United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 3, 2004
IN THE UNITED STATES COURT OF APPEALS April 15, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 00-40557
_____________________
DEAN KINNEY; DAVID HALL
Plaintiffs - Appellees
v.
BOBBY WEAVER, Etc.; ET AL
Defendants
J B SMITH, Smith County Sheriff; SMITH COUNTY TEXAS; W A
"BILL" YOUNG, Tyler Police Chief; CITY OF TYLER, TEXAS; EAST
TEXAS POLICE CHIEF’S ASSOCIATION; BOBBY WEAVER, Gregg County
Sheriff; BOB GREEN, Harrison County Sheriff; GREGG COUNTY
TEXAS; HARRISON COUNTY TEXAS; RONNIE MOORE, Kilgore Director
of Public Safety; CHARLES "CHUCK" WILLIAMS, City of Marshall
Police Chief; TED GIBSON, Nacogdoches Police Chief; CITY OF
KILGORE, TEXAS; CITY OF MARSHALL TEXAS; CITY OF NACOGDOCHES
TEXAS
Defendants - Appellants
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.*
KING, Chief Judge:
*
Judge Pickering was not a member of the court when this
case was submitted to the court en banc and did not participate
in the decision.
Plaintiffs-Appellees Dean Kinney and David Hall brought suit
against seven law enforcement officials, the seven cities or
counties that employ these officials, and the East Texas Police
Chiefs Association, asserting four claims: (1) a 42 U.S.C.
§ 1985(2) claim alleging conspiracy against Kinney and Hall
because of their testimony in judicial proceedings, (2) a 42
U.S.C. § 1983 claim alleging violations of their rights to
freedom of speech under the First Amendment, (3) a § 1983 claim
alleging violations of their Fourteenth Amendment rights to due
process of law, and (4) a state law claim alleging tortious
interference with business relations. The law enforcement
officials now bring an interlocutory appeal of the district
court’s order denying their motion for summary judgment, in which
they asserted qualified immunity against the federal claims and
state official immunity against the tort claim. A panel of this
court affirmed in part and reversed in part. Kinney v. Weaver,
301 F.3d 253 (5th Cir. 2002), vacated and reh’g en banc granted,
338 F.3d 432 (5th Cir. 2003). On rehearing en banc, we now
AFFIRM the district court’s order denying the officials’ claim of
immunity from the § 1985 claim, the § 1983 First Amendment claim,
and the state law claim; given material factual disputes, these
claims cannot be disposed of on summary judgment. We REVERSE the
district court’s order denying immunity from the plaintiffs’
§ 1983 due process claim.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
While many of the basic facts in this case are uncontested,
a number of the legally relevant facts are still disputed at this
stage. In Parts II and III of this opinion, we elaborate the
appellate prism through which we must view the facts in this
interlocutory appeal from the district court’s decision denying
qualified immunity. As we explain there, we are required to
accept the truth of the plaintiffs’ summary judgment evidence,
and we lack jurisdiction to review the genuineness of those
factual disputes that precluded summary judgment in the district
court. Nonetheless, for ease of understanding and later
discussion, our recitation of the facts will note both sides’
assertions with respect to the material points of disagreement.
At the time of the events giving rise to this case, Kinney
and Hall were instructors at the East Texas Police Academy
(“ETPA”), a division of Kilgore College in Kilgore, Texas.
Founded by the East Texas Police Chiefs Association in 1966, the
ETPA provides basic and advanced training for law enforcement
officers in the greater East Texas area. Kinney and Hall had
been working at the ETPA for seventeen years and six years,
respectively, under renewable one-year employment contracts. The
seven law enforcement officials (collectively “the Police
Officials”) asserting qualified immunity in this case are police
chiefs or sheriffs who possess final authority over the training
3
of the officers employed by their respective agencies.1 Before
the fall of 1998, the Police Officials enrolled their officers in
ETPA courses on a regular basis, including courses taught by
Kinney and Hall. The Police Officials were not contractually
bound to continue using either the ETPA’s services or the
services of Kinney and Hall in particular.
In August 1998, Kinney and Hall testified as expert
witnesses for the family of Edward Gonzales, a teenager who was
fatally shot by a police sniper employed by the city of
Kerrville, Texas. The Kerrville case did not involve officers
who had trained at the ETPA or police agencies that sent trainees
to the ETPA, as Kerrville lies several hundred miles from
Kilgore, outside the region from which the ETPA draws its
students.2 Kinney and Hall had never before testified as expert
witnesses against police officers, though Kinney had previously
testified as an expert in defense of the police. The lawyer for
the victim’s family in the Kerrville case approached the two
1
The Police Officials are: Nacogdoches Police Chief Ted
Gibson, Harrison County Sheriff Bob Green, Kilgore Director of
Public Safety Ronnie Moore, Smith County Sheriff J.B. Smith,
Gregg County Sheriff Bobby Weaver, Marshall Police Chief Charles
“Chuck” Williams, and Tyler Police Chief W.A. “Bill” Young.
2
The driving distance between the two cities is
approximately 435 miles. As the district court noted by way of
comparison, that figure is roughly the same as the driving
distance between Boston, Massachusetts, and Washington, D.C. As
the crow flies, the distance between Kilgore and Kerrville is 300
miles.
4
instructors because he had experienced difficulty finding local
experts who were willing to testify against the police.
Based on their knowledge and experience as law enforcement
instructors specializing in the use of force and firearms, Kinney
and Hall testified that the Kerrville police officer had used
excessive force and that the Kerrville police department had
failed to implement the proper policies necessary to direct the
conduct of officers acting as snipers. Kinney and Hall were
technically under subpoena in the Kerrville case, but they
testified voluntarily. Although Kinney and Hall originally
planned to receive payment for their services, they decided,
shortly after their depositions and before trial, that they would
decline payment. Kinney’s explanation for this decision,
confirmed by Hall, is that the two “felt so strongly about the
incident and what had happened to Eddie Gonzales” that they
concluded that “it wouldn’t be right to charge.”
Soon after Kinney and Hall testified in the Kerrville case,
William Holda, the president of Kilgore College, received letters
from some of the Police Officials threatening to stop using the
ETPA for officer training. In a letter dated September 15, 1998,
Kilgore Director of Public Safety Ronnie Moore told Holda that he
was concerned about the instructors’ recent inquiries regarding a
gun confiscated by the Kilgore police, because “[i]t is a well
known fact within this agency that these instructors had
5
previously testified in another matter, against other Officers.”3
Moore said that testimony offered in support of the police was
“acceptable and reasonable,” but Kinney’s and Hall’s testimony
“is in direct conflict with the basic fundamentals and
expectations that we have come to enjoy from Academy
instructors.” Moore informed Holda that “[d]ue to these
circumstances, our agency will be exploring other options to
provide the professional training necessary for our Officers.”
In a letter dated September 29, 1998, Charles Williams, the
chief of the city of Marshall’s police department, also
complained to Holda about the instructors’ expert testimony. He
wrote, “I think it is deplorable . . . that instructors for our
Police Academy hire themselves out as an expert witness: AGAINST
law enforcement agencies.” Williams stated further that “[t]he
Marshall Police Department will not attend any courses taught by
3
Kinney and Hall offered an innocent explanation for
their inquiries about the seized gun, saying that they hoped to
shoot the gun for their own enjoyment and edification——as local
police had let them do on other occasions——not because they were
gathering information in order to testify as expert witnesses in
defense of the gun’s owner. The defendants’ briefs have
highlighted the gun incident, but the plaintiffs’ evidence
suggests that it was not a motivating factor in the boycott. As
described below, the other Police Officials who wrote to Holda
did not mention the gun incident; Kinney’s and Hall’s Kerrville
testimony was the only stated reason for threatening to boycott
the ETPA. The Kerrville testimony was, moreover, the only
complaint reflected in the minutes of the meeting at which the
local police agencies decided to boycott the plaintiffs. The
district court found that there was sufficient evidence for a
jury to conclude that the plaintiffs’ testimony was the reason
for the boycott. Kinney v. Weaver, 111 F. Supp. 2d 831, 838
(E.D. Tex. 2000).
6
Mr. David Hall or Mr. Dean Kinney due to the liability they place
on this Police Department.” Williams attached three newspaper
articles that mentioned Kinney’s and Hall’s roles as expert
witnesses for the plaintiffs in the Kerrville case.
The summary judgment evidence submitted by Kinney and Hall
includes Williams’s deposition, in which he testified that he
learned of Kinney’s and Hall’s involvement in the Kerrville case
when he received, probably in August 1998, an anonymous package
containing the three newspaper articles that he attached to his
letter to Holda. In addition to the articles, the package
contained a note telling Williams to contact Moore for more
information, which Williams did shortly after receiving the
package.
Williams forwarded copies of his September 29, 1998, letter
and the attached articles to Moore and four of the other Police
Officials, namely, Bill Young, the chief of police for the city
of Tyler; Bob Green, the sheriff of Harrison County; Bobby
Weaver, the sheriff of Gregg County; and J.B. Smith, the sheriff
of Smith County. The set of documents that Williams forwarded to
Young, which is in the summary judgment record, also included a
copy of Moore’s September 15 letter to Holda.
Young sent a letter to Holda on September 30, 1998, the day
after he received the letters and articles from Williams. Young
wrote that he was “greatly disturbed by the recent news that
[Hall and Kinney] have acted in the capacity of ‘Expert
7
Witnesses’ to testify against another law enforcement agency and
it’s [sic] officers.” He emphasized he was writing “not only as
Chief of Police of an agency that is one of your largest
customers, but also as President of the East Texas Police Chief’s
[sic] Association.” Noting that “[i]t is not our preference to
have these two instructors teach our officers and also engage in
legal combat with them in the judicial system,” Young stated that
“[t]his matter will force us to consider alternative methods to
achieve our training needs if not resolved as soon as possible.”
In an attempt to address the defendants’ complaints, Holda
met with Moore, Williams, and Young on September 30, 1998. Also
in attendance were three other law enforcement officers to whom
Williams had forwarded copies of his letter to Holda, including
Defendant Green. In his affidavit, Holda gave an account of this
meeting that was largely confirmed by Moore, Williams, Young, and
Green in their depositions. According to Holda, all four men
“made it clear” (1) that “they wanted Mr. Hall and Mr. Kinney
removed from the [ETPA] faculty because their testimony in the
Kerrville trial created a conflict of interest with their [ETPA]
responsibilities” and (2) “that they would no longer send
officers and recruits to the [ETPA] for training if Mr. Hall and
Mr. Kinney remained on the Academy faculty.”
Defendants Moore, Williams, and Green later agreed to send
students to the ETPA on the condition that their officers not be
instructed by Kinney and Hall, but Holda’s affidavit reports that
8
Young continued to insist that Kinney and Hall also be removed
from the ETPA faculty completely. According to Holda, “the
stated reason for [the attendees’] refusals to send their
officers and recruits for training by Mr. Hall and Mr. Kinney was
that their testimony in the Kerrville trial criticized the law
enforcement officer on trial.” Testifying in Kerrville had, in
the view of the defendants, “created a conflict of interest
between [the plaintiffs] and law enforcement officers and the law
enforcement community.”
The defendants repeatedly expressed a concern that Kinney’s
and Hall’s testimony created “conflicts of interest” and violated
principles of “cooperative responsibility,” but their letters and
affidavits do not elaborate upon the import of those phrases. In
their depositions, some of the Police Officials admitted that, in
their view, an unacceptable conflict of interest exists whenever
a police instructor testifies against a police officer,
regardless of location and regardless of whether the instructor
had trained the officer. Such a conflict does not exist, in
their view, when an instructor testifies for police officers.
Shortly after the September 30 meeting, Holda met with
Kinney and Hall to apprise them of the situation. Kinney and
Hall assured Holda that they would never testify as experts
against any officer who had been trained at the ETPA or any
9
agency that had sent officers to the ETPA for training.4 Kinney
further promised that he would not accept payment for any future
work on behalf of plaintiffs in police misconduct cases. In a
letter dated October 5, 1998, Holda conveyed Kinney’s and Hall’s
assurances to the attendees of the September 30 meeting and
invited them to attend another meeting along with other East
Texas law enforcement officials for the purpose of discussing
their concerns directly with Kinney and Hall. None of the
invitees indicated an interest in such a meeting or came to the
ETPA on the date suggested by Holda. Hall states in his
affidavit that one of the defendants told him, on October 13,
that the instructors had committed a “sin” for which they could
get no forgiveness.
On October 22, 1998, the East Texas Police Chiefs
Association held its quarterly meeting in Kilgore. The
attendance was unusually large. All of the Police Officials were
4
The defendants have suggested that Kinney and Hall told
their students that the students might someday face Kinney and
Hall in court. In their affidavits and depositions, Kinney and
Hall concede that, if subpoenaed to testify against one of their
students, they would testify truthfully as to what they taught
the student; Kinney and Hall also state, however, that they do
not tell their students that they would testify against them as
experts. Regarding the defendants’ assertion that Kinney once
said in class that he would “go to the highest bidder” and could
face the students as an expert witness, Kinney responds that he
might have made such a remark as a obvious joke. The students
apparently took the comment that way, as the only piece of
evidence relating to a student’s reaction to the comment says
that “I never gave much thought to what he said and believed in
my mind that he was just talking.”
10
present, except for Smith, who later spoke to a deputy who had
attended the meeting. The minutes of this meeting reflect that
Kinney’s and Hall’s involvement in the Kerrville case was
prominent on the agenda. Defendants Young (who was president of
the East Texas Police Chiefs Association at the time), Williams,
Moore, Gibson, and Weaver voiced their disapproval of Kinney’s
and Hall’s work on behalf of the plaintiffs in the Kerrville
case, and all five officials stated their intention to ensure
that Kinney and Hall did not train their officers. Subsequently,
the minutes state that “it was agreed that none of the Chiefs or
Sheriffs present would send their officers to any classes taught
by either [Kinney or Hall].” The minutes do not reflect
discussion of any other complaints concerning Kinney and Hall,
nor do they reflect any mention of the substance of the
instructors’ testimony in Kerrville. Some of the defendants
admitted in their depositions that they did not know what Kinney
and Hall had said in the Kerrville trial, only that they had
testified against the police.
Several local media organizations reported on the
controversy that had arisen between the ETPA and some of the area
police agencies. On television and in print, several defendants
are documented announcing their intention either to use a
training institution other than the ETPA or to bar their officers
from taking Kinney’s and Hall’s courses. Smith was quoted as
stating that Kinney and Hall had “prostituted themselves” by
11
testifying against another officer. Young was shown on
television stating that he would not send officers to the ETPA
until Kinney and Hall were reassigned or fired. A newspaper
article quoted Holda as saying that Young was “asking me to do
something he wouldn’t do.” According to Holda, the instructors
had received excellent evaluations and their testimony was
“freedom of speech.” Weaver told a television reporter that
Kinney and Hall had violated “an unwritten code.”5
The Police Officials followed through on their threats both
by cancelling enrollments in the plaintiffs’ classes and by
barring their officers from enrolling in the plaintiffs’ courses
in the future. The summary judgment evidence indicates that this
boycott was quite effective. Holda stated that Kinney’s and
Hall’s courses “were boycotted by a sufficient number of law
enforcement agencies so that enrollment was insufficient to make
their classes and, therefore, could not be economically
continued.” The boycott began in October 1998, and by November
10, 1998, all of Kinney’s and Hall’s basic classes had been
5
The defendants admitted (either in their pleadings,
depositions, or during the hearing in the district court) to
making the media-reported statements recounted in this paragraph,
and the defendants’ admissions are proper summary judgment
evidence. The record also contains a great many other newspaper
clippings quoting both Holda and the defendants; those reports
are relevant, without regard to the truth of the matter asserted,
to the defendants’ argument that the plaintiffs’ testimony
created a public rift between the ETPA and the local police
agencies.
12
dropped from the ETPA schedule, and many of their off-campus
classes had been cancelled.
Aware that the enrollment in his courses was down and
concerned that he would not be able to withstand a cut in pay,
Hall resigned from the ETPA effective January 3, 1999, because he
anticipated that his ETPA contract would not be renewed. He was
hired as a patrol officer at the Carrollton Police Department,
the job he had left to work at the ETPA six years earlier.
Kinney’s ETPA teaching contract extended through the 1998-
1999 academic year, and he continued to teach during that time.
The boycott remained in effect, however, and the ETPA provided
alternate instructors for all of Kinney’s classes to ensure that
the law enforcement agencies that refused to enroll their
officers in Kinney’s courses could still send trainees to the
ETPA. Kinney stated in his affidavit that he “had minimal class
time during the first few months of the 1999 calendar year”——
specifically, he “had no time in the basic police academy and
very little in the in-service classes.” In their depositions
taken in August 1999, the Police Officials stated that they
continued to prohibit enrollment either in Kinney’s courses or in
all ETPA courses because Kinney remained on the ETPA faculty.
Kilgore College did not renew Kinney’s 1998-1999 contract
for his position as an ETPA instructor, but rather offered him a
contract as a lecturer in the Criminal Justice Department of
Kilgore College for the following academic year. The salary for
13
this position was $15,000 less than Kinney earned as an ETPA
instructor. He had not taught in the Criminal Justice Department
previously, but rather had been an ETPA instructor for the entire
seventeen-year period that he had been working for Kilgore
College. According to Holda, “Kilgore College did not anticipate
a change in the teaching assignment for either Mr. Kinney or Mr.
Hall prior to the decisions by certain law enforcement agencies
to boycott classes taught by Mr. Hall and Mr. Kinney.”
On April 7, 1999, Kinney and Hall filed a complaint in
federal district court against the seven Police Officials, their
respective cities or counties of employment, and the East Texas
Police Chiefs Association, alleging that the defendants had
“blackballed” Kinney and Hall “in retaliation for their truthful
testimony on behalf of the victim of a police shooting.”6 Kinney
and Hall claimed violations of: (1) their rights to testify
freely under 42 U.S.C. § 1985(2), (2) their rights to free speech
under the First and Fourteenth Amendments, (3) their rights to
due process of law under the Fourteenth Amendment, and (4) Texas
tort law. The defendants (both the Police Officials and the
entities) moved for summary judgment on the merits of all four
claims, and the Police Officials also asserted qualified immunity
from the plaintiffs’ federal claims and state official immunity
6
The suit originally named an eighth police chief and
his agency of employment as additional defendants, but the
district court granted an agreed motion to dismiss the claims
against those parties.
14
from the state tort claim. The district court denied the
defendants’ motion for summary judgment on all grounds. Kinney,
111 F. Supp. 2d at 845.
The Police Officials brought an interlocutory appeal of the
district court’s order denying summary judgment on their immunity
defenses. A divided panel of this court affirmed the district
court’s order denying immunity with respect to the plaintiffs’
claims under § 1985, the First Amendment, and state law, but we
reversed the district court with respect to the due process
claim. Kinney, 301 F.3d at 286. The en banc court granted
rehearing in an order dated July 9, 2003, 338 F.3d 432 (5th Cir.
2003), and we heard oral argument on September 25, 2003.
II. JURISDICTION
We must first address our jurisdiction to hear this appeal.
This court has jurisdiction over appeals of “final decisions” of
the district courts. See 28 U.S.C. § 1291 (2000). Although a
denial of a defendant’s motion for summary judgment is ordinarily
not immediately appealable, the Supreme Court has held that the
denial of a motion for summary judgment based upon qualified
immunity is a collateral order capable of immediate review. See
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).7 Our jurisdiction
is significantly limited, however, for it extends to such appeals
7
This court has held that orders denying official
immunity under Texas law are immediately appealable to the same
extent as denials of qualified immunity under federal law. See
Cantu v. Rocha, 77 F.3d 795, 803-04 (5th Cir. 1996).
15
only “to the extent that [the denial of summary judgment] turns
on an issue of law.” Id.
As will be explained in greater detail below, officials
enjoy qualified immunity to the extent that their conduct is
objectively reasonable in light of clearly established law. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whenever the
district court denies an official’s motion for summary judgment
predicated upon qualified immunity, the district court can be
thought of as making two distinct determinations, even if only
implicitly. First, the district court decides that a certain
course of conduct would, as a matter of law, be objectively
unreasonable in light of clearly established law. Second, the
court decides that a genuine issue of fact exists regarding
whether the defendant(s) did, in fact, engage in such conduct.
According to the Supreme Court, as well as our own precedents, we
lack jurisdiction to review conclusions of the second type on
interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 313,
319-20 (1995); Lemoine v. New Horizons Ranch & Ctr., Inc., 174
F.3d 629, 634 (5th Cir. 1999).8 Stated differently, in an
8
Since we lack jurisdiction to review a denial of
summary judgment based on the district court’s conclusion that
fact questions exist regarding whether the defendants engaged in
conduct that would violate clearly established law, officials may
sometimes be required to proceed to trial even though the
ultimate resolution of those factual disputes may show that they
are entitled to qualified immunity from liability. The Supreme
Court recognizes that this “threatens to undercut” the policy of
affording immunity from trial, but the Court has said that
“countervailing considerations” nonetheless support this
16
interlocutory appeal we cannot challenge the district court’s
assessments regarding the sufficiency of the evidence——that is,
the question whether there is enough evidence in the record for a
jury to conclude that certain facts are true.9
We do, however, have jurisdiction to the review the first
type of determination, the purely legal question whether a given
course of conduct would be objectively unreasonable in light of
clearly established law. See Behrens v. Pelletier, 516 U.S. 299,
312-13 (1996) (stating that Johnson permits a defendant official
“to claim on appeal that all of the conduct which the District
Court deemed sufficiently supported for purposes of summary
judgment met the Harlow standard of ‘objective legal
reasonableness’”). That is, we have jurisdiction only to decide
whether the district court erred in concluding as a matter of law
that officials are not entitled to qualified immunity on a given
set of facts. As one of our cases succinctly puts it, “we can
review the materiality of any factual disputes, but not their
limitation on interlocutory jurisdiction. See Johnson, 515 U.S.
at 317-18.
9
The Johnson Court provided three reasons for its
conclusion that arguments relating to the sufficiency of the
evidence are not immediately appealable: (1) Mitchell had said
that interlocutory appeal was appropriate only for reviewing the
district court’s purely legal rulings, (2) questions regarding
sufficiency of the evidence are not “separable” from the
underlying merits of the case for purposes of the collateral
order doctrine, and (3) reviewing factual disputes on
interlocutory appeal was undesirable as a matter of judicial
administration. See Johnson, 515 U.S. at 313-17.
17
genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.
2000).
Given the above, the plaintiffs’ suggestion before the panel
that we lack jurisdiction over this appeal is incorrect. We do
have jurisdiction, but only to the extent that the appeal
concerns the purely legal question whether the defendants are
entitled to qualified immunity on the facts that the district
court found sufficiently supported in the summary judgment
record. See Behrens, 516 U.S. at 312-13.10
III. STANDARD OF REVIEW
The standard of review that we apply in an interlocutory
appeal asserting qualified immunity differs from the standard
employed in most appeals of summary judgment rulings.
Ordinarily, we would review the district court’s denial of
summary judgment de novo, applying the same standard as the
district court. See Vela v. City of Houston, 276 F.3d 659, 666
10
Although the briefs submitted by both parties in this
case address only the issue whether the district court properly
denied the Police Officials’ claims of qualified immunity, the
notices of appeal filed with this court name not only the Police
Officials, but also the cities, counties, and the East Texas
Police Chiefs Association. The doctrine of qualified immunity
applies only to government officials, and thus the portion of the
motion for summary judgment addressing the plaintiffs’ claims
against the cities, counties, and the East Texas Police Chiefs
Association attacked those claims on grounds apart from qualified
immunity. Because the district court’s order denying summary
judgment to the entities is not a final decision within the
meaning of § 1291, we do not have jurisdiction over an appeal of
such an order. Accordingly, we dismiss the appeal of the
district court’s summary judgment order brought by the cities,
counties, and the East Texas Police Chiefs Association.
18
(5th Cir. 2001). The district court, of course, applies the
standard of Rule 56, according to which summary judgment is
proper if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c). On appeal, we would ordinarily apply that same
Rule 56 standard, and we would reverse the district court’s
denial of summary judgment if we concluded that the district
court found a genuine factual dispute when, on our own review of
the record, no such genuine dispute exists. But, as explained
above, in an interlocutory appeal we lack the power to review the
district court’s decision that a genuine factual dispute exists.
Therefore, we do not apply the standard of Rule 56 but instead
consider only whether the district court erred in assessing the
legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment. See
Behrens, 516 U.S. at 313; Jones, 515 U.S. at 313.
Where factual disputes exist in an interlocutory appeal
asserting qualified immunity, we accept the plaintiffs’ version
of the facts as true. Wagner, 227 F.3d at 320 (“Even where, as
here, the district court has determined that there are genuine
disputes raised by the evidence, we assume plaintiff’s version of
the facts is true . . . .”); see also Gonzales v. Dallas County,
249 F.3d 406, 411 (5th Cir. 2001) (“[O]n interlocutory appeal the
public official must be prepared to concede the best view of the
facts to the plaintiff and discuss only the legal issues raised
19
by the appeal.”).11 When the district court fails to set forth
the factual disputes that preclude granting summary judgment, we
may be required to review the record in order “to determine what
facts the district court, in the light most favorable to the
nonmoving party, likely assumed.” Johnson, 515 U.S. at 319. In
this case, however, the district court wrote a detailed opinion
that carefully identified those factual disputes that prevented
summary judgment.12 In so doing, the district court also
assessed the factual import of the plaintiffs’ summary judgment
evidence. Given the nature of our jurisdiction over an
interlocutory appeal asserting qualified immunity, these factual
disputes, together with the district court’s concomitant
assessment of what facts are supported by the plaintiffs’ summary
judgment evidence, necessarily play a critical role in our
decision. We therefore set them forth at length:
11
The defendants recognize this point and conceded in
their reply brief before the panel that they must “accept the
material facts reasonably suggested by Kinney’s and Hall’s
summary-judgment proof.”
12
To be sure, the district court’s opinion did not (and
could not be expected to) discuss every aspect of the conflicting
evidence. The Police Officials’ briefs have, at times, discussed
aspects of the facts that the district court did not explicitly
address. In responding to those arguments, we do not, as the
dissent alleges “freely evaluate[] the disputed evidence,” Jones
dissent at 5. We do not purport to resolve any factual disputes,
as this case is at the summary judgment stage. Rather, we seek
only to “determine what facts the district court, in the light
most favorable to the nonmoving party, likely assumed,” for
purposes of summary judgment. See Johnson, 515 U.S. at 319.
20
The plaintiffs contend that the record reflects that
the defendants “blackballed” or boycotted the plaintiffs’
classes at the Academy because the plaintiffs broke the
“code of silence.” . . .
The defendants, on the other hand, have maintained
that they refused to send their officers to classes
taught by Kinney and Hall because of potential conflicts
of interests . . . .
. . . The record is full of evidence, both circumstantial
and direct, backing each of the respective party’s
positions. After reviewing the record and the arguments
of the parties, the court concludes that summary judgment
is not appropriate and this case may proceed to trial.
Kinney, 111 F. Supp. 2d at 835.
There is ample evidence currently in the record for a
jury to conclude that the defendants’ actions were
intended to suppress the plaintiffs’ rights to free
speech.
Id. at 839.
There is ample evidence in the record for a jury to
conclude that the defendants conspired to deter the
plaintiffs from testifying in court by boycotting their
business.
Id. at 840.
There are genuine issues of fact remaining in this case
as to whether the plaintiffs’ expert testimony could
legitimately cause any disruptions in the defendants’
operations. Moreover, it must be determined whether
these disruptions, if any, were the result of a perceived
“conflict of interest” or the “blackballing” of
plaintiffs for turning against one of their own.
Id. at 843.
Plaintiffs’ evidence reflects a dogged determination by
the defendants to rid Kilgore College of the plaintiffs
as instructors in retaliation for speaking out about
excessive force by police officers. The court concludes
that the acts alleged in the complaint and found in the
record, if proven at trial, would violate “clearly
established” law.
Id. at 845.
21
In reviewing the district court’s conclusions concerning the
legal consequences——the materiality——of the facts, our review is
of course de novo. See Lemoine, 174 F.3d at 634.
IV. QUALIFIED IMMUNITY
The doctrine of qualified immunity seeks to strike a balance
between competing social objectives, providing breathing space
for the “vigorous exercise of official authority” while at the
same time allowing a possibility of redress for victims of
officials’ abuses. See Butz v. Economou, 438 U.S. 478, 504-06
(1978). Therefore, as against claims under federal law,13
“government officials performing discretionary functions
generally are shielded 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.” Harlow, 457 U.S. at 818. The Supreme Court noted in
Harlow that in most cases, the “of which a reasonable person
would have known” language in the qualified immunity standard
does not add anything to the “clearly established law”
requirement because “a reasonably competent public official
should know the law governing his conduct.” Id. at 818-19. Not
long after Harlow, the Court refined the qualified immunity
13
With respect to the plaintiffs’ state law claim, we
must apply the Texas law of official immunity, which differs
slightly from the federal standard. Since we reinstate the
portion of the panel opinion that dealt with the state law claim,
we do not discuss official immunity under Texas law in today’s
opinion.
22
standard by defining “clearly established” in a way that
encompasses the “objective reasonableness” inquiry: To be
“clearly established” for purposes of qualified immunity, “[t]he
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). Thus, as this court has recognized, in light of the
Anderson definition of “clearly established,” the question
“whether the . . . right was clearly established at the time the
defendant acted . . . requires an assessment of whether the
official’s conduct would have been objectively reasonable at the
time of the incident.” Conroe Creosoting Co. v. Montgomery
County, 249 F.3d 337, 340 (5th Cir. 2001).
The Supreme Court has recently provided us with additional
guidance regarding the nature of “clearly established” law. It
had already been known since Anderson that the “clearly
established” standard does not mean that officials’ conduct is
protected by qualified immunity unless “the very action in
question has previously been held unlawful.” 483 U.S. at 640.
In the Court’s latest pronouncement on the subject, Hope v.
Pelzer, 536 U.S. 730, 739 (2002), the Court held that one of our
sister circuits had erred in defining clearly established law in
such a way that qualified immunity was mandated unless the facts
of past cases were “materially similar” to the conduct then being
23
challenged. The requirement of “materially similar” facts, the
Court determined, was “not consistent with our cases.” Id.
Yet, at the same time, an official does not lose qualified
immunity merely because a certain right is clearly established in
the abstract. It is clearly established that the government may
not deny due process or inflict cruel and unusual punishments,
for example, but those abstract rules give officials little
practical guidance as to the legality of particular conduct.
Qualified immunity should not be denied unless the law is clear
in the more particularized sense that reasonable officials should
be “on notice that their conduct is unlawful.” Saucier v. Katz,
533 U.S. 194, 206 (2001). The central concept is that of “fair
warning”: The law can be clearly established “despite notable
factual distinctions between the precedents relied on and the
cases then before the Court, so long as the prior decisions gave
reasonable warning that the conduct then at issue violated
constitutional rights.” Hope, 536 U.S. at 740 (internal
quotation marks omitted).
“A necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is ‘clearly
established’ at the time the defendant acted is the determination
of whether the plaintiff has asserted a violation of a
constitutional right at all.” Siegert v. Gilley, 500 U.S. 226,
232 (1991). Therefore, before engaging in the inquiry into
whether the official unreasonably violated clearly established
24
law, we should first determine whether the challenged conduct,
viewed in the light most favorable to the plaintiff, would
actually amount to a violation of federal law in the first place.
Saucier, 533 U.S. at 201. In conducting this initial inquiry, we
employ currently applicable constitutional standards. McClendon
v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)
(per curiam).
V. CLAIM UNDER 42 U.S.C. § 1985
Section 1985 provides, in relevant part:
(2) 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 . . .
(3) . . . in any case of conspiracy set forth in
this section, if one or more persons engaged therein do,
or cause to be done, any act in furtherance of the object
of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising
any right or privilege of a citizen of the United States,
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.
42 U.S.C. § 1985 (2000).
According to Kinney and Hall, the Police Officials violated
the statute by conspiring to mount a campaign of economic
retaliation——which took the form of boycotting Kinney’s and
Hall’s classes and attempting to have them terminated——on account
of the instructors’ testimony against a police officer in the
Kerrville case. The district court denied the defendants’ motion
25
for summary judgment, finding that the plaintiffs had produced
sufficient evidence of an illegal conspiracy and that the
plaintiffs’ rights under § 1985 were clearly established at the
time. Kinney, 111 F. Supp. 2d at 840.
Much of the argument in the district court concerned the
issue of whether the plaintiffs adduced sufficient evidence of a
conspiracy. The district court’s determination that there was
sufficient evidence of a conspiracy is not at issue in this
interlocutory appeal. Instead, the Police Officials’ main
argument on appeal has been the legal argument that § 1985 offers
no protection to expert witnesses, but instead reaches only fact
witnesses. This argument faces an immediate textual impediment,
inasmuch as the statute says “any party or witness.”
Nonetheless, the defendants would draw a distinction between the
two kinds of witnesses based upon the assertion that expert
testimony, unlike fact testimony, is “readily accessible” and can
easily be replaced with the testimony of another expert. Expert
witnesses, in the defendants’ view, therefore need less
protection from intimidation. The Police Officials contend,
moreover, that the enacting Congress could not have meant to
protect expert witnesses because the practice of calling expert
witnesses did not exist at the time that § 1985 was enacted, in
the aftermath of the Civil War.
Based upon the statute’s plain language, we have little
difficulty in concluding that “any party or witness” includes
26
expert witnesses. Since the language is clear on this point,
there is little room for the defendants’ extra-textual arguments
for excluding experts. In any case, to the extent that their
arguments are relevant, they fail to persuade. The defendants
are simply incorrect when they claim that the enacting Congress
could not have been familiar with expert witnesses. Expert
witnesses have been known for hundreds of years. See Learned
Hand, Historical and Practical Considerations Regarding Expert
Testimony, 15 HARV. L. REV. 40, 45-50 (1901). Leaving that to one
side, the defendants are also incorrect in assuming that the
statute’s reach is restricted to those factual scenarios that the
enacting legislature could have specifically contemplated. On
the contrary, the Supreme Court has instructed that
Reconstruction-era civil rights statutes are to be given “‘a
sweep as broad as [their] language,’” Griffin v. Breckenridge,
403 U.S. 88, 97 (1971) (alteration in original) (quoting United
States v. Price, 383 U.S. 787, 801 (1966)), ensuring that their
protections remain relevant to modern circumstances.14
In answer to the defendants’ argument that expert testimony
is easily replaceable and therefore less worthy of protection
than fact testimony, we would point out that expert testimony on
14
In calling for a narrow construction of § 1985(2) that
departs from the text, Judge Barksdale’s dissent cites Kush v.
Rutledge, 460 U.S. 719 (1988). But Kush is notable because it
rejected a non-textual limiting construction that certain
circuits, including this one, had erroneously embraced. Id. at
723, 726.
27
police procedures will not be “readily accessible” if, as
happened here, police officials can prevent the persons with the
relevant expertise from testifying, even in cases hundreds of
miles away.15 This court’s cases involving Sixth Amendment
claims of witness intimidation have not suggested that experts
need less protection than fact witnesses. See, e.g., United
States v. Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002); United
States v. Dupre, 117 F.3d 810, 822-23 (5th Cir. 1997). In any
case, the defendants’ unsupported conjectures about experts’
relative “need” for protection cannot displace the text’s plain
words: “any party or witness.” We therefore hold that § 1985(2)
protects expert witnesses.
We further conclude that the statute’s coverage of expert
witnesses was “clearly established” for purposes of qualified
immunity. No reasonable official would find the terms “any . . .
witness” ambiguous on this point. Although a body of cases is
typically required in order to give clear shape to vague
constitutional provisions referring to “due process of law” or
“cruel and unusual punishments,” we believe that the text is
itself sufficient to put reasonable officials on notice that the
15
As described earlier, the defendants’ position is that
no testimony against the police is too distant to warrant
condemnation. The plaintiffs in the Kerrville case sought help
from Kinney and Hall because they had experienced difficulty
finding an expert from their local area.
28
word “witness” includes expert witnesses.16 No case of which we
are aware has even remotely suggested that § 1985(2) does not
apply to experts. On the contrary, the only case addressing the
issue treats it as obvious that the statue encompasses experts.
See Chahal v. Paine Webber Inc., 725 F.2d 20 (2d Cir. 1984).
Given the clarity of the phrase “any . . . witness,” the absence
of more cases like Chahal is hardly surprising. Nor would an
official find a basis for excluding experts if he or she happened
to be familiar with the law in related contexts. As we have just
mentioned, no distinction between fact witnesses and expert
witnesses exists in our Sixth Amendment witness intimidation
cases, nor is any such distinction drawn in cases involving the
absolute immunity that protects witnesses from civil liability
arising from their testimony.17
16
We find untenable any general proposition that cases
are necessarily required in order to create clearly established
law. As the Supreme Court explained in a case involving the
criminal counterpart to § 1985, the civil doctrine of qualified
immunity has “the same objective” as the rule that due process
requires “fair warning” before criminal liability may be imposed.
See United States v. Lanier, 520 U.S. 259, 270-71 (1997). “[T]he
touchstone is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time that the
defendant’s conduct was criminal.” Id. at 267 (emphasis added).
We doubt that the Police Officials would be willing to agree that
the contents of the Texas Penal Code or Title 18 of the U.S. Code
are inherently incapable of giving notice of their own meaning,
even as to phrases as transparent as “any . . . witness.”
17
See Briscoe v. LaHue, 460 U.S. 325, 341-42 (1983);
Storck v. Suffolk County Dep’t of Soc. Servs., 62 F. Supp. 2d
927, 945 (E.D.N.Y. 1999) (“[The absolute] immunity extends to all
persons, whether governmental, expert, or lay witnesses, integral
to the trial process.”) (citing Briscoe).
29
The defendants make a more plausible argument when they
assert that their conduct did not “injure” Kinney and Hall in
their “person[s] or property” within the meaning of the statute.
Pointing out that they were not contractually obligated to
continue sending their officers to the ETPA or to any particular
instructor for training, the Police Officials argue that Kinney
and Hall lacked a property interest in the Police Officials’
enrollment of their officers in Kinney’s and Hall’s courses. The
Police Officials further contend that Kinney and Hall were at-
will employees of the ETPA; thus, under precedents interpreting
the Due Process Clause, the instructors lacked any property
interest in continued employment at the ETPA.18 Consequently,
the Police Officials argue, it would have been reasonable for
them to believe that their conduct did not “injure [a] witness in
his person or property” for purposes of the statute.
Regarding the question whether the plaintiffs have set forth
a violation of the statute under current law, the Police
Officials’ argument is foreclosed by Haddle v. Garrison, 525 U.S.
121 (1998), in which the Supreme Court held that “third-party
interference with at-will employment relationships[] states a
claim for relief under § 1985(2).” Id. at 126. In Haddle, the
18
Kinney and Hall had contracts for the 1998-1999
academic year, so they were not at-will employees for that term.
The relationship was at-will in the sense that Kinney and Hall
had no contract for continued employment beyond the contract
period, i.e., no right to automatic renewal.
30
Court reasoned that because “[t]he gist of the wrong at which
§ 1985(2) is directed is not deprivation of property, but
intimidation or retaliation against witnesses in federal-court
proceedings,” the loss of at-will employment can injure a
plaintiff for purposes of the statute even though he or she lacks
a property interest for purposes of the Due Process Clause. Id.
at 125-26. The Police Officials certainly interfered with
Kinney’s and Hall’s employment within the meaning of Haddle. Not
only did they avowedly act in concert to pull their students from
the plaintiffs’ classes, but, according to the district court,
they also tried to have the plaintiffs fired from their jobs.
See Kinney, 111 F. Supp. 2d at 845 (referring to evidence of “a
dogged determination by the defendants to rid Kilgore College of
the plaintiffs”); see also supra at pp. 8, 12 (recounting the
Police Officials’ demands that Kinney and Hall be fired). The
plaintiffs suffered economic injury as a result of the
defendants’ actions: Kinney’s ETPA contract was not renewed, and
Hall left the ETPA in apprehension of suffering the same fate.
Holda’s affidavit confirms that, before the defendants began
their campaign, the ETPA anticipated renewing the plaintiffs’
contracts. Coercing an employer into firing an employee is the
classic case of interfering with employment relations.19
19
Given the facts of this case, it is incorrect to say,
as Judge Barksdale’s dissent repeatedly does, that the only thing
that the Police Officials did was to benignly decline to enroll
their officers in the plaintiffs’ classes. The defendants
31
Although a precedent so commanding as Haddle is not
necessary to establish that a reasonably competent official would
have understood that certain conduct was unlawful, we agree with
the Police Officials that it was not clearly established before
Haddle that the “property” contemplated by § 1985(2) included
at-will employment. The Supreme Court granted certiorari in
Haddle to resolve a split among the circuits with regard to the
status of at-will employment, 525 U.S. at 124, and this circuit
had not clearly announced its view on the subject. Thus, given
the absence of a definitive judicial interpretation of “property”
for purposes of § 1985(2), coupled with the fact that at-will
employment is not “property” for purposes of the Due Process
Clause, we cannot conclude that § 1985(2) by its terms clearly
established that third-party interference with at-will employment
was injury to property. On this point, the law became clearly
established only after Haddle.20
interfered with the plaintiffs’ employment, and if that is an
absurd result, then the dissent’s quarrel is with Haddle, not
with us.
20
Hall left the ETPA before the expiration of his
contract for the 1998-1999 academic year, assertedly because of
fears over job security. To the extent that the Police Officials
interfered with Hall’s rights under this contract, as opposed to
Hall’s prospects of continued employment beyond the contract, the
Police Officials did more than merely interfere with at-will
employment. However, the plaintiffs have not argued that the
defendants’ interference with Hall’s contract violated law that
was clearly established even before Haddle, and thus we need not
decide that question.
32
The Police Officials and Judge Barksdale argue that Haddle
is irrelevant to this case because it was issued on December 14,
1998, after the events of September and October 1998, when the
conspiracy began. They are mistaken in believing that the
conduct that forms the basis of the plaintiffs’ statutory claim
took place solely in or before October 1998. Subsection
1985(3)’s cause of action specifically extends liability to any
persons who “do, or cause to be done, any act in furtherance of
the object of [a] conspiracy [to injure a witness in retaliation
for his or her testimony].” (emphasis added).21 Kinney and Hall
provided evidence that the Police Officials affirmatively
21
In their petition for rehearing, the defendants raised
for the first time an argument that the plaintiffs do not have
statutory standing to sue under § 1985(3). The argument is that
even though § 1985(2) prohibits the intimidation of “part[ies] or
witness[es]” (as well as many other categories of persons), the
remedy described in the last clause of § 1985(3) uses the phrase
“party so injured” to mean “litigant so injured” rather than
“person so injured.” There is a split of authority with respect
to the point raised by the defendants. Compare Chavis v. Clayton
County Sch. Dist., 300 F.3d 1288, 1292 (11th Cir. 2002),
Heffernan v. Hunter, 189 F.3d 405, 409-10 (3d Cir. 1999), and
Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1125 n.7 (10th Cir.
1994) (all holding that non-party witnesses have standing), with
Blankenship v. McDonald, 176 F.3d 1192, 1196 (9th Cir. 1999), and
Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175, 1180 (7th Cir.
1989) (both holding that non-party witnesses lack standing). We
note that there is a question as to our jurisdiction to entertain
an argument relating to statutory standing (as opposed to
constitutional standing) in the context of an interlocutory
appeal. See Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,
1334-36 (11th Cir. 1999); Triad Assoc. v. Robinson, 10 F.3d 492,
496 n.2 (7th Cir. 1993). We need not resolve the question,
however, as the defendants did not raise this issue in the
district court or before the panel. They are of course free to
raise the argument in further proceedings below.
33
committed “act[s] in furtherance” of their conspiracy to have
Kinney and Hall removed from their ETPA positions long after
Haddle, not just before. In particular, Kinney and Hall claim
(and the Police Officials conceded in their depositions) that the
Police Officials continued to prohibit their officers from
enrolling in Kinney’s or Hall’s classes for the entire time that
they were working as instructors at the ETPA; at least one of the
defendants continued to boycott the entire ETPA during that time.
Hall’s resignation from the ETPA became effective on January 3,
1999, and Kinney’s ETPA contract did not expire until September
1999. Viewing the summary judgment record in the light most
favorable to Kinney and Hall, it is reasonable to infer that if
the Police Officials had ceased their boycott in the wake of
Haddle, Holda may have reconsidered his conclusion that it was no
longer economically viable for Kilgore College to offer Kinney’s
and Hall’s courses, and thus Kinney and Hall might not have been
injured. In the end, it may be that much of the damage was done
while the Police Officials still enjoyed qualified immunity;
nonetheless, Kinney and Hall are entitled to pursue their claims
for any damages traceable to “act[s] in furtherance” that
occurred after the illegality of the Police Officials’ actions
become clear.
Viewing the facts in the light most favorable to Kinney and
Hall, the conduct at issue in this case falls within the core of
§ 1985’s post-Haddle meaning. There was sufficient evidence to
34
show that the defendants agreed to retaliate against Kinney and
Hall on account of the instructors’ testimony against police
officers in a federal case, and, as in Haddle, the retaliation
took the form of interference with the instructors’ employment
relationship, namely by boycotting their classes and pressuring
the ETPA to fire them. We thus conclude that the Police
Officials’ conduct was objectively unreasonable in light of
clearly established law, and the district court properly denied
their motion for summary judgment with respect to the § 1985
claim.
We emphasize that the statute does not create liability for
every adverse action taken against a witness after the witness
testifies in a federal case. In addition to the requirement that
there be a cognizable injury to the witness or his property
(discussed above), the statute itself contains another limiting
principle: the conspirator must threaten or injure the witness
“on account of his having so attended or testified”——that is,
because of, and by reason of, a person’s participation as a
witness. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 13 (1963)
(defining the phrase “on account of” to mean “for the sake of: by
reason of: because of”).22 The defendants have said that they
22
Our reading of the “on account of his having so
attended or testified” language in § 1985 parallels the Supreme
Court’s interpretation of similar language in 18 U.S.C. § 241,
the criminal counterpart to § 1985. Section 241 criminalizes,
inter alia, conspiracies to injure or intimidate a citizen in the
free exercise and enjoyment of federal rights “because of [the
35
had concerns about the instructors’ abilities and ethics. The
district court found, however, that there was sufficient evidence
for a jury to conclude that the defendants acted to punish the
plaintiffs because they had testified against the police. In
further proceedings in this case, the defendants may be able to
resolve this factual dispute in their favor.
VI. FIRST AMENDMENT CLAIM
Kinney and Hall claim that the defendants unlawfully
retaliated against them for exercising their rights to free
speech guaranteed by the First Amendment and made applicable to
state actors by the Fourteenth Amendment. The district court
evaluated the plaintiffs’ claim according to the law governing
First Amendment retaliation claims brought by public employees.
See Kinney, 111 F. Supp. 2d at 837. Acknowledging that Kinney
and Hall were not employees of the Police Officials, the district
court noted that in Board of County Commissioners v. Umbehr, 518
U.S. 668 (1996), the Supreme Court held that the First Amendment
analysis applicable to claims by public employees also applies to
First Amendment claims brought by the government’s independent
contractors. Having considered the relationship between Kinney
and Hall and the police agencies that have long used their
citizen’s] having so exercised the same.” Interpreting this
language in United States v. Guest, 383 U.S. 745 (1966), the
Court stated that § 241 would not reach every conspiracy that
affected a federal right, but only a conspiracy whose
“predominant purpose” was to deter or punish the exercise of the
federal right. Id. at 760.
36
services, the district court concluded that Kinney and Hall are
“the equivalent of . . . governmental independent contractor[s].”
Kinney, 111 F. Supp. 2d at 841 (citing Umbehr, 518 U.S. at 674).
As the district court recognized, a First Amendment
retaliation claim in the employment context has four elements:
(1) the plaintiff suffered an adverse employment decision, (2)
the plaintiff’s speech involved a matter of public concern, (3)
the plaintiff’s interest in speaking outweighed the governmental
defendant’s interest in promoting efficiency, and (4) the
protected speech motivated the defendant’s conduct. See Lukan v.
N. Forest ISD, 183 F.3d 342, 346 (5th Cir. 1999). The district
court determined that Kinney and Hall had proffered sufficient
evidence to withstand summary judgment on those elements. First,
the district court found that both instructors presented evidence
that they had suffered adverse employment actions by being forced
to accept lower paying jobs as a result of the Police Officials’
boycott. Kinney, 111 F. Supp. 2d at 838. Second, the court
determined that the plaintiffs’ testimony regarding the use of
excessive force by police officers was unquestionably a matter of
public concern. Id. Third, applying the balancing test set
forth in Pickering v. Board of Education, 391 U.S. 563, 568
(1968), the district court determined that the balance weighed in
favor of Kinney and Hall; that is, the instructors’ interest in
commenting on a matter of public concern outweighed the Police
Officials’ interest in promoting the efficient delivery of public
37
services. Kinney, 111 F. Supp. 2d at 838.23 Fourth, the
district court found that the instructors’ speech motivated the
Police Officials’ actions. Id. Then, turning specifically to
the question of qualified immunity, the court determined that the
relevant law was clearly established at the time of the alleged
violation and that the Police Officials’ conduct was objectively
unreasonable in light of that clearly established law. See id.
at 840-44.
As we noted in our analysis of the plaintiffs’ § 1985
claims, the threshold issue in a qualified immunity inquiry is
whether, taken in the light most favorable to the party asserting
the injury, Kinney and Hall have shown that the Police Officials’
conduct violated their constitutional rights. See Saucier, 533
U.S. at 201. Only if we determine that the plaintiffs’ evidence
shows a constitutional violation do we address the question
whether “[t]he contours of the right [were] sufficiently clear
23
This balancing was of course informed by the district
court’s evaluation of the summary judgment evidence.
Specifically, regarding the Police Officials’ assertions that the
instructors’ speech threatened to disrupt the efficient provision
of public services, the district court remarked as follows:
There are genuine issues of fact remaining in this case
as to whether the plaintiffs’ expert testimony could
legitimately cause any disruptions in the defendants’
operations. Moreover, it must be determined whether
these disruptions, if any, were the result of a perceived
“conflict of interest” or the “blackballing” of
plaintiffs for turning against one of their own.
111 F. Supp. 2d at 843.
38
[at the time of the alleged violation] that a reasonable official
would understand that what he is doing violates that right.”
Anderson, 483 U.S. at 640. We begin, then, by asking whether the
Police Officials’ conduct amounts to a violation of the
plaintiffs’ right to free speech. This requires us first to
identify the proper First Amendment analysis.
A. What is the applicable First Amendment analysis?
The First Amendment shields speech “not only [from] direct
limitations . . . but also [from] adverse government action
against . . . individual[s] because of [their speech],” including
the denial of public benefits to punish individuals for their
speech. Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999).
At the outset, the Police Officials contend that their
conduct is not actionable under the First Amendment because their
decisions on whether and where to enroll officers are
discretionary in the sense that no contract required them to
enroll their officers in Kinney’s and Hall’s courses. This
assertion overlooks the fundamental point that governmental
discretion is always constrained by the Constitution. As the
Supreme Court stated in Perry v. Sindermann, the locus classicus
of the “unconstitutional conditions” doctrine:
For at least a quarter-century, this Court has made clear
that even though a person has no “right” to a valuable
governmental benefit and even though the government may
deny him the benefit for any number of reasons, there are
some reasons upon which the government may not rely. It
may not deny a benefit to a person on a basis that
39
infringes his constitutionally protected interests——
especially, his interest in freedom of speech.
408 U.S. 593, 597 (1972). The county officials in Umbehr were
under no duty to place contracts with the plaintiff’s trash-
hauling business, nor did the plaintiff have a right to those
contracts; it was an at-will relationship. See Umbehr, 518 U.S.
at 670-71. The point of such cases, as we have long made plain,
is the government’s duty not to punish protected speech, not the
citizen’s supposed “right” to government patronage.24 In the
instant case, the district court found sufficient evidence not
only that the defendants deprived Kinney and Hall of the benefit
of continued enrollment in their courses——a form of public
patronage——but also that at least some of the defendants sought
to have the instructors removed from the academy altogether.
That no contract forbade this is irrelevant.
The Police Officials also suggest that their relationship
with Kinney and Hall was too attenuated to create the requisite
governmental power over the instructors. Specifically, the
Police Officials argue that their conduct did not deny Kinney and
24
See N. Miss. Communications, Inc. v. Jones, 792 F.2d
1330, 1337 (5th Cir. 1986) (“Although the [plaintiff newspaper]
may have had no ‘right’ to receive certain legal advertising from
the County Board of Supervisors, it would violate the
Constitution for the Board to withhold public patronage, in the
form of its advertising, from the [newspaper] in retaliation for
that newspaper’s exercise of first amendment rights, or, in
similar reprisal to threaten commercial advertisers with a loss
of county business should they continue to advertise in the
[newspaper].”).
40
Hall the benefit of employment because Kilgore College, and not
the Police Officials, held the authority to refuse to renew
Kinney’s and Hall’s contracts. We reject this line of argument.
The Supreme Court has made it clear that First Amendment
protection does not depend on whether the governmental action at
issue is “direct” or “indirect.” To hold that the Police
Officials’ conduct cannot constitute a First Amendment violation
because they did not directly deprive Kinney and Hall of their
jobs, but instead used governmental power to exert economic
pressure on the instructors’ employer in order to achieve that
same result, “would allow the government to ‘produce a result
which [it] could not command directly.’” Perry, 408 U.S. at 597
(quoting Speiser v. Randall, 357 U.S. 513, 526 (1958))
(alteration in original). The defendants’ “attenuation” argument
is fundamentally misguided, for the situation in which the
economic relationship between the government and the speaker is
the most attenuated would be the case in which the speaker is an
ordinary citizen with no employment-related ties to the
government. In this limiting case for the defendants’
attenuation argument, the First Amendment would plainly forbid
the government from pressuring the citizen’s employer to fire the
citizen as punishment for trial testimony that the government
disliked. The degree of attenuation present in a given case may
well bear on causation——that is, it may be easier for a
government official to fire his own employee than to persuade a
41
contractor to fire one of its employees——but this does not change
the official’s First Amendment duty. We thus reject the
defendants’ initial arguments that the First Amendment has no
bearing on this case.
While all citizens enjoy the protections of the First
Amendment, the appropriate analytical framework for applying the
“unconstitutional conditions” doctrine to a given First Amendment
claim depends on the context in which the claim arose. As the
Supreme Court explained in Umbehr, the cases form a “spectrum”
ranging from, at one end, cases involving “government employees,
whose close relationship with the government requires a balancing
of important free speech and government interests” and, on the
other end, cases involving “ordinary citizens whose viewpoints on
matters of public concern the government has no legitimate
interest in repressing.” 518 U.S. at 680.
Because the government has no legitimate interest in denying
a benefit to “ordinary citizens” on account of their speech on
matters of public concern, there is no interest balancing
involved in the First Amendment analysis for “ordinary citizen”
cases. Rather, the First Amendment is violated in “ordinary
citizen” cases if the individual engaged in conduct protected by
the First Amendment and the government took action against the
person because of that protected conduct. See, e.g., Rolf v.
City of San Antonio, 77 F.3d 823, 827 (5th Cir. 1996). In
42
“governmental employee” cases, by contrast, courts must be
attentive to the “[t]he government’s interest in achieving its
goals as effectively and efficiently as possible,” which interest
“is elevated from a relatively subordinate interest when it acts
as sovereign to a significant one when it acts as employer.”
Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality
opinion).
The Supreme Court set out the basic analytical structure for
“governmental employee” balancing cases in Pickering v. Board of
Education, 391 U.S. at 568. In that case, the Court held that a
board of education violated a teacher’s First Amendment rights by
discharging him in retaliation for his criticism of the board’s
budget decisions. Id. at 566, 574-75. In so holding, the Court
emphasized that government employees “may [not] constitutionally
be compelled to relinquish the First Amendment rights they would
otherwise enjoy as citizens to comment on matters of public
interest in connection with the operation of the public
[institutions] in which they work.” Id. at 567-68. The Court
also recognized, however, that “the State has interests as an
employer in regulating the speech of its employees that differ
significantly from those it possesses in connection with
regulation of the speech of the citizenry in general.” Id.
Thus, explained the Court, it is necessary “to arrive at a
balance between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the interest of the
43
State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” Id. at 568.
In Umbehr and its companion case, O’Hare Truck Service, Inc.
v. City of Northlake, 518 U.S. 712 (1996), the Supreme Court held
that the “governmental employee” version of the unconstitutional
conditions doctrine——that is, the Pickering balancing inquiry——is
also appropriate where an independent contractor alleges a First
Amendment violation against the government. See O’Hare Truck
Serv., 518 U.S. at 720-24; Umbehr, 518 U.S. at 677-78, 684-85.
The Court reasoned that “[i]ndependent government contractors are
similar in most relevant respects to government employees.”
Umbehr, 518 U.S. at 684. Specifically, the Court noted:
The government needs to be free to terminate both
employees and contractors for poor performance, to
improve the efficiency, efficacy, and responsiveness of
service to the public, and to prevent the appearance of
corruption. And, absent contractual, statutory, or
constitutional restriction, the government is entitled to
terminate them for no reason at all. But either type of
relationship provides a valuable financial benefit, the
threat of the loss of which in retaliation for speech may
chill speech on matters of public concern by those who,
because of their dealings with the government, “are often
in the best position to know what ails the agencies for
which they work.”
Id. at 674 (quoting Waters, 511 U.S. at 674).25
25
Based on reasoning similar to that of the Supreme Court
in Umbehr and O’Hare Truck Service, this court has also applied a
Pickering balancing test in First Amendment retaliation cases
arising outside the public employment context. See, e.g., Copsey
v. Swearingen, 36 F.3d 1336, 1344 (5th Cir. 1994) (holding that a
Pickering balancing analysis was the appropriate framework for
evaluating a vending stand operator’s First Amendment claim based
on a state agency’s revocation of his license after he publicly
44
As we have explained in past cases, the determination
whether the relationship between the government and an individual
falls on the “governmental employee” end of the Umbehr spectrum
turns on whether the relationship is sufficiently “analogous to
an employment relationship.” See Blackburn v. City of Marshall,
42 F.3d 925, 932 (5th Cir. 1995). Applying this standard in
Blackburn, we held that the Pickering balancing test was not
applicable to a wrecker service owner’s First Amendment
retaliation claim against police officials for revoking his
permission to use the police radio frequency after he criticized
the police department’s contracting procedures. Id. at 930, 934.
The revocation of radio privileges rendered the service unable to
participate in a rotation system for removing damaged vehicles
from the scenes of accidents. Id. at 930. We reasoned in
Blackburn that the business relationship between the wrecker
service owner and the police department did not implicate
employment-type ties but was instead similar to the relationship
between the parties in North Mississippi Communications, another
case in which we applied the “ordinary citizen” version of the
“unconstitutional conditions” doctrine. See Blackburn, 42 F.3d
at 934. North Mississippi Communications involved a newspaper’s
criticized the licensing program); Caine v. Hardy, 943 F.2d 1406,
1415-16 (5th Cir. 1991) (en banc) (treating an anesthesiologist
with clinical privileges at a public hospital as a “public
employee” for purposes of his First Amendment claim based on the
hospital’s permanent suspension of his clinical privileges after
he opposed a proposal made by the chief of anesthesiology).
45
First Amendment claim alleging that county officials had ceased
placing legal notices in the newspaper in retaliation for the
newspaper’s publication of editorials that criticized the board
and its members. 792 F.2d at 1337. We did not apply a Pickering
balancing test to the newspaper’s First Amendment claim, but
rather held that “it would violate the Constitution for the Board
to withhold public patronage, in the form of its advertising,
. . . in retaliation for that newspaper’s exercise of first
amendment rights.” Id.
The parties in this case disagree over which First Amendment
analysis——Pickering balancing on the one hand or the “ordinary
citizen” framework on the other——should apply to this case.
Earlier, in arguing that their actions did not deny Kinney and
Hall any actionable “benefits” for purposes of the
unconstitutional conditions doctrine, the Police Officials
emphasized their lack of employment-type ties to Kinney and Hall.
In support of their argument regarding the appropriate First
Amendment analysis, however, the Police Officials now
characterize their relationship with the ETPA and ETPA
instructors as sufficiently akin to employment to warrant a
balancing of the Police Officials’ interests against the free
speech interests at stake in this case. Relying on North
Mississippi Communications and Worrell v. Henry, 219 F.3d 1197
(10th Cir. 2000), Kinney and Hall respond that the “ordinary
citizen” analysis is better suited to the circumstances of the
46
instant case than is the “governmental employee” test. In
Worrell, the Tenth Circuit declined to apply a Pickering
balancing test to a First Amendment claim alleging that the law
enforcement defendant pressured the plaintiff’s employer to
rescind the plaintiff’s job offer in retaliation for the
plaintiff’s having testified as an expert witness on behalf of a
criminal defendant. See 219 F.3d at 1202, 1209-12. Rather, the
Worrell court determined that the appropriate First Amendment
analysis for evaluating the plaintiff’s claim was the “ordinary
citizen” version of the unconstitutional conditions doctrine.
See id. at 1212-13.
We agree with the district court and the Police Officials
that a Pickering balancing analysis is appropriate in this case.
The relationship between the Police Officials and ETPA
instructors such as Kinney and Hall implicates governmental
interests similar to those involved in the public employment
context. Law enforcement agencies have a legitimate interest in
exercising discretion over the choice of the instructors who
train the officers who will, in turn, carry out the agencies’
public duties. Those interests include, for example, ensuring
that the instructors are competent and knowledgeable, that they
are adept at conveying that knowledge to officer-students, and
that they maintain a good working relationship with law
enforcement agency officials so that those officials can monitor
the training that their officers receive. These interests are
47
all relevant to the ultimate governmental interest that the
Pickering balancing analysis is meant to protect, namely the
interest “in promoting the efficiency of the public services [a
law enforcement agency] performs.” Pickering, 391 U.S. at 568.
The defendants do not dispute that the instructors spoke on
a matter of public concern, nor can they question (in this
interlocutory appeal) the district court’s factual determinations
regarding causation. Accordingly, we now consider whether, under
Pickering, the district court correctly balanced the First
Amendment interest in protecting Kinney’s and Hall’s speech
against the Police Officials’ interests in suppressing it.
B. Was there a First Amendment violation?
The Pickering test requires us to balance the speaker’s
First Amendment interests against the government’s legitimate
interests in the efficient provision of public services. In
performing this balance, we must take care not to exceed the
scope of our interlocutory appellate jurisdiction. As explained
earlier, see supra Parts II-III, we must accept the existence of
those genuine issues of fact identified by the district court and
the district court’s concomitant characterization of the
plaintiffs’ summary judgment evidence. The question for us is
whether the district court committed legal error in balancing the
interests supported by the summary judgment record, viewing the
record in the light most favorable to the non-movants.
48
Starting first with the plaintiffs’ side of the scales, we
conclude that Kinney and Hall present an extremely strong First
Amendment interest. The weight of the First Amendment interest
is, of course, not measured solely by the instructors’ own
personal gain, if any, from speaking.26 It is, rather, a
function of the social value of that speech. See, e.g., Connick
v. Myers, 461 U.S. 138, 145 (1983) (“[S]peech concerning public
affairs is more than self-expression; it is the essence of self-
government.”) (alteration in original) (internal quotation marks
and citation omitted); Brawner v. City of Richardson, 855 F.2d
187, 192 (5th Cir. 1988) (discussing, in the course of a
Pickering balancing case, “the public’s interest in the
disclosure of misconduct or malfeasance” (emphasis added)). This
court has emphasized the great First Amendment significance of
speech bearing on official misconduct, “especially when it
concerns the operation of a police department.” Brawner, 855
F.2d at 191-92. Indeed, because individuals working in law
enforcement “are often in the best position to know” about the
26
Contrary to some of the Police Officials’ intimations,
the plaintiffs’ interests in speaking cannot be reduced to a mere
pecuniary interest in, as the defendants put it, “moonlighting as
experts-for-hire.” The plaintiffs originally planned to be paid
for their work in the Kerrville shooting case——just as Kinney had
been paid in the past when he had testified as an expert in
support of police officers——but they later decided that “it
wouldn’t be right to charge” because they “felt so strongly about
the incident.” As we explain in the text, the speech in this
case is uncommonly valuable because of the public’s interest in
identifying, preventing, and remedying official misconduct, not
because of any personal advantage to Kinney and Hall.
49
occurrence of official misconduct, Umbehr, 518 U.S. at 674, “it
is essential” that such well-placed individuals “be able to speak
out freely” about official misconduct, Pickering, 391 U.S. at
572. Kinney and Hall, two experienced law enforcement trainers
with expertise in weapons and the use of force, are ideally
placed to offer valuable public comment about excessive force and
the adequacy of police training and supervision, the key issues
in the Kerrville trial.27 Moreover, as the district court
pointed out, “[i]ndividuals will have a hard time succeeding in
an excessive force case without the assistance of experts who are
intimately acquainted with police procedures.” Kinney, 111 F.
Supp. 2d at 838. Expert testimony is thus essential both in
providing victims with “the only realistic avenue for vindication
of constitutional guarantees,” Harlow, 457 U.S. at 814, as well
as in serving § 1983’s parallel deterrent function, see Owen v.
City of Independence, 445 U.S. 622, 651 (1980). We thus conclude
27
The fact that Kinney and Hall spoke as expert witnesses
does not mean that their speech was less valuable than other
forms of speech that reveals official misconduct. By virtue of
their experience and expertise, witnesses like Kinney and Hall
play an essential role in identifying police misconduct. There
was no secret about the fact that Eddie Gonzales had been shot by
the police in Kerrville; the public did not need an expert
witness to reveal that. The public does need experts like Kinney
and Hall, however, to reveal whether the shooting was an
unjustified use of force or the result of inadequate training or
supervision.
50
that Kinney and Hall have a particularly weighty First Amendment
interest on their side of the Pickering scales.28
We turn next to the Police Officials’ side of the Pickering
balance. Stated in its most general terms, the government has an
interest in “promoting the efficiency of the public services
[that the governmental agency] performs.” Pickering, 391 U.S. at
568. In the instant case, given the Police Officials’ objective
of providing effective law enforcement, all sides recognize that
they have a strong interest in assuring the effective training of
their law enforcement personnel. As the Supreme Court has made
clear, however, the relevant issue is not the weight of the
governmental interest considered in abstract terms; we look
instead to how the speech at issue affects the government’s
interest in providing services efficiently. It is the speech’s
detrimental effect on the efficient delivery of public services
that gives the government a legitimate interest in suppressing
it. This is illustrated, for example, by Rankin v. McPherson,
483 U.S. 378, 381 (1987), a case in which an employee in a
constable’s office remarked, upon hearing about the attempted
28
Judge Jones would minimize the importance of the free
speech interest at stake here on the ground that Kinney and Hall
testified voluntarily. (Kinney and Hall were actually
subpoenaed, but they admit that they appeared voluntarily.) In
doing so, she relies on the Third Circuit’s decision in Green v.
Philadelphia Housing Authority, 105 F.3d 882 (3d Cir. 1997). The
plaintiff in Green was demoted after he agreed to testify, as a
favor for a friend, as a character witness at the friend’s son’s
bail hearing. Id. at 884. Such testimony is of much less public
importance than the testimony here.
51
assassination of President Reagan, “[I]f they go for him again, I
hope they get him.” The Rankin Court did not consider the
defendant constable’s generalized interest in maintaining
discipline——certainly an important interest——but the Court
instead asked whether the speech at issue, given the context and
the employee’s duties, actually impaired office operations. “In
performing the [Pickering] balancing, the statement will not be
considered in a vacuum; the manner, time, and place of the
employee’s expression are relevant, as is the context in which
the dispute arose.” Id. at 388. Thus, the question in this case
is not whether the police have an interest in “effective
training”——no one would deny that——but rather whether, on this
record, they could reasonably think that interest threatened by
the plaintiffs’ protected speech such that the Police Officials
may legitimately suppress that speech.
In recognizing that the governmental interests at stake in a
particular case necessarily depend upon the facts of the case, we
most certainly do not, as the dissent asserts, pervert the First
Amendment analysis by changing the Pickering balancing inquiry
into a question for the jury. It is for the court to determine
the importance of a plaintiff’s speech interest, to determine the
importance of a governmental interest in efficient operations,
and to balance the relative weight of each. But the governmental
interests that are at stake in a particular case necessarily
depend on the facts of the case. As a matter of law, the Police
52
Officials surely have an array of weighty interests in various
matters, but those interests are only relevant to this case if,
as a matter of fact, a certain interest is threatened. In this
case——an interlocutory appeal of a denial of summary judgment——we
are not permitted to indulge in our own preferred view as to the
true facts of the case, much less can we simply accept the
defendant’s version of the disputed facts as true. Instead, we
must accept the genuine factual disputes identified by the
district court and conduct the inquiry as if the plaintiffs’
version is true. That is how this circuit, like other circuits,
handles the substantive law of Pickering balancing in the
procedural posture of summary judgment when the material facts
are disputed. See, e.g., Victor v. McElveen, 150 F.3d 451, 457
(5th Cir. 1998) (explaining that a sheriff was unable to show
that his interests in efficient functioning of the department
outweighed a deputy’s speech interests, given that it was
disputed whether the comment was disruptive).29 The dissent is
29
See also Johnson v. Ganim, 342 F.3d 105, 114-15 (2d
Cir. 2003) (denying summary judgment and qualified immunity
because of factual dispute regarding whether plaintiff’s speech
reasonably could disrupt the government employer’s operations);
Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002) (“Pickering
balancing is not an exercise in judicial speculation. While it
is true that in some cases the undisputed facts on summary
judgment permit the resolution of a claim without a trial, that
means only that the Pickering elements are assessed in light of a
record free from material factual disputes.”); Domina v. Van
Pelt, 235 F.3d 1091, 1098-99 (8th Cir. 2000) (denying summary
judgment and qualified immunity due to factual dispute over
whether employee’s speech created workplace disharmony and
affected morale); Johnson v. Univ. of Cincinnati, 215 F.3d 561,
53
thus incorrect if it suggests that First Amendment cases present
an exception to the general rule that we do not resolve genuine
factual disputes at the summary judgment stage. Put differently,
engaging in Pickering balancing is not like performing rational
basis review, where we uphold government action as long as there
is some imaginable legitimate basis for it. Gustafson, 290 F.3d
at 909-10; see Boddie v. City of Columbus, 989 F.2d 745 (5th Cir.
1993) (“There was no interest to balance [in the Pickering
inquiry] when this [potential] reason was rejected factually.”).
We do not let the governmental defendant prevail, on summary
judgment, by relying on interests that, viewing the record in the
non-movant’s favor, are not reasonably threatened in the case.
With these principles in mind, we now turn to the Police
Officials’ asserted grounds for taking action against Kinney and
Hall. In canvassing the possible harms caused by the plaintiffs’
Kerrville testimony, we note first that some of the workplace
disruptions cited by the Police Officials are simply irrelevant
to the Pickering calculus. It is of course true, as the
defendants point out, that the boycott strained the relationship
between the ETPA and the local police agencies. In addition, the
boycott may have caused tension between Holda and the plaintiffs,
585 (6th Cir. 2000) (reversing grant of summary judgment because
material factual disputes bore on Pickering balance); cf. Shands
v. City of Kennett, 993 F.2d 1337, 1342-43 (8th Cir. 1993)
(instructing district courts to submit special interrogatories to
the jury on the question of whether the employee’s speech was
disruptive).
54
although Holda did defend Kinney and Hall in the media and
attempt to resolve the boycott amicably. Those types of
disruptions might have given the ETPA a sound reason for taking
action against Kinney and Hall, but they cannot be counted in the
Police Officials’ favor. The disruptions just noted were caused
by the Police Officials’ boycott, so the Police Officials can
hardly rely on those disruptions as a justification for their
boycott. The question is whether the plaintiffs’ testimony posed
a threat to the Police Officials’ ability to deliver police
services, not whether the Police Officials caused a disruption in
response to it.30
With regard to the question whether the plaintiffs’ speech
impaired the Police Officials’ training operations, the district
court concluded, based upon its review of the record before it,
that the defendants had not identified any damage to the
efficiency of their operations brought about by Kinney’s and
30
Cf. Kennedy v. Tangipahoa Parish Library Bd. of
Control, 224 F.3d 359, 378 n.19 (5th Cir. 2000). Other courts
have likewise rejected the circular argument advanced by the
Police Officials. See Worrell, 219 F.3d at 1210-11 (“[A]cting
with retaliatory intent, a third party upon whose cooperation the
employer depended could refuse to cooperate with the employer
unless a particular employee were fired, demoted, or transferred.
By withholding cooperation, the third party could effectively
create the very workplace disruption that, under the Pickering
approach, could be used to justify the limitation of First
Amendment rights.”); cf. Hughes v. Whitmer, 714 F.2d 1407, 1434
(8th Cir. 1983) (McMillian, J., dissenting) (“It would be
anserine to permit the government to discipline its employees
because of disruption caused by the government’s repressive
reaction to the employee’s first amendment activities.”).
55
Hall’s testimony in Kerrville. Kinney, 111 F. Supp. 2d at 842.
This finding is not itself determinative, for we (like those in
dissent) are mindful of the fact that a prudent administrator
will often wish to take action before a risk ripens into an
actual workplace disruption. The key limitation on preemptive
action, however, is that the officials’ predictions of disruption
must be reasonable. See Waters, 511 U.S. at 673; Connick, 461
U.S. at 154; Brawner, 855 F.2d at 192 (asking whether speech was
“likely” to disrupt police department’s operations); see also
Gustafson, 290 F.3d at 911 (denying police officials’ request for
qualified immunity and remarking that “mere incantation of the
phrase ‘internal harmony in the workplace’ is not enough to carry
the day” (internal quotation marks omitted)). “Even in
situations where courts have recognized the special expertise and
special needs of certain decisionmakers, the deference to their
conclusions has never been complete.” Waters, 511 U.S. at 677.
The reason for this rule should be obvious: Disruption is always
possible, but to give deference to unfounded predictions of harm
would allow the government arbitrarily to punish speech under the
guise of preempting disruption. That is, it would permit the
government “to silence discourse, not because it hampers public
functions but simply because superiors disagree with the content
of employees’ speech,” Rankin, 483 U.S. at 384. The district
court addressed the issue of whether disruption was a reasonable
prospect, and its conclusion was that “[t]here are genuine issues
56
of fact remaining in this case as to whether the plaintiffs’
expert testimony could legitimately cause any disruptions in the
defendants’ operations.” Kinney, 111 F. Supp. 2d at 843.31 We
are not free to disregard that conclusion in this appeal.
The Police Officials claim that Kinney’s and Hall’s
testimony damaged training by creating a “conflict of interest”
and “violat[ing] . . . principles of cooperative responsibility
[and] trust.” Needless to say, reasonable officials should be
concerned about conflicts of interest, and they can rightfully
demand that their employees and contractors not abuse the trust
the government places in them. Based upon the summary judgment
record, however, the district court was unable to determine
whether the Police Officials had concerns about genuine conflicts
of interest or were instead, as Kinney and Hall contend, merely
interested in enforcing a “code of silence” against the
plaintiffs. Id. at 835, 838, 843.32 One of the main reasons for
31
In this regard, it should be remembered that the record
does not contain any affidavits or depositions from trainees who
stated that they lost confidence in the instructors. Kinney and
Hall stated that their relationships with students were not
adversely affected.
32
The so-called “code of silence,” as we have explained
in previous cases, is the informal rule according to which one
police officer does not report on or testify against another
police officer, regardless of the nature of the accused officer’s
conduct. See, e.g., Snyder v. Trepagnier, 142 F.3d 791, 797 n.6
(5th Cir. 1998) (citing an expert witness).
The Police Officials have asserted in their briefs that
Kinney and Hall admitted that the Police Officials had genuine
and reasonable concerns about conflicts of interest. We do not
believe that the Police Officials’ reading of the record is
57
the district court’s conclusion was that the Police Officials
have asserted an interest in suppressing testimony that involved
a police agency hundreds of miles away, well outside of the
ETPA’s service area. The record shows that the Police Officials
see a conflict of interest whenever and wherever a police trainer
testifies against police officers. Regardless of whether one
uses the label “code of silence,” we believe that, on this
record, the defendants’ asserted notion of “conflicts of
interest” sweeps so broadly as to undermine its status as a
legitimate government interest that can properly weigh in the
Pickering balance.33 The persuasiveness of the Police Officials’
asserted concern sinks further still when one considers that they
not only refused to send students to Kinney’s and Hall’s
classes——that might be a proper response to concerns about an
instructor——but the Police Officials also tried to have the
instructors fired, which tends to imply that the defendants were
warranted. In their depositions, Kinney and Hall admitted that
reasonable people could be concerned about conflicts of interest
when an instructor testifies against his own students. They
deny, however, that reasonable people would be concerned about
conflicts of interest in this case, and they deny that the Police
Officials held genuine concerns about conflicts.
33
The Pickering balance takes account of legitimate
interests only. See Umbehr, 518 U.S. at 675 (referring to
“legitimate countervailing government interests”) (emphasis
added); Wilson v. UT Health Ctr., 973 F.2d 1263, 1270 (5th Cir.
1992) (“Though the speech of public employees may be of public
concern, that speech still does not enjoy First Amendment
protection if legitimate government interests in limiting the
speech outweigh the employees’ interest in speaking.”) (emphasis
added).
58
trying to do more than prevent a conflict of interest. If
anything, the Police Officials’ sweeping (yet one-sided) notion
of “conflicts of interest” tends to impair the efficient
provision of public services, inasmuch as it thwarts the
important public objective of preventing police misconduct.34 As
the Supreme Court counseled in Rankin, another case that arose in
the law enforcement context, “[v]igilance is necessary to ensure
that public employers do not use authority over employees to
silence discourse, not because it hampers public functions but
simply because superiors disagree with the content of employees’
speech.” 483 U.S. at 384.
Similar comments are in order regarding the Police
Officials’ asserted interests in loyalty and esprit de corps,
heavily relied upon by the dissent. No one would doubt but that
those are important considerations, especially in a police
department. Even within a police department, however, the mere
34
As this court has recognized, government agencies have
an interest in protecting speech relating to official misconduct,
and there are circumstances in which that interest
counterbalances the governmental interest in suppressing
disruptive speech. See Victor, 150 F.3d at 457 (observing, in
connection with a deputy sheriff’s First Amendment claim, that
“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”);
Frazier v. King, 873 F.2d 820, 826 (5th Cir. 1989) (stating, in a
First Amendment case brought by a nurse who worked in a prison,
that “[a]lthough [the plaintiff’s] ‘whistle blowing’ obviously
created tension and difficulties at [the prison], when weighed
against the exposure of unethical medical practices affecting
hundreds of inmates, the disruption is a minimal interest”).
59
assertion of interests in preserving loyalty and close working
relationships does not end the debate as it would if this were a
rational basis inquiry. See Branton v. City of Dallas, 272 F.3d
730, 741 (5th Cir. 2001). When the dissent trumpets the need for
“institutional loyalty,” Jones dissent at 35, one must ask what
institution the plaintiffs have wronged by testifying against
distant officers that they have never met. The Police Officials’
charge of disloyalty makes sense only if Kinney and Hall owe
fealty to law enforcement universally. Indeed, the Police
Officials’ stated view is that one is disloyal——and has committed
an unforgivable “sin”——whenever one testifies against law
enforcement officers anywhere. A concept of loyalty that sweeps
so broadly is not one that may legitimately trump compelling
interests in speaking on matters of public concern.
The district court’s conclusions with respect to the
question of workplace disruption——or rather, the absence
thereof——distinguish the instant case from a case like Tedder v.
Norman, 167 F.3d 1213 (8th Cir. 1999). In Tedder, the deputy
director of a police academy testified as an expert witness
against one of the agencies that sent trainees to the academy.
It is quite understandable how this could raise real concerns,
including concerns about conflicts of interest. Accordingly, the
Tedder court found that the “actual disruption and potential
further disruption” caused by the plaintiff’s testimony justified
the academy’s decision to demote him. Id. at 1215. Here, in
60
contrast, the district court concluded that there was a genuine
dispute over whether the plaintiffs’ activities did in fact, and
reasonably could be expected to, impair proper training.
When we accept the factual disputes identified by the
district court and view the disputed facts in the light most
favorable to Kinney and Hall, we find that the Police Officials
have not articulated any relevant, cognizable interests in
suppressing the plaintiffs’ speech, while Kinney and Hall have
presented a strong First Amendment interest in testifying about
police brutality and inadequate supervision and training.
Therefore, we conclude that, at the summary judgment stage, the
instructors’ interest in testifying easily outweighs the Police
Officials’ interest in suppressing their speech, given that the
speech involved unrelated police agencies hundreds of miles away.
Our decision should not be taken to mean that police
agencies do not enjoy broad latitude in managing the training of
their officers, including significant discretion over the choice
of instructors. There are any number of legitimate reasons why
police officials can stop using a particular instructor or
academy; barring contractual commitments, they can do so for no
good reason at all. In order to do so on a basis that penalizes
protected speech, however, they must explain why their need to
suppress the speech outweighs the countervailing First Amendment
interest in free expression. At this early stage of the
proceedings, there is a genuine dispute as to whether the Police
61
Officials had any legitimate interests that could justify their
decision to boycott and seek the termination of instructors who
had testified in a distant trial against unrelated police
agencies.
To summarize: Kinney and Hall spoke on a matter of public
concern, and the value of their speech prevails, at the summary
judgment stage, over the opposing governmental interests in the
Pickering balance. Since the district court also found that
Kinney and Hall established a genuine factual issue regarding
whether the Police Officials boycotted Kinney’s and Hall’s
courses and sought to have them removed from the ETPA faculty
because of their testimony, Kinney, 111 F. Supp. 2d at 838, 843,
the facts set forth by Kinney and Hall are sufficient to state a
First Amendment violation. The first step of the qualified
immunity analysis is thus complete. We next turn to the question
of “clearly established” law——that is, whether it would have been
apparent to a reasonable officer at the time of the alleged
violation that the Police Officials’ conduct violated the First
Amendment.
C. Are the Police Officials entitled to qualified immunity?
The First Amendment right to free speech was of course
clearly established in general terms long before the events
giving rise to this case. In order to defeat the Police
Officials’ claim of qualified immunity, however, Kinney and Hall
62
must show that “[t]he contours of the right [were] sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.” Anderson, 483 U.S. at 640.
Qualified immunity should not be denied unless the law is such
that reasonable officials should be “on notice [that] their
conduct is unlawful.” Saucier, 533 U.S. at 206. It bears
repeating once more that our factual guide is the district
court’s view of the record, and the legal question is whether the
defendants’ conduct violated clearly established law measured
against the facts that the district court believed the plaintiffs
could prove at trial. See Behrens, 516 U.S. at 313.
There is no question that it was clearly established well
before October 1998 that Kinney’s and Hall’s testimony was of
public concern and thus was speech protected by the First
Amendment.35 The Police Officials do not attempt to argue
otherwise, but rather suggest that it was not clear that the
First Amendment imposed any restrictions on their conduct
vis-à-vis Kinney and Hall as their training instructors. This,
of course, is the same argument we rejected earlier, in
discussing whether Kinney and Hall had set forth evidence of
35
Testimony in judicial proceedings “is inherently of
public concern.” Johnston v. Harris County Flood Control Dist.,
869 F.2d 1565, 1578 (5th Cir. 1989); see also Reeves v. Claiborne
County Bd. of Educ., 828 F.2d 1096, 1100 (5th Cir. 1987)
(testimony in civil proceedings); Smith v. Hightower, 693 F.2d
359, 368 (5th Cir. 1982) (testimony in criminal proceedings);
Rainey v. Jackson State Coll., 481 F.2d 347, 349-50 (5th Cir.
1973) (testimony of expert witness).
63
conduct that would amount to a constitutional violation at all.
In arguing for qualified immunity, the Police Officials contend
that there was at least a reasonable legal basis for their view,
even if it was ultimately wrong. More specifically, the Police
Officials say that their duties with respect to Kinney and Hall
were unclear because the instructors were “employees of a
‘disappointed bidder’——i.e., Kilgore College.” The Police
Officials apparently base this contention in part on the Umbehr
Court’s admonishment that “[b]ecause [this] suit concerns the
termination of a pre-existing commercial relationship with the
government, we need not address the possibility of suits by
bidders or applicants for new government contracts who cannot
rely on such a relationship.” 518 U.S. at 685.
Initially, we reject the defendants’ attempt to characterize
Kinney and Hall as employees of a disappointed bidder. Neither
Kilgore College nor ETPA instructors such as Kinney and Hall were
mere “bidders” in the sense that they lacked a “pre-existing
commercial relationship” of the sort that the Court was concerned
about in Umbehr——i.e., a relationship that the Police Officials
could use to inhibit speech. See id. at 674 (reasoning that a
Pickering balancing analysis is appropriate in cases involving
the government’s independent contractors or providers of regular
services as well as its employees because both “type[s] of
relationship provide[] a valuable financial benefit, the threat
of the loss of which in retaliation for speech may chill speech
64
on matters of public concern”). The Police Officials had the
power to deny Kinney and Hall significant benefits as ETPA
instructors, and it is the existence of that sort of power——and
not mere labels describing governmental relationships——that is
relevant for purposes of the First Amendment. See O’Hare Truck
Serv., 518 U.S. at 721-22; Umbehr, 518 U.S. at 678-79.
More fundamentally, we reject the Police Officials’
suggestion that it would have been reasonable for officers in
their positions to believe that they were unfettered by the First
Amendment merely because their economic relationship with Kinney
and Hall was non-employment and non-contractual. Both the
Supreme Court and this court have explicitly rejected such
reasoning. In O’Hare Truck Service, the Court rejected “the
proposition . . . that those who perform the government’s work
outside the formal employment relationship are subject to what we
conclude is the direct and specific abridgment of First Amendment
rights.” 518 U.S. at 720. Similarly, in Blackburn, we stated
that the “assumption that only public employees enjoy the
protections of the First Amendment” rested on “inverted”
reasoning because “[e]very citizen enjoys the First Amendment’s
protections against governmental interference with free speech.”
42 F.3d at 931. As we explained in Blackburn, the Supreme Court
did not formulate the “governmental employee” version of the
“unconstitutional conditions” doctrine in order to limit the
First Amendment to the public employment context, but rather in
65
order to take into account that “the First Amendment rights of
public employees are restricted by the nature of the
employer-employee relationship.” Id. Indeed, the Supreme
Court’s decisions in Pickering, Umbehr, and O’Hare Truck Service
are predicated on the assumption that although the government may
have other relationships with individuals in addition to the
citizen-sovereign relationship, individuals do not, as a result
of such relationships, cease to be citizens with First Amendment
rights that the government is obligated to respect. Thus, we
have little difficulty concluding that the Police Officials would
be unreasonable in failing to recognize that they had First
Amendment obligations toward Kinney and Hall.
Part VI.A of this opinion determined that the Police
Officials were entitled to have the plaintiffs’ First Amendment
claim analyzed under a Pickering balancing inquiry, a framework
that recognizes the Police Officials’ legitimate interests in
suppressing some speech that interferes with the provision of
public services. To the extent that there was any uncertainty
about the proper analytical framework, the uncertainty could not
redound to the defendants’ benefit, as the alternative would have
been to hold the Police Officials to the higher standards that
they must observe with respect to ordinary citizens. It is plain
that the government cannot harry the employer of an ordinary
citizen who gave unwelcome testimony, seeking to have the
employee fired in retaliation. Giving the Police Officials the
66
benefit of the Pickering balancing test, we must ask whether it
was clearly established at the time of the Police Officials’
conduct that the First Amendment forbade them from retaliating
against Kinney and Hall, the employees of their contractor, on
account of the instructors’ Kerrville testimony. We conclude
that it was.
Given that it is well-established in the jurisprudence of
both the Supreme Court and this court that official misconduct is
of great First Amendment significance, and that this court has
repeatedly emphasized the need to protect speech regarding police
misconduct in particular, see, e.g., Brawner, 855 F.2d at 192, it
would have been objectively unreasonable for an officer to
conclude that Kinney’s and Hall’s testimony was anything other
than highly valuable speech.36 Suppressing that speech could be
justified, they should have realized, only by a weighty
governmental interest. See Matherne v. Wilson, 851 F.2d 752, 761
(5th Cir. 1988) (explaining that a greater disruption must be
shown when the speech is of greater public concern).
As explained earlier, at this stage of the case it is
disputed whether the Police Officials’ legitimate interests were
threatened by Kinney and Hall. The district court found that it
was disputed whether the instructors’ testimony in Kerrville
36
As we explained earlier, that Kinney and Hall testified
as experts rather than as fact witnesses does not mean that their
speech fell outside of this particularly protected category. See
supra notes 26-27 and accompanying text.
67
disrupted, and even legitimately could disrupt, the Police
Officials’ training objectives. Kinney, 111 F. Supp. 2d at 843.
On this record, the Police Officials’ asserted interest in
loyalty is unreasonable given the events at issue; certainly such
interests cannot justify an attempt to force the instructors out
of the academy altogether. Viewing the summary judgment facts in
the light most favorable to the non-movants, the Police Officials
pursued Kinney and Hall not because of genuine conflicts of
interest but instead merely because Kinney and Hall had testified
against a police officer. Id. at 838-39, 843, 845. When the
disputed facts are viewed from the perspective of the plaintiffs’
evidence——and that is the only perspective allowed on this
interlocutory appeal, see Behrens, 516 U.S. at 313——the
illegality of the Police Officials’ actions is readily apparent.
Summary judgment is therefore inappropriate.
The Police Officials contend that their conduct was
reasonable in light of the fact that, when the boycott started in
October 1998, the Texas Legislature and Texas A&M University had
enacted policies that effectively prohibited state employees from
serving as expert witnesses against the state, ostensibly because
of inherent conflicts of interest. See Hoover v. Morales, 164
F.3d 221, 223-24 (5th Cir. 1998) (describing the policies). But
the Police Officials could hardly have reasonably relied on these
state policies as support for their own stand against purported
conflicts of interest: The state policies had been challenged as
68
violative of free speech, and a federal judge had preliminarily
enjoined their enforcement on August 7, 1997, over a year before
the boycott. This court affirmed that decision in an opinion
issued July 23, 1998.37 It would therefore have been
unreasonable to rely on these state policies for guidance on the
meaning of the First Amendment.
In any event, we had spoken to such issues long before the
controversy over the policies at issue in Hoover. For example,
we held in Rainey v. Jackson State College that a teacher stated
a claim under the First Amendment when a state college denied him
37
The defendants have stated that Hoover was not decided
until December 1998, after much (but by no means all) of the
conduct at issue in this case. Their belief is probably based on
the fact that the version of the Hoover opinion printed in the
bound volume of the Federal Reporter 3d bears a date of Dec. 31,
1998. The July version of the opinion was published at 146 F.3d
304 in the advance sheet of the Reporter, but it was withdrawn
from the bound volume in favor of the December version. The only
difference between the two versions is the addition of one
paragraph, placed at the end of the majority opinion,
acknowledging that some restrictions on employee testimony——
restrictions not before the court——might pass constitutional
muster. See Hoover, 164 F.3d at 227. The Police Officials’
conduct in no way resembles the types of restraints that Hoover’s
appended paragraph suggested might be permissible. The paragraph
indicated, for instance, that the state may have a greater
interest in preventing policymaking employees from testifying,
and that restraints are less troublesome if they are
content-neutral. Id. Wholly unlike those examples, the conduct
in the instant case looks much more like the blanket,
viewpoint-based ban condemned in Hoover itself. Indeed, if we
take the Police Officials at their word, their policy is that
people like Kinney and Hall——the very people with the expertise
that is required to prove claims of excessive force and
inadequate police supervision and training——cannot testify in any
case, anywhere, against the police because doing so is a conflict
of interest.
69
employment in retaliation for his expert testimony for the
defendant in a criminal obscenity case. See 435 F.2d at 1034
(Rainey I). In a later appeal of the same case, we noted that a
college trustee had admitted that the plaintiff was denied the
teaching position because of his testimony and the publicity
surrounding the same; we observed that “[t]hese facts make out
what appear to us to be a clear case of impermissibly freighting
plaintiff’s contract with a deprivation of the First Amendment
right to free speech,” and we ultimately held that the plaintiff
was entitled to a judgment as a matter of law. Rainey v. Jackson
State Coll., 481 F.2d 347, 350 (5th Cir. 1973) (Rainey II).38
The Rainey decisions are themselves part of a long series of
First Amendment cases in which we have condemned retaliation
against court testimony, including retaliation against employees
who gave testimony adverse to their employers’ interests. See
Johnston, 869 F.2d at 1568 (county employee fired for testifying
on co-worker’s behalf in an administrative hearing); Reeves, 828
38
Part of the Rainey plaintiff’s underlying claim had
been mooted by the passage of time by the date of the second
appeal; we reached the merits of the claim in order to determine
whether he was entitled to attorneys’ fees. Rainey II, 481 F.2d
at 349. This was nonetheless a holding on the merits of the
First Amendment claim, as a later appeal in the same saga
recognized: “Our opinion in Rainey II considered and made
findings on the merits and entered a judgment sustaining Rainey’s
claim that his termination of employment was unconstitutional.”
Rainey v. Jackson State Coll., 551 F.2d 672, 675 (5th Cir. 1977)
(Rainey III).
70
F.2d at 1097-99 (school employee demoted for her civil testimony
in favor of her co-employee against their employer).
Judge Jones’s dissent discusses in some detail three cases
from other circuits that, in her estimation, show that the
defendants did not violate the First Amendment and should in any
event be entitled to qualified immunity. Only one of these, the
Third Circuit’s decision in Green, was on the books when the
Police Officials began their activities.39 The plaintiff in
Green, a police officer on a drug task force, agreed to testify
as a character witness at the bail hearing of the son of a
longtime friend. 105 F.3d at 884. The plaintiff left the
hearing without testifying after he learned that the son was
associated with organized crime. Id. The police agency demoted
the officer anyway, citing their interest in avoiding the
appearance of an association with organized crime. Id. at 884-
85. Surely it would cast a police agency into disrepute if its
vice officers were thought to consort with mob figures, but the
Police Officials in this appeal cannot seriously claim that their
agencies will be exposed to public obloquy if a police instructor
they patronize testifies for the plaintiff in an excessive force
39
The Eighth Circuit decided Tedder in February 1999,
after the boycott had already caused Kinney’s and Hall’s classes
to be cancelled and after Hall had already left ETPA. The Tenth
Circuit decided Worrell in 2000. Both cases are discussed supra.
71
case, just as he has before testified in favor of the police.40
Green in no way supports the Police Officials’ actions.
While some of the relevant First Amendment retaliation
precedents in place in the fall of 1998 involved schools (like
the Rainey cases and Reeves), and others of them (such as Brawner
and Victor) have involved police departments, we concede that our
past cases do not include one that has specifically addressed
retaliation against instructors at a police academy. We do not
see the absence of such a case as an embarrassment to our
conclusion that the Police Officials are not entitled to
qualified immunity. If we accepted the defendants’ view of what
it means for the law to be clearly established, qualified
immunity would be available in almost every case, even those
cases in which “in the light of pre-existing law the unlawfulness
[was] apparent,” Anderson, 483 U.S. at 640. As the Supreme Court
has recently admonished, “officials can still be on notice that
their conduct violates established law even in novel factual
circumstances.” Hope, 536 U.S. at 741.
40
Relatedly, we do not understand the Police Officials’
assertion, advanced by the dissent, Jones dissent at 32, that
Kinney and Hall somehow exploited their association with ETPA.
The instructors did not seek out their role in the Kerrville
case; the victim’s family approached them after failing to find
any qualified local experts who would testify against the police.
In order to establish their competence to offer expert opinion,
surely the instructors’ testimony would have to mention their
place of employment. The Police Officials never complained about
misuse of the good name of ETPA when an instructor gave expert
testimony, with pay, in favor of the police.
72
Although we are sensitive to the fact that reasonable
officials might not always be able to predict the outcome of a
balancing test such as that used in Pickering cases, see Noyola
v. Tex. Dep’t of Human Res., 846 F.2d 1021, 1025 (5th Cir.
1988),41 we believe that in this case the illegality of the
Police Officials’ conduct is sufficiently clear that they can
fairly be said to have been on notice of the impropriety of their
actions. Indeed, given the factual disputes identified by the
district court and taking the plaintiffs’ side of those disputes,
41
Noyola observed that, because of the balancing required
in Pickering cases, “[t]here will rarely be a basis for a priori
judgment that the termination or discipline of a public employee
violated ‘clearly established’ constitutional rights.” 846 F.2d
at 1025. We do not think that this remark can be taken to set
forth a rule of law to the effect that qualified immunity is
mandated in Pickering cases; indeed, the Noyola opinion itself
went on to analyze whether the plaintiff’s alleged right actually
was clearly established. See id. at 1025-26. Noyola’s statement
facially takes the form of a prediction that denials of qualified
immunity will be “rare[]” in the Pickering context. Qua
prediction, it may not be an unreasonable one. Nonetheless, a
number of this court’s Pickering cases have denied qualified
immunity. See, e.g., Branton, 272 F.3d at 741-46; Wilson v. UT
Health Ctr., 973 F.2d at 1270; Frazier, 873 F.2d at 826-27.
Underscoring the fact that Noyola does not purport to command a
particular result, three of the four Fifth Circuit Pickering
cases that cite Noyola deny the official’s claim of qualified
immunity. Compare Gunaca v. Texas, 65 F.3d 467 (5th Cir. 1995)
(upholding a claim of qualified immunity), with Harris v.
Victoria Indep. Sch. Dist., 168 F.3d 216 (5th Cir.), reh’g denied
and opinion clarified, 336 F.3d 343 (5th Cir. 1999), Boddie v.
City of Columbus, 989 F.2d 745 (5th Cir. 1993), and Brawner, 855
F.2d 187 (all denying qualified immunity). (It should be noted
that Brawner cites Noyola for a different proposition.) As we
state in the text, Noyola is at its predictive nadir when, as in
this case, there is no true balancing required because the
defendant official has not set forth any substantial legitimate
interest.
73
this case does not require any real balancing at all, for the
Police Officials do not have any relevant, legitimate interests
to put on their side of the Pickering scales. Our cases show
that it is entirely appropriate to deny qualified immunity when
the balance of cognizable interests weighs so starkly in the
plaintiff’s favor. See, e.g., Boddie, 989 F.2d at 750; Frazier,
873 F.2d at 826. This means that summary judgment must sometimes
be denied in Pickering cases because of genuine factual disputes
concerning whether admittedly legally important government
interests are implicated on a given record. See, e.g., Branton,
272 F.3d at 741; Kennedy, 224 F.3d at 378-79; Victor, 150 F.3d at
457; see also supra note 29 (citing cases from other circuits).
Of course, the ultimate resolution of those factual disputes may
show that the Police Officials are entitled to qualified immunity
from liability. See supra note 8.
We close our discussion of qualified immunity by noting
that, contrary to the position asserted by the Police Officials,
the district court’s review of the reasons for the Police
Officials’ boycott does not mean that the lower court, or this
court, has engaged in a “subjective” analysis of the type
condemned in Harlow. The Police Officials’ position, apparently,
is that they are entitled to qualified immunity as long as there
exists some conceivable set of reasons that would have made their
actions appropriate. Such factual scenarios doubtless exist. It
would have been permissible for the Police Officials to pull
74
their students out of Kinney’s and Hall’s classes if (for
instance) the Police Officials learned that the instructors were
unskilled. Therefore, the Police Officials suggest, we
necessarily engage in a forbidden “subjective” inquiry if we take
cognizance of a genuine dispute over the reasons for their
actions against the instructors. What the defendants’ approach
would mean, of course, is that there can never be liability for
any violation for which the elements include the official’s
intent or reasons for action. Most § 1983 claims do not include
such an element, but First Amendment retaliation claims do: The
First Amendment protects employees only from “termination because
of their speech on matters of public concern,” Umbehr, 518 U.S.
at 675, not from termination simpliciter. Similarly, the
Constitution forbids officials from discriminating on the basis
of race only when their discrimination is intentional. See
Washington v. Davis, 426 U.S. 229, 239-48 (1976). In such cases,
reading Harlow as forbidding all discussion of intent would allow
the qualified immunity defense to preclude recovery even when the
law was clearly established, for plaintiffs would be barred from
proving an essential legal element of their case.42
42
Indeed, the Supreme Court has explicitly distinguished,
on the one hand, the focused inquiry into intent that a court
must undertake in connection with certain constitutional
violations, from, on the other hand, the wide-ranging
“subjective” inquiry into bad faith condemned in Harlow. Harlow
sought to prevent “an open-ended inquiry into subjective
motivation [with the] primary focus . . . on any possible animus
directed at the plaintiff.” Crawford-El v. Britton, 523 U.S.
75
When an official’s intent or the reasons for his or her
actions are an essential element of the underlying violation, we
have treated factual disputes over intent just like any other
factual dispute that can justify a denial of qualified immunity.
See Tompkins v. Vickers, 26 F.3d 603, 607-10 (5th Cir. 1994)
(holding that the existence of a retaliatory motive was a factual
issue that precluded summary judgment on qualified immunity in a
First Amendment case in which a teacher claimed that he had been
transferred in retaliation for criticizing the school
superintendent); see also Coleman v. Houston Indep. Sch. Dist.,
113 F.3d 528, 535 & n.6 (5th Cir. 1997) (stating that the court
lacks jurisdiction on interlocutory appeal to review whether
there is a genuine issue of fact as to intentional
discrimination). Other circuits take the same view.43
574, 592 (1998). That inquiry would burden officials
unnecessarily, because whether the defendant official bore a
generalized ill will toward the plaintiff is irrelevant to the
question whether the defendant official has violated clearly
established law. But when intent is an element of the predicate
violation, such as in claims of intentional racial discrimination
or First Amendment retaliation, the inquiry into intent is
permissible because it is “more specific,” focusing on “an intent
to disadvantage all members of a class that includes the
plaintiff or to deter public comment on a specific issue of
public importance.” Id. (citation omitted).
43
See, e.g., Rivera-Torres v. Ortiz Velez, 341 F.3d 86,
97 (1st Cir. 2003); Thomas v. Talley, 251 F.3d 743, 746 (8th Cir.
2001) (“In considering a qualified immunity defense, a court
cannot disregard evidence of the intent that is an element of the
plaintiff's case because if it did so the plaintiff could not
show that the defendant violated clearly established law.”);
Walker v. Schwalbe, 112 F.3d 1127, 1132-33 (11th Cir. 1997)
(citing cases and stating that “[w]here the official’s state of
76
As we have said, accepting the Police Officials’ position
would mean that every claim of qualified immunity would
necessarily be upheld in those categories of cases that require
proof of intent or motive. The proper approach, which treats
intent as one fact issue among others, does not lead to the
opposite extreme, namely that qualified immunity is never
available in such cases. That too would be an intolerable
result. Fortunately, in no area of the law can bare accusations
of malice or evil intent withstand a properly supported motion
for summary judgment. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); Krim v. BancTexas Group, Inc., 989 F.2d 1435,
1449 (5th Cir. 1993) (stating that unsupported assertions of bad
faith cannot create a genuine issue of fact; in such a case,
“summary judgment is proper even if intent is an essential
element of the nonmoving party’s case”). Insubstantial suits
against public officials can be handled through the “firm
application of the Federal Rules of Civil Procedure,” Butz, 438
U.S. at 508, including the restrictions on discovery available in
mind is an essential element of the underlying violation, the
state of mind must be considered in the qualified immunity
analysis or a plaintiff would almost never be able to prove that
the official was not entitled to qualified immunity. We hold, as
every Circuit that has considered this issue has held, that where
subjective motive or intent is a critical element of the alleged
constitutional violation the intent of the government actor is
relevant.”).
77
Rule 26.44 The case before us is not a case in which a plaintiff
seeks to impugn an otherwise legitimate official action by
casting bare accusations of malice, bad faith, and retaliatory
animus. Kinney and Hall showed the district court sufficient
evidence, both direct and circumstantial, and much of which came
from the defendants’ own words, to raise a genuine issue of fact
as to their claims.
The Police Officials’ conduct, as presented in the summary
judgment record and viewed in the plaintiffs’ favor, was
objectively unreasonable in light of clearly established First
Amendment law. The district court therefore correctly determined
that the Police Officials are not entitled, at least at this
point, to qualified immunity from Kinney’s and Hall’s § 1983
claims alleging violations of their rights to freedom of speech
under the First and Fourteenth Amendments.
VII. DUE PROCESS AND STATE LAW CLAIMS
In addition to their § 1985 and First Amendment claims,
Kinney and Hall also alleged a denial of due process and a state
law claim for tortious interference with business relations. The
district court denied the defendants’ motion for summary judgment
44
Indeed, several of the defendants in the instant case
moved the district court to limit discovery until the question of
qualified immunity was resolved. The court granted the motion in
part, limiting discovery to the issue of the availability of
qualified immunity. Therefore, it is not precisely accurate to
say, as Judge Jones does, that “all discovery is complete.”
Jones dissent at 5.
78
on these claims. The panel of this court that initially heard
the Police Officials’ interlocutory appeal reversed the district
court on the due process claim, finding that Kinney and Hall had
not stated a violation. The panel affirmed the district court’s
denial of summary judgment on the state law claim. As the issues
on rehearing centered upon the § 1985 and First Amendment claims,
we now reinstate those portions of the panel opinion that rule on
the due process and state law claims, namely Parts IV.C and V.
VIII. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of the Police Officials’ motion for summary judgment on
the plaintiffs’ § 1985 and First Amendment claims. We reinstate
Part IV.C of the panel opinion, which REVERSED the district
court’s denial of summary judgment on the due process claim, and
we reinstate Part V of the panel opinion, which AFFIRMED the
district court’s denial of summary judgment on the state law
claim. We DISMISS the appeal of the cities, counties, and East
Texas Police Chiefs Association for the reasons set forth in note
10 supra. Finally, we REMAND the case to the district court for
further proceedings not inconsistent with this opinion. The
Police Officials shall bear the costs of this appeal.
79
RHESA HAWKINS BARKSDALE, Circuit Judge, joined by Judges Jones,
Smith, Emilio M. Garza, and Clement, concurring in part and
dissenting in part:
The privilege of absurdity; to which no living
creature is subject but man only.
THOMAS HOBBES, LEVIATHAN pt. I, ch. 5 (1651).
Primarily at issue is qualified immunity vel non against §§
1983 (First Amendment) and 1985 claims. I respectfully dissent
from its being denied, as well as official immunity’s being denied,
as a result, against the state law claim. (I concur, of course, in
immunity’s being granted against the Fourteenth Amendment due
process claim.) Because I join Judge Jones’ splendid dissent
concerning the First Amendment claim, I address only § 1985.
Though well intended (as always), the majority has lost sight
of the proverbial forest for the proverbial trees (as did the
majority for the divided panel). First, the majority’s reading of
§ 1985 has stretched that statute beyond all recognition; the new
law it has confected leads to an absurd result. Second, it has
turned its back on the fundamental, compelling reasons for
qualified immunity; it ignores the discretionary element that lies
at the heart of that doctrine.
With all due respect to my esteemed colleagues in the
majority, it is simply nothing short of absurd to hold that the
police chiefs and sheriffs are not vested with discretion in
choosing which teachers to use (and pay) for training the police
chiefs’ and sheriffs’ own student-officers — the very persons the
police chiefs and sheriffs are responsible for training. This
cannot be the law.
I.
Recitation of the material facts brings the ultimate issue
into sharp focus. In 1998, while instructors at the East Texas
Police Academy (ETPA), part of Kilgore College in Tyler, Kinney and
Hall testified voluntarily in a federal court action as expert
witnesses supporting an excessive force claim against the
Kerrville, Texas, police department. The police chiefs and
sheriffs (Officers) who sent (paid for) their student-officers to
ETPA for training were concerned about a conflict of interest
evidenced by Kinney’s and Hall’s testimony; discussed that conflict
with ETPA; and decided in 1998 not to send (pay for) their student-
officers to Kinney’s and Hall’s classes. As a result, ETPA
discontinued those classes because they were no longer economically
feasible.
Kinney and Hall had one-year contracts with ETPA. Thinking
that his contract might not be renewed, Hall resigned from ETPA to
find other employment. Kinney stayed until his contract expired
and then accepted a new contract in a different position with the
college.
In 1999, Kinney and Hall filed this action against Officers,
their respective cities and counties, and the East Texas Police
Chiefs Association, claiming violation of: § 1985(2); free speech
81
under the First Amendment and due process under the Fourteenth; and
Texas law. Among other rulings on motions for summary judgment,
qualified immunity was denied Officers. A divided panel of our
court reversed the qualified immunity denial for the due process
claim; but it affirmed the denial for the remainder (against my
dissent). Kinney v. Weaver, 301 F.3d 253 (5th Cir. 2002), vacated
and reh’g en banc granted, 338 F.3d 432 (5th Cir. 2003).
II.
At issue is qualified immunity (interlocutory appeal), not the
merits (appeal from final judgment). Restated, this appeal
concerns only whether now, or when Officers acted in 1998, their
alleged conduct was proscribed by law. The answer is “no”;
qualified immunity must be granted.
Our standard of review for qualified immunity interlocutory
appeals requires us to accept the facts in the light most favorable
to Plaintiffs. But, of course, that standard does not require us
to accept Plaintiffs’ contentions on points of law. For an
interlocutory appeal from the denial of qualified immunity, we have
jurisdiction to accept the facts as assumed by the district court
and determine whether, as a matter of law, they preclude qualified
immunity. E.g., Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir. 2002)
(quoting Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th
Cir. 1996)). Applying that standard to this record, we must hold,
82
as a matter of law, that Officers are entitled to qualified
immunity.
Section 1985 makes it unlawful to, inter alia, “injure [a]
party or witness in his ... property on account of having ...
testified [freely and truthfully in a court of the United States]”.
42 U.S.C. § 1985(2). In denying qualified immunity for the § 1985
claim, the majority holds: (1) the statute applies to expert
witnesses; and (2) Officers’ choosing to send (pay for) their
student-officers to teachers other than Plaintiffs is a requisite
injury to property under the statute. In so doing, the majority
has lost sight of the well-known purpose for qualified immunity —
to protect government officials in their discretionary actions, the
illegality of which is not apparent. Accordingly, government
officials are liable individually for their conduct “only if they
reasonably can anticipate when [it] may give rise to liability for
damages”. Davis v. Scherer, 468 U.S. 183, 195 (1984). Again, the
ultimate issue for this interlocutory appeal is whether Officers
could reasonably anticipate in 1998 that their alleged conduct
could give rise to § 1985 liability. In straying from the proper
inquiry, the majority has undercut the very reason for qualified
immunity — the discretion that lies at its heart.
Under the well-known, two-step inquiry for deciding such
immunity, the first asks whether, under current law, a valid claim
has been asserted — whether a right has been violated. E.g.,
83
Siegert v. Gilley, 500 U.S. 226, 232 (1991). “[I]f no [such] right
[has] been violated[,]... there is no necessity for further
inquiries concerning qualified immunity”. Saucier v. Katz, 533
U.S. 194, 201 (2001); see, e.g., Hare v. City of Corinth, Miss.,
135 F.3d 320, 325 (5th Cir. 1998).
Only if a valid claim has been asserted is the second step
taken: was defendants’ conduct objectively unreasonable under then
existing clearly established law. Hare, 135 F.3d at 326. Of
course, for this interlocutory appeal, as discussed supra, the
issue of fact on whether Officers’ conduct in 1998 was objectively
unreasonable under then existing law is not at issue for this
second step; we can consider only an issue of law — whether the law
underlying the claimed violation of § 1985 was clearly established
at the time of that conduct in 1998. Plaintiffs fail the first
step; they do not assert a claim under § 1985 — for several
reasons, it does not apply to expert witnesses’ claims of the type
made in this action concerning Officers’ conduct. That ends the
inquiry. In the alternative, the law underlying the claimed
violation of § 1985 was not clearly established when Officers acted
in 1998. For purposes of demonstrating why qualified immunity is
compelled, this two-step analysis will be applied twice: first,
for examining why the statute does not apply to Plaintiffs qua
expert witnesses (part A.); second, for examining why Officers’
conduct is not subject to the statute (part B.).
84
A.
In holding against qualified immunity, the majority improperly
expands § 1985 by holding that expert witnesses may bring the claim
at issue here if they are injured on account of their testimony.
We cannot read § 1985(2) so broadly; Plaintiffs qua expert
witnesses cannot assert this claim. In the alternative, we cannot
hold that this right for expert witnesses — now newly created by
our court for this case (year 2004) — was clearly established when
Officers acted in 1998.
1.
First, Plaintiffs do not assert a valid claim under § 1985 —
it does not apply to the post-testimony economic claim made
concerning their expert testimony. It is true that expert
witnesses have been used for hundreds of years; on the other hand,
the professional expert witness who profits considerably from such
testimony is a recent development. E.g., Timothy Perrin, Expert
Witness Testimony: Back to the Future, 29 U. RICH. L. REV. 1389,
1411 (1995) (discussing growing industry of individuals who spend
substantial portions of their time testifying or consulting with
litigants and even advertise their services). Congress could never
have envisioned protecting against loss of income for this type of
testimony when it enacted § 1985 in 1871. Even assuming, arguendo,
the majority is correct in holding that § 1985’s plain meaning
encompasses the claim by these expert witnesses, Maj. Opn. at 27,
85
this is not necessarily determinative. Even where a statute’s
meaning is plain, “we may depart from its meaning ... to avoid a
result so bizarre that Congress could not have intended it”. Moosa
v. INS, 171 F.3d 994, 1008 (5th Cir. 1999)(internal quotation marks
omitted). This is just such an instance.
By enacting § 1985, Congress intended, inter alia, to protect
those who testified in federal court and were integral to the
proper functioning of those courts, not to provide a post-
testimony, economic loss claim of the type at issue here for expert
witnesses. Even allowing for the salutary “broad sweep” of
Reconstruction-era civil rights statutes, Maj. Opn. at 28, the
majority has stretched § 1985 much too far. The reading it accords
§ 1985 leads to an absurd result, as evidenced by the following
examples.
Expert witnesses are quite necessary to litigate certain
claims (including, in some instances, those for excessive force);
but such experts are readily available — to say the least. For
example, for an excessive force claim, there may be only a few fact
witnesses who can testify about the force used, but there are
countless experts who can opine on whether it was excessive. Such
fact witnesses are of the utmost importance; they may be able to
offer the only independent evidence about what force was employed.
Moreover, a fact witness is usually under subpoena and, therefore,
has no choice about whether to testify. Accordingly, there are
86
compelling reasons to give fact witnesses a high level of
protection against an injury to them or their property on account
of their federal court testimony.
Obviously, the same policy considerations are not in play in
protecting expert witnesses. Given their abundance and other
factors bearing on their status, they are not obligated to testify
in a particular case. An expert should not be given the additional
protection of a private right of action if adverse economic
consequences flow from his testimony.
It is true, for example, that we do not distinguish between
fact and expert witnesses for claims that witnesses were
intimidated in a criminal trial. As another example, we do not
distinguish between fact and expert witnesses in cases involving
the absolute immunity that protects them from civil liability
arising from their testimony. Those matters involve the integrity
of the underlying action; accordingly, we cannot permit expert
witnesses to be intimidated into changing their testimony any more
than we can permit that for fact witnesses; all must testify freely
and truthfully.
On the other hand, a § 1985 claim of the type at issue
concerns providing a remedy for an expert witness who suffers post-
trial economic injury. In other words, the claim protects an
expert witness’ interests after he has freely and truthfully given
his testimony. In many respects, however, testifying as an expert
is a business; such witnesses are able to weigh the economic
87
benefits and risks of their testimony before agreeing to testify.
Therefore, expert witnesses who choose to testify in a case (and
are usually paid to do so, often quite handsomely) should not be
able to avail themselves of § 1985 later, if adverse economic
consequences flow from their testimony.
Consider the wide-ranging, truly absurd results arising out of
extending § 1985 to cover post-testimony economic injury to expert
witnesses of the type claimed here. Arguably, every person who
testifies as an expert and is later denied employment could file an
action under § 1985 against the would-be employer. For example,
assume an urban planner routinely testifies in litigation against
cities. Is a city now subject to § 1985(2) liability if it refuses
to hire that person if he applies for a job in its planning
department? The majority’s permitting expert witnesses to bring
claims under this statute for such injury opens the door (perhaps
the proverbial floodgates) for this type claim.
2.
As noted, even if an expert witness is protected under the
statute for the claim at hand, a claim could be asserted only if it
arose from conduct occurring after the date we render our decision
for this appeal; in other words, the majority has confected a new
claim. Accordingly, for the second step of the qualified immunity
analysis, it was not clearly established at the time of Officers’
88
conduct in 1998 that expert witnesses are protected under § 1985
through a claim of the type at issue here.
In fact, as the majority admits, Maj. Opn. at 30, it appears
that only one opinion (Second Circuit) had ever applied the statute
to experts; this was done without analysis and concerned a claim
for preventing testimony — a far cry from this case. Chahal v.
Paine Webber, 725 F.2d 20 (2d Cir. 1984). Chahal’s failure to
specifically address expert witnesses does not imply that § 1985
obviously applies to them. On the contrary, the fact that there is
only one opinion involving expert witnesses in the long history of
this statute compels concluding that expert witnesses simply do not
present claims under it, precisely because it does not apply to
them.
Moreover, one Second Circuit opinion about preventing
testimony could not have clearly established in Tyler, Texas, in
1998 that Officers’ actions with respect to these expert witnesses
could violate § 1985. It is true that, even without judicial
interpretation, violation of a statute can be clearly established
for qualified immunity purposes. This is not such an instance; the
very questions at issue about application of § 1985(2) to economic
injury for expert witnesses compel holding, for qualified immunity
purposes, that, when Officers in Tyler, Texas, acted in 1998, it
was not clearly established that their conduct could violate §
1985(2).
89
B.
Assuming, arguendo, that § 1985 covers expert witnesses for
the claim presented in this action, Officers are still entitled to
qualified immunity because the requisite “injury to property” by
Officers for § 1985 liability is lacking. Therefore, Plaintiffs
still fail to assert a claim; in the alternative, when Officers
acted in 1998, this law was not clearly established.
1.
Officers’ actions underlying the § 1985 claim are not the kind
proscribed by the statute. For the majority to hold otherwise is
to stretch § 1985(2) beyond all recognition.
a.
Regardless of Officers’ reasons for doing so, electing in 1998
not to enroll (pay for) their student-officers in a class cannot be
the requisite injury to property violative of § 1985. Haddle v.
Garrison, 525 U.S. 121 (1998), is not to the contrary. The fact
that, under Haddle, a plaintiff has a § 1985 claim for interference
with at-will employment does not compel holding that Officers’
choice in 1998 not to enroll student-officers in Plaintiffs’
classes is an injury under the statute. Plaintiffs’ status as at-
will employees is irrelevant, because sending student-officers to
teachers at ETPA other than Plaintiffs is not a cognizable injury
under § 1985.
90
In Haddle, the Supreme Court analogized to tort law claims
concerning interference with economic relationships and held that
third-party interference with at-will employment can constitute an
injury under § 1985. Id. at 126. The Court defined tortious
interference with economic relations as “maliciously and without
justifiable cause induc[ing] an employer to discharge an employee,
by means of false statements, threats or putting in fear”. Id.
(quoting 2 T. COOLEY, LAW OF TORTS 589-591 (3d ed. 1906))(emphasis
added). The majority states that, “according to the district
court, [Officers] ... tried to have the plaintiffs fired from their
jobs”, Maj. Opn. at 32 (emphasis added); but, in the next breath
and quite contrary to our limited standard of review, the majority
greatly overstates Officers’ “trying” conduct by equating it with
“coercing an employer into firing an employee”, id. Trying to
coerce an employer into firing an employee is not tortious
interference with employment. Rather, as the majority concedes,
id., the “classic case” for such interference (as evidenced by all
cases cited both by the majority and this dissent, including
Haddle) concerns a plaintiff’s being actually discharged. Kinney
was not discharged; Hall resigned of his own volition; and neither
claims he was constructively discharged. Therefore, Officers’
conduct does not constitute an injury to property under tort law or
§ 1985(2).
91
For qualified immunity purposes here, and if we analogize to
tort law, refusing to enroll (pay for) student-officers in a class
does not equate with “maliciously inducing” an employer to
discharge an employee. A typical case of such tortious
interference with economic relations would involve a defendant’s
demanding that a plaintiff be fired, or telling lies about him in
order to have him fired, followed by the employee’s being fired.
E.g., Ahrens v. Perot Systems Corp., 205 F.3d 831, 836 (5th Cir.)
(discussing in judicial estoppel context plaintiff’s earlier claim
that she had been fired because defendants tortiously interfered
with her employment by revealing confidential and disparaging
information about her), cert. denied, 531 U.S. 819 (2000); Sterner
v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) (upholding finding
tortious interference because defendant directed plaintiff’s
employer to fire him).
It is simply not the law that the refusal to enroll (pay for)
student-officers (regardless of Officers’ motive) is the kind of
interference actionable under tort law, especially for § 1985.
b.
While the analogy to tort law is instructive, the purpose and
history of § 1985 also compel holding that Plaintiffs do not assert
a claim. The Supreme Court noted in Kush v. Rutledge, 460 U.S.
719, 727 (1988), that “[p]rotection of the processes of the federal
courts was an essential component of Congress’ solution [via § 1985
92
enacted in 1871] to disorder and anarchy in the Southern States”.
When it enacted § 1985 in an effort to protect such processes,
Congress cannot possibly have intended a scenario akin to
compelling Officers’ to enroll (pay for) their student-officers in
Plaintiffs’ classes. Allowing Officers to decide who teaches their
student-officers, even if motivated by Plaintiffs’ expert
testimony, is hardly the type of “disorder and anarchy” that
Congress was addressing in 1871. Although the statutory language
of § 1985 is broad, it cannot be read so broadly as to encompass
Officers’ actions — especially where, as here, the issue is
qualified immunity, not the merits. To so read § 1985 is, again,
to give it an absurd result and to create new law. The majority’s
comments concerning Kush’s rejection of a racial animus requirement
for certain § 1985 claims, Maj. Opn. at 28 n.14, are irrelevant to
our conclusion that Plaintiff’s injury is not cognizable under the
statute. Instead, Kush elucidates that allowing a claim based on
Officers’ choice not to enroll their students in classes produces
an absurd result in the light of the Congressional goal for §
1985(2) — protecting the processes of the federal courts.
The majority tries to limit its holding by stating that “the
statute does not create liability for every adverse action taken
against a witness after the witness testifies in a federal case”,
because of the limiting principle in § 1985 that the injury must be
“on account of his having so attended or testified”. Maj. Opn. at
93
36. The majority pays lip service to the other important limiting
principle contained in § 1985 — that the adverse action taken
against the witness be an “injury to property”. Even assuming that
Officers acted “on account of” Plaintiffs’ testimony, Officers’
choice to enroll (pay for) their student-officers in other
instructors’ classes is not the requisite injury to property.
The majority would allow any reaction to a witness’ testimony
to be actionable if it were in response to that testimony. This is
too broad. The statute limits actionable responses to those that
injure the witness’ property. Although interference with at-will
employment is such an injury, choosing not to enroll (pay for)
student-officers in a particular class, is not. Plaintiffs do not
assert a claim. Accordingly, our inquiry should stop at step one.
2.
In the alternative, taking the second step for qualified
immunity analysis only makes it more evident that Officers are
entitled to qualified immunity. Surely, this step compels awarding
it. Again, this step involves deciding whether Officers’ conduct
in 1998 was objectively unreasonable in the light of then clearly
established law. Hare, 135 F.3d at 325. As discussed, and for
this interlocutory appeal, we are concerned only with an issue of
law — whether the law was clearly established when Officers acted
in 1998; we are not concerned with an issue of fact — whether
94
Officers’ conduct in 1998 was objectively unreasonable in the light
of then existing clearly established law.
Officers stopped sending (paying for) their student-officers
to Plaintiffs’ classes in October 1998. Despite the majority’s
take on this, Maj. Opn. at 31-36, Haddle’s being decided two months
later in December did not clearly establish that Officers were then
(or later) violating § 1985(2). Moreover, Haddle was decided after
Kinney’s and Hall’s classes were removed in November from the
schedule. The majority contends that Officers acted in furtherance
of the conspiracy after December because they “continued to
prohibit their officers from enrolling in Kinney’s or Hall’s
classes”, Maj. Opn. at 34; but Officers could not have prohibited
enrollment in classes that were not on the schedule. The
majority’s continuing conspiracy theory attempts to obscure the
obvious — it was not clearly established when Officers acted in
1998 that their actions violated the statute. In addition, Haddle
gave no indication, nor has any other case, that an act as benign
as Officers’ sending (paying for) their student-officers to
different teachers at a police academy is an injury to property
under § 1985(2).
III.
The ultimate issues for this interlocutory appeal are whether
Plaintiffs assert a valid claim; and, only if so, whether that law
was clearly established when Officers acted in 1998. Plaintiffs do
95
not assert a § 1985 claim; moreover, given the majority’s extreme
extensions of existing § 1985 law needed in order to hold against
qualified immunity, it is obvious that the law now confected by the
majority was not clearly established when Officers acted in 1998.
Therefore, qualified immunity must be awarded against the §
1985 claim. For the reasons stated by Judge Jones, it must also be
awarded against the First Amendment claim. Finally, as a result
and for the reasons stated in my dissent from the panel opinion,
301 F.3d at 296, official immunity must be awarded against the
state law claim.
Accordingly, I respectfully dissent from not granting immunity
against those claims.
96
EDITH H. JONES, Circuit Judge, with whom SMITH, BARKSDALE, EMILIO
M. GARZA, and CLEMENT, Circuit Judges, join, Concurring in Part and
Dissenting in Part:
With all due respect to our colleagues, one of Judge
Barksdale’s opening statements puts this case in perspective:
[I]t is simply nothing short of absurd to hold that the
police chiefs and sheriffs are not vested with discretion
in choosing which teachers to use (and pay) for training
the police chiefs and sheriffs’ own student-officers —
the very persons the police chiefs and sheriffs are
responsible for training. This cannot be the law.
In holding otherwise, as he says, the majority “has turned its back
on the fundamental, compelling reasons for qualified immunity; it
ignores the discretionary element that lies at the heart of that
doctrine.” The majority has rendered a very un-balanced analysis
of the balancing tests required in this case. This portion of our
dissent will address the qualified immunity claim of the police
officials as it relates to the teachers’ claims for First Amendment
retaliation. Judge Barksdale’s portion of the dissent discusses
the police officials’ potential liability for violating 18 U.S.C.
§ 1985 and their corresponding immunity claim.
I. Background
To set the stage for the police officials’ actions
against Kinney and Hall, it is useful to recount undisputed facts
concerning their expert testimony and the officials’ concerns.
They agreed, without following ETPA instructions to obtain prior
approval, to become paid experts in 1997 on behalf of the
plaintiffs in Gonzales v. City of Kerrville. A year later, at
trial, the Kerrville newspaper reported that eyewitnesses testified
the suspect had fired in excess of forty shots while standing on
the Guadalupe River Dam hitting objects including an apartment
window, a garbage can and a patrol car window. The defendant
police sniper testified that he first told the suspect to drop his
rifle, and when the suspect lifted the rifle and pointed it at him,
the officer killed the suspect in self-defense. Kinney’s and
Hall’s expert conclusions were that the sniper’s failure to apply
his training and defendant, City of Kerrville’s lack of a proper
policy were proximate causes of the tragic shooting and that the
sniper’s use of deadly force amounted to excessive force.
Rejecting these expert opinions, the jury found in favor
of the Kerrville police officer, and the federal district judge
overturned the award against the city. After Kinney’s and Hall’s
opinion was rejected, the take-nothing judgment was affirmed by
this court on appeal. See Gonzalez v. City of Kerrville, 205 F.3d
1337 (5th Cir. 1999).
The police officials have deposed or attested, inter
alia, that appellees’ expert testimony hurt the close working
relationship required between academy instructors and representa-
tives of the cities and counties; damaged teamwork required among
those involved in training officers; threatened the confidentiality
of information city and county officers share with Kinney and Hall
about their procedures and practices; undermined feelings of
loyalty and confidence; and represented an improper use of the
instructors’ affiliation with ETPA.
98
II. Standard of Review
While the majority correctly cites the general standards
of review for summary judgment and qualified immunity appeals, they
repeatedly mischaracterize the court’s function in free speech
cases and thus would send to the jury issues that it is our
obligation to decide. This case is, we are agreed, governed by the
balancing test framed by the Supreme Court in Pickering v. Bd. of
Educ., 391 U.S. 563, 88 S.Ct. 1731, 1734-35 (1968), and refined and
extended by Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983),
and Board of County Commissioners v. Umbehr, 518 U.S. 668,
116 S.Ct. 2342 (1996). The relevant issues are: (1) whether an
employee’s or contractor’s speech constituted a matter of public
concern; (2) whether the public employer’s legitimate
countervailing government interests outweigh the value of the
protected speech; (3) whether the protected speech was a
substantial or motivating factor in the discipline or termination;
and (4) whether the employer would have acted against the employee
for some other conduct regardless of the speech. See Umbehr, 518
U.S. at 675, 116 S.Ct. at 2347. The first two issues are matters
for the court to decide de novo while the last two may comprise
jury issues. See Williams v. Seniff, 342 F.3d. 774, 782 (7th Cir.
2003); Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th
Cir. 1989). Courts, not juries, determine the extent of protection
accorded to First Amendment conduct as matters of policy and
99
uniformity. Melton, 879 F.2d at 713 (concluding that “the trial
court improperly submitted to the jury the question of whether [the
plaintiff’s] speech was constitutionally protected”).
The majority, unfortunately, appears to have confused the
second and third issues and thus would leave to the jury the
fundamental question of First Amendment protection that is ours to
decide. The majority holds that because a fact dispute exists as
to whether Kinney and Hall were “blackballed” or “boycotted” to
enforce a “code of silence” (the third Pickering issue), this court
may not take into account the police officials’ proffered
institutional reasons for disenrolling their officers from
appellees’ classes (the second issue). The majority reasons
because it must give Kinney and Hall the benefit of drawing all
inferences in their favor on summary judgment review, a trial is
required to determine the legitimacy of the governmental interests.
The weight those interests receive in the Pickering balance is,
however, for this court to decide. Accordingly, sending to the
jury issues crucial to the Pickering balance would be improper.
That this court alone decides the Pickering balance is
reinforced by several facts. First, all discovery is complete, and
there is no real dispute about the operative facts. Second,
whether one characterizes the police officials’ actions as merely
“disenrolling” students from appellees’ classes or as “black-
balling” or “boycotting” the instructors is a matter of semantics,
not motive. Third, there is no evidence that the officials
100
themselves used the term “blackball” or “boycott” to describe their
actions; those pejoratives were used by ETPA President Holda and
pervade the appellees’ complaint and the district court opinion.
Finally, the majority opinion itself concludes that the police
officials advanced no legitimate interests to place in the
Pickering balance, and it freely evaluates the disputed evidence.
See, e.g., Kinney v. Weaver, __ F.3d __, (footnotes 3, 4, 25) (5th
Cir. 2003) (en banc). In other words, while purporting to rest on
the existence of disputed fact issues, the majority has rendered
its conclusion on the first and second Pickering issues listed
above. The majority’s de facto balancing is additionally
undermined, not only by its failure to take the entire record into
account, but by its erroneous requirement that the police officials
prove actual disruption, to the exclusion of potential disruption,
caused in their departments by the protected speech. The Supreme
Court has held, to the contrary, that an employer’s legitimate
concern about potential disruption arising from protected speech is
entitled to deference. Umbehr, 518 U.S. at 676, 116 S.Ct. at 2348
(recognizing that the Court has “consistently given greater
deference to government predictions of harm used to justify
restriction of employee speech”) (citations and quotations
omitted).
The majority’s miscalculation of Pickering balancing
necessarily affects its conclusion on qualified immunity, as the
101
majority reiterates that there are no legitimate governmental
interests on the police officials’ side of the balance.
Unlike the majority, we neither wash our hands of the
crucial responsibility to determine the extent of protection owed
to Kinney’s and Hall’s voluntary expert testimony, nor obscure the
Pickering determination with erroneous or unsupported fact issues.
Thus, while deferring balancing at this point, we must acknowledge
the existence of legitimate governmental interests on the police
officials’ side.
III. Qualified Immunity
The doctrine that confers qualified immunity from suit on
public officials performing discretionary functions is not an
“insignificant aberration.” See Pierce v. Smith, 117 F.3d 866, 882
(5th Cir. 1997). For over twenty years, the Supreme Court has
explained that qualified immunity strikes a balance between
providing redress to individuals for abuses of public office and
protecting society against claims that “frequently run against the
innocent as well as the guilty[.]” Harlow v. Fitzgerald, 457 U.S.
800, 814, 102 S.Ct. 2727, 2736 (1982). Society bears the cost of
unfounded lawsuits in “the expenses of litigation, the diversion of
official energy from pressing public issues, and the deterrence of
able citizens from acceptance of public office.” Id. There is also
the “danger” that “fear of being sued will ‘dampen the ardor of all
but the most resolute, or the most irresponsible [public
102
officials], in the unflinching discharge of their duties.’” Id.
(citation and quotation omitted).
For these reasons, qualified immunity shields discre-
tionary official conduct to prevent lawsuits that do not allege
violations of clearly established constitutional law of which a
reasonable person would have known. Harlow, 457 U.S. at 819, 102
S.Ct. at 2739. The standard of conduct embodies objective legal
reasonableness. So measured, qualified immunity affords “ample
protection to all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341,
106 S.Ct. 1092, 1096 (1985). To disentitle public officials to
qualified immunity, the unlawfulness of their conduct “must be
apparent,” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 3039 (1987), and “all reasonable officials would have
realized the particular challenged conduct violated the constitu-
tional provision sued on[.]” Pierce, 117 F.3d at 871 (citations
omitted). Indeed, if “officers of reasonable competence could
disagree on th[e] issue, immunity should be recognized.” Malley,
475 U.S. at 341, 106 S. Ct. at 1096. The law is clearly
established only where “it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156 (2001)
(emphasis added).
No doubt, the test of objective legal reasonableness does
not always require immunity in the absence of an identical or even
103
“materially similar” case to guide official conduct. See Hope v.
Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 2516 (2002). In Hope,
the Court held that Alabama prison officials could have readily
inferred from pre-existing authority that it was unconstitutional
to chain recalcitrant prisoners painfully and long to a “hitching
post.” Id. As a context-specific denial of qualified immunity,
Hope does not spring eternal for Kinney and Hall. The contrasts
between the two cases are plain.
First, the Eighth Amendment proscribes “unnecessary and
wanton infliction of pain” on prisoners, Whitley v. Albers, 475
U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986). With only two para-
graphs of discussion, the Court in Hope found in the prisoner’s
allegations an “obvious” Eighth Amendment violation. Hope, 536
U.S. at 741, 122 S.Ct. at 2516. In this case, however, rather than
dealing with an “obviously cruel” practice (compare Hope, 536 U.S.
at 745, 122 S. Ct. at 2518), the court confronts a First Amendment
protection of free speech that is not unequivocal; courts must
accommodate the public interest in effective provision of
government services when the speaker works for or on behalf of the
government. No rigid rule of liability exists. See Pickering, 391
U.S. at 568, 88 S.Ct. at 1734-35. Thus, the majority requires well
over 20 pages of legal reasoning to explain why the police
officials could not constitutionally disenroll their students from
Kinney’s and Hall’s classes.
104
Just as the governing constitutional standard in Hope was
simpler, so was the determination that the law was clearly
established. An earlier circuit court case had specifically held
unconstitutional, inter alia, the practice of handcuffing prisoners
to “the fence and to cells for long periods of time . . . .” Gates
v. Collier, 501 F.2d 1291, 1306 (5th Cir. 1974).45 Another case had
held it unconstitutional to deny water to a prisoner as punishment
for his refusal to work, explaining that conduct which jeopardizes
the prisoner’s health or inflicts physical abuse after he stops
resisting authority is actionable. Ort v. White, 813 F.2d 318, 325
(11th Cir. 1987). Finally, a Department of Justice report to
Alabama authorities condemned exactly the corporal punishment at
issue in Hope.
Despite the majority’s creative review of Fifth Circuit
government employee free speech precedents, none of our cases had
remotely conducted the free speech balancing inherent in the
relation between law enforcement departments and police academy
instructors. As will be seen, the only related authorities were
decided outside this Circuit and uniformly denied liability or
granted immunity.
Thus, that “fair warning” could be given to the prison
officials in Hope does not modify the general test for qualified
45
As the Supreme Court noted, cases decided by the Fifth
Circuit before the split that created the Eleventh Circuit remain
binding in the Eleventh Circuit.
105
immunity applicable in this case. As the Court acknowledged, “in
some circumstances, as when an earlier case expressly leaves open
whether a general rule applies to the particular type of conduct at
issue, a very high degree of prior factual particularity may be
necessary.” Hope, 536 U.S. at 741-42, 122 S.Ct. 2516 (quoting
United States v. Lanier, 520 U.S. 259, 269, 117 S.Ct. 1219
(1997))(internal citations and quotations omitted). Nor did Hope
cast doubt on the Court’s decision that to determine whether the
law is clearly established, public officials should consider
controlling cases in their own jurisdiction or, alternatively,
refer to a consensus of persuasive authority outside it. Wilson v.
Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 1700 (1999).
Only recently, this Court expressed en banc our caution
toward denying qualified immunity in novel factual cases. In
McClendon v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002)(en
banc), the author of today’s majority opinion found it compelling
that no court in 1993 had applied the state-created danger theory
of § 1983 liability to a similar factual context. This court held
that “qualified immunity should be granted ‘if a reasonable
official would be left uncertain of the law’s application to the
facts confronting him.’” Id. at 332 (quoting Salas v. Carpenter,
980 F.2d 299, 311 (5th Cir. 1992))(other citation omitted).46
46
Likewise, there is no case in this circuit that denied
qualified immunity under the circumstances presented here. The
majority’s failure to point to such a case is persuasive evidence
that these officers were “uncertain of the law’s application to
106
Further, despite the adoption of the state-created danger theory of
liability by nearly all other circuit courts at the time of the
conduct in question, this court denied that they comprised a
consensus of cases of persuasive authority sufficient to provide
“fair warning,” because the constitutional right was not defined
with “sufficient clarity to enable a reasonable official to assess
the lawfulness of his conduct.” Id. at 332-33. This court
concluded that:
The fact that the state-created danger theory was
recognized at a general level in [other courts’]
precedents did not necessarily provide Officer Carney
with notice that his specific actions created such a
danger. . . . [T]his is not a situation where ‘a
general constitutional rule already identified in the
decisional law . . . appl[ied] with obvious clarity to
the specific conduct in question.’
Id. (internal citation and quotation omitted). McClendon then
states: “Indeed, general principles of the law are less likely to
provide fair warning where, as here, applicability of the doctrine
is highly context-sensitive.” Id. at 332 n.13 (citation omitted).
As the foregoing authorities suggest, for immunity
purposes, the question “is not whether other reasonable or more
reasonable courses of action were available” to public officials.
See Pierce, 117 F.3d at 883. Immunity shields officials so long as
their conduct is reasonable, even though wrong in hindsight.
Saucier, 533 U.S. at 205, 121 S. Ct. at 2158. The question here is
whether, among police chiefs and sheriffs similarly situated to the
the facts confronting [them].” Id.
107
appellants, “all but the plainly incompetent” would have realized
at the time that what they did violated Kinney’s and Hall’s First
Amendment rights to testify voluntarily as expert witnesses.
Pierce, 117 F.3d at 883 (citing Hunter v. Bryant, 502 U.S. 224,
228, 112 S.Ct. 534, 537 (1991)).
To apply these principles of qualified immunity, the
Supreme Court’s two-step test normally begins by considering
whether, on the facts alleged by the plaintiffs, any constitutional
violation occurred; if a violation could be made out, “the next,
sequential step is to ask whether the right was clearly
established,” i.e., whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted. Saucier, 533 U.S. at 201-02, 121 S.Ct. at 2156.
The majority’s errors become evident by inverting the
process here. Consequently, let us assume arguendo that the police
chiefs and sheriffs violated the First Amendment by disenrolling
their students from Kinney’s and Hall’s classes. Assume, that is,
that the appellees engaged in some level of protected speech, and
Pickering/Connick balancing applies. The qualified immunity
question is as framed by the majority:
We must ask whether it was clearly established at the
time of the Police Officials’ conduct that the First
Amendment forbade them from retaliating against Kinney
and Hall, the employees of their contractor, on account
of the instructors’ Kerrville testimony.
Kinney, __ F.3d at __. Our answer is resoundingly that the law was
not clearly established.
108
The law was not clearly established for three reasons.
First, this court and seven other circuits have recognized that
public officials are more likely entitled to qualified immunity
when the underlying constitutional law depends on balancing tests
enforced by the judiciary, and no factually similar case exists.
Second, the Fifth Circuit cases relied on by the majority are
critically different from this case, while other circuits’ more
relevant precedents either found no liability or qualified immunity
for law enforcement officials. Third, in an unprecedented approach
to Pickering/Connick balancing, the majority inflates the value of
the appellees’ “speech,” while discounting from the balancing test
the police officials’ legitimate interests; no “clearly established
law” supports the majority’s approach.
A. Qualified Immunity and Constitutional Balancing.
At the heart of Kinney’s and Hall’s First Amendment claim
is the case- and context-specific Pickering/Connick balancing test.
In Pickering and its progeny, the Supreme Court has balanced the
interest of each plaintiff as a citizen in commenting on matters of
public concern against the interests of the state, as an employer
or contractor, in promoting the efficiency of the public services
it performs. Id. at 568, 88 S.Ct. at 1735; see also Connick, 461
U.S. at 140, 103 S.Ct. at 1686. Pickering emphasized, however,
that in view of the “enormous variety of fact situations” in which
critical statements by public employees may be thought by their
109
superiors to furnish grounds for dismissal, it was not “appropriate
or feasible to attempt to lay down a general standard” for
resolving free-speech claims of public employees and that it could
only “indicate some of the general lines along which an analysis of
the controlling interests should run.” Pickering, 391 U.S. at 569,
88 S.Ct. 1735. Subsequently, the Court acknowledged that the
particularized balancing required by Pickering is difficult even
for judges to accomplish. See Connick, 461 U.S. at 150, 103 S.Ct.
at 1692. In short, “while it may have been clear since 1968 that
a citizen does not forfeit First Amendment rights entirely when he
becomes a public employee [or contractor], the scope of those
rights in any given factual situation has not been well defined.”
Benson v. Allphin, 786 F.2d 268, 276 (7th Cir. 1986).
For immunity determinations, the implications of this
rule-avoiding constitutional standard seem obvious. The Supreme
Court has alluded to the enhanced likelihood of granting qualified
immunity in First Amendment cases:
Even when the general rule has long been clearly
established (for instance, the First Amendment bars
retaliation for protected speech), the substantive legal
doctrine on which the plaintiff relies may facilitate
summary judgment . . . . [T]here may be doubt as to the
illegality of the defendant’s particular conduct (for
instance, whether a plaintiff’s speech was on a matter of
public concern).
Crawford-El v. Britton, 523 U.S. 574, 592-93, 118 S. Ct. 1584, 1594
(1998). Fifteen years ago, this court explained that:
One consequence of case-by-case balancing is its
implication for the qualified immunity of public
110
officials whose actions are alleged to have violated an
employee’s First Amendment rights. There will rarely be
a basis for a priori judgment that the termination or
discipline of a public employee violated “clearly
established” constitutional rights.
Noyola v. Texas Dep’t of Human Res., 846 F.2d 1021, 1025 (5th Cir.
1988). Noyola’s “self-evident tenet of qualified immunity
jurisprudence,” see Moran v. Washington, 147 F.3d 839, 846 (9th
Cir. 1998), has been embraced by at least seven other circuits.47
Even before Noyola, the Seventh Circuit held that when a
constitutional rule involves the balancing of competing interests,
the standard may be clearly established, but its application is so
fact dependent that the “law” can rarely be considered “clearly
established.” Benson, 786 F.2d at 276. In such cases, “the facts
of the existing case law must closely correspond to the contested
47
Moran v. Washington, 147 F.3d 839, 847 (9th Cir. 1998)
(stating that in Pickering balancing cases, “the law regarding
such claims will rarely, if ever, be sufficiently ‘clearly
established’ to preclude qualified immunity”); Kincade v. City of
Blue Springs, Mo., 64 F.3d 389, 398 (8th Cir. 1995) (“[W]hen
Pickering[]. . .is at issue, the asserted First Amendment right
can rarely be considered ‘clearly established’. . . .”); DiMeglio
v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (noting that only
“infrequently” will the law be clearly established when a
balancing of interests is involved); O’Connor v. Steeves, 994
F.2d 905, 917 n.11 (1st Cir. 1993) (same); McDaniel v. Woodard,
886 F.2d 311, 314 (11th Cir. 1989) (quoting Noyola and finding
qualified immunity applicable because the constitutional right
was unclear); Melton v. City of Oklahoma City, 879 F.2d 706, 729
(10th Cir. 1989) (“In some circumstances, the fact-specific
nature of the Pickering balancing may preclude a determination of
‘clearly established law’. . . .”), vacated on other grounds, 928
F.2d 920 (10th Cir. 1991) (en banc); Benson v. Allphin, 786 F.2d
268, 276 (7th Cir. 1986) (stating that the application of fact-
dependent law “can rarely be considered ‘clearly established’”).
111
action before the defendant official is subject to liability under
Harlow [v. Fitzgerald].” Id. Noyola, Moran and Benson express the
consensus view among circuit courts.
While the majority relegates Noyola to a footnote, that
case remains the law of this Circuit. Judge Higginbotham, for
instance, cited Noyola when observing that, “the fact-specific
balancing test of Pickering complicates the question of whether an
act violated clear law. This is because the question is not only
the clarity of the standard but its clarity in application.”
Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993).
Judge Garwood added that qualified immunity
principles have particular force where, as here,
resolution of whether the defendant’s conduct violated
the constitutional provision sued on is heavily dependent
on a balancing or weighing against each other of
different factors according to the degree they are
present in the matrix of facts constituting the
particular context in which the asserted violation
occurred.
Pierce, at 882. Noyola has been frequently cited in our court.48
48
See Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002);
Harris v. Victoria Indep. Sch. Dist., 336 F.3d 343, 345 (5th Cir.
1999) (on petition for reh’g) (per curiam) (specifically stating
that Noyola “reflects the law of this circuit”); Pierce v. Smith,
117 F.3d 866 (5th Cir. 1997); Wallace v. Texas Tech Univ., 80
F.3d 1042 (5th Cir. 1996); Vander Zee v. Reno, 73 F.3d 1365 (5th
Cir. 1996); Gunaca v. Texas, 65 F.3d 467 (5th Cir. 1995); Brady
v. Ford Bend County, 58 F.3d 173 (5th Cir. 1995); Boddie v.
Columbus, 989 F.2d 745 (5th Cir. 1993); Caine v. Hardy, 943 F.2d
1406 (5th Cir. 1991) (en banc); Kinsey v. Salado Indep. Sch.
Dist., 916 F.2d 273 (5th Cir. 1990), vacated by, 950 F.2d 988
(5th Cir. 1992) (en banc); Connelly v. Comptroller of Currency,
876 F.2d 1209 (5th Cir. 1989); Price v. Brittain, 874 F.2d 252
(5th Cir. 1989); Evans v. Dallas, 861 F.2d 846 (5th Cir. 1988)
(per curiam); Brawner v. Richardson, 855 F.2d 187 (5th Cir.
112
Noyola counsels judicial reticence toward abrogating
qualified immunity in government employee First Amendment cases,
but it does not act as a dispensation of the duty to examine each
case carefully. In several cases, after citing Noyola, this court
has denied the defense.49 When, as here, the First Amendment case
law is dissimilar from the precedents, we must echo the caution
expressed in Noyola, Boddie, Pierce, and among the circuits that
fact-sensitive balancing of “the matrix of factors constituting the
particular context in which the asserted violation occurred” gives
particular force to an immunity defense. In such cases, “a very
high degree of prior factual particularity may be necessary.”
Hope, 536 U.S. at 741, 122 S. Ct. at 2516; see also McClendon, 305
F.3d at 332 n.13.
B. Finding Similar Cases for Immunity Comparison.
Against the backdrop of Noyola and the First Amendment
balancing standards, we conclude that no reasonable police chiefs
and sheriffs could have clearly understood in October, 1998 that
they were violating the First Amendment by refusing to enroll their
recruits in Kinney’s and Hall’s classes. No compelling or
compellingly analogous Fifth Circuit case law gave the officials
“fair warning” in this context-sensitive balancing area of
1988).
49
See Harris, 168 F.3d at 225; Boddie, 989 F.2d at 750;
Brawner, 855 F.2d at 193. These cases have little bearing on the
application of Pickering balancing here.
113
constitutional law. Cases from other circuits uniformly granted
extra deference to law enforcement officials’ decisions.
The majority apparently overlooks the requirement that
there be a higher degree of similarity between cases to satisfy the
clearly established law prong of qualified immunity. The majority
concedes that “our past cases do not include one that has
specifically addressed retaliation against instructors at a police
academy.” Instead, the majority relies exclusively on ordinary
whistleblower cases50 and one case brought by a college professor
who testified as an expert witness.51 Such cases entail, however,
a significantly different mix of interests for balancing purposes
than the one before us.
Consider first the “ordinary” whistleblower cases. This
court has consistently held that a public employee is “speaking out
on a matter of public concern” when he becomes a “whistleblower”
and thus complains of, or testifies against, fellow employees’
misconduct or against his employer’s practices. This court has
protected a wide variety of whistleblower conduct, some of it
emanating from within law enforcement agencies. All of these
50
Brawner, 855 F.2d at 191-92; Matherne v. Wilson, 851
F.2d 752, 761 (5th Cir. 1998).
51
Rainey v. Jackson State Coll., 481 F.2d 347 (5th Cir.
1973). Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096
(5th Cir. 1987), is also cited by the majority as a case
concerning an educator, but it does not involve expert testimony
and protects truthful fact testimony against one’s employer’s
interest.
114
cases, however, concerned fact witnesses, employees who had
personal knowledge of misconduct within their own governmental
units.
In holding that ordinary whistleblower cases afford
“clearly established law” for this case, the majority elides
several critical distinctions. Foremost, Kinney’s and Hall’s
testimony did not equate with whistleblower conduct. Their
opinions were valuable only insofar as they correspond with someone
else’s account of the underlying facts. But it is the eyewitness
who “blows the whistle,” not the expert who simply synthesizes and
interprets the factual testimony. Qualified expert testimony is
fungible, not irreplaceable. The majority implies, nevertheless,
that without Kinney’s and Hall’s expert testimony, the plaintiff in
the Kerrville case would have been unable to pursue his claim.
Thus the public has a special interest in receiving expert
opinions. This suggestion blinks reality. Our litigious culture
affords well-qualified experts in every conceivable specialty,
including law enforcement practices and training. If the majority
intends, not so subtly, to hint that these experts had unique
credibility because of their affiliation with ETPA, their
implication proves the police officials’ contention: Kinney and
Hall created a conflict of interest by taking advantage of their
job titles in the courtroom.
Not only is the speech in whistleblower cases generically
different from appellees’ expert testimony, but the corresponding
115
interests of public employers are different. This court has been
unsympathetic to employer retaliation against government whistle-
blowers, since their unorthodox conduct may furnish the public’s
only protection against internal misconduct. A public employer has
little, if any, legitimate interest in hiding dirty linen from the
taxpaying public. The case before us is not, however, so easily
pigeonholed. The police officials are not concealing misdeeds
within their departments. Indeed, since the Kerrville plaintiff on
whose behalf Kinney and Hall testified left court empty-handed, the
police officials’ “retaliation” did not ultimately stifle the
exposure of wrongdoing. The majority’s facile analogy with
ordinary whistleblower cases is simply wrong. We have here assumed
that the police officials’ actions would not satisfy the
Pickering/Connick balancing test after careful analysis, but such
a legal conclusion does not so ineluctably follow from a few
citations to whistleblower cases as to “clearly establish” the
guiding law.
The majority’s analogy to cases involving educators is
also weak. In Rainey, this court concluded that a college
teacher’s contracts were unconstitutionally breached because of his
testimony as a defense expert witness in a pornography case.
Rainey v. Jackson State Coll., 481 F.2d 347, 349 (5th Cir. 1973).
Holding that the breach violated Rainey’s First Amendment rights,
this court did not engage in Pickering balancing. Id. at 349-50.
By its nature, Rainey’s testimony could not have conflicted with
116
the interests of his employer. No countervailing employer
interests were advanced by the college against Rainey’s right to
testify. Legally and factually, Rainey is a poor fit with this
case.
Closer factually to the instant case is the policy of
Texas A&M University (and a state legislative appropriation
provision), implemented before the police officials took action
directed at Kinney and Hall, that broadly forbade university
employees from testifying as expert witnesses for parties adverse
to the state’s interests. See Hoover v. Morales, 164 F.3d 221,
223-24 (5th Cir. 1998). The police officials cite the policy as
reflecting clearly established law in the Fifth Circuit. The
majority discounts appellants’ reliance, because the policies were
under federal court challenge, and ultimately did not survive. We
agree that Hoover’s context is sufficiently different as not to
furnish controlling authority in support of the police officials.
By the same token, however, the majority ought to concede
that Hoover reinforces the principle that in this context-sensitive
balancing area of constitutional law, what is clearly established
must be closely related factually and legally to a case at hand.
Significantly, this Court in Hoover “assumed that there will be
occasions when the state’s interests in efficient delivery of
public services will be hindered by a state employee acting as an
expert witness or consultant . . . .” 164 F.3d at 226 (emphasis
added). Hoover concludes by stating:
117
But our task in this case requires us to apply a
Pickering case-by-case analysis, and in doing so we
conclude that the expert witness rider and TAMUS policy
No. 3105 are impermissibly overbroad. Our opinion does
not foreclose consideration of rules and regulations
aimed at limiting expert testimony of faculty members or
other state employees which adhere to our First Amendment
jurisprudence.
164 F.3d at 227. Unlike the majority opinion, Hoover does not
oversimplify Pickering balancing and in its way lends powerful
support to the officials’ plea that no clearly established Fifth
Circuit law condemned their actions regarding Kinney and Hall.
While the majority has strained to find that clearly
established Fifth Circuit law was contrary to the police officials’
conduct, they ignore or minimize, in the immunity discussion, three
circuit court cases involving alleged retaliation by law
enforcement agencies for non-whistleblower testimony.
The case most closely on point is Tedder v. Norman, 167
F.3d 1213 (8th Cir. 1999), decided only a few months after the
events at issue here. Tedder was the Deputy Director of the
Arkansas Law Enforcement Training Academy. After voluntarily
testifying as an expert for the plaintiff in an excessive use of
force case, Tedder was demoted. The Eight Circuit affirmed a
summary judgment in Tedder’s First Amendment lawsuit against his
supervisor. The court held that:
Testimony concerning possible misconduct of public
officials is speech on a matter of public concern that
warrants constitutional protection, . . . but, as the
district court stated, “it is not the place for an
employee of ALETA, let alone its Deputy Director to
volunteer to give such testimony without a subpoena.”
118
167 F.3d at 1215. Further, the court found a “significant threat
of disruption to the relationships between the [academy] and the
law enforcement agencies that it trains.” Id. at 1215. On
balancing the relevant interests, the court ruled for the defendant
against Tedder’s claim of unconstitutional retaliation. Id.
The majority would distinguish Tedder because the
defendant there testified against an officer employed by a law
enforcement agency actually trained by the Arkansas academy. The
Tedder court never specifically emphasizes this fact, however, and
it found that the testimony caused “actual disruption and potential
further disruption” to the academy. Id. Tedder not only undercuts
the majority’s First Amendment analysis, but clearly supports a
finding of qualified immunity. It would be a strange
constitutional rule indeed that protects a public employer’s
adverse action against an employee for expert testimony, but
punishes the non-employer for concerns over the very same activity.
Even stranger would be the denial of qualified immunity to the non-
employer whose internal relations are most affected by the expert
testimony, while Tedder’s supervisor was granted qualified
immunity. Id.
The majority also ignores a Third Circuit case, decided
well before the events here, which exonerated a law enforcement
agency that demoted one of its officers for voluntarily appearing
as a character witness (for a friend’s son) at a bail bond hearing.
Green v. Philadelphia Hous. Auth., 105 F.3d 882 (3rd Cir. 1997).
119
In Green, the officer left the hearing, declining to take the
stand, when he learned that the son was charged with involvement in
a drug ring. The court found that the officer’s decision to
testify constituted First Amendment protected activity, but also
that the public’s interest in his voluntary court appearance is
“somewhat more limited than it would be if his appearance were
subpoenaed.” 105 F.3d at 888 (citing cases).
Ultimately, the Pickering/Connick balancing test weighed
in the department’s favor, as an employer, because of its
significant interests in protecting the department’s reputation and
in successfully fighting drugs and crime. The court held that “any
risk of departmental injury or disruption weighs heavily under the
Pickering balancing test.” Id. Green thus found for the police
department even though Green’s supervisor had previously approved
his court appearance.
For immunity purposes, Green is closely related
contextually to the present case. Green attributed significant
weight to the police department’s justification for its
disciplinary action, and it carefully explains why not all court
testimony is equivalent for First Amendment purposes. In these
ways, Green furnishes a backdrop for the police officials’ conduct
just the opposite of the synthetic “clearly established law”
concocted by the majority.
The third case relevant for immunity purposes was brought
against an Oklahoma district attorney and agents for the Oklahoma
120
Bureau of Narcotics and Dangerous Drugs, alleging that the
rescission of an offer of employment to coordinate the DA’s drug
task force was based on the plaintiff’s previous expert witness
testimony for a murder defendant. Worrell v. Henry, 219 F.3d 1197
(10th Cir. 2000). The murder trial in which the would-be employee
testified involved the killing of one of the narcotics bureau’s
agents. The court granted summary judgment for the district
attorney, who was the prospective employer, but it denied summary
judgment and qualified immunity to the chief narcotics bureau
agent. The Tenth Circuit held that Pickering/Connick balancing was
appropriate to evaluate the First Amendment consequences of the
district attorney’s refusal to hire Worrell, but it did not find
Pickering appropriate to analyze the alleged retaliation by the
non-employer, non-contractor agents of the narcotics bureau. In
reaching the latter conclusion, the court acknowledged “that there
may be instances in which the operations of a third party agency
are so intertwined with the operations of the employing agency that
the Pickering balancing should be applied.” Worrell, 219 F.3d at
1212, n.3.
Worrell demonstrates that if the police officials’ role
is viewed through the Pickering/Connick lens, their claim to
immunity should be ironclad. Even if their position more closely
resembles that of the narcotics bureau agents, however, they could
argue that they fall under Worrell’s caveat because their
operations are closely intertwined with ETPA.
121
We may end this section where we began. Because this
case involves constitutional balancing, the “clearly established
law” must have existed at a higher level of specificity than might
be required in other types of immunity cases. This is hardly an
extraordinary conclusion. It follows as a negative implication
from this court’s en banc holding in McClendon that, absent
controlling circuit authority, “a ‘consensus of cases of persuasive
authority’ might, under some circumstances, be sufficient to compel
the conclusion that no reasonable officer could have believed that
his or her actions were lawful.” McClendon, 305 F.3d at 329. In
this case, the Fifth Circuit precedents cited by the majority
involve fundamental distinctions in the nature of the speech as
well as the public employer’s interests. While useful, such cases
hardly compel the conclusion that the police officials could not
properly disenroll their officers from Kinney’s and Hall’s classes.
The majority overlooked other circuits’ cases that discussed
Pickering balancing in the specific context of law enforcement
agencies and various types of testimony. Whether or not the
majority would agree with the outcome of those cases, two of them
predate the police officials’ conduct here, and they should be
regarded as constituting a consensus of persuasive authority
arrayed against the majority’s conclusion. At best, one must
conclude that there was no “clearly established law” that gave the
police officials “fair warning” of the unconstitutionality of their
conduct. See McClendon, 305 F.3d at 332-33 (no consensus of cases
122
from other jurisdictions where those cases applied the
constitutional rule differently and facts were insufficiently
similar; qualified immunity granted to police officer).
C. Novelty in the Majority’s Balancing Exercise.
The third proof of error in the majority’s qualified
immunity analysis arises from the way it strikes the
Pickering/Connick balance. In October, 1998, no court had held
that a law enforcement employee’s right to testify voluntarily as
an expert witness outweighed the interests of the agency. See
Worrell, 299 F.3d at 1206-07 (discussing prior circuit court cases
and noting that even where Pickering balancing favored the
employee, a different result might be reached where an agency could
show a disruption in its operations). And to this day, no cases
have, in the law enforcement context, elevated non-whistleblower
testimony so high, or rated the department’s interests so low, as
the majority does here. This is not to say (at this point) that
the majority is incorrect, but the novelty of this balance cuts
against any conclusion that “clearly established law” proscribed
the police officials’ conduct. The appellants’ position thus
resembles that of the county supervisors in Umbehr, whose qualified
immunity was upheld on appeal while the Supreme Court approved the
application of Pickering/Connick balancing to the relations between
independent contractors and government entities. See generally,
Umbehr, 518 U.S. 668, 116 S.Ct. 2342.
123
Because the majority has exaggerated the analogy between
voluntary expert testimony and whistleblower testimony, it elevated
Kinney’s and Hall’s interests in testifying as voluntary expert
witnesses to almost absolutely protected status. The majority has
thus extended or partially overruled Hoover v. Morales, which
rejected such an absolutist approach. See Hoover, 164 F.3d at 227.
From the perspective of other circuits, too, the majority’s
conclusion is unprecedented. The Tenth Circuit has specifically
held otherwise: “First Amendment protection of public employees’
testimony is not absolute. There are instances in which government
entities’ interests as employers outweigh employees’ interests in
free expression and the policy of encouraging truthful and
uninhibited testimony.” Worrell, 219 F.3d at 1205. Worrell then
described with approval the way in which the courts in Green and
Tedder evaluated the clash between law enforcement officers’ rights
to testify and their agency’s significant interests. Worrell, 219
F.3d at 1206-07. In Green, as noted above, the Third Circuit held
that the officer’s voluntary appearance at a bail hearing, although
constitutionally significant, was entitled to less weight. Green,
105 F.3d at 888-89. The Eighth Circuit in Tedder also decided that
the voluntariness of the deputy director’s expert testimony in a
police brutality case lessened its First Amendment protection.
Tedder, 167 F.3d at 1215. No other case has ascribed to voluntary
expert witness testimony like that of Kinney and Hall such elevated
First Amendment status.
124
Likewise, in unprecedented fashion, the majority holds
for naught the police officials’ description of their institutional
interests in controlling the education of department officers.52
The majority’s hostility toward the police officials’ position is
contrary to Waters v. Churchhill, which described the government’s
“significant” interest as an employer as follows:
When someone who is paid a salary so that she will
contribute to an agency’s effective operation begins to
do or say things that detract from the agency’s effective
operation, the government employer must have some power
to restrain her.
511 U.S. 661, 675, 114 S.Ct. 1878, 1887-88 (1994). Waters further
noted:
[W]e have consistently given greater deference to
government predictions of harm used to justify
restrictions of employee speech than to predictions of
harm used to justify restrictions on the speech of the
public at large. Few of the examples we have discussed
involve tangible, present interference with the agency’s
operation. The danger in them is mostly speculative.
511 U.S. at 673, 114 S.Ct. at 1887. In Umbehr, too, the Court
reminded that, “Pickering requires a fact-sensitive and deferential
weighing of the government’s legitimate interests.” Umbehr, 518
U.S. at 677, 116 S.Ct. at 2348.
As was previously explained, the expert testimony caused
an uproar because police officials and student-officers feared
52
The majority relies on two cases in concluding the
appellants have no legitimate interests in the Pickering
balancing. Both are inapposite. In one of these, the policeman
was disciplined for associating with a union. See Boddie, 989
F.2d at 747. The other involved a prison nurse’s whistleblower
activity. Frazier v. King, 873 F.2d 820, 826 (5th Cir. 1989).
125
Kinney and Hall might use information gleaned in their classes to
testify against the sponsoring agencies; that their testimony
interfered with unfettered classroom discussions; and that they
misused their affiliation with ETPA to enhance their testimony.
One can certainly understand the sensitivity of the police
officials about Kinney’s and Hall’s testimony. Far from exhibiting
wanton police brutality, the Gonzales case portrayed an officer’s
life endangered by a deranged shooter. Such situations are the
stuff of law officers’ nightmares and domestic tragedies. There is
no evidence that Kinney and Hall were lawyers, and they are
entitled to their professional opinions as law enforcement
instructors. Nevertheless, feelings of loyalty, confidence and
teamwork between the agencies and the instructors were
understandably strained by this testimony. Further, it is evident
that the instructors enhanced their credibility because of their
association with ETPA, and that the police officials might
legitimately question whether the instructors’ impartiality was
undermined because they initially agreed to be paid experts.
The majority might refuse to defer and throw all these
institutional concerns to the winds in its First Amendment
analysis. But in doing so, not only does it abuse the general
cautions expressed by the Supreme Court, but it contradicts
authorities from several circuits. In Green, the Third Circuit
described as “very significant” the interests of the housing
authority police department as an employer where the officer’s
126
voluntary testimony created a “risk of departmental injury based on
the ‘potential disruptiveness of the speech.’” (Green, 105 F.3d at
888, quoting Waters, 511 U.S. at 680, 114 S.Ct. at 1890.)
In Tedder, the court concluded that Tedder’s testimony
caused actual disruption and potential further disruption between
ALETA and the law enforcement agencies that it was charged with
training. Tedder, 167 F.3d at 1215. The court was concerned that
students’ loss of faith in the ALETA’s Deputy Director, who had the
authority to approve or veto lesson plans, could spread to every
class taught there. See id. The Eighth Circuit has elsewhere
recognized in emphatic terms the heightened interests of law
enforcement agencies. See, e.g., Shands v. City of Kennett,
993 D.2d 1337, 1344-45 (8th Cir. 1993); Tindle v. Caudell, 56 F.3d
966, 971-73 (8th Cir. 1995).
In Worrell, the Tenth Circuit reiterated that “personal
loyalty and confidence among employees are especially important in
law enforcement” and noted that “[t]hese concerns are heightened in
smaller offices and departments, where relatively minor distur-
bances in morale may create significant problems.” Worrell,
219 F.3d at 1208. The court adds that the district attorney was
not obliged to wait for an actual breakdown in the functioning of
his taskforce before taking action. Id. at 1208-09. He was
entitled to rely on reasonable predictions of workplace disruption.
Id.; see also Waters, 511 U.S. at 673, 114 S.Ct. at 1887 (noting
127
the “substantial weight [afforded] to government employers’
reasonable predictions of disruptions”).
The Seventh Circuit has repeatedly held that
“‘[d]eference to the employer’s judgment regarding the disruptive
nature of an employee’s speech is especially important in the
context of law enforcement.’” Williams v. Seniff, 342 F.3d 774,
783 (7th Cir. 2003) (quoting Kokkinis v. Ivkovich, 185 F.3d 840,
845 (7th Cir. 1999)).
Finally, the Sixth Circuit has held that police officials
are entitled to qualified immunity for taking reasonable
administrative action to preclude one of their officers from
exploiting his uniform and his position in the police department to
advocate on behalf of the National Rifle Association. See
generally, Thomas v. Whalen, 51 F.3d 1285 (6th Cir. 1995). While
acknowledging the protected status of the officer’s political
speech, the court pointed out that “no court has recognized a right
to exploit one’s rank in public employment solely for the purpose
of enhancing credibility for personal or political gain.” Whalen,
51 F.3d at 1291.
In addition, the majority wholly overlooks that public
employers are entitled to deference in dealing with employees whose
trust and loyalty are essential to the functioning of a public
office. See, e.g., Connick, supra, 461 U.S. at 151-52, 103 S.Ct.
at 1692 (“When close working relationships are essential to
fulfilling public responsibilities, a wide degree of deference to
128
the employer’s judgment is appropriate.”); Kinsey v. Salado Indep.
Sch. Dist., 950 F.2d 988, 994 (5th Cir. 1992) (en banc). There can
hardly be any dispute that law enforcement instructors occupy a
sensitive and extremely important position with respect to the
agencies’ mission. If training fails because the trainees have
lost confidence in their instructors and are unwilling to discuss
issues frankly with them, the consequences can be disastrous. The
above-cited cases specifically refer to institutional loyalty as a
quality especially required in law enforcement agencies, yet the
majority ignores it.
At this point, we have assumed the correctness of the
majority’s final conclusion that a First Amendment violation
occurred. But in its novel approach to balancing the instructors’
interests against those of the law enforcement agencies, the
majority is making new law, not simply expounding “clearly
established law.” Kinney and Hall may choose to pursue their suits
against the municipal entities, but the individual defendants are
entitled to qualified immunity.
IV. Was There a Violation of the First Amendment?
Although we have demonstrated that the police officials
were entitled to qualified immunity regardless of whether their
conduct violated the First Amendment, we would also hold that their
actions were not, under the Pickering/Connick balancing test,
unconstitutional.
129
Pickering “requires a fact-sensitive and deferential
weighing of the government’s legitimate interests.” Umbehr,
518 U.S. at 677, 116 S.Ct. at 2348. In holding that Pickering
balancing applies to cases in which a governmental entity appears
to condition the provision of contracts on a third party’s
constitutionally protected expression, the Supreme Court observed
that the “nuanced” Pickering approach, “which recognizes that a
variety of interests may arise in independent contractor cases, is
superior to a bright-line rule distinguishing independent
contractors from employees.” Id. at 678. The Court also found it
“far from clear, as a general matter, whether the balance of
interests at stake is more favorable to the government in
independent contractor cases than in employee cases.” Id. at 680,
116 S.Ct. at 2350.
Whether Kinney and Hall are classified as third-party
independent contractors or as employees is not as significant as
how their overall function, and their voluntary expert testimony,
affected the law enforcement agencies’ performance of a public
mission. Compare Umbehr, id. at 679, 116 S.Ct. at 2349 (noting
that a bright-line rule that “would leave First Amendment rights
unduly dependent on whether a state law labels a government service
provider’s contract” as one of employment or a contract for
services is “a very poor proxy for the interests at stake”). To
the extent the majority opinion depends on labeling Kinney and Hall
as independent contractors rather than employees, its analysis is
130
oversimplified and inconsistent with Umbehr.53 Further, the
majority’s reliance on this court’s cases involving government
contractors is hollow, since neither the speech at issue in those
cases nor the governmental interests at stake is comparable to the
present case.54
Balancing the interests in this case on a clean slate,
the appellees’ testimony constituted speech on a matter of public
concern and was entitled to some level of constitutional
protection. For reasons previously discussed, we, unlike the
majority, do not characterize the protection as “extremely strong.”
Other circuits’ opinions have properly distinguished voluntary
testimony from testimony under subpoena. See Green, 105 F.3d at
888; Tedder, 167 F.3d at 1215. Further, voluntary expert witness
testimony is distinct from standard whistleblower conduct, and on
the facts of this case, Kinney’s and Hall’s expert opinions were
not essential to exposing wrongdoing by a policeman or a police
department.
53
In the foregoing qualified immunity discussion, this
opinion, like the majority’s, necessarily focuses on government
employee cases, since those are the most common. Proper
Pickering analysis, however, balances the relevant interests
without regard to labels.
54
See N. Miss. Communications v. Jones, 792 F.2d, 1330
(5th Cir. 1986) (county board retaliated against newspaper for
critical editorials and stories) and Blackburn v. City of
Marshall, 42 F.3d, 1925 (5th Cir. 1995) (wrecker service denied
permission to use police radio frequency after complaint to
police chief; no Pickering analysis at all).
131
The interests of the law enforcement agencies have been
well-documented in other cases, where it has been held that there
is a “special need for deference to the employment decisions of
those responsible for insuring public safety.” Kokkinis, 185 F.3d
at 845. Law enforcement agencies have “a more significant interest
than the typical government employer in regulating the speech
activities of [their] employees in order to promote efficiency,
foster loyalty and obedience to superior officers, maintain morale,
and instill public confidence.” Tyler v. City of Mountain Home, 72
F.3d 568, 570 (8th Cir. 1995) (internal quotation marks and
citations omitted). The police officials here deposed or attested
that appellees’ expert testimony hurt the close working
relationship required between academy instructors and
representatives of the cities and counties; damaged teamwork
required among those involved in training officers; threatened the
confidentiality of information officers share with their
instructors about procedures and practices; undermined feelings of
loyalty and confidence; and represented an improper use of the
instructors’ affiliation with ETPA. The police officials offered
evidence of actual and potential disruption to their training
programs and departments.
Two factors detract, in the majority’s view, from the
strength of these articulated interests and the deference they are
due. First, it is contended that because appellees testified “400
miles away” from ETPA and in a case not involving a trainee or
132
department sponsor of the ETPA program, the police officials’
concerns are misplaced. The distance between Kerrville and
Kilgore, Texas, is a red herring. Both cities are in Texas, both
are governed by the same regime of state and federal law, and there
is no showing that police officers trained in east Texas rarely or
never migrate to other areas of the state, or that ETPA’s influence
spreads no further than the boundaries of its sponsoring
department. The “400 mile argument” is disingenuous.55
That the expert testimony posed a conflict of interest
with Kinney’s and Hall’s status as instructors, despite its taking
place outside ETPA’s formal jurisdiction, is a conclusion entitled
to deference. As the majority notes, the police officials did not,
in events leading up to this case, explain how they used the term
conflict of interest, but the officials’ ineloquence does not mean
their judgment is entitled to no weight. Moreover, it is evident
that in testifying before a Kerrville jury, the appellees’ status
as instructors at a Texas police academy would enhance their
credibility and lend the prestige of ETPA to their words. By their
status, the instructors necessarily implicated the sponsoring
departments (despite any professional disclaimers) in the legiti-
macy of their expert opinions. Even if other possible standards
for conflicts of interest, e.g., detracting from their time
55
We need not and do not speculate whether expert
testimony given outside the State of Texas would have a different
impact on the evaluation of the agencies’ interests.
133
available to prepare for and conduct ETPA classes or “double-
dipping” on salary and witness fees, are excluded, a conflict
existed in this sense. See, e.g., Thomas v. Whalen, 51 F.3d at
1292 (discussing a government entity’s interest in preserving the
appearance of impartiality).
More consequential is the majority’s criticism that the
police officials could not legitimately discipline Kinney and Hall
to enforce an “unwritten code” of silence, whereby police officers
do not testify against each other. We agree that enforcing the
“code of silence” to stifle speech concerning police misconduct is
not a legitimate governmental interest. The evidence shows,
however, that this was not a contemporaneous justification formally
offered for the police officials’ conduct, and, in fact, reference
to an “unwritten code” was made by only one of the appellants,
during a television interview. As can be seen from the wealth of
detail in the majority opinion, this case contained an abundance of
contemporary oral and documentary evidence as well as
post-litigation depositions that explored the police officials’
reasons for their action. That only one reference appears
throughout the record to an “unwritten code” is significant. This
stray remark should not be blown out of proportion.
The dominant theme in cases that have considered the
Pickering balance in the context of law enforcement is the need for
a high degree of personal loyalty and confidence, esprit de corps,
harmony and good morale within departments and between instructors
134
and trainees. Tedder, for instance, relied on the interests of the
actual employer, the police training academy, which has only an
indirect stake in the results of training. Tedder, 167 F.3d at
1215. Tedder reflects the even stronger interests of the officials
in this case, whose departments and officers rely on the academy’s
training for the sake of the public. In Worrell, the Tenth Circuit
held that a district attorney’s interest in preventing disruption
with other law-enforcement agencies outweighed the applicant’s
interest in avoiding retaliation for his testimony as an expert
witness against a police officer. Worrell, 219 F.3d at 1208-09.
In Green, the reputation and law enforcement capacity of the
housing authority police were held to prevail over an officer’s
decision to testify voluntarily. Green, 105 F.3d at 888-89. The
Seventh Circuit has on several occasions held that protected speech
was subordinate to the institutional interests of law-enforcement
agencies. See Seniff, 342 F.3d at 783-85; Kokkinis, 185 F.3d at
844-45.
In stark contrast to those cases, the majority here
ignores the paramilitary interests of the law-enforcement agencies
and reduces their “legitimate” concerns to the instructors’
competence and teaching ability. As a matter of law, and based on
this record, those interests are too narrowly defined.
We conclude that this is a closer case under Pickering
balancing than others in the law enforcement area. While Kinney
and Hall engaged in protected conduct, their voluntary expert
135
testimony did not carry such a high degree of public importance, in
general or in the facts of this case, as ordinary whistleblower
testimony. Further, we owe special deference to the law
enforcement agencies’ legitimate interests in maintaining
discipline, harmony, confidentiality and morale in their
departments and training programs. We also note that while the
police officials opined that Kinney and Hall should be fired, they
succeeded only in disenrolling their students from the instructors’
classes. They did not and could not directly terminate appellees’
employment.
On balance, we conclude that the police officials did not
violate the First Amendment by disenrolling their students from
appellees’ classes. The officials have the discretion to decide,
consistent with the First Amendment, by whom their officers will be
taught.
V. Conclusion
For the foregoing reasons, I respectfully dissent from
the denial of qualified immunity on the appellees’ First Amendment
claims, and I join Judge Barksdale’s dissent.
136
E. Grady Jolly, Circuit Judge, Dissenting:
I respectfully dissent and agree with Judges Jones and
Barksdale that the defendant law enforcement officers are entitled
to qualified immunity and should be released from personal
liability. It seems disingenuous to hold that the law is clearly
established when it takes 20,467 words to explain, and when six
United States Court of Appeals judges sharply disagree about it.
To my way of reasoning, the majority has turned the words, and the
doctrine, of “clearly established” on its head when it denies
immunity in this novel case.
137