover, it is doubtful that Plaintiff would be testifying in a federal prosecution.

Ash and Roland both testified that they could not recall any instance in which an

investigation involving a reserve deputy went to federal court. In short, the alleged

Giglio problem with Plaintiff’s testifying in federal court was both minimal and

irrelevant.

As for state court, the Kansas rules of evidence not only prohibit the introduction

of extrinsic evidence of a prior lie (as in federal court), but even prohibit cross-

examination on the subject. See Kan. Stat. Ann. § 60-422 (West 2008) (“As affecting the

credibility of a witness . . . evidence of specific instances of his or her conduct relevant

only as tending to prove a trait of his or her character, shall be inadmissible.”); State v.

Patton, 120 P.3d 760, 788 (Kan. 2005), disapproved of on other grounds, State v. Gunby,

144 P.3d 647, 658–59 (Kan. 2006). Further, Roland testified that it was Morehead’s

Giglio concern, not anything Gorman said, that caused the removal of Plaintiff from

investigations:

Q. And after reviewing that order [in Elam], you made a determination that
Max had a problem with regard to Giglio?

22
 A. I didn’t . . . say he had a problem with Giglio. We had . . . an issue with
what the prosecutor saying, you know, they—they didn’t want to take cases
from him.

Q. And by “they” you mean Terra Morehead and Jerome Gorman?

A. Specifically Terra.

Aplt. App., Vol. VI at 1310.

Gorman testified that he never said he would refuse to use Plaintiff as a witness

but would only consider the Giglio issue. This is consistent with his endorsement of a

memorandum sent to him a month before Plaintiff’s removal from investigations, which

said that Giglio would not typically apply to officer testimony. And Gorman’s

chronology of events places his Giglio concern with Plaintiff as arising months after

Plaintiff had been removed from investigations.

Additionally, a jury could question the Giglio rationale because Defendants

disregarded Roland’s similar “Giglio” issue. See Trujillo v. PacifiCorp, 524 F.3d 1149,

1158–59 (10th Cir. 2008) (inference of discrimination could be drawn from employer’s

harsher treatment of plaintiffs than other similarly situated employees).1 In 1996 the

same judge who authored Elam two years later wrote United States v. Aguilar,

No. 96-20032-01, 1996 WL 772584, at *2 n.6 (D. Kan. Dec. 20, 1996), in which she

1
Defendants assert that at the same time they learned of concerns about Plaintiff, they
also discovered that another deputy had committed misconduct years earlier and removed
her from investigations as well because of Giglio concerns. But the June 28, 2009 letter
from Roland to Gorman informing him of the WCSD’s intention to remove the deputy
from investigations never mentions Giglio.

23
questioned Roland’s credibility; yet he was never “Giglioed.” Both Ash and Roland

acknowledged the similarities between Aguilar and Elam. Yet Ash would not question

Roland’s credibility and Roland testified that no prosecutor, including Gorman and

Morehead, had ever advised him that he would have problems as a witness and that he

had testified in federal court after Aguilar was issued.

Defendants suggest that the different treatment of Roland was justified because

prosecutors never raised concerns about Roland’s potential Giglio issue; but that is beside

the point. Roland himself was surely aware of the issue, and one can question his

motives in taking action against Plaintiff on a ground that he thought inconsequential in

his own case.

In sum, a jury could reasonably infer that the Giglio issue was not the true reason

that Plaintiff was removed from investigations less than a week after the Unified

Government settled Bowling’s claims against it. The issue could reasonably be perceived

by a jury as a quickly concocted excuse that could not withstand scrutiny if Defendants

had any interest in fairly deciding whether the Elam order would pose a problem for

testimony by Plaintiff.

Defendants nonetheless contend that they could not have been motivated by

retaliation when removing Plaintiff from investigations in June 2009 because no one in

authority knew that he was going to testify in Bowling’s March 2010 trial. But the

evidence they cite in support is hardly compelling. Ash stated that he did not pay much

attention to the Bowling incident and that the extent of his knowledge of Plaintiff’s
24
involvement was that Plaintiff believed that Bowling’s allegations of excessive force

should be pursued. But Ash also said that while he was at the police department before

becoming sheriff, officers would talk about the Bowling case (criminal and civil) during

and after roll call because it was “a big case . . . [a] controversial case.” Aplt. App., Vol.

VII at 1643. He described the talk as a “rumor mill running rampant.” Id. at 1644. One

could infer that the talk would continue throughout the Bowling proceedings and that,

given the nature of the case and Plaintiff’s prior testimony at the criminal trial, any

officer would naturally assume that he would be a witness. Indeed, Ash never testified

that in June 2009 he had not heard that Plaintiff was going to be a witness helpful to

Bowling. As for Roland, his alleged recollection of the chronology could be questioned.

He testified that he had heard nothing about the case until he read a news report about the

verdict, but Plaintiff’s attorney had sent him a letter in December 2009 (months before

the verdict) noting Plaintiff’s expected role in the upcoming trial.

Further, the Unified Government agreed to settle the claims against it on June 5,

2009. A jury could reasonably infer that the settlement would create news reports and

discussion in the law-enforcement community about the case. And it could further infer

that it was no coincidence that Plaintiff’s removal from investigations was only six days

later, especially when the ostensible reason was a court order (in Elam) that had never

been mentioned in the 11 years before. The evidence is sufficient to satisfy the fourth

element of Garcetti/Pickering.

25
 b. Revocation of the Commission

We turn next to the revocation of Plaintiff’s commission. In district court

Defendants questioned whether Plaintiff had a commission to be revoked. They argued

that Plaintiff’s commission had already been revoked by operation of law when Ash was

elected sheriff, because “all appointments [of special deputies] made by a sheriff . . . shall

automatically be revoked at the time that such appointing sheriff’s service as sheriff

concludes,” Kan. Stat. Ann. § 19-805a (West 2008), and Ash never formally reappointed

Plaintiff. Defendants have abandoned this issue on appeal, however, stating only that

“[w]hether plaintiff actually held a commission is an open question.” Aplee. Br. at 9 n.1;

see also id. at 33, 35 (briefly mentioning the issue in general terms). “[I]ssues adverted

to in a perfunctory manner, unaccompanied by some effort at developed argumentation,

are deemed waived.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994)

(internal quotation marks omitted).

But even if we were to consider this issue, we would affirm the district court. It

rejected Defendants’ argument, observing that the Kansas statute sets out no formal

mechanism for reappointing reserve deputies and holding that a fact issue remained on

whether Ash reappointed Plaintiff. See Seifert, 2013 WL 2631632, at *5. The WCSD

continued to list Plaintiff as a reserve deputy four months after Ash took office, and Ash

himself testified that when he took office he “assumed that the reserve officers who were

appointed by my predecessor . . . continued in service as reserve officers.” Aplt. App.,

26
Vol. VII at 1691. There is at least a fact question whether Plaintiff retained his

commission after Ash’s election.

Assuming that Plaintiff had a commission, we address his claim that it was

revoked on April 13, 2010, in retaliation for his testimony at the Bowling trial the month

before. Defendants respond that their motive was pure: he was relieved of his

commission because he refused to work in the county jail, a requirement imposed on all

reserve deputies at that time because of a shortage of workers at the facility. Sheriff Ash

testified: “I told the undersheriff, ‘If [Plaintiff] wants to retain his reserve commission,

he can retain his reserve commission. I don’t have a problem with that, but he’ll have to

fall in with all the other reserves [by working in the jail].’” Aplt. App., Vol. VII at 1649.

According to Ash, “Max said, no, I have a concern about working in the jail,” id., and

that was what prompted the issuance of the April 13 memorandum terminating his

commission. Undersheriff Roland ended up giving the same explanation. At first he

testified that Plaintiff’s commission was revoked because “he had failed to attend

meetings or training but—I’m—and I may be mistaken on that but it was—it was a—lack

of him not the [sic] performing hours.” Id., Vol. II at 522. Roland then said, however,

“[W]e had a conversation, Max and I, and about him being a reserve and . . . we told him

that he was informed that he could remain a reserve but he’d have to work in the jail like

the rest of the guys were doing.” Id.

But there is sufficient evidence for a reasonable factfinder to believe that this

explanation is pretextual. To begin with, the reason that Defendants now give was not
27
the reason given at the time. The memorandum given to Plaintiff by Sergeant Thaxton on

April 13 says in full:

Your Service as a Reserved Deputy is no longer needed at this time. Your
tenure as a Reserve for the Wyandotte County Sheriff’s Office has been
greatly appreciated. This is an Administrative action; please address all
concerns or questions to the Undersheriff Larry Roland.

Please return all agency issued items including your commission card to me
the Reserve Unit Coordinator.

Id., Vol. V at 1003. At his deposition Thaxton delivered a telling account of how the

memorandum was generated:

[W]hen I was told to terminate [Plaintiff] from the reserve program, I
couldn’t understand it. I just thought I could use him a lot for training and
we can just keep him in training.

And so when I asked the Undersheriff, I said, “What am I going to
terminate him for,” because I know that he would comply with whatever
we told him to, . . . and he says, something about the Fair Standards Labor
[sic] Act where you can’t be employed by a company and then do free labor
for them. So . . . I said, “Where is that in there for my educational
purposes?” He says, “Go ask Major Eickhoff,” so I went and I asked Major
Eickhoff and Major Eickhoff says, “Ask the Undersheriff.”

....

. . . I said, “I already did. He told me to ask you,” and then he says, “Just
tell Max this is an . . . administrative decision and if he has any questions
he can speak to the Undersheriff directly.”

So that’s what I did. I wrote it up similar to that conversation. . . .

[W]hen I handed it to [Max], I could see that Max was a little
disturbed about it and . . . I just said, “I feel like it’s bullshit too.”

Id. at 1013. Defendants do not attempt to justify the FLSA explanation. Instead, they

argue, curiously, that “there is no evidence that the FLSA had any influence on [Sheriff]
28
Ash’s decision that plaintiff could not work investigations or had to work in the jail to

have a reserve commission,” Aplee. Br. at 15, as if that point helped their cause. But if

the FLSA was not the reason for the revocation of Plaintiff’s commission, then its

invocation suggests pretext.

Plaintiff acknowledges having a conversation about working in the jail, but he

says that the conversation was months after his commission was revoked. According to

Plaintiff, in late July or early August 2010 he was called into Roland’s office, where

Roland told him that, at the urging of an attorney for the Unified Government, Roland

was offering him his commission back if he would work in the jail. Plaintiff refused.

Roland would not entertain Plaintiff’s request for an alternative arrangement, nor would

he listen to (or contradict) Plaintiff’s complaints about being mistreated because of his

testimony in the Bowling case.

In our view, a jury could infer an improper motive for the revocation of Plaintiff’s

commission because the explanations given by Defendants at the time of the revocation

(the FLSA) and in their depositions (refusal to work in the jail) are dubious. See EEOC

v. C.R. England, Inc., 644 F.3d 1028, 1038–39 (10th Cir. 2011) (“A plaintiff can

establish pretext by showing the defendant’s proffered non-discriminatory explanations

for its actions are so incoherent, weak, inconsistent, or contradictory that a rational

factfinder could conclude they are unworthy of belief.” (brackets and internal quotation

marks omitted)); see NLRB v. Henry Colder Co., 907 F.2d 765, 769 (7th Cir. 1990)

29
(“Shifting explanations for [adverse employment action] may, in and of themselves,

provide evidence of unlawful motivation.”).

Further, a jury could have inferred retaliation from the timing of events. Plaintiff

testified in the Bowling civil case on March 4 and March 9, and the trial concluded on

April 8. His commission was revoked five days later. The short time between Plaintiff’s

testimony and the adverse action supports an inference of retaliatory motive. See

Meiners v. Univ. of Kansas, 359 F.3d 1222, 1231 (10th Cir. 2004) (“A six-week period

between protected activity and adverse action may be sufficient, standing alone, to show

causation . . . .”).

Plaintiff has presented sufficient evidence to support a finding in his favor on this

element of his claim.

3. Element Five: But-For Causation

We can now turn to the fifth step of the Garcetti/Pickering analysis:

[I]f the employee establishes that his or her protected speech was a
motivating factor in the adverse employment decision, the burden then
shifts to the defendant, who must show by a preponderance of the evidence
it would have reached the same employment decision in the absence of the
protected activity.

Trant, 754 F.3d at 1167 (internal quotation marks omitted). Again we first consider

Plaintiff’s removal from investigations and then the revocation of his commission.

Defendants contend that whatever their motives they would have had to remove

Plaintiff from investigations in any event because prosecutors would not take cases in

which he had been involved. But there is evidence that the view of the federal
30
prosecutors was not consequential because neither Ash nor Roland could recall a reserve

deputy ever having testified in a federal proceeding. And as for state prosecutions, there

is evidence that the district attorney did not raise a Giglio issue until months after

Plaintiff was removed from investigations and even then said only that the Elam order

would be something to consider on a case-by-case basis. A jury could rationally decide

that Plaintiff would not necessarily have been removed from investigations.

Defendants have a better argument regarding the revocation of Plaintiff’s

commission, because the uncontradicted testimony is that at some point all reserve

deputies were required to work in the jail and Plaintiff refused to do so. But both

Plaintiff and Sergeant Thaxton testified that it was only after the revocation that

Defendants offered to reinstate Plaintiff if he would work in the jail. Such an offer could

serve to mitigate Defendants’ damages, but it would not negate Plaintiff’s cause of

action. See Giandonato v. Sybron Corp., 804 F.2d 120, 125 (10th Cir. 1986). Summary

judgment based on the fifth element was inappropriate.

Thus, Plaintiff has presented sufficient evidence for a jury to find that he has

suffered damages because of a violation of his First Amendment rights by Ash and

Roland. It does not necessarily follow, however, that the Defendants are liable to him

under § 1983. We now turn to (1) whether the Unified Government is liable and (2)

whether Ash and Roland are personally liable.

31
 4. The Unified Government’s Liability

A local government is not liable for every constitutional violation by one of its

officers or employees. “Under Section 1983, municipalities cannot be held liable for the

actions of others under the common law principle of respondeat superior; they are

responsible only for their own actions.” Simmons v. Uintah Health Care Special Dist.,

506 F.3d 1281, 1284 (10th Cir. 2007). Under this standard, “a municipality is

responsible for both [1] actions taken by subordinate employees in conformance with

preexisting official policies or customs and [2] actions taken by final policymakers,

whose conduct can be no less described as the ‘official policy’ of a municipality.” Id. at

1285 (emphasis omitted); see Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)

(municipal liability can arise from those “whose acts or edicts may fairly be said to

represent official policy” (internal quotation marks omitted)).

Here, it appears that the actions of Sheriff Ash, in his position as the final

policymaker for the Wyandotte County Sheriff’s Department, represent the official policy

of the Unified Government and subject it to potential liability. See Kan. Stat. Ann.

§§ 19-805 (West 2008) (sheriff is responsible for conduct of undersheriff and deputies);

Bd. of Cnty. Comm’rs v. Nielander, 62 P.3d 247, 251 (Kan. 2003) (“[T]he sheriff is a

state officer whose duties, powers, and obligations derive directly from the legislature

and are coextensive with the county board.”). Plaintiff argues as much, and the Unified

Government offers no argument in response. We therefore need not consider whether the

actions of Ash and Roland were in conformity with preexisting official policies or
32
customs. The summary judgment for the Unified Government on the § 1983 claim must

be set aside.

5. Qualified Immunity

We affirm, however, the summary judgment for Ash and Roland on the § 1983

claim. Both are entitled to qualified immunity. “The doctrine of qualified immunity

protects government officials from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(internal quotation marks omitted). Only individuals, not governmental entities, can

assert qualified immunity. See Beedle v. Wilson, 422 F.3d 1059, 1069 (10th Cir. 2005).

“When a defendant pleads qualified immunity, the plaintiff has the heavy burden of

establishing: (1) that the defendant’s actions violated a federal constitutional or statutory

right; and (2) that the right violated was clearly established at the time of the defendant’s

actions.” Scott v. Hern, 216 F.3d 897, 910 (10th Cir. 2000) (internal quotation marks

omitted). “Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts must have found the law to be as the plaintiff maintains.”

Stewart v. Beach, 701 F.3d 1322, 1331 (10th Cir. 2012) (internal quotation marks

omitted).

We focus on the first element of the Garcetti/Pickering test. Was the law clearly

established in 2009 and 2010, when Ash and Roland committed the alleged misconduct,
33
that testimony by a law-enforcement officer about matters observed while on duty could

be protected by the First Amendment? We think not. The Supreme Court did not

address the specific issue before Lane was handed down in June 2014, neither did we,

and in 2010 other circuits were divided. Compare Reilly v. City of Atlantic City, 532 F.3d

216, 231 (3d Cir. 2008) (a police officer’s testimony is categorically protected), with

Huppert v. City of Pittsburg, 574 F.3d 696, 707–08 (9th Cir. 2009) (testimony is part of

officer’s duties), overruled by Dahlia v. Rodriguez, 735 F.3d 1060, 1063 (9th Cir. 2013)

(en banc), and Green v. Barrett, 226 F. App’x 883, 886 (11th Cir. 2007) (per curiam)

(testimony by jailer not protected). Indeed, the reason given by the Supreme Court to

grant certiorari in Lane was “to resolve discord among the Courts of Appeals as to

whether public employees may be fired—or suffer other adverse employment

consequences—for providing truthful subpoenaed testimony outside the course of their

ordinary job responsibilities.” 134 S. Ct. at 2377 (emphasis added). And Lane held that

the individual defendant in that case was entitled to qualified immunity because “no

decision of this Court was sufficiently clear to cast doubt” on controlling lower-court

precedent. Id. at 2381. We hold that Ash and Roland did not have “reasonable warning

that [their] conduct . . . violated constitutional rights” and are therefore entitled to

qualified immunity. Stewart, 701 F.3d at 1331 (internal quotation marks omitted).

C. Conspiracy Claim under 42 U.S.C. § 1985

Plaintiff brings his second claim under 42 U.S.C. § 1985, which protects witnesses

from retaliation. It provides in relevant part:
34
 If two or more persons in any State or Territory conspire to deter, by force,
intimidation, or threat, any party or witness in any court of the United
States from attending such court, or from testifying to any matter pending
therein, freely, fully, and truthfully, or to injure such party or witness in his
person or property on account of his having so attended or testified . . . the
party so injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against any one or more
of the conspirators.

Id. § 1985(2)–(3) (emphasis added). The district court held that Plaintiff had failed to

present evidence of a conspiracy to either deter him from testifying or injure him after the

fact. See Seifert, 2013 WL 2631632, at *11–12. Plaintiff disagrees, arguing that Ash and

Roland conspired (1) to deter his testimony by removing him from investigations and (2)

to injure him for testifying by revoking his commission.

We have already ruled that there was sufficient evidence that Ash and Roland took

action (removal from investigations and revocation of his commission) to deter Plaintiff

from testifying and to punish him for doing so. That there is sufficient evidence they

acted in concert is a simple, even necessary, logical progression from that ruling.

Because Defendants have not raised any defenses under § 1985 relating to municipal

liability or qualified immunity, we need not address these matters.

D. State-Law Claim

Finally, Plaintiff appeals the district court’s dismissal of his state common-law

claim for retaliatory employment action in violation of Kansas public policy. The district

court correctly recognized that under Kansas law a “state claim for retaliatory discharge

is suspended if there is ‘a state or federal statute which provides an adequate alternative

35
remedy.’” Seifert, 2013 WL 2631632, at *13 (quoting Flenker v. Willamette Indus., 967

P.2d 295, 299 (Kan. 1998) (brackets omitted)); see Tollen v. City of El Dorado,

No. 11-1182-JWL, 2012 WL 10353 (D. Kan. Jan. 3, 2012). Plaintiff argues that § 1983

may provide an adequate alternative remedy, but § 1985 does not. The argument puzzles

us. State law does not require two adequate remedies. If § 1983 is adequate, what does it

matter whether § 1985 is, too? We affirm the district court’s dismissal of the state-law

claim.

III. CONCLUSION

We AFFIRM the dismissal of Plaintiff’s state-law claims because federal law

provides an adequate alternative remedy. We AFFIRM the qualified-immunity dismissal

of the § 1983 claims against Sheriff Ash and Undersheriff Roland. In all other respects

we REVERSE and REMAND for further proceedings. Plaintiff’s Amended Motion for

Leave to File Portion of Appendix Under Seal is GRANTED. The Clerk of the Court is

directed to seal Volume VIII of the Appellant’s Appendix, except for the document on

pages 1755‒57, which is referenced in this opinion. Plaintiff’s motion to abate is moot.

36