William E. Hughes v. Alan S. Whitmer

McMILLIAN, Circuit Judge,

dissenting.

I agree fully with the majority opinion’s due process analysis. Accordingly, I concur in Part II of the majority opinion. But, because I substantially disagree with the majority’s reading of the record and application of the law on the first amendment issue, I must respectfully dissent. The *1426facts presented in the majority opinion represent only one side of the story. The following is Hughes’ version of the key incidents leading up to his transfer.

I. THE “FACTS”

In the months preceding his transfer, Hughes was involved in several investigations and activities that raised the ire of his supervisors, particularly Lt. Elmore. One investigation concerned Lt. Elmore’s son’s alleged drug dealing. During this investigation, Hughes and his partner, Trooper Tuschhoff, suspected that Lt. Elmore was leaking information to his son and his son’s cohorts. To verify their suspicions, Tusehhoff gave Lt. Elmore fictitious information about a planned raid on the residence of a group of suspected drug dealers with whom Elmore’s son was associated. The next day these suspects moved out of Willow Springs.

Another investigation involved the Mountain View Airport. Hughes had received information that suspicious late-night flights in and out of the airport might be related to drug smuggling. In response to this information, Hughes asked Capt. McKee to obtain special night surveillance equipment. Capt. McKee, with Hughes present, placed a call to Capt. Maddox who was in charge of the equipment. Capt. Maddox informed Capt. McKee that he had surveillance equipment that would be available. Capt. McKee then told Hughes that he would get the equipment and that Hughes should continue the investigation. But Capt. McKee also cautioned Hughes that he should be very careful in conducting his investigation because several prominent citizens housed their aircraft at Mountain View. The surveillance equipment never came, however, despite the fact that Hughes renewed his request on at least two occasions. Tr. at 84. In any event it did not matter, because soon after Hughes disclosed this information to his superiors, the suspicious flights suddenly stopped. It was also revealed that a state legislator who kept his plane at Mountain View had visited Supt. Whitmer and complained at length about Hughes’ investigation of the Mountain View Airport. Although Supt. Whitmer told the state legislator that he did not want the state legislator to tell him how to run the Patrol, Supt. Whitmer did assure the state legislator that he “would make an inquiry into the matter” and would “resolve the problem.” Tr. at 31.

Hughes also was involved in an incident which he alleges led to a cover-up of a Troop “G” dispatcher’s dereliction of duty. The majority refers to this as a “baseless” accusation. Supra at 1412, 1420. One evening Hughes was working the desk at headquarters because of a shortage of desk personnel. The only other person in the office was the radio dispatcher. Hughes received a call reporting a serious auto accident in the area. Hughes, being the closest trooper, responded to the call and left the dispatcher to cover the desk. At the scene, Hughes discovered that there had been a head-on collision between two cars at the crest of a hill. The area was very dark. One car was blocking the road, while the other car was in a ditch with a person pinned inside of it. Gasoline was pouring from one car’s ruptured gasoline tank toward one of the injured occupants of the cars. Another victim was soaked in blood and walking the roadway in a daze. In short, Hughes had a highly dangerous situation to cope with all by himself. He radioed the dispatcher for a fire truck, an ambulance, and a wrecker. The radio dispatcher replied angrily that he was busy on the phone. The dispatcher gave no further answer to Hughes’ request and did not dispatch any assistance to Hughes. Hughes explained that the reason the dispatcher was angry was because the dispatcher did not like to be left alone to answer both the phones and the radio. Eventually assistance did arrive when the City Police of Willow Springs dispatched the requested equipment after they overheard Hughes’ pleadings for help on the radio. Hughes reported this incident to his Zone Sergeant. Hughes’ Zone Sergeant told him not to tell the Captain, but Hughes did anyway. The Captain told Hughes to write a report, which Hughes did. The Captain then took *1427Hughes’ report to the dispatcher and told the dispatcher to rewrite the report. The dispatcher rewrote the report exonerating himself and blaming Hughes for the incident. This revision became the official report. The Captain then told Hughes that he was not to report this incident to Patrol General Headquarters in Jefferson City because the Captain did not want his superiors in Jefferson City to think he could not run his Troop. Hughes also testified that Lt. Hickman told him to “play it cool. We’ve just got a couple more years and we’ll all retire and get out of your hair.” Tr. at 91-94.

Yet another investigation concerned an alleged cover-up of “police brutality” occurring at Troop “G” headquarters. According to Hughes, two troopers carried out a personal vendetta against a person by arresting him and beating him while he was handcuffed and in the troopers’ custody. An internal report of the incident was prepared by Sgt. Zorsch. Sgt. Zorsch’s report revealed that the allegation was in part true and that one of the accused troopers even admitted to beating the arrestee. Tr. at 150. Capt. McKee, however, rejected Sgt. Zorsch’s report and ordered him to submit an abbreviated version which would state that the arrestee received his injuries when he accidentally fell down. Sgt. Zorsch was also ordered to destroy the original report and to submit the abbreviated version to headquarters as the official report. Sgt. Zorsch followed Capt. McKee’s orders even though he was of the opinion that the original report was a full, fair, and accurate recount of the incident. Tr. at 149. Hughes retrieved the report from the office waste paper because he believed Capt. McKee and Lt. Hickman were attempting to cover up the incident due to a threatened civil rights lawsuit. Hughes felt that such a cover-up violated the law and was an extreme breach of a law enforcement officer’s duty. Because Hughes did not trust his immediate superiors and because Supt. Whitmer was unavailable to Hughes, Hughes took this and other information to a friend named Claud Trieman who was a member of the Governor’s Crime Commission. As the majority notes, Hughes did so in the hope that Trieman, as a member of the Crime Commission, could intercede with the higher echelon at Patrol General Headquarters to initiate some reform within Troop “G.” Tr. at 89-90.

Hughes had also become involved in politics and had developed a close political association with a “local industrialist” named Claud Trieman — the same Claud Trieman who was a member of the Governor’s Crime Commission. With the help of Trieman and other local politicians, Hughes sought to become the Superintendent of the Patrol. Hughes eventually lost the nomination to Supt. Whitmer. But Hughes’ initial foray into politics incensed his superiors. According to Hughes, Lt. Hickman, Lt. Elmore and Capt. McKee resented Hughes because his political activity was “not a normal thing for one in [Hughes’] position as a lowly trooper.” Tr. at 68. Hughes also testified that Capt. McKee told him he better not associate with Trieman because Trieman had begun to get involved in politics. Additionally, the disciplinary reports prepared by Capt. McKee and Lt. Hickman list Hughes’ off-duty political association with Trieman as one of the reasons why Hughes should be disciplined. See Capt. McKee’s endorsement of the report on “Disciplinary Action — Trooper W.E. Hughes,” Exhibit 17, at 3, ¶ 2 (hereinafter referred to as Disciplinary Report).

The chronology of the events in this case is also important. The senior staff at Patrol Headquarters in Jefferson City first received information about trouble in Troop “G” in August of 1981. At that time Capt. McKee told Maj. Hoffman about a “problem” within the Troop. The “problem” was that Lt. Elmore’s son had been implicated in selling illegal drugs. Tr. at 202-03. On September 30, Maj. Hoffman received information that the state legislator who housed his airplane at Mountain View Airport had complained to the Captain of Troop “I” about Hughes’ Mountain View investigation. At about this same time, the state legislator also complained bitterly to Supt. Whitmer about Hughes’ investigation. *1428Tr. at 30. It was at this meeting with the state legislator that Supt. Whitmer promised that he would “resolve the problem.” Shortly thereafter, Lt. Elmore met with Supt. Whitmer to complain about Hughes’ investigation and Hughes’ political association with Trieman. Tr. at 28-29. During Lt. Elmore’s meeting with Supt. Whitmer, Supt. Whitmer asked Elmore for his advice on how the Superintendent should proceed on this matter. Elmore suggested that Hughes be transferred to Troop “C.” Troop “C” is considered by many rural troopers to be the “Siberia” of the Patrol. Tr. at 129, 139, 156, 172. In fact, at least one trooper from Troop “G” was transferred to Troop “C” as punishment for being intoxicated while on duty. Tr. at 54. After Lt. Elmore made this suggestion, the meeting ended and Supt. Whitmer told Lt. Elmore that Maj. Hoffman would “resolve” the problem. Tr. at 29. Supt. Whitmer, however, denied that he made a decision to transfer Hughes at that timé. Tr. 28-30. Yet there was testimony that according to Lt. Elmore, Supt. Whitmer asked Lt. Elmore to which troop would Hughes least like to be assigned. Lt. Elmore’s reply was Troop “C” and, reportedly, Whitmer’s response was “that’s where I’ll send him.” Tr. at 139.

Up until this point, around the first of October, there was no dissension within Troop “G.” Tr. at 143-44, 145-46, 158. When Lt. Elmore returned to Troop “G” from Jefferson City, around October 3 or 4, he told several troopers that he was having Hughes transferred to Troop “C.” It was only at this juncture that dissension began to brew in Troop “G” as troopers took sides over the rumored transfer of Hughes. Tr. at 143-44, 206. On October 7, Capt. McKee called Maj. Hoffman and told him of the growing dissension. At McKee’s request, Maj. Hoffman came down to Troop “G” the next day in order to discuss the Troop’s problems with some of its members during a regularly scheduled meeting. Maj. Hoffman interviewed several members and concluded that the troop was indeed split into two camps. Then, on October 10, Capt. McKee received a telephone call from Maj. Hoffman asking if Capt. McKee would accept a Troop “C” trooper’s transfer to Troop “G” in exchange for Hughes. Tr. at 295. Capt. McKee said he would agree. Yet, according to the testimony of Maj. Hoffman, the decision to transfer Hughes was not made until October 15 or 16.

After Lt. Elmore returned from Jefferson City he began to seek information from Troop members that would discredit Hughes. Tr. at 164-65. Elmore even hired someone to investigate Hughes. Meanwhile, Lt. Elmore prepared a report dated October 12 in which he recommended that Hughes be transferred because of his investigation of Elmore’s son, because of Hughes’ other “seemingly uncontrollable actions over the last few years” that discredited the Patrol, and because of “Hughes’ close association with a local wealthy industrialist who is heavily involved in statewide politics.” Disciplinary Report at 1. Lt. Hickman’s endorsement, dated the same day, also recommended Hughes’ transfer and reiterated the reasons given by Lt. Elmore. In turn, Capt. McKee endorsed the report on October 13 and concluded that because Hughes had “caused a great deal of turmoil in the Troop ... with his controversial actions and political manuevering,” he should be transferred “for the benefit of all concerned.” Id. at 5, ¶ 10. The day after endorsing Lt. Elmore’s report, Capt. McKee recommended that Lt. Elmore also be transferred. Supt. Whitmer placed the third and final endorsement on Lt. Elmore’s report. Supt. Whitmer then ordered-sHughes to be transferred to Troop “C,” effective October 19, and Elmore to be transferred to Troop “D,” another rural troop, effective November 1. Whitmer’s endorsement, however, was dated October 27,1981, eleven days after Hughes was told to report to Troop “C.”

Maj. Hoffman met with Hughes on Friday, October 16, 1981, the day the decision to transfer Hughes was supposedly made. Hoffman ordered Hughes to report to Troop “C,” some 200 miles away, that Monday, October 19 for permanent assignment. Hughes had heard rumors of his impending *1429transfer, and at this meeting he asked Maj. Hoffman, “How come a State Representative knows over a week ahead of time that I’m being moved.” Hughes testified that Maj. Hoffman replied, “Well, I didn’t tell. It wasn’t me that told.” Tr. at 52.

II. THE RECORD EVIDENCE

From these highly disputed facts, the majority opinion makes two important factual findings: (1) the present record “clearly shows that the transfer was designed to resolve a substantial and debilitating morale problem in Troop ‘G’ ”, and (2) Hughes' transfer was “wholly unrelated to his purported corruption exposing activities.” See supra at 1417-1418, 1423. Based on these findings, the majority opinion concludes that the balance between the government’s interest in efficiency and Hughes’ first amendment interests “tilts ... so heavily in favor of the Patrol’s interest that Hughes’ first amendment claim borders on the frivolous.” Supra at 1418-1419. On the present record, I cannot agree.

It must first be emphasized that the district court below did not address Hughes’ first amendment cause of action. Therefore, we have no pertinent findings of fact with which to review the first amendment issues raised by Hughes’ complaint. The majority points out that the determination of whether conduct is protected by the first amendment is a question of law which appellate courts are qualified to answer without regard to a district court’s findings of fact. See supra at 1418-1419 n. 11. While it may be true that balancing the government’s interests against an employee’s interests is a legal determination, it is a determination which must be rooted in historical fact. See Waters v. Chaffin, 684 F.2d 833, 837 n. 10 (11th Cir.1982); Bickel v. Burkhart, 632 F.2d 1251, 1255 n. 7 (5th Cir.1980). The present record contains many disputed facts which can only be resolved on the basis of credibility. Thus, the procedural posture of this case is in many ways similar to that of cases which reach this court after the defendant has obtained summary judgment. In summary judgment cases, the appellate court will view the facts in the light most favorable to the non-moving party and will “give that party the benefit of all reasonable inferences to be drawn from the underlying facts.” EEOC v. Liberty Loan Corp., 584 F.2d 853, 857 (8th Cir.1978). Thus, in reviewing Hughes’ first amendment claim, we should favor Hughes’ version of the facts over the Patrol’s version. If this is done, Hughes’ first amendment claim is far from frivolous.

A. The Motivating Factor

The majority opinion’s first factual conclusion is that the only motivating factor in the Patrol’s decision to transfer Hughes was the desire to resolve a debilitating morale problem in Troop “G.” I cannot agree with this factual conclusion because it is contrary to the district court’s findings of fact relating to the due process issue. Throughout the trial below, the Patrol took the position that Hughes was transferred merely to remedy a personality conflict between Hughes and Lt. Elmore, and not as punishment for Hughes’ investigatory and political activities. The Patrol’s witnesses also testified that Hughes was transferred to Troop “C” in particular simply to correct a troop imbalance within Troop “C.” The whole thrust of the testimony presented by the Patrol was that Hughes’ transfer was not a disciplinary measure. The majority opinion has adopted the Patrol’s version of the facts without exception. But the district court, after listening to both sides’ witnesses and studying their demeanor,1 *1430without exception rejected the Patrol’s factual assertions. After a hearing on Hughes’ motion for a preliminary injunction, the district court specifically found that Hughes’ transfer was punitive and disciplinary.2 This finding was echoed in the district court’s decision on the merits. There, the district court held that Hughes “was not sent to Troop ‘C’ to remedy an imbalance in Troop ‘C’ ” and that it felt “compelled by the weight of the evidence to conclude that the defendant ordered the transfer of the plaintiff for disciplinary reasons.” Hughes v. Whitmer, 537 F.Supp. 93, 94, 97 (W.D.Mo.1982). These factual findings show that the district court believed Hughes and his witnesses and disbelieved the Patrol’s witnesses. These findings therefore represent an implicit credibility finding against the Patrol’s witnesses, including the defendant, and in favor of Hughes’ witnesses. This credibility determination, made by the trier of fact who actually heard and saw the live testimony, should again cause this Court to read the record evidence in the light most favorable to Hughes’ position. Instead, the majority opinion rejects the testimony of Hughes and his witnesses without comment in favor of a ratification of the Patrol’s witnesses’ testimony. Normally, we would at least scrutinize the district court’s findings of fact under the clearly erroneous standard of review. See infra at 1434 n. 6.

The record evidence demonstrates that the district court’s findings are not clearly erroneous. Indeed, there is substantial evidence to support the conclusion that Hughes was transferred to punish him. But punish him for what? Hughes’ answer is that he was being punished for investigating possible wrongdoing by his superiors, for reporting his findings to a member of the Governor’s Crime Commission, and for his political associations. Informative in this regard is Lt. Hickman’s response to the district court’s direct question, “Why did you recommend the transfer of Hughes and not recommend the transfer of Elmore?” Lt. Hickman’s answer to this question was: “When is it going to stop where a trooper can take on a lieutenant? And when is a trooper going to be permitted to investigate a lieutenant and his son?” Tr. at 368. Equally illuminating is the Patrol’s counsel’s closing colloquy with the district judge. Counsel, in arguing that the Patrol did not want Hughes back in Troop “G,” said “What will happen, the Patrol feels, is if Trooper Hughes is returned, his faction will begin to continue the events and items that they were involved in.” Tr. at 391. According to Hughes’ Disciplinary Report, those “events and items” included Hughes’ legitimate investigation of possible illegal drug dealing by Elmore’s son, Hughes’ Mountain View Airport investigation which so upset a state legislator, and Hughes’ political association with “a wealthy industrialist.” The Disciplinary Report itself lists these items as the principal reasons why Hughes should be transferred and, implicitly, why Elmore should not be transferred. Also, the record contains testimony presented to prove that Supt. Whitmer decided to transfer Hughes, and Hughes alone, in response to the state legislator’s and Lt. Elmore’s complaints about Hughes’ investigations and political associations. Although far from convincing proof, this testimony does support the reasonable inference that these complaints were a substantial motivating factor in Supt. Whitmer’s decision. Two other incidents which occurred after Hughes’ transfer drive the point home. In one incident a trooper was “reminded” by Capt. McKee that the Patrol had a shortage of personnel across the state and if the trooper did not “cooperate” with the Captain, then the Captain “would not be expected to cooperate” with the trooper “in reference to these personnel changes.” Tr. at 157. In another separate incident, the state legislator that was mentioned ear-*1431Her told a trooper, “I’ve got one trooper moved and I’ll get you moved if you fool with me.” Tr. at 320-21. There was substantial testimony from Troop “G” troopers that they now fear to speak out against their commanding officers and are also afraid to investigate or arrest certain people. See, e.g., Tr. at 156-57, 160, 171, 173-74, 177.

The second reason why I cannot agree that dissension was the motivating factor for Hughes’ transfer is that the record raises a substantial question as to which came first. Did the dissension cause the Patrol to transfer Hughes or, rather, did the Patrol’s decision to transfer Hughes cause the dissension? The present record does not make the former more plausible than the latter, and, if one views the facts in the light most favorable to Hughes, the latter reflects the more probable sequence of events. Because first amendment rights are held in such high esteem, courts must conduct an “individualized and searching” review of the facts to determine exactly why the government took the action that it did. For the same reason, courts must view the government’s self-serving after-the-fact justifications with studied skepticism. See Peacock v. Duval, 694 F.2d 644, 648 (9th Cir.1982); Tygrett v. Barry, 627 F.2d 1279, 1283 (D.C. Cir.1980). See also Finck, Nonpartisan Speech in the Police Department: The Aftermath of Pickering, 7 Hastings Const. L.Q. 1001, 1017 (1980).3 This is especially true in cases, such as this one, in which the trier of fact has made a general credibility finding against the government’s witnesses.

At least two troopers testified that there was no dissension and no debilitating morale problem in Troop “G” until after Lt. Elmore began to spread the word that Hughes was to be transferred in retaliation for his investigations and political associations. See, e.g., Tr. at 143-44, 206, 336. Elmore made these statements around October 3. Maj. Hoffman did not conduct his investigation until October 8. Of course Maj. Hoffman observed dissension, but the dissension he saw was in all likelihood generated by Lt. Elmore’s disclosure that the Patrol had decided to transfer Hughes. In fact morale in Troop “G” has continued to decline, rather than improve, after Hughes’ and Elmore’s transfers. Several troopers view Hughes’ transfer as a signal that diversity of opinion will not be tolerated. At least two troopers actually testified that they fear reprisals from their superiors if they speak out' or testify against their superiors or if they arrest the wrong people. As mentioned above, there is some testimony that supports the inference that Supt. Whitmer decided to transfer Hughes in the first few days of October in response to complaints from the state legislator and Lt. Elmore concerning Hughes’ activities. This was before the dissension erupted in Troop “G.” The state legislator had even bragged that it was he who had Hughes transferred and he tried to use this fact to procure deference from another trooper.

It must be noted also that the paperwork that rationalized the decision to transfer Hughes substantially lagged behind the actual decision to transfer Hughes. For example, Supt. Whitmer did not endorse the transfer recommendations until October 27, eleven days after Hughes was transferred. Hughes’ § 1983 suit was filed two weeks after the transfer, but Maj. Hoffman knew that Hughes was represented by counsel as of the day Hughes was told to report to Troop “C.” According to Hughes, the official rationalization for his transfer, like Sgt. Zorsch’s report on the injured arrestee, may have been shaped by the threat of litigation. Although probative, I agree with the majority that this evidence is far from con-*1432elusive proof. The majority correctly notes that it would be absurd to say that dissension could not have arisen before the decision to transfer Hughes was made. Hughes, however, offered the testimony of his fellow troopers that indeed no dissension did exist up until Lt. Elmore returned from Jefferson City with the news that Hughes was to be transferred. The evidence is simply conflicting. In such circumstances it is for the district court to decide whom to believe. Until a trier of fact decides between one side or the other, I cannot so easily dismiss the testimony favoring Hughes’ position, especially when the district court specifically disbelieved Supt. Whitmer’s explanation that Hughes’ transfer was not a disciplinary measure.

B. Unrelated to First Amendment Activities

The majority’s second factual conclusion was that Hughes’ first amendment “whistle-blowing” activities were wholly unrelated to the decision to transfer him. The majority makes the point that Supt. Whitmer and Maj. Hoffman did not even know about Hughes’ allegations that his superiors were covering up police brutality or ticket-fixing. But Lt. Elmore knew about Hughes’ involvement in these incidents and he spoke to Supt. Whitmer about Hughes’ “controversial activities.” It was at that meeting that Supt. Whitmer told Elmore that the Hughes “problem” would be resolved. Besides, Supt. Whitmer testified that he had delegated much of the responsibility for the development of this decision to the command staffs of Troop “G” and Patrol Headquarters. Tr. 272. What is certain, however, is that Supt. Whitmer did know about Hughes’ political activities as well as Hughes’ Mountain View Airport investigation and the state legislator’s reaction to it.

The majority also states that the dissension was wholly unrelated to these activities. Therefore, the majority concludes that because the transfer decision was based solely on the dissension in Troop “G,” Hughes’ purported whistle-blowing activities could not have entered into the transfer decision. I would agree that the dissension was not caused by Hughes’ first amendment activities. Rather, the dissension was caused by the decision to transfer Hughes, and the decision to transfer Hughes was based on Hughes’ first amendment activities. This is an important distinction and it is the basis for my difference of opinion with the majority. The majority also asserts that Hughes was not fired for whistle-blowing because he never told anyone about his investigations. Hughes’ evidence is to the contrary. According to Hughes, he told Capt. McKee, Lt. Hickman, and a member of the Crime Commission about his investigations. The majority also claims that Hughes’ transfer was unrelated to his Mountain View Airport investigation because Hughes’ superiors never interfered with the investigation and even encouraged it. Besides, Hughes’ investigation did not uncover any illegal activity. This reasoning misses Hughes’ point that he was punished for initiating a legitimate investigation which angered a local politician, and not necessarily for what that investigation might have revealed. The majority, however, has chosen to accept Supt. Whitmer’s testimony that the state legislator’s complaints had nothing to do with Hughes’ transfer. Again, it is my opinion that this choice should be made by the trier of fact.

Finally, the majority substantially underestimates the impact of Hughes’ first amendment political activities on the Patrol’s decision. This type of activity merits considerable first amendment protection. See Barrett v. Thomas, 649 F.2d 1193, 1199 (5th Cir.1981). The majority opinion does mention that the Patrol had a legitimate grievance against Hughes for his “on the job” association with Trieman and for spending too much time patrolling the area in which Trieman lived when that area was already patrolled by another trooper. Hughes’ Disciplinary Report, however, is the best statement of the reason why the Patrol did not like Hughes’ off-duty political association with Trieman:

Trooper Hughes has made a practice of patrolling east of Willow Springs in the *1433Mountain View and Summersville area when no other person was working that area from Zone 1. We approved of this practice due to the fact that the area needed attention, and our member was able to make a great number of arrests and warnings in this area. After a period of time, our member became closely associated with a wealthy industrialist in the Mountain View area. We welcomed the fact that our member was being helpful to a man who was giving great financial assistance by providing industry and jobs to the residents of the Mountain View area; however, it soon became apparent that Hughes was friendly with the businessman due to the fact that he was attempting to become Superintendent of the Missouri Highway Patrol and was hopeful that his friend could assist him. Hughes did not succeed in becoming Superintendent; however, he has left the impression with some members of Troop G that he has strong ties with people in high places.

Disciplinary Report at 3, ¶ 2 (emphasis added). Additionally, the Patrol was willing to stipulate at trial that there was nothing improper about Hughes’ on the job association with Trieman. Tr. at 116-17. Both the testimony at trial and Hughes’ Disciplinary Report are replete with references to Hughes’ off-duty political activities and associations. This is a strong indication that Hughes’ legitimate off-duty political activities and associations were a substantial motivating factor in the decision to transfer Hughes.

III. THE LAW

In reviewing a public employee’s claim that he has been punished for engaging in first amendment activities, the court must address three major issues:

(1) Has the plaintiff met the initial burden of proving that he was engaged in activity protected by the first amendment? Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968) (Pickering).

(2) If so, has the plaintiff met the burden of proving that his constitutionally protected activities were a substantial or motivating factor in the government’s decision to take action against the plaintiff? Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (Mt. Healthy).

(3) If so, has the defendant met the shifted burden of proving that the same actions would have been taken against the plaintiff had the plaintiff not engaged in the protected activities? If so, the plaintiff’s claim of first amendment retaliation will be defeated. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 158 L.Ed.2d 619 (1979) (Givhan).

A. The Pickering Balance

In order to answer the threshold inquiry of whether the employee’s activities are protected by the first amendment, the court must balance the government’s interest in promoting efficiency and discipline against the employee’s interest in speaking, gathering information, and engaging in political associations with others. The majority has concluded that the evidence in this case so heavily favors the Patrol’s interests that Hughes’ first amendment claim borders on the frivolous. I must disagree.

1. The Government’s Interest

In my opinion, the majority decision is premised upon an overly deferential concern for the Patrol’s interests in efficiency and discipline. For example, the majority opinion states that the government’s interest in promoting efficiency is paramount to a public employee’s first amendment interests. Such a notion is abhorrent to our nation’s democratic ideals. It is also contrary to a long line of cases which hold that administrative efficiency is but one factor to be weighed in the Pickering balance and is by no means determinative. See, e.g., Peacock v. Duval, 694 F.2d 644, 647-48 (9th Cir.1982); Porter v. Califano, 592 F.2d 770, 773-74 (5th Cir.1979); Bernasconi v. Tempe Elementary School District, 548 F.2d 857, 862 (9th Cir.1977), cert. denied, 434 U.S. 825, *143498 S.Ct. 72, 54 L.Ed.2d 82 (1977).4 Additionally, in order for the government’s interest in efficiency to carry any weight whatsoever in the Pickering balance, the inefficiency must have been caused by the employee’s actions, not by the employer’s reaction to the employee’s first amendment activities. See Monsanto v. Quinn, 674 F.2d 990, 998-99 (3d Cir.1982). 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. I readily agree with the majority that Hughes’ first amendment activities did not directly cause the dissension in this case. And therein lies the rub; without a causal relationship between the dissension and the reason for Hughes’ transfer (his first amendment activities), the government’s interest in efficiency carries no weight in the Pickering balance. Id.5

Nor can I agree with the majority’s conclusion that the Patrol, as a “para-military” organization, must be accorded considerable deference both in its decision that an employee’s first amendment activities have caused dissension and in exercising its discretion to discipline such an employee.6 The fact that Hughes works for a law enforcement agency is relevant only to the strength of the government’s interest vis a vis Hughes’ first amendment interests. It is just one factor to be weighed in the Pickering balance, and it has no independent significance that would compel the judiciary to defer a fortiori to a law enforcement agency’s decision that impinges upon first amendment rights. Tygrett v. Barry, 627 F.2d 1279, 1283 & n. 3 (D.C.Cir. 1980). The federal judiciary has a non-delegable duty to conduct an independent and “searching review of the factors asserted by the employer to justify the [discipline]. The purpose of such a review is to assure that those factors have been applied with the deference to be accorded first amendment rights.” Id. at 1283.7 The majority, however, takes the position that the Patrol has a substantial degree of discretion in conducting its personnel affairs and that, “under our constitutional tripartite division of powers,” the courts are ill-equipped to meddle in these executive functions. Supra at 1417-1418.

The majority also quotes the Supreme Court’s recent decision in Connick v. Myers, - U.S. -, 103 S.Ct. 1684, 1692, 75 L.Ed.2d 708 (1983), for the proposition that “[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” However, the Supreme Court, in the same passage, went on to state that such is not the case when the employee has exercised her first amend*1435ment rights in a manner which “more substantially involve[s] matters of public concern.” Id. at 1692-93. Similarly in the past, the Supreme Court has stated that “we must presume that official action was regular and, if erroneous, can best be corrected in other ways”; but the Court was careful to note that such deference is only appropriate “[i]n the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee’s constitutionally protected rights.” Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 2079-2080, 48 L.Ed.2d 684 (1976). In the present case, it is my opinion that Hughes’ first amendment activities substantially involve matters of public concern. In this regard the holding of Connick v. Myers is inapposite; rather, Givhan is more on point. In Givhan the Supreme Court upheld the first amendment right of a public employee who speaks out “on a matter of general concern, not tied to a personal employment dispute but arranges to do so privately.” Connick v. Myers, 103 S.Ct. at 1691 n. 8. Hughes’ transfer was not tied to any personal employment dispute with his employer. According to Hughes, he was transferred for, among other things, privately informing his superiors that he was investigating possible wrongdoing by members of the Patrol, including Lt. Elmore, and for instituting investigations about possible large scale drug smuggling in the area. These are certainly matters of public concern, quite dissimilar to Connick’s questionnaire. Thus, although the majority is correct in its assertion that the Patrol does have a large degree of discretion over its personnel matters, the Patrol may not abuse that discretion to stifle the first amendment rights of its employees. Barrett v. Thomas, 649 F.2d 1193, 1199-1200 (5th Cir.1981). And it is particularly within the judiciary’s ken to stop the executive from exercising its powers in an unconstitutional manner. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-76, 2 L.Ed. 60 (1803). Civil law enforcement is not sufficiently similar to military combat service that the judiciary should abdicate its duty to safeguard first amendment rights. See Barrett v. Thomas, 649 F.2d at 1198-99 & n. 9; Tygrett v. Barry, 627 F.2d at 1283 & n. 3; Gasparinetti v. Kerr, 568 F.2d 311, 315 n. 16 (3d Cir.1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978); Hanneman v. Breier, 528 F.2d 750, 754 (7th Cir.1976). As the Supreme Court has so forcefully stated: “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights,” particularly first amendment rights. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967).

2. Hughes’ Interests

Conversely, the majority has given short shrift to Hughes’ first amendment interests. First, the majority fails to take into account Hughes’ significant interest in freely associating with others, both politically and socially. The majority does not even mention Hughes’ political associations and activities in its discussion of Hughes’ countervailing interests, except to intimate that Hughes’ association with Trieman was limited to improper on-the-job association. As noted above, the Patrol’s own records show that Hughes’ on-the-job presence in Mountain View was needed and appreciated. Rather, it was Hughes’ off-duty association with Trieman that concerned Hughes’ superiors. See supra Dissenting Opinion at 1432-1433. The importance of the first amendment right to political association should not be so lightly regarded.

The majority’s conclusion also undervalues the social worth of Hughes’ investigations into the alleged misconduct of his superiors. Hughes’ activities were not merely internal or personal squabbles with his superiors, but rather were aimed at matters of significant public concern. See Con-nick v. Myers, 103 S.Ct. at 1689-91. Hughes’ investigations of Lt. Elmore’s son’s drug involvement did not relate solely to Elmore’s son. They were also concerned with Lt. Elmore’s possible complicity through leaking information about the investigation to his son. The public has a compelling interest in knowing if their offi*1436ciáis are guilty of misconduct. Id. at 1690-91; Ateherson v. Siehenmann, 605 F.2d 1058,1063 (8th Cir.1979). Hughes’ membership in the Patrol places him in a unique position to investigate and expose acts of misconduct within the Patrol. As such, Hughes’ investigatory activities deserve substantial protection from retaliatory actions by the Patrol. Pickering, 391 U.S. at 572, 88 S.Ct. at 1736; Atcherson v. Siebenmann, 605 F.2d at 1063 (“[T]he creation of disharmony cannot be so feared as to silence the critic who would inform the public of this misbehavior by public officials.”); Redish, The Value of Free Speech, 130 U.Pa.L.Rev. 591, 611-16 (1982).

In my view, Hughes’ first amendment interests are quite substantial. Of course, federal courts should not underestimate the disruption that can be created by an employee’s first amendment activities. But the first amendment is not “short-sighted.” The first amendment’s purpose is to guarantee that “the long term gains of robust debate” are realized. Porter v. Califano, 592 F.2d at 779. Just as the public weal demands that police carry out their duties efficiently, the public weal also demands that the police discharge their duties in an honest and competent manner. To ensure that public officials fulfill their duty to the public, the public must be informed of official misconduct. Williams v. Board of Regents, 629 F.2d 993, 1003 (5th Cir.1980) (“The falsification of an official document by one official for the protection of another official is such a grave miscarriage of the public trust that such conduct must be disclosed to the public if the people are to remain the true sovereigns in this country.”), cert. denied, 452 U.S. 926, 101 S.Ct. 3063, 69 L.Ed.2d 428 (1981). This case illustrates the short-sighted and debilitating fallacy that regimental efficiency must be placed above freedom. The record shows that the initial decline in morale at Troop “G” was not caused by Hughes’ activities. Rather, it was the command staff’s reaction to Hughes’ activities that caused the troopers to feel uneasy. In fact, morale has worsened since Hughes’ departure. The record is replete with testimony of troopers’ fear of speaking against their superiors. The troopers have been pressured into sheepish compliance and no longer feel free to enforce the law equally against all persons. Tr. at 156-57, 160, 171, 173-74, 177. Indeed, at least two state officials have used the Hughes transfer as a means to quash dissent. Tr. at 157, 320-21, 391. The majority has ignored this effect on the other troopers in weighing Hughes’ first amendment interests. Instead, the opinion in effect holds that because Hughes’ activities caused dissension, ipso facto the Patrol’s interests must prevail. Yet, the first amendment “requires the government not just to show that certain employee speech injures the government, but to show that the benefits of preventing the injury actually outweigh the profound benefits of free speech in this society.” Porter v. Califano, 592 F.2d at 779. Here the chilling effect of the Patrol’s reaction to Hughes’ “upstart” activities is readily apparent. It is also readily apparent that there is still dissension and disruption within Troop “G.” But dissension and disruption are often “the price the first amendment exacts in return for an informed citizenry,” Monsanto v. Quinn, 674 F.2d at 1001, and they are often the regrettably necessary catalysts for reform aimed at increased governmental accountability and efficiency.

B. Substantial Motivating Factor

The majority opinion states that “Hughes’ transfer was wholly unrelated to his purported corruption exposing activities because there was no proof that Hughes’ allegations were true, there was no showing that Hughes told the Patrol’s command staff about his investigations, and the evidence clearly showed that Supt. Whitmer or Maj. Hoffman never knew about or interfered with Hughes’ investigations. Besides, the majority says, the real reason Hughes was transferred was to quell dissension and the dissension was only tangentially related to Hughes’ investigations. As mentioned above, this reasoning misses Hughes’ point and disregards Hughes’ portion of the record evidence. Hughes introduced probative *1437evidence that he did tell others about his investigations and that through Lt. Elmore this information reached Supt. Whitmer and those to whom Supt. Whitmer delegated responsibility in this matter. At the very least Supt. Whitmer knew about Hughes’ investigation at Mountain View Airport and about Hughes’ investigation of Lt. Elmore and his son. Supt. Whitmer also knew about the state legislator’s and Lt. Elmore’s bitter reaction to these investigations. I also find it irrelevant that Hughes’ investigations might not have exposed any real wrongdoing or that Hughes did not publicly announce the results of these investigations. What is important is that there is substantial evidence that shows Hughes was transferred for initiating these investigations. Investigation is the first step in exposing governmental misconduct. It is also the stage of the first amendment process that can be quashed most easily.

More importantly, the majority never weighs Hughes’ political associations and activities in its Pickering balance, although the record shows that Supt. Whitmer also knew about these activities and knew how his command staff felt about Hughes’ involvement with “known politicians.” The majority opinion does not take Hughes’ political association into account because it concludes that Hughes’ off-duty political association with Claud Trieman was not a “ ‘motivating factor’ behind the transfer decision, let alone the ‘but for’ cause of the transfer decision,” citing Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576. See supra Majority Opinion at 1424. Insofar as this statement holds that a plaintiff bears the burden of proving that his first amendment activity is the “but for” cause of the government’s sanctions in order to prevail, I must disagree. The plaintiff in a first amendment retaliation case need only show that his first amendment activity was a substantial, or a motivating factor in the government’s decision to impose sanctions on him. Mt. Healthy, 429 U.S. at 287 & n. 2, 97 S.Ct. at 576 & n. 2. Once this is done, the government has the burden of proving that it would have taken the same action if the plaintiff had not engaged in first amendment activity. In light of the Disciplinary Report which spells out Hughes’ off-duty political associations as one of the reasons why he should be transferred, it seems plain that Hughes’ political associations were at least a motivating factor in the Patrol’s decision to transfer him.

As a final matter, it must be noted that the district court chose to disbelieve the Patrol’s proffered reason for Hughes’ transfer. Instead, the district court found, as fact, that Hughes’ transfer was a disciplinary measure. Hughes’ Disciplinary Report lists Hughes’ investigations and political association with Trieman as the principal reasons why Hughes should be disciplined. Thus, the district court’s finding lends added credence to the conclusion that Hughes’ first amendment activities were a substantial motivating factor in the Patrol’s decision to transfer Hughes.

C. The Patrol’s Rebuttal

Once it is determined that Hughes’ first amendment interests outweigh the Patrol’s interests in efficiency and discipline, the Patrol may not take a second bite of the apple by asserting Hughes’ transfer was necessary because Hughes’ presence in Troop “G” created intolerable disruption and inefficiencies within the Patrol. This is especially true in light of evidence that shows the dissension was originally created by the command staff’s reaction to Hughes’ first amendment activities. In presenting a rebuttal argument, the Patrol may rely only on Hughes’ recent, non-protected activities. Waters v. Chaffin, 684 F.2d 833, 839 (11th Cir.1982). The present record reveals no such activities that would make a remand fruitless.

IV. WHY A REMAND IS NECESSARY

The majority cogently points out that “[fjree speech claims are not to be considered in a vacuum, but must be viewed in light of the circumstances and in context with all relevant conditions existing at the time of the asserted free speech activities.” *1438Supra at 1425. I could not agree more. This court has repeatedly emphasized that it cannot and will not review sensitive first amendment issues de novo. See, e.g., Nathanson v. United States, 702 F.2d 162, 165 (8th Cir.1983); Brockell v. Norton, 688 F.2d 588, 593 (8th Cir.1982). The primary reason why I have explored Hughes’ evidence in such detail is to show that there still remains a sharp dispute on the facts. The majority, after a thoughtful reading of the record, has adopted the Patrol’s version of the truth, and I have presented Hughes’ version of the truth. The only way this dispute can be resolved is to have the trier of fact make the necessary credibility determinations and findings of fact. I must emphasize that this does not mean that I accept Hughes’ “facts” as proven and true. Truth is subjective. In our trial system of dispute resolution, the official “objective” factual truth is a matter for the trier-of-fact to decide. I would leave the initial task of finding the “objective” factual truth in this case to the district court. A court of appeals is just not able to make credibility determinations from a faceless record. See British Airways Board v. Port Authority of New York, 558 F.2d 75, 82 (2d Cir.1977) (“Basic tenets of fairness require that a federal appellate court should not consider an issue involving questions of fact not resolved below.”). The great disparity between the majority’s reading of the record and my reading of the record highlights this truism.

Recently, the Second Circuit grappled with a similar situation. In MacFarlane v. Grasso, 696 F.2d 217 (2d Cir.1982), a National Guardsman claimed that he was denied an appointment (promotion) as a stock control officer in the Connecticut Army National Guard. Among other causes of action, the Guardsman alleged that the denial was in retaliation for his exercise of his first amendment rights. It seems that the guardsman wrote a letter to Governor Grasso defending himself against charges that he “buzzed” a nuclear submarine during a training flight. He also addressed letters on the same subject to a Major General Freund within the Guard, the Inspector General of the First United States Army, and the Office of Army Inspector General in Washington, D.C. These letters also complained about the treatment he received from Major General Freund in processing his defense against the “buzzing” charge. The Guardsman also made an oral complaint to an official of the National Guard Bureau.

Subsequently, the Guardsman applied for a promotion with a battalion at Groton, Connecticut. His application was reviewed by Adjutant General Freund (the man he complained to and about in his letter campaign to clear the submarine “buzzing” charge). The application was denied and the Groton depot told the Guardsman that he would not be appointed because the battalion had a policy of promoting from within. The Guardsman sued.

The district court dismissed the first amendment charges for failure to state a claim. The district court said the Guard would have rejected the Guardsman’s application without regard to his speech due to its policy of promotion from within. On appeal the Second Circuit reversed and remanded on the first amendment issue. The court stated that even though there was a strong indication that the Guard’s policy of promoting from within would meet the Mt. Healthy v. Doyle rebuttal test, the Guardsman still deserved an opportunity to offer his proof as to whether his internal communications were protected speech. This was true even though the plaintiff was a member of a military organization and only spoke about members of that organization to other members of that organization. The court further held that the Guardsman did not give up his first amendment freedoms upon joining the military and that he had the right to have the district court make findings on his first amendment allegations. See MacFarlane v. Grasso, 696 F.2d at 224-25.

An analogous situation exists in the present case. As in MacFarlane, Hughes, a member of a para-military organization, made disparaging remarks about fellow members of that organization to other *1439members of that organization. As in MacFarlane, Hughes’ allegations should be aired and resolved in the first instance by the district court. Hughes’ allegations that his transfer was ordered in retaliation for his political association and investigatory activities also deserve first amendment scrutiny by the trier of fact. Accordingly, I would adhere to our previous precedent and remand this case to the district court for findings of fact on the first amendment issue. See Brockell v. Norton, 688 F.2d at 593-94.

. It should be noted that at least two troopers testified they feared that there would be reprisals against them if they testified adversely to their superiors. See, e.g., Tr. at 156-57, 160, 171, 173-74, 131. Whether this fear was more imagined than real is irrelevant. The fact remains that the troopers felt this fear when they testified. Only the district court, who saw and heard the witnesses, can determine whether this fear affected the witnesses’ testimony. This factor, which cannot be appreciated by reading a cold record, is an important element in determining the credibility of the testimony and, concomitantly, in deciding disputed questions of fact. This factor amplifies the need to *1430remand this case so that the trier of fact can resolve the factual disputes.

. This finding of fact was related to Hughes’ due process count. The district court did not reach the merits of Hughes’ first amendment claim in granting the preliminary injunction against the Patrol.

. The majority comments that the dissenting opinion offers no case support for the “questionable proposition” that a court should not defer to the judgment of a litigant when confronted with first amendment issues. See supra Majority Opinion at n. 13. I offer the above authorities, and those cited infra at note 6, for support. See also Connick v. Myers, - U.S. -, 103 S.Ct. 1684, 1692 n. 10, 75 L.Ed.2d 708 (1983) (collecting cases which hold that even after the trier-of-fact determines the historical facts, the appellate court must exercise its own independent judgment about the constitutional significance of those facts when first amendment rights are at stake).

. See supra Dissenting Opinion note 3.

. See supra Dissenting Opinion note 3.

. The majority seems to imply that we should apply the clearly erroneous standard of review to the Patrol’s “findings of fact.” I cannot agree. If anything, we should view the Patrol’s self-serving after-the-fact exculpatory statements with skepticism. The proper course this court should take is to apply the clearly erroneous standard of review to the trier-of-fact’s findings. Because there are none in this case, I would remand the case to the district court. Also many cases have held that in the area of first amendment rights the court must view the government’s self-serving after-the-fact justifications of its actions with studied skepticism. In doing so, the courts must exercise their independent judgment on the constitutional significance of the historical facts of the case. And in no event is the government’s claim of dissension to be determinative in the Pickering balance. See, e.g., Peacock v. Duval, 694 F.2d 644, 648 (9th Cir.1982); Monsanto v. Quinn, 674 F.2d 990, 998-99 (3d Cir.1982); Tygrett v. Barry, 627 F.2d 1279, 1283 (D.C.Cir.1980); Porter v. Califano, 592 F.2d 770, 773-74 (5th Cir. 1979); Bernasconi v. Tempe Elementary School District, 548 F.2d 857, 862 (9th Cir.1977), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 82 (1977). I agree with the majority that dissension certainly did exist in Troop “G.” I disagree, however, that we must defer to the Patrol’s judgment that Hughes’ transfer was appropriate in a constitutional sense, i.e., that Hughes’ first amendment activities caused the dissension and that the disabling effect of the dissension within Troop “G” outweighs Hughes’ first amendment rights. See also Connick v. Myers, - U.S. -, 103 S.Ct. 1684, 1692 n. 10, 75 L.Ed.2d 708, and the discussion of the Connick holding infra at 1434-1435.

. See supra Dissenting Opinion note 3.