Cooper v. Smith

United States Court of Appeals,

Eleventh Circuit.

No. 94-8992.

Athel B. COOPER, Plaintiff-Appellant, Cross-Appellee,

v.

William E. SMITH, Individually and in his official capacity as
Sheriff of Camden County, Georgia, Defendant-Appellee, Cross-
Appellant.

July 26, 1996.

Appeals from the United States District Court for the Southern
District of Georgia. (No. CV293-70), Anthony A. Alaimo, Judge.

Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

ANDERSON, Circuit Judge:

In 1993 appellant/cross-appellee Athel B. Cooper ("Cooper")

filed the instant 42 U.S.C. § 1983 action against

appellee/cross-appellant William E. Smith ("Smith"). Smith is the

Sheriff of Camden County, Georgia, and Cooper was one of his

deputies. Cooper alleges that Smith refused to renew his

commission as a deputy because Cooper cooperated with the Georgia

Bureau of Investigation (GBI) during their investigation into

corruption at the Camden County Sheriff's Department. The district

court granted in part and denied in part Smith's motion for summary

judgment on qualified immunity grounds. This appeal followed.

Facts

"In reviewing the district court's denial of summary

judgment, we—in most qualified-immunity interlocutory

appeals—accept the facts which the district court assumed for

purposes of its decision about whether the applicable law was
clearly established." Ratliff v. DeKalb County, Georgia, 62 F.3d

338, 340 (11th Cir.1995) (citing Johnson v. Jones, --- U.S. ----,

----, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995)); see also

Dolihite v. Maughon by and through Videon, 74 F.3d 1027, 1033 n. 3

(11th Cir.1996) (explaining that the appellate court might

ordinarily simply accept the district court's identification of

each appellant's actions and knowledge for purposes of comparison

with clearly established law); Johnson v. Clifton, 74 F.3d 1087,

1091 (11th Cir.1996), petition for certiorari filed 64 USLW 3742

(Apr. 25, 1996) (NO. 95-1743).

The following are the relevant facts assumed by the district

court:

In 1991 or 1992, the [Georgia Bureau of Investigation ("GBI")
] began an investigation of alleged corruption in the Camden
County Sheriff's Department. In July of 1992, Cooper and his
wife ... gave information to the GBI which they believed would
be kept confidential. The Coopers' conversations with the GBI
took place at the Coopers' home. According to the Coopers,
Smith and others in the Department found out about the
Coopers' cooperation with the GBI. After the Coopers spoke to
the GBI, the Camden County Grand Jury returned an indictment
against Smith. Smith was reelected as Sheriff of Camden
County soon after his indictment.1 Following Smith's
reelection, Cooper began to hear rumors that he would no
longer have a job when Smith's new term began in 1993.

Seeking clarification of his job situation, Cooper wrote a
letter to Major Charles A. Easterling ..., the Acting Chief
Deputy of the Department, on November 24, 1992. In
Easterling's response, dated December 9, 1992, he declined to
give Cooper a promotion or assurances of job security. On
December 17, 1992, Cooper wrote to Smith in response to
Easterling's letter ... [detailing his discontent with matters
within the Department].
1
The indictment against Smith was later dismissed.
1
Cooper v. Smith, 855 F.Supp. 1276, 1277 (S.D.Ga.1994). On

1
The judgment of the district court as reflected in this
published opinion was modified in a subsequent order dated August
December 29, 1992, Smith told Cooper that his commission as deputy

sheriff would not be renewed for the following year.

Cooper filed the instant suit, alleging that he had been

dismissed in retaliation for exercising his right to free speech in

violation of the First Amendment to the United States

Constitution.2 The district court granted Smith's motion for

summary judgment in part and denied it in part. As to the First

Amendment claim against Smith in his individual capacity, the

district court held that Smith was entitled to qualified immunity

with respect to Cooper's speech contained in the December 17, 1992,

letter. However, the district court held that Smith was not

entitled to qualified immunity with respect to Cooper's speech in

cooperating with the GBI. Cooper v. Smith, No. CV293-70, slip op.

at 12 (S.D.Ga. Aug. 4, 1994).

Cooper appeals the district court's grant of summary judgment

with respect to the speech contained in the December 17, 1992,

letter. The district court's ruling on this issue is not a final

order. FED.R.CIV.P. 54(b); Winfrey v. School Bd. of Dade County,

Fla., 59 F.3d 155, 157 (11th Cir.1995) (In the absence of

certification by the district court, "a partial disposition of a

multiclaim or multiparty action does not qualify as a final

4, 1994.
2
Cooper also asserted an equal protection claim. The
district court granted defendant's motion for summary judgment
and dismissed Cooper's equal protection claim. Cooper does not
challenge that ruling in this appeal. In addition, in the
district court Smith sought summary judgment with respect to
Cooper's claim against him in his official capacity. The
district court declined to address Smith's argument in this
regard. Smith does not challenge this ruling on appeal, and thus
we do not address it.
judgment [under § 1291] and is ordinarily an unappealable

interlocutory order.") (internal quotations omitted). Assuming

arguendo that we have pendent jurisdiction, we decline to exercise

it. Smith cross-appeals, challenging the district court's denial

of qualified immunity with respect to Cooper's speech in

cooperating with the GBI. This denial of qualified immunity is

immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 105

S.Ct. 2806, 86 L.Ed.2d 411 (1985). We affirm this ruling.

Discussion

The appealable issue in this case is whether a public

official who terminates an employee for cooperating with law

enforcement investigators is entitled to qualified immunity.3

"[G]overnment 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 v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2740, 73 L.Ed.2d 396 (1982). That Smith was performing a

discretionary function when he refused to renew Cooper's commission

is not in dispute. For Cooper to pierce the qualified immunity

protecting Smith, he must show that Smith violated one of Cooper's

3
The district court determined that Cooper had adduced
sufficient evidence to create a jury question as to whether
Cooper's speech in cooperating with the GBI caused Smith to
terminate him. Cooper v. Smith, CV293-70, slip op. at 14
(S.D.Ga. Aug. 4, 1994). To the extent that Smith challenges that
determination on appeal, we decline to address Smith's argument,
which amounts to an evidentiary sufficiency issue not itself
immediately appealable. See Johnson v. Jones, --- U.S. at ----,
115 S.Ct. at 2156; Cottrell v. Caldwell, 85 F.3d 1480 (11th
Cir.1996); Dolihite, 74 F.3d at 1033 n. 3; Johnson v. Clifton,
74 F.3d at 1091.
"clearly established" rights under federal law. Id.

It must be kept in mind that the sweep of qualified immunity

is necessarily broad. It protects "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, 89 L.Ed.2d 271 (1986). The

policy considerations driving such a rule are straightforward:

government officials exercising their official discretion in the

discharge of their duties cannot live in constant fear of lawsuit,

with the concomitant costs to public servant and society. Such

fear will stymie the work of government and will "dampen the ardor

of all but the most resolute, or the most irresponsible [public

officials], in the unflinching discharge of their duties." Harlow,

457 U.S. at 814, 102 S.Ct. at 2736 (quoting Gregoire v. Biddle, 177

F.2d 579, 581 (2nd Cir.1949)). The doctrine of qualified immunity

was created to "avoid excessive disruption of government and permit

the resolution of many insubstantial claims on summary judgment."

Id. at 818, 102 S.Ct. at 2738.

At the same time, qualified immunity is not an impenetrable

shield, because of which all manner of constitutional violations by

public officers must be tolerated. "When government officials

abuse their offices, "action[s] for damages may offer the only

realistic avenue for vindication of constitutional guarantees.' "

Anderson, 483 U.S. at 638, 107 S.Ct. at 3038 (quoting Harlow, 457

U.S. at 814, 102 S.Ct. at 2736). In an effort to balance these

competing concerns, the Supreme Court has devised an objective test

for evaluating official conduct. "[W]hether an official protected

by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the

"objective legal reasonableness' of the action assessed in light of

the legal rules that were "clearly established' at the time it was

taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034,

3038, 97 L.Ed.2d 523 (1987) (internal citations omitted).

Cooper argues that Smith refused to renew his commission

because he cooperated with the GBI in their corruption

investigation. We must determine whether Cooper had a clearly

established right under the First Amendment to speak with the GBI.

If we find that such a right was clearly established, then Smith is

stripped of the protection that qualified immunity affords, insofar

as Cooper's speech in cooperating with the GBI caused Smith's

adverse employment action.

"It is clearly established that a State may not discharge an

employee on a basis that infringes that employee's constitutionally

protected interest in freedom of speech." Rankin v. McPherson, 483

U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987).

Nonetheless, the First Amendment does not protect all speech by

public employees. In Pickering v. Board of Education, 391 U.S.

563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court

outlined the balancing test through which public employee free

speech claims are to be evaluated. This test is designed to

balance the interest of the employee in commenting on matters of

public concern against the interest of the employer in the

efficient delivery of public services. Id. at 568, 88 S.Ct. at

1734-35. "Because no bright-line standard puts the reasonable

public employer on notice of a constitutional violation, the
employer is entitled to immunity except in the extraordinary case

where Pickering balancing would lead to the inevitable conclusion

that the discharge of the employee was unlawful." Dartland v.

Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989);

accord Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir.1994).

We must decide whether the result of the Pickering balance on

the assumed facts would lead to the inevitable conclusion that

Cooper's discharge was unlawful, such that Sheriff Smith could not

have believed that his actions were lawful in light of clearly

established law and the information he possessed. Anderson, 483

U.S. at 641, 107 S.Ct. at 3039-40. In applying the Pickering test,

we first ask if Cooper's speech to the GBI can be "fairly

characterized as constituting speech on a matter of public

concern." See Rankin, 483 U.S. at 384, 107 S.Ct. at 2897 (quoting

Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75

L.Ed.2d 708 (1983)); Bryson v. City of Waycross, 888 F.2d 1562,

1565 (11th Cir.1989). This is done by examining the content, form

and context of the speech. Bryson, 888 F.2d at 1565; Dartland,

866 F.2d at 1324. The Supreme Court in Connick, 461 U.S. at 146-

47, 103 S.Ct. at 1689-90, held that the question of whether a

public employee's speech is constitutionally protected turns on

whether the speech relates to matters of public concern or to

matters of merely personal interest to the employee. If the speech

does not involve an issue of public concern, our inquiry ends

there. Id. at 146, 103 S.Ct. at 1689-90; see also Ferrara v.

Mills, 781 F.2d 1508, 1512 (11th Cir.1986). Second, if the speech

involves an issue of public concern, we must balance Cooper's First
Amendment interest against Smith's interest in the efficient

delivery of public services. Pickering, 391 U.S. at 568, 88 S.Ct.

at 1734-35; Bryson, 888 F.2d at 1565. Again the context and

circumstances are considered.

In this qualified immunity context, we then have to determine

whether the inevitable conclusion of the Pickering balance is that

Cooper's discharge was unlawful. The district court found that

Cooper's statements to the GBI involved matters of public concern,

that his interest in making these allegations to the GBI were not

outweighed by Smith's interest in the efficient management of his

department, that Cooper's cooperation with the GBI was "pure

whistle-blowing," and that Smith was therefore not entitled to

qualified immunity. Cooper v. Smith, slip op. at 13 (S.D.Ga. Aug.

4, 1994). We affirm the district court's conclusions in this

regard. There can be no doubt that corruption in a police

department is an issue of public concern. At the same time,

Sheriff Smith has a strong interest in the efficient operation of

the Department. However, that interest is insufficient to overcome

Cooper's interest in revealing to the GBI what he knows about

illegal activities within the Department. Clearly, the law does

not discourage public employees from cooperating with law

enforcement in investigations of unlawful activities within their

respective governmental organizations. This is, then, one of those

"extraordinary case[s] in which the First Amendment conclusion

would inevitably favor [the plaintiff] in light of Pickering

balancing." See Hansen, 19 F.3d at 578.

An analysis of the case law reveals that it was clearly
established at the time Smith refused to renew Cooper's commission

that it was a violation of Cooper's First Amendment rights to take

adverse action against him for cooperating with an official law

enforcement investigation. In Oladeinde v. City of Birmingham, 963

F.2d 1481, 1486-87 (11th Cir.1992), cert. denied, 507 U.S. 987, 113

S.Ct. 1586, 123 L.Ed.2d 153 (1993), we held that three supervisory

police officers who allegedly retaliated against the plaintiffs for

seeking to expose corruption within the police department were not

entitled to qualified immunity. The plaintiffs, who were officers

in the Birmingham Police Department Narcotics Unit, alleged that

they were "whistleblowers" who "sought to expose allegedly corrupt

connections between police, city officials and drug dealers" and

that as a result of these efforts they were "exposed to retaliatory

harassment, threats and transfers to keep them quiet about affairs

that might be a matter of public concern." Id. at 1486.

We found Oladeinde to be one of those cases where the

"inevitable conclusion," that the defendants had violated the

plaintiffs' freedom of speech, would be reached. Id. at 1487; see

also Brawner v. City of Richardson, Tex., 855 F.2d 187, 193 (5th

Cir.1988) (noting that it is clearly established that a public

employee's speech revealing improper conduct by fellow employees is

protected under the First Amendment). The similarity between the

Oladeinde case and the case at bar is sufficient to have put a

reasonable sheriff in Smith's position on notice that he could not

constitutionally refuse to renew Cooper's commission for

cooperating with the GBI.

Contrary to Smith's argument, the instant case is
distinguishable from Dartland and Hansen. In both of those cases,

the expression by the plaintiffs of personal dissatisfaction within

an otherwise protected speech context removed their cases from

"inevitable" status under the Pickering balance. See Dartland, 866

F.2d at 1324 ("Although Dartland possessed a constitutional

interest in expressing his view on a matter of public importance,

the insulting nature of his words gives his speech an element of

personal as opposed to public interest."); Hansen, 19 F.3d at 577

(Though "[s]ubpoenaed deponents may generally be free to criticize

their employers," the "manner of Hansen's speech was vulgar,

insulting, and defiant."). Only speech that relates to matters of

public concern, not speech relating to matters of merely personal

interest, is constitutionally protected. Connick, 461 U.S. at 146-

47, 103 S.Ct. at 1689-90.

In contrast to the nature of the employee speech in Dartland

and Hansen, where their insulting or vulgar manner rendered those

words of personal rather than public concern, Cooper's speech in

this case is clearly a matter of public concern. The district

court viewed the facts as "pure whistle-blowing," finding no

evidence that Cooper did anything except express the facts as he

knew them to the GBI, nor that he used his cooperation as an

opportunity to denigrate the department through the expression of

personal grievances. To allow Smith to punish Cooper with impunity

merely for speaking in a proper manner with the GBI would send a

signal to public employees everywhere that it is better to remain

silent than to cooperate with those officially charged with rooting

out wrongdoing in public organizations. This the law does not do.
 Conclusion

Because the law was clearly established at the time that

Cooper's speech to the GBI was constitutionally protected, Smith

violated Cooper's First Amendment rights when he refused to renew

his commission, insofar as that refusal was based on Cooper's

cooperation with the GBI. Thus, the district correctly concluded

that Smith is not entitled to qualified immunity as to this

allegation.

AFFIRMED.