Kinney v. Weaver

REVISED SEPTEMBER 24, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

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, Lufkin
_________________________________________________________________
July 31, 2002

Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL,
District Judge.*

KING, Chief Judge:

*
District Judge of the Eastern District of Texas, sitting
by designation.
 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,1 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 and Fourteenth Amendments, (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 appeal the district court’s order

denying their summary judgment motion that asserted qualified

immunity against the federal claims and state-law immunity

against the tort claim. For the following reasons, we AFFIRM the

district court’s order holding that the law enforcement officials

are not entitled to qualified immunity against the § 1985 claim

or the § 1983 First Amendment claim, or to state-law immunity

against the tort claim, and we REVERSE that court’s order holding

that those officials do not have qualified immunity against the

§ 1983 due process claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

1
Originally, Kinney and Hall named an eighth official and
his agency of employment as defendants, but the district court
granted a subsequent agreed motion to dismiss Kinney and Hall’s
complaint against these two parties.

2
 Viewing the summary judgment record in the light most

favorable to the non-moving parties, i.e., Dean Kinney and David

Hall, the facts are as follows. See Kemp v. G.D. Searle & Co.,

103 F.3d 405, 406 (5th Cir. 1997) (setting out the facts in the

light most favorable to the non-moving party in reviewing a

summary judgment). At the time of the events giving rise to

their claims in the instant 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. At the time of the events giving rise to the

instant case, Kinney and Hall had been working at the ETPA for

seventeen years and six years, respectively, under renewable one-

year employment contracts. The law enforcement officials

asserting qualified immunity in this case are chiefs of police or

sheriffs who possess final authority over the training of the

officers employed by their respective agencies (collectively

“the Police Chiefs and Sheriffs”). Before the fall of 1998, the

Police Chiefs and Sheriffs enrolled their officers in ETPA

courses on a regular basis, including courses taught by Kinney

and Hall.

In August 1998, Kinney and Hall testified as expert

witnesses for the family of Edward Gonzales, a seventeen-year-old

who was fatally shot by a police officer employed by the city of

3
Kerrville (“the Kerrville case”).2 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.” Although Kinney and Hall made fee arrangements with

the attorney who represented Gonzales’s family in their wrongful

death action against the officer and the city, Kinney and Hall

decided shortly after they were deposed 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.”

Shortly after Kinney and Hall testified in the Kerrville

case, William Holda, the president of Kilgore College, received

letters from some of the Police Chiefs and Sheriffs denouncing

Kinney’s and Hall’s expert testimony for the Kerrville case

plaintiffs and threatening to stop using the ETPA for officer

training. In a letter dated September 15, 1998, Kilgore Director

of Public Safety Ronnie Moore3 told Holda that he was concerned

2
The Kerrville case did not involve an officer who had
been trained at the ETPA or a law enforcement agency that sent
students to the ETPA, as Kerrville lies outside the region of
Texas from which the ETPA draws its students.
3
As director of public safety for the city of Kilgore,
Moore supervised the city’s police and fire departments.

4
about Kinney’s and Hall’s recent inquiries regarding a case

initiated by Kilgore’s police department because “[i]t is a well

known fact within this agency that these instructors had

previously testified in another matter, against other Officers.”

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

Kinney’s and Hall’s expert testimony. Specifically, he wrote, “I

think it is deplorable . . . that instructors for our Police

Academy hire themselves out as an expert witness: AGAINST law

enforcement agencies” (emphasis in original). Williams stated

further that “[t]he Marshall Police Department will not attend

any courses taught by 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 an envelope from an anonymous source containing

the three newspaper articles that Williams attached to his letter

5
to Holda. In addition to the articles, the envelope contained a

note telling Williams to contact Moore for more information,

which Williams did shortly after receiving the envelope.

Williams forwarded copies of his September 29, 1998 letter and

the attached articles to Moore and four of the other Police

Chiefs and Sheriffs, 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, “I am greatly disturbed by the recent news that [David

Hall and Dean Kinney] have acted in the capacity of ‘Expert

Witnesses’ to testify against another law enforcement agency and

it’s [sic] officers.” He emphasized he was “voic[ing] [his]

concern, 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 Chiefs’ 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.”

6
 In an attempt to address these 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 it was unacceptable for Mr. Hall and

Mr. Kinney to continue as instructors of officers and recruits

and also testify in litigation against police officers,” 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.” Moore, Williams, and Green subsequently agreed

to use the ETPA on the condition that their officers would not be

instructed by Kinney and Hall, but Young continued to insist that

Kinney and Hall be removed from the ETPA faculty.

Shortly after the September 30 meeting, Holda met with

Kinney and Hall to apprise them of the Police Chiefs’ and

Sheriffs’ condemnation of Kinney’s and Hall’s work in the

Kerrville case. Kinney and Hall assured Holda that they would

never testify as experts against any officer who had been trained

at the ETPA or any agency that had sent officers to the ETPA for

training.4 Kinney further promised that he would not accept

4
Kinney and Hall made clear, however, that if compelled to
testify in a case involving an officer whom they had trained at
the ETPA, they would testify truthfully as to whether the officer

7
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.

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 Chiefs and

Sheriffs were present.5 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 stood up and 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 their officers were not trained by Kinney or Hall.

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].”

had acted in accordance with their training.
5
Smith did not personally attend, but rather sent a
representative.

8
 A number of local media organizations reported on the

controversy that arose out of Kinney’s and Hall’s expert

testimony against a law enforcement officer and agency. On

television and in print, Defendants Young, Weaver, Williams, and

Smith are documented announcing their intention either to bar

their officers from taking Kinney’s and Hall’s courses or to use

a training institution other than the ETPA. Smith was quoted as

stating that Kinney and Hall “prostituted themselves . . . in a

case that did not involve them and that’s wrong.” Weaver told a

television reporter that Kinney and Hall had violated “an

unwritten code.”

The Police Chiefs and Sheriffs followed through on their

threat to boycott Kinney’s and Hall’s courses by both cancelling

current enrollment and disallowing future enrollment of their

officers in Kinney’s and Hall’s courses. 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 removed from the schedule, and many of their

off-campus classes had been cancelled.

Aware that the enrollment in his courses was down and thus

anticipating that his ETPA contract would not be renewed at the

9
end of the 1998-1999 academic year, Hall resigned from the ETPA

on January 3, 1999, because he was concerned that he would not be

able to support his family if his compensation was substantially

decreased. 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 continued working as an ETPA instructor until his

contract for the 1998-1999 academic year expired on August 31,

1999. During this period, the boycott remained in effect. The

ETPA double-booked all Kinney’s classes on the 1999 schedule to

ensure that the law enforcement agencies that refused to enroll

their officers in Kinney’s courses would have alternatives at 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 on August 24, 25, and 26, 1999, the Police Chiefs and

Sheriffs 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 for a lecturer

position in the Criminal Justice Department of Kilgore College

for the following 1999-2000 academic year. The salary for this

position was $15,000 less than Kinney earned as an ETPA

10
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 Police Chiefs and Sheriffs,

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.”

Kinney and Hall claimed that in taking such action, the

defendants had violated: (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 law. The

defendants (both the law enforcement officials and the entities)

moved for summary judgment on the merits of all four claims, and

the Police Chiefs and Sheriffs also asserted qualified and state

law immunity defenses. The district court denied the defendants’

summary judgment motion on all grounds. Kinney v. Weaver, 111 F.

Supp. 2d 831 (E.D. Tex. 2000). The Police Chiefs and Sheriffs

11
now appeal the district court’s denial of summary judgment on

their qualified and state law immunity defenses.

II. JURISDICTION OVER AN INTERLOCUTORY APPEAL OF A DISTRICT
COURT’S DENIAL OF QUALIFIED IMMUNITY

We must first address our jurisdiction to hear the Police

Chiefs’ and Sheriffs’ interlocutory appeals. Under the

collateral-order doctrine, a denial of summary judgment based on

qualified immunity is immediately appealable as a “final

decision” under 28 U.S.C. § 1291 (1994)6 “to the extent that

[such a denial] turns on an issue of law.” Mitchell v. Forsyth,

472 U.S. 511, 530 (1985). To deny a summary judgment motion

based on qualified immunity, a district court must determine both

(1) that certain conduct “violate[d] clearly established

statutory or constitutional rights of which a reasonable person

would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982), and (2) that a genuine issue of fact exists regarding

whether the defendant engaged in such conduct. See Colston v.

Barnhart, 146 F.3d 282, 284 (5th Cir. 1998) (on petition for

rehearing en banc). The latter conclusion is not immediately

appealable, as “such conclusions are nothing more than a

determination of the sufficiency of the evidence —— a finding

which, in turn, is not truly separable from the underlying claim

and thus is not a ‘final order’ under the collateral order

6
Section 1291 provides that “[t]he courts of appeals . . .
shall have jurisdiction of appeals from all final decisions of
the district courts of the United States.” 28 U.S.C. § 1291.

12
doctrine.” Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d

629, 634 (5th Cir. 1999); see also Johnson v. Jones, 515 U.S.

304, 313 (1995) (holding that “the District Court’s determination

that the summary judgment record in this case raised a genuine

issue of fact concerning [whether the officials engaged in the

conduct alleged by the plaintiff] was not a ‘final decision

within the meaning of [28 U.S.C. § 1291]”). Rather, on

interlocutory appeal we may review only the purely legal question

whether the plaintiff alleges a violation of a clearly

established right of which a reasonable person would have known.

See Johnson, 515 U.S. at 313, 319; Mitchell, 472 U.S. at 528 n.9.

Accordingly, “we can review the materiality of any factual

disputes, but not their genuineness.” Wagner v. Bay City, 227

F.3d 316, 320 (5th Cir. 2000). “In making this legal

determination on the materiality of the facts at issue, we review

the complaint and record to determine whether, assuming that [the

plaintiff’s version of the facts is] true, those facts are

materially sufficient to establish that [the] defendants acted in

an objectively unreasonable manner [in light of clearly

established law].” Chiu v. Plano Indep. Sch. Dist., 260 F.3d

330, 341 (5th Cir. 2001) (citation and internal quotations

omitted).

Kinney and Hall assert that we are without jurisdiction to

consider an interlocutory appeal of the district court’s order

denying qualified immunity because the court based that order on

13
its determination that genuine issues of fact exist as to whether

the Police Chiefs and Sheriffs boycotted Kinney’s and Hall’s

courses in retaliation for their truthful testimony in the

Kerrville case. However, the district court’s denial of summary

judgment was also based on the court’s conclusion that such a

boycott violated Kinney’s and Hall’s clearly established rights.

See Kinney, 111 F. Supp. 2d at 837, 840-43. The Supreme Court

has made clear that appellate review of that conclusion is not

precluded by the fact that the district court also determined

that the record establishes genuine issues of fact as to whether

the conduct in question occurred. See Behrens v. Pelletier, 516

U.S. 299, 313 (1996) (reaffirming that a government official may

“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’”).

As the Police Chiefs and Sheriffs point out, for purposes of

this appeal, they do not challenge the district court’s

determination that there is a genuine issue of fact regarding

whether they engaged in the conduct attributed to them by Kinney

and Hall. Rather, the Police Chiefs and Sheriffs challenge only

that court’s determination that such conduct was objectively

unreasonable in light of law that was clearly established at the

time of the alleged violations. Thus, we have jurisdiction over

14
the Police Chiefs’ and Sheriffs’ interlocutory appeals of the

district court’s order denying them qualified immunity.7

III. STANDARD OF REVIEW

We review de novo a district court’s denial of a summary

judgment motion, including those based on qualified immunity.

Chiu, 260 F.3d at 342. As discussed above, we have jurisdiction

to review interlocutory appeals from a denial of qualified

immunity only to the extent that the denial turns on purely legal

questions. Thus, we do not apply the same Rule 56(c) standard as

the district court because we do not determine whether the record

establishes genuine factual issues. Compare Wagner, 227 F.3d at

320 (“In deciding an interlocutory appeal of a denial of

qualified immunity, we can review the materiality of any factual

disputes, but not their genuineness.”), with Walker v. Thompson,

214 F.3d 615, 624 (5th Cir. 2000) (“[S]ummary judgment will be

affirmed only when [we are] convinced, after an independent

7
Although the briefs submitted by both parties in this
case address only the issue whether the district court properly
denied the Police Chiefs’ and Sheriffs’ claims of qualified
immunity in their summary judgment motion, the notices of appeal
filed with this court name not only the Police Chiefs and
Sheriffs, but also the cities, counties, and the East Texas
Police Chiefs’ Association. Of course, the doctrine of qualified
immunity applies only to officials, and thus the portion of the
summary judgment motion addressing Kinney’s and Hall’s claims
against the cities, counties, and the East Texas Police Chiefs’
Association attacked those claims solely on their merits.
Because a district court’s order denying summary judgment based
on the merits of claims 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.

15
review of the record, that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”) (internal quotations omitted).

Accordingly, the proper inquiry in the instant appeal is

whether the district court was correct in determining that the

facts alleged by Kinney and Hall were materially sufficient to

establish that the Police Chiefs’ and Sheriffs’ conduct was

objectively unreasonable in light of law that was clearly

established at the time of the alleged violations. As the Court

held in Mitchell, our inquiry is a purely legal one: assuming as

true the facts alleged by the plaintiff that the district court

determined to be in genuine dispute, we determine whether those

facts “support a claim of violation of clearly established law.”

472 U.S. at 528 n.9.8

IV. QUALIFIED IMMUNITY

Under the doctrine of qualified immunity, “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 pointed out

8
The district court determined that there is a genuine
factual dispute regarding whether the Police Chiefs and Sheriffs
retaliated against Kinney and Hall for testifying against law
enforcement officers by taking actions (such as complaining to
Holda and agreeing to boycott Kinney’s and Hall’s classes)
intended to force Kilgore College to remove Kinney and Hall from
the ETPA faculty. See Kinney, 111 F. Supp. 2d at 834-35.

16
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.

However, the Court recognized that there may be “extraordinary

circumstances” in which a government official “can prove that he

neither knew nor should have known of the relevant legal

standard” even though it was “clearly established.” Id. at 819.

Not long after Harlow, the Court refined the qualified-immunity

standard by defining “clearly established” in a way that

encompasses this “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 determination

“whether a . . . 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 also clarified in Anderson that its

explication of the “clearly established” standard does not mean

17
“that an official action is protected by qualified immunity

unless the very action in question has previously been held

unlawful.” 483 U.S. at 640. Rather, conduct violates clearly

established law if “in the light of pre-existing law the

unlawfulness [is] apparent.” Id. The Court further elaborated

on the “clearly established” standard in Siegert v. Gilley, 500

U.S. 226 (1991), holding that the determination whether a right

was clearly established at the time of the alleged violation

necessarily entails a predicate “determination of whether the

plaintiff has asserted a violation of a . . . right at all.” Id.

at 232.

A. The § 1985(2) Claim

In the district court, Kinney and Hall claimed that, by

retaliating against them for their expert testimony in the

Kerrville case, the Police Chiefs and Sheriffs violated 42 U.S.C.

§ 1985(2). Under § 1985(2), it is unlawful to

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.

42 U.S.C. § 1985(2) (1994). Subsection (3) creates a cause of

action to remedy harm caused by a violation of subsection (2):

if one or more persons engaged [in such a conspiracy] 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 . . . 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.

18
Id. § 1985(3).

The Police Chiefs and Sheriffs contend that Kinney’s and

Hall’s § 1985(2) claims cannot withstand the “clearly

established” test because it would not have been apparent to a

reasonably competent official in October 1998 (when the East

Texas Police Chiefs’ Association held the meeting at which the

Police Chiefs and Sheriffs agreed not to attend Kinney’s and

Hall’s classes) that the Police Chiefs’ and Sheriffs’ conduct

violated § 1985(2). The Police Chiefs and Sheriffs make three

arguments in support of this position.

First, citing the Supreme Court’s decision in Kush v.

Rutledge, 460 U.S. 719 (1983), the Police Chiefs and Sheriffs

note that for many years, the circuit courts of appeals

interpreted the statute now codified as 42 U.S.C. § 1985(2) to

prohibit only racially motivated retaliation. However, although

the Kush Court did note that some circuits, including this

circuit, had read a racial-animus requirement into § 1985(2), 460

U.S. at 723, the Court rejected that reading, holding that racial

animus is not necessary to establish a § 1985(2) violation, id.

at 726-27 (“[I]t is clear that Congress did not intend to impose

a requirement of class-based animus on persons seeking to prove a

violation of their rights under the first clause of § 1985(2).”).

Thus, it is not necessary for Kinney and Hall to allege racial

animus in order to assert a violation of § 1985(2). In addition,

Kush —— a decision issued in 1983 —— leaves no doubt that it was

19
clearly established well before the alleged violations in the

instant case occurred that § 1985(2)’s application is not limited

to cases involving racial animus.

Second, the Police Chiefs and Sheriffs argue that it was not

clearly established that Kinney and Hall had claims under

§ 1985(2) because it is not clear that the “witnesses” protected

by this provision include expert witnesses. The Police Chiefs

and Sheriffs note that the statute prohibits a conspiracy to

injure a person because that person testified “truthfully”

arguing that expert witnesses testify as to their opinions, which

are neither true nor false. The district court, however, agreed

with Kinney and Hall that the terms of the statute make clear

that expert witnesses are protected. The court pointed out that

§ 1985(2) specifically refers to “any” witness, rejecting the

argument that the reference to truthful testimony excludes expert

witnesses. Kinney, 111 F. Supp. 2d at 837. In so concluding,

the district court reasoned that “[e]xpert witnesses take the

same oath that non-experts take,” i.e., “they swear to tell the

truth and nothing but the truth.” Id.

We agree with the district court that the plain language of

the statute does not permit a contrary reading. As the district

court pointed out, the language of the statute is sweeping. On

its face, § 1985(2) applies to “any party or witness.” That the

protected right is the right to testify “truthfully” cannot, as

the Police Chiefs and Sheriffs suggest, reasonably be interpreted

20
as limiting the statute’s protection to “fact” witnesses.

Indeed, the premise underlying Kinney’s and Hall’s claims is that

they have the right to testify freely as to what is in truth

their opinion.

We also conclude that it would have been apparent to

reasonably competent officials at the time of the alleged

violations in this case that § 1985(2) proscribes conspiracies to

intimidate or injure expert witnesses. In support of their

argument that a reasonably competent official might have believed

that § 1985(2) did not protect expert witnesses, the Police

Chiefs and Sheriffs point out that neither the Supreme Court nor

this court has specifically held that expert witnesses fall

within the purview of § 1985(2). The Police Chiefs and Sheriffs

incorrectly assume that a legal rule can be clearly established

only pursuant to judicial decisions. The doctrine of qualified

immunity assumes that reasonably competent officials know clearly

established constitutional or statutory rights. Certainly, there

may be circumstances in which a judicial opinion is necessary to

clarify sufficiently that particular conduct violates the

statutory provision invoked by the plaintiff. Such judicial

clarification is not necessary, however, in interpreting

§ 1985(2). Subsection 1985(2) was in effect in October 1998,

clearly deeming it unlawful to “conspire to deter, by force,

intimidation, or threat, any . . . witness.” Thus, we conclude

that it would have been objectively unreasonable for the Police

21
Chiefs and Sheriffs to believe that retaliation against Kinney

and Hall for their testimony in the Kerrville case was lawful

under § 1985(2) simply because Kinney and Hall testified as

expert witnesses.

Finally, the Police Chiefs and Sheriffs argue that it was

not clearly established in October 1998 that the conduct in

question would injure Kinney and Hall in their “person[s] or

property,” as required by § 1985(2) and (3). Pointing out that

they were not contractually obligated to send their officers to

the ETPA or to any particular instructor for training, the Police

Chiefs and Sheriffs argue that it was not clearly established

that Kinney and Hall had a property interest in the Police

Chiefs’ and Sheriffs’ enrollment of their officers in Kinney’s

and Hall’s courses. The Police Chiefs and Sheriffs further

contend that Kinney’s and Hall’s employment at Kilgore College

was at-will, which does not establish a property right under

Texas law and thus is not a property interest for purposes of the

Due Process Clause. Consequently, the Police Chiefs and Sheriffs

argue, it would have been reasonable for an officer to believe

that at-will employment was not “property” for purposes of

§ 1985(2).

In response to this argument, Kinney and Hall do not take

the position that they were not at-will employees, but rather

rely on Haddle v. Garrison, 525 U.S. 121 (1998), in which the

Supreme Court held that “third-party interference with at-will

22
employment relationships[] states a claim for relief under

§ 1985(2).” Id. at 126. In Haddle, the 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,” “we see no

reason to ignore th[e] tradition” in tort law of compensating for

“[t]he kind of interference with at-will employment relations

alleged here.” Id. at 125-26. The Police Chiefs and Sheriffs,

however, dismiss Haddle as irrelevant to this case because it was

issued on December 14, 1998, after the events of October 1998.

Although a decision such as Haddle, which holds that the

very conduct in question constitutes a violation of the right

invoked by the plaintiff, is not necessary to establish that a

reasonably competent official would have understood that the

conduct was unlawful, Anderson, 483 U.S. at 640, we agree with

the Police Chiefs and Sheriffs that it was not clearly

established as of October 1998 that the “property” contemplated

by § 1985(2) included at-will employment. As the Police Chiefs

and Sheriffs point out, the Court granted certiorari in Haddle to

resolve a circuit conflict on the question whether at-will

employment is “property” within the meaning of § 1985(2). 525

U.S. at 124. Further, as of the Court’s Haddle decision, this

circuit had not come down on one side or the other of the

§ 1985(2) “property” issue. Thus, given the absence of a

definitive judicial interpretation of “property” for purposes of

23
§ 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.

However, the alleged conduct that forms the basis of

Kinney’s and Hall’s § 1985(2) claims did not all take place in or

before October 1998. Subsection 1985(3) creates a cause of

action for injury to person or property caused by “any act in

furtherance of the object of [a] conspiracy [to injure a witness

in retaliation for his or her testimony].” § 1985(3) (emphasis

added). Kinney and Hall have alleged that the Police Chiefs and

Sheriffs took actions in furtherance of their conspiracy to have

Kinney and Hall removed from their ETPA positions after as well

as before the Supreme Court issued its decision in Haddle on

December 14, 1998. In particular, Kinney and Hall claim (and the

Police Chiefs and Sheriffs conceded in their depositions) that

the Police Chiefs and Sheriffs 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.

Hall’s resignation from the ETPA became effective on January 3,

1999, and Kinney’s ETPA contract expired on September 1, 1999.

Viewing the summary judgment record in the light most favorable

to Kinney and Hall, it is reasonable to infer that if the Police

Chiefs and Sheriffs had ceased their boycott of Kinney’s and

24
Hall’s courses after Haddle was issued, 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 may not have been injured.

Apparently conceding that Haddle was part of the clearly

established law while the Police Chiefs and Sheriffs continued

their boycott of Kinney’s and Hall’s courses, the dissent

maintains that, under current law, the Police Chiefs’ and

Sheriffs’ alleged conduct does not violate § 1985(2) because

“when Congress enacted [§ 1985(2)] in 1871, it could not have

intended it to extend to the facts at hand.” It is not

necessary, however, for the Congress of 1871 to have specifically

contemplated the facts of the instant case in order to justify a

conclusion that those facts constitute a violation of § 1985(2).

Moreover, the dissent’s unsupported assertions about

congressional intent are belied by portions of § 1985(2)’s

legislative history indicating that the Congress of 1871 intended

for this provision’s language regarding the rights of parties and

witnesses in federal court to have “enormous sweep.” Kush, 460

U.S. at 726 (internal quotations and citations omitted).9 This

9
The dissent correctly points out that the Kush Court
characterized Congress’s addition of “equal protection” language
to the second part of § 1985(2) as an attempt to limit the
“enormous sweep of the original language” in that part. However,
this characterization does not affect our analysis of the first
part of § 1985(2) invoked by Kinney and Hall in the instant case.
Indeed, the Kush Court discussed the legislative history of
§ 1985 in the context of distinguishing the provisions of § 1985
that Congress limited —— namely, the provisions governing

25
aspect of § 1985(2)’s legislative history supports the Haddle

Court’s conclusion that “[t]he gist of the wrong at which

§ 1985(2) is directed is . . . intimidation or retaliation

against witnesses in federal-court proceedings,” and not specific

types of injury to person or property. 525 U.S. at 125.

The dissent also maintains that Haddle does not make it

“apparent . . . that not enrolling the officers to receive

training from Plaintiffs constitutes [an] injury [to property

within the meaning of § 1985(2)].” Haddle’s applicability to the

instant case is apparent, however, when the facts at hand are

properly viewed in the light most favorable to Kinney and Hall.

The conduct that we assume is attributable to the Police Chiefs

and Sheriffs for purposes of summary judgment —— i.e., boycotting

Kinney’s and Hall’s classes in order to pressure Holda to remove

them from the ETPA faculty —— clearly constitutes interference

with Kinney’s and Hall’s employment and thus “injury in their

property” under § 1985(2) as construed by the Haddle Court.

Thus, we conclude that after Haddle, the contours of

§ 1985(2) were sufficiently clear that it would have been

“activity that is not institutionally linked to federal interests
and that is usually of primary state concern” (such as
obstruction of justice in state courts) —— from those provisions
of § 1985 that Congress did not limit —— namely, the provisions
governing activity that is institutionally linked to federal
interests. Kush, 460 U.S. at 725-26. These “federal
institutional” provisions of § 1985 —— including the provision
protecting witnesses and parties in federal court that Kinney and
Hall invoke —— still contain the original, sweeping language.
See id.

26
apparent to a reasonably competent official that the ongoing

boycott of Kinney’s and Hall’s courses violated § 1985(2). The

district court properly denied the Police Chiefs and Sheriffs

qualified immunity from the § 1985(2) claim.10

B. The § 1983 Claim Invoking the Right to Freedom of Speech
Under the First and Fourteenth Amendments

The district court also denied the Police Chiefs and

Sheriffs qualified immunity against Kinney’s and Hall’s § 1983

claims alleging that the Police Chiefs and Sheriffs unlawfully

retaliated against Kinney and Hall for exercising their rights to

free speech under the First and Fourteenth Amendments.11 The

court evaluated the summary judgment evidence in light of the law

10
The Police Chiefs and Sheriffs also argue that “all
reasonable officers in October 1998 would [not] have known that
Defendants’ actions —— furthering public safety through high-
quality training for their officers, expressing concerns over
instructors’ conflicts of interests, exercising discretion to
choose instructors for training their law enforcement officers,
maintaining confidentiality over their internal methods of law
enforcement, and preventing someone privy to sensitive and
confidential information from [testifying] as an expert witness
in future litigation against them —— would violate [§ 1985(2)].”
However, the Police Chiefs and Sheriffs are merely asserting
their version of the facts that the district court determined to
be in genuine dispute. Such assertions are appropriately made to
the jury, not to this court on interlocutory appeal. We conclude
that the Police Chiefs and Sheriffs are not entitled to qualified
immunity from Kinney’s and Hall’s § 1985(2) claims because,
assuming Kinney and Hall’s version of the facts to be true,
“those facts are materially sufficient to establish that [the
Police Chiefs and Sheriffs] acted in an objectively unreasonable
manner [in light of clearly established law].” Chiu, 260 F.3d at
341 (citation and internal quotations omitted).
11
“It has long been established that the[] First Amendment
freedoms are protected by the Fourteenth Amendment from invasion
by the States.” Edwards v. South Carolina, 372 U.S. 229, 235
(1963).

27
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 Chiefs and

Sheriffs, 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 applied in the public

employment context is also applicable to the First Amendment

claims of independent contractors who provide services to the

government. The court concluded that Kinney and Hall “are the

equivalent of a governmental independent contractor” because

“they were hired by the defendants to train their officers.”

Kinney, 111 F. Supp. 2d at 841 (citing Umbehr, 518 U.S. at 674).

The district court determined that there was sufficient

evidence to raise a genuine factual issue on each of the three

elements of a First Amendment retaliation claim in the public

employment context. First, the district court found that both

Kinney and Hall claimed that they had suffered adverse employment

actions by being forced to accept lower paying jobs as a result

of the Police Chiefs’ and Sheriffs’ boycott. Id. at 838.

Second, the court held that Kinney’s and Hall’s testimony

regarding the use of excessive force by police officers is

unquestionably a matter of public concern. Id. Finally, the

court determined that the balancing inquiry set forth in

Pickering v. Board of Education, 391 U.S. 563, 568 (1968),

weighed in favor of Kinney and Hall, i.e., that Kinney’s and

28
Hall’s “interest in commenting on matters of public concern

outweighs the defendants’ interest in promoting efficiency.”

Kinney, 111 F. Supp. 2d at 838. The court further determined

that the law under which it examined the summary judgment

evidence was clearly established at the time of the alleged

violation and that the Police Chiefs’ and Sheriffs’ conduct was

objectively unreasonable in light of that clearly established

law. See id. at 840-44.

As we noted in our analysis of Kinney’s and Hall’s § 1985

claims, the threshold issue in a qualified-immunity inquiry is

whether, “[t]aken in the light most favorable to the party

asserting the injury, . . . the facts alleged show the officer’s

conduct violated a constitutional right.” Saucier v. Katz, 121

S. Ct. 2151, 2156 (2001). Only if we determine that the facts

establish a constitutional violation do we address the “more

particularized” question whether “[t]he contours of the right

[were] sufficiently clear [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. For purposes

of both these inquiries, we assume as true the facts alleged by

Kinney and Hall, namely, that the Police Chiefs and Sheriffs

retaliated against Kinney and Hall for their testimony against a

law enforcement officer by “blackballing” them in the law

enforcement community of East Texas with the intention of forcing

Kilgore College to remove them from the ETPA faculty. See

29
Kinney, 111 F. Supp. 2d at 838 (“[T]he record demonstrates that

the plaintiffs’ speech motivated the decision to boycott their

business.”) Accordingly, we first address whether such conduct

constitutes a violation of Kinney’s and Hall’s rights to free

speech.

1. Was there a First Amendment violation?

“Throughout its history th[e Supreme] Court has consistently

recognized at least two ways in which constitutionally protected

freedom of speech is narrower than an unlimited license to talk”:

(1) “certain forms of speech, or speech in certain contexts, has

been considered outside the scope of constitutional protection,”

and (2) some governmental limitations of protected speech have

nevertheless been determined to be valid under the First

Amendment. Konigsberg v. State Bar of Cal., 366 U.S. 36, 49-51

(1961). Accordingly, we first address whether Kinney’s and

Hall’s testimony falls under the First Amendment’s protection,

and if we determine that the testimony is protected speech, we

then determine what the applicable First Amendment standard is

and whether the Police Chiefs’ and Sheriffs’ restriction of

Kinney’s and Hall’s speech violated the First Amendment.

a. Is the speech protected by the First Amendment?

There is no question that Kinney’s and Hall’s testimony in

the Kerrville case is speech protected by the First Amendment.

Testimony in judicial proceedings “is inherently of public

concern.” Johnston v. Harris County Flood Control Dist., 869

30
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). Moreover, the testimony at

issue in the instant case is of public concern not only because

of its context, but also because of its subject matter —— i.e.,

the use of excessive force by police officers. We have

repeatedly emphasized that “[e]xposure of official misconduct,

especially within the police department, is generally of great

consequence to the public.” Branton v. City of Dallas, 272 F.3d

730, 740 (5th Cir. 2001) (citing Brawner v. City of Richardson,

855 F.2d 187, 191-92 (5th Cir. 1988)); see also Davis v. Ector

County, 40 F.3d 777, 782 (5th Cir. 1994) (“There is perhaps no

subset of ‘matters of public concern’ more important than

bringing official misconduct to light.”). As speech of public

concern, Kinney’s and Hall’s testimony is “at the heart of the

First Amendment’s protection.” First Nat’l Bank v. Bellotti, 435

U.S. 765, 776 (1978).

b. What is the applicable First Amendment analysis?

Having concluded that Kinney’s and Hall’s testimony is

protected speech, we must next determine the appropriate First

Amendment analysis for evaluating the Police Chiefs’ and

Sheriffs’ conduct. The First Amendment shields speech “not only

31
[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). In the instant case, the district court

found such a denial of public benefits because the Police Chiefs

and Sheriffs retaliated against Kinney and Hall for their

testimony against law enforcement officers by boycotting Kinney’s

and Hall’s courses with the intention of compelling Kilgore

College to remove them from the ETPA faculty.

The Police Chiefs and Sheriffs suggest that their

relationship with Kinney and Hall was too attenuated to create

any power on the part of the Police Chiefs and Sheriffs to grant

or deny Kinney and Hall any benefits. Specifically, the Police

Chiefs and Sheriffs argue that their conduct did not deny Kinney

and Hall the “benefit” of employment because Kilgore College, and

not the Police Chiefs and Sheriffs, had authority to refuse to

renew Kinney’s and Hall’s contracts. We disagree: the Supreme

Court has made clear that First Amendment protection does not

depend on whether the governmental action at issue is “direct” or

“indirect.” See Perry v. Sindermann, 408 U.S. 593, 597-98 (1972)

(holding that the plaintiff teacher’s “lack of a contractual or

tenure ‘right’ to re-employment for [another] academic year is

immaterial to his free speech claim”). To hold that the Police

Chiefs’ and Sheriffs’ conduct cannot constitute a First Amendment

32
violation because they did not directly deny Kinney and Hall the

benefit of employment, but instead used governmental power to

exert economic pressure on Kinney and Hall’s employer in order to

achieve that same result, “would allow the government to ‘produce

a result which [it] could not command directly.’” Id. at 597

(quoting Speiser v. Randall, 357 U.S. 513, 526 (1958))

(alteration in original).12 “Such interference with

constitutional rights is impermissible.” Id.

The Police Chiefs and Sheriffs also contend that their

conduct does not amount to a denial of benefits actionable under

the First Amendment because their decisions on whether and where

to enroll officers are discretionary —— they had no legal

12
The dissent expresses skepticism regarding whether
“enrollment of students in a particular class with a particular
teacher [can constitute] a cognizable benefit, the withholding of
which would be protected by our First Amendment jurisprudence.”
However, when the principle enunciated by the Perry Court is
applied to the facts of the instant case (viewed in the light
most favorable to Kinney and Hall), it is evident that the Police
Chiefs and Sheriffs denied Kinney and Hall a benefit: the Police
Chiefs and Sheriffs withdrew their officers from and ceased
enrolling officers in any course taught by Kinney or Hall in
order to pressure Kilgore College to remove them from the ETPA
faculty. Further, it is important to bear in mind that the First
Amendment does not protect receipt of governmental benefits per
se, as the dissent’s argument appears to suggest, but rather
protects the speech that the government seeks to inhibit through
the denial of a benefit. Cf. Bd. of County Comm’rs v. Umbehr,
518 U.S. 668, 675 (1996) (“[T]he First Amendment does not create
property or tenure rights . . . . The First Amendment’s
guarantee of freedom of speech protects government employees from
termination because of their speech on matters of public
concern.”). As the Court explained in Perry, “if the government
could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited.” 408 U.S. at 597.

33
obligation to enroll their officers in Kinney’s and Hall’s

courses. However, whether an individual is entitled to the

benefit denied is irrelevant to our First Amendment analysis.

Governmental discretion is always bound by the Constitution. As

the Court stated in Perry:

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
infringes his constitutionally protected interests ——
especially, his interest in freedom of speech.

Id. at 597 (emphasis added).

This general principle enunciated in Perry, known as the

“‘unconstitutional conditions’ doctrine,” Umbehr, 518 U.S. at

674, has been applied in a variety of contexts. 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 Court explained in

Umbehr, “unconstitutional conditions” cases form a “spectrum”: at

one end lie 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 lie cases involving “ordinary citizens whose viewpoints on

matters of public concern the government has no legitimate

interest in repressing.” 518 U.S. at 680.13

13
The Umbehr Court noted that in between these two ends of
the “unconstitutional conditions” spectrum lie “claimants for tax

34
 The Court has determined that interest-balancing is

appropriate in “governmental employee” cases, but not in

“ordinary citizen” cases, because “[t]he government’s interest in

achieving its goals as effectively and efficiently as possible 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).

Because the government has no legitimate interest in denying a

benefit to “ordinary citizens” because of their speech on matters

of public concern, there is no interest-balancing involved in the

First Amendment analysis for “ordinary citizen” cases. Umbehr,

518 U.S. at 675-76; Blackburn v. City of Marshall, 42 F.3d 925,

932, 934 (5th Cir. 1995). Rather, the First Amendment is

violated in “ordinary citizen” cases if (1) the individual

engaged in conduct protected by the First Amendment and (2) the

government took adverse 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); N. Miss. Communications, Inc. v.

Jones, 792 F.2d 1330, 1337 (5th Cir. 1986); Sisk v. Tex. Parks &

Wildlife Dep’t, 644 F.2d 1056, 1059 (5th Cir. Unit A May 1981);

Fitzgerald v. Peek, 636 F.2d 943, 945 (5th Cir. Jan. 1981).

exemptions,” 518 U.S. at 680, (citing Speiser v. Randall, 357
U.S. 513 (1958)), “users of public facilities,” id. (citing
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.
384, 390-94 (1993)), “and recipients of small government
subsidies,” id. (citing FCC v. League of Women Voters, 468 U.S.
364 (1984)).

35
 The Supreme Court recognized the need for interest-balancing

in the public employment context and “indicate[d] some of the

general lines along which an analysis of the controlling

interests should run” in Pickering v. Board of Education, 391

U.S. 563, 569 (1968). 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

school funding decisions. See 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 568. 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 State, as an employer, in promoting the

efficiency of the public services it performs through its

employees.” Id.

In Umbehr and its companion case, O’Hare Truck Service, Inc.

v. City of Northlake, 518 U.S. 712 (1996), the Court held that

36
the “governmental employee” version of the unconstitutional-

conditions doctrine —— i.e., a 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 719-21; Umbehr, 518 U.S. at 677-78, 684-85.

The Court reasoned that the government’s “[i]ndependent

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).

Based on reasoning similar to that of the 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

37
criticized the licensing program) (“Copsey is not a public

employee. Nevertheless, the Rules and Regulations of the

[agency’s vendor licensing program] bear the mark of an

employment-type relationship.”); 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). On

the other hand, in some circumstances individuals who have a

relationship with the government beyond that of an “ordinary

citizen” are nonetheless more appropriately placed at the

“ordinary citizen” end of the Umbehr spectrum than at the

“governmental employee” end. In such cases, the “ordinary

citizen” version of the “unconstitutional conditions” doctrine is

applicable. See Blackburn, 42 F.3d at 932, 934-35.

As we explained in Blackburn, the determination whether a

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.”14 42 F.3d at 932. Applying this

14
We determined in Blackburn that there is another
situation in which balancing is appropriate; namely, if the
speech at issue does not involve matters of public concern, but
instead involves matters only of personal interest. Blackburn,
42 F.3d at 933 (citing Connick v. Meyers, 461 U.S. 138, 146-47,
154 (1983)). As we have already concluded, Kinney’s and Hall’s
testimony is speech of public concern, and thus the Connick prong

38
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. Id. at 930, 934.15

We reasoned that the business relationship between the wrecker

service owner and the police officers was similar to that between

the governmental defendant and the plaintiff 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 First Amendment claim alleging that a

county board had ceased placing legal notices in the newspaper in

retaliation for the 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 “[a]lthough the [newspaper] may have

no ‘right’ to receive certain legal advertising from the County

Board . . . 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.

of the Blackburn analysis does not apply in this case.
15
Revocation of the wrecker service owner’s permission to
use the police radio frequency rendered him unable to participate
in a rotation system for removing vehicles from the scenes of
accidents. Blackburn, 42 F.3d at 930.

39
 In arguing that Kinney and Hall were not denied any

“benefits,” the Police Chiefs and Sheriffs emphasized their lack

of employment-type ties to Kinney and Hall. In contrast, in

support of their argument regarding the appropriate First

Amendment analysis, the Police Chiefs and Sheriffs characterize

their relationship with the ETPA and ETPA instructors as

sufficiently akin to employment to warrant a balancing of the

Police Chiefs’ and Sheriffs’ interests against the free speech

interests at stake in this case.16 In support of this claim, the

Police Chiefs and Sheriffs note that the East Texas Police

Chiefs’ Association founded the ETPA in 1966 and operated it

until it later became a part of Kilgore College. In addition,

the Police Chiefs and Sheriffs point out, they had sent officers

to the ETPA for training for over three decades prior to the

Kerrville case controversy, and many law enforcement officials

16
Similarly, although the dissent points out that Kilgore
College “had the sole authority to hire and fire” Kinney and Hall
in arguing that the Police Chiefs’ and Sheriffs’ enrollment
decisions cannot amount to a “denial of benefits” for First
Amendment purposes, the dissent nevertheless agrees with our
determination that the governmental interests at stake in the
instant case are sufficiently analogous to employment interests
to warrant application of a Pickering balancing analysis instead
of an “ordinary citizen” analysis. As the Umbehr Court
recognized, the ability to suppress constitutionally-protected
speech through the denial of a benefit tends to go hand-in-hand
with employer-like interests. See 518 U.S. at 674 (noting that
the government “provides a valuable financial benefit [to
governmental contractors as well as employees], the threat of the
loss of which in retaliation for speech may chill speech on
matters of public concern”).

40
from the East Texas region (including the Police Chiefs and

Sheriffs) sat on the ETPA’s advisory board.

Relying on North Mississippi Communications and Worrell v.

Henry, 219 F.3d 1197 (10th Cir. 2000), Kinney and Hall respond

that the “ordinary citizen” version of the unconstitutional-

conditions doctrine is better suited to the circumstances of the

instant case than is the “governmental employee” test requiring

interest-balancing. In Worrell, the Tenth Circuit declined to

apply a Pickering balancing test to a First Amendment claim

alleging that the governmental defendant pressured the

plaintiff’s employer to rescind the plaintiff’s job offer in

retaliation for the plaintiff’s testimony in a criminal case.

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

1212-13.17

We agree with the district court and the Police Chiefs and

Sheriffs that a Pickering balancing analysis is properly applied

to Kinney’s and Hall’s First Amendment claims. The relationship

between the Police Chiefs and Sheriffs and ETPA instructors such

17
We note that the Police Chiefs and Sheriffs are
incorrect in their claim that the Tenth Circuit established a
“new” First Amendment analysis in Worrell. The Worrell court
simply applied the “ordinary citizen” version of the
“unconstitutional conditions” doctrine that federal courts have
been applying for years in cases that do not arise in the public
employment context.

41
as Kinney and Hall involves governmental interests similar to

those involved in the public employment context. Legitimate

interests require that law enforcement agencies be afforded

considerable discretion in choosing the instructors who train the

officers who will, in turn, carry out the agencies’ public duties

on a daily basis. 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

all relevant to the ultimate governmental interest that the

Pickering balancing analysis is meant to protect, i.e., the

interest “in promoting the efficiency of the public services [a

law enforcement agency] performs.” Pickering, 391 U.S. at 568.

Although Kinney and Hall are correct that many of the facts

of Worrell are similar to those at issue in this case, there is a

significant difference between the relationship that the Worrell

governmental defendant had with the plaintiff and the

relationship that the Police Chiefs and Sheriffs had with Kinney

and Hall. It is this relationship that determines whether

application of the “ordinary citizen” or the “governmental

employee” version of the “unconstitutional conditions” doctrine

is appropriate. In contrast to this case, the relationship

between the plaintiff and the non-employer governmental defendant

42
in Worrell was not analogous to an employment relationship. The

Worrell defendant, an official in charge of a state drug

enforcement agency, had offered to assist those working in the

district attorney’s “drug task force.” 219 F.3d at 1202.

However, upon learning that the district attorney offered the

plaintiff the position of task force coordinator, the defendant

informed the district attorney that the state drug agency would

not assist the drug task force unless the plaintiff’s job offer

was rescinded because the plaintiff had testified as an expert

witness for the defense in a prosecution for the murder of one of

the agency’s officers. See id. Thus, unlike the relationship

that the Police Chiefs and Sheriffs had with Kinney and Hall, the

relationship between the Worrell defendant and plaintiff was not

analogous to an employment relationship. The Worrell defendant

did not pay the task force members for their services to help the

drug agency carry out its mission (which might have created an

employment-type relationship), but rather offered to assist the

task force members in carrying out the task force’s mission. In

contrast, the Police Chiefs and Sheriffs in effect retained

Kinney and Hall to train officers, a core aspect of the public

services performed by the Police Chiefs’ and Sheriffs’ respective

law enforcement agencies.

Thus, we conclude that the district court correctly

determined that Kinney’s and Hall’s First Amendment claims are

subject to a Pickering balancing test. In cases where the

43
relationship between the governmental defendant and the plaintiff

necessitates balancing of interests, the elements of a First

Amendment retaliation claim properly reviewed on interlocutory

appeal are the legal questions (1) whether the speech “can be

fairly characterized as constituting speech on a matter of public

concern,” and (2) whether the Pickering balance weighs in favor

of the First Amendment interests at stake in the case. Branton,

272 F.3d at 739 (internal quotations omitted). “It is for the

jury to resolve any remaining factual disputes as to

[causation].” Id. We have already concluded that Kinney’s and

Hall’s testimony is clearly on a matter of public concern.

Accordingly, we now consider whether the district court correctly

balanced the interest in protecting that speech against the

Police Chiefs’ and Sheriffs’ interests in suppressing it.

c. Does the conduct in question violate the First
Amendment under the applicable First Amendment
analysis?

The Pickering balancing test requires a case-specific

inquiry. See O’Hare Truck Serv., 518 U.S. at 719-20; see also

Pickering, 391 U.S. at 569 (“Because of the enormous variety of

fact situations [involving] critical statements by . . . public

employees . . ., we do not deem it either appropriate or feasible

to attempt to lay down a general standard against which all such

statements may be judged.”). Accordingly, we must determine

whether the First Amendment interest in ensuring that individuals

working in law enforcement are able to speak freely about police

44
misconduct outweighs the Police Chiefs’ and Sheriffs’ interests

in prohibiting their training instructors from testifying in an

excessive-force case in another part of the state against a

police officer who had never taken courses at the ETPA and a

police department that had never enrolled officers in ETPA

courses. In contrast, the dissent asks whether the First

Amendment interests outweigh the Police Chiefs’ and Sheriffs’

more general “interests in effective training of their law

enforcement personnel.” We do not consider it appropriate to

frame the governmental interest involved in the instant case in

such broad terms. As noted above, while we recognize that this

interest in effective training of law enforcement officers

requires that law enforcement agencies be afforded considerable

discretion in choosing officer-training instructors, this

discretion is bounded by the Constitution. In this case, the

question is whether the Police Chiefs and Sheriffs exceeded the

limits imposed by the First and Fourteenth Amendments. To answer

that question, Pickering instructs that we assess the

government’s interest in restricting the particular speech in

question.

The Pickering Court considered a school board’s interest in

restricting a teacher’s statements criticizing the board’s

distribution of school funds —— not the school board’s more

general interest in choosing teachers —— against the First

Amendment interest in protecting those statements. See 391 U.S.

45
at 569-73. Similarly, the appropriate inquiry in the instant

case is whether the Police Chiefs’ and Sheriffs’ interests in

prohibiting their training instructors from testifying as experts

in an excessive-force trial held in another part of the state

against a police officer who had never taken courses at the ETPA

and a police department that had never enrolled officers in ETPA

courses outweighs the First Amendment interest in protecting such

speech. To consider, as the dissent does, only the Police

Chiefs’ and Sheriffs’ general interests in choosing instructors,

divorced from the particular circumstances in which they

exercised this power with respect to Kinney and Hall, renders the

Pickering balancing analysis virtually powerless to protect First

Amendment interests. Having defined the proper Pickering

inquiry, we now turn to the First Amendment interest at stake in

this case.

The First Amendment interest at stake in this case is

extremely strong. Protection of speech critical of public

officials’ exercise of their powers is an integral part of the

“public debate” that the First Amendment protects. As the Court

recognized in New York Times Co. v. Sullivan, 376 U.S. 254

(1964), there is “a profound national commitment to the principle

that debate on public issues should be uninhibited, robust, and

wide-open, and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on government and public

officials.” Id. at 270. As noted above, this court has also

46
recognized the great First Amendment significance of speech

regarding misconduct of public officials, “especially when it

concerns the operation of a police department.” Brawner, 855

F.2d at 191-92.18 Indeed, because individuals working in law

enforcement “are often in the best position to know” about the

occurrence of official misconduct, Umbehr, 518 U.S. at 674, “it

is essential” that individuals such as Kinney and Hall “be able

to speak out freely” about officer misconduct, particularly

misconduct that is as serious as excessive force, Pickering, 391

U.S. at 572. 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.

18
Although the dissent acknowledges that Kinney’s and
Hall’s “testi[mony] as expert witnesses against law enforcement”
is protected speech under the First Amendment, the dissent’s
Pickering balancing analysis fails to take into account the great
strength of the First Amendment interest in protecting speech
about official misconduct. Notably, in weighing the governmental
interest against the First Amendment interest involved in this
case, the dissent does not mention that the subject matter of
Kinney’s and Hall’s speech was official misconduct, much less
official misconduct as grave as a police officer’s use of
excessive force. The dissent further minimizes the First
Amendment interest at stake in this case by characterizing it as
solely Kinney’s and Hall’s interest. However, it is well-
established that the First Amendment interest in protecting
speech on matters of public concern —— particularly speech
regarding official misconduct —— is preeminently a public
interest. See, e.g., Stromberg v. California, 283 U.S. 359, 369
(1931) (“The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the
will of the people and that changes may be obtained by lawful
means, an opportunity essential to the security of the Republic,
is a fundamental principle of our constitutional system.”).

47
 In the particular circumstances of this case, we find it

clear that this significant First Amendment interest outweighs

any interest of the Police Chiefs and Sheriffs in prohibiting

their training instructors from testifying against law

enforcement. The Police Chiefs and Sheriffs claim that Kinney’s

and Hall’s testimony created a “conflict of interest” and

“violated . . . principles of cooperative responsibility [and]

trust,” thereby “undermin[ing] [the Police Chiefs’ and Sheriffs’]

feelings of personal loyalty and confidence” in Kinney and Hall

and potentially damaging the relationship between student-

officers and training instructors. Although there may be cases

in which it is conceivable that speech by a training instructor

could threaten these interests, we find any such threat

inconceivable in the instant case. As the district court pointed

out, Kinney and Hall “testified against a police department

located in an entirely different part of the state than the one

in which they trained officers.” Kinney, 111 F. Supp. 2d at 843.

In invoking notions of “conflict of interest,” “personal

loyalty,” and “principles of cooperative responsibility” under

the circumstances that obtained here, the Police Chiefs and

Sheriffs appear to be employing euphemisms for a “code of

silence” prohibiting persons who work in law enforcement from

speaking out about misconduct on the part of others working in

law enforcement. See Snyder v. Trepagnier, 142 F.3d 791, 797 n.6

(5th Cir. 1998) (quoting the testimony of an expert in the field

48
of police operations and administration describing “the existence

of a very deeply-rooted code of silence . . . a code within the

police department that, regardless what the behavior, one police

officer does not report or testify against another police

officer”).19 Enforcing such a “code of silence” is not a

legitimate interest because it does not promote the efficiency of

19
This case is by no means the first time that this court
has recognized the existence of a “code of silence” among law
enforcement officers. See, e.g., Piotrowski v. City of Houston,
237 F.3d 567, 575 & n.8, 576-77 (5th Cir. 2001) (concluding that
the deposition of a police officer established that, pursuant to
the Houston Police Department’s “code of silence,” police
officers “took affirmative steps to suppress any information
concerning [possible mistakes in an] investigation”); Sharp v.
City of Houston, 164 F.3d 923, 936 (5th Cir. 1999) (concluding
that the “evidence supports the conclusion that [the Houston
Police Department] at least tacitly authorized, and maybe
encouraged and assisted in, retaliation against subordinate
officers who broke the code of silence”).
In a number of cases, our sister circuits have also
recognized the existence of a “code of silence” in law
enforcement. See, e.g., B.K.B. v. Maui Police Dep’t, 276 F.3d
1091, 1096 (9th Cir. 2002) (noting that the plaintiff officer
testified “that during her police academy training, all of the
recruits were taught about the ‘code of silence’ that functioned
as an unwritten department policy against speaking out against
fellow officers”); Carter v. Morris, 164 F.3d 215, 220 (4th Cir.
1999) (describing police officers’ testimony in another case that
a “code of silence” prevented the punishment of officers for the
use of excessive force); Sledd v. Lindsay, 102 F.3d 282, 287 (7th
Cir. 1996) (pointing out that the plaintiff arrestee’s complaint
“alleged in considerable detail how the ‘code of silence’
operated, [claiming] specifically that the code injured [the
plaintiff] because the officers responsible for using excessive
force and otherwise abusing him had good reason to believe that
their misconduct would not be revealed by their fellow officers
and that they would effectively be immune even if a complaint was
filed”); Meriwether v. Coughlin, 879 F.2d 1037, 1049 (2d Cir.
1989) (affirming the district court’s admission of testimony in
which the commissioner of the state department of correctional
services “admitted knowing that corrections officers generally
adhere to a ‘code of silence’ and lie to conceal other officers’
assaults on prisoners”).

49
the public services performed by a law enforcement agency.

Pickering, 391 U.S. at 568.20

In fact, enforcing a “code of silence” not only fails to

promote the efficiency of a law enforcement agency in carrying

out its public duties —— it undermines that efficiency. One of

the primary interests of law enforcement agencies is ensuring

that officer misconduct is disclosed and can thus be addressed

and prevented in the future. As this court has recognized, the

First Amendment interest in protecting speech about official

misconduct is also a governmental interest, and there are

circumstances in which that interest outweighs any other

governmental interests that may be implicated. See Wilson v. UT

Health Ctr., 973 F.2d 1263, 1270 (5th Cir. 1992) (concluding that

if the plaintiff police officer made a sexual harassment report

in good faith, then the “interest in maintaining a police force

20
The Police Chiefs and Sheriffs never protested Kinney’s
previous expert testimony on the side of law enforcement or
argued that such testimony created a conflict of interest.
Indeed, the Police Chiefs and Sheriffs have explicitly stated in
the record that, in contrast to expert testimony by their
training instructors on behalf of plaintiffs in police misconduct
cases, the Police Chiefs and Sheriffs do not believe that expert
testimony by their training instructors on behalf of law
enforcement gives rise to a “conflict of interest.” This
viewpoint discrimination by the Police Chiefs and Sheriffs only
further convinces us that they did not have any legitimate
interest in suppressing Kinney’s and Hall’s speech. Cf. Smith,
693 F.2d at 368, overruled on other grounds by Walther v. Lone
Star Gas Co., 952 F.2d 119, 126 (5th Cir. 1992) (“To allow a
prosecutor to retaliate against trial testimony on the grounds
that it was unfavorable to the state would impermissibly restrict
the free expression of the witness based on the content of his
testimony.”).

50
that is free of sexual intimidation, which [such] good faith

reports would serve, outweighs any interest in departmental

efficiency and harmony”). The instant case involves such

circumstances. The governmental and First Amendment interest in

protecting Kinney’s and Hall’s testimony regarding officer

misconduct outweighs any interest of the Police Chiefs and

Sheriffs in avoiding potential “conflicts of interest,” given

that the testimony was against a police officer who had never

trained at the ETPA and a police department that had no

connections to the ETPA.

We have concluded that Kinney’s and Hall’s testimony was

speech of public concern and that the First Amendment interests

in that testimony outweigh any governmental interests in this

case.21 Accordingly, because the district court found that

21
Given the case-specific nature of the Pickering inquiry,
this case does not present —— and thus we do not address —— the
questions whether a law enforcement agency has legitimate
interests in prohibiting its training instructors from serving as
expert witnesses against officers who are employed by that agency
or whether any such legitimate interests would be outweighed by
the First Amendment interest in ensuring that speech about
official misconduct is uninhibited. Consequently, Tedder v.
Norman, 167 F.3d 1213 (8th Cir. 1999), the Eighth Circuit case
relied on by the dissent, has little, if any, bearing on the
instant case. The issue in Tedder was whether a state law
enforcement training academy violated the First Amendment by
terminating a training instructor who testified against an
officer who was employed by a law enforcement agency that sent
its officers to the academy for training. See id. at 1214-15.
As we explain above, it is because Kinney’s and Hall’s speech was
about a police officer who had never been trained by the ETPA and
who was employed by a police department that had never enrolled
its officers in ETPA courses that we conclude the Police Chiefs
and Sheriffs do not have legitimate interests in suppressing that
speech and, thus, that the strong First Amendment interest in

51
Kinney and Hall established a genuine factual issue regarding

whether the Police Chiefs and Sheriffs 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 alleged by Kinney and Hall are sufficient to

state a First Amendment violation. See supra Subsection

IV.B.1.b.

We now turn to the “clearly established” question of

qualified-immunity analysis, i.e., whether it would have been

apparent to a reasonable officer under law clearly established

the time of the alleged violation that the Police Chiefs’ and

Sheriffs’ conduct violated the First Amendment.

2. The “clearly established” inquiry: Would it have been
apparent to a reasonably competent officer that the
alleged conduct violated the First Amendment?

Because the applicable law dictating that the Police Chiefs’

and Sheriffs’ alleged conduct violated Kinney’s and Hall’s First

Amendment rights to free speech was in existence before October

1998, we have already “set forth principles which will become the

basis for [our inquiry into whether] that right [wa]s clearly

established” at the time of the alleged violation. Saucier, 121

S. Ct. at 2156. However, our conclusion that the Police Chiefs’

and Sheriffs’ conduct constituted a First Amendment violation

under the controlling law at the time of the alleged violation is

speech about official misconduct unquestionably outweighs any
governmental interest in the instant case.

52
an important, but not dispositive, consideration in the “clearly

established” inquiry. As the Supreme Court has explained, the

“clearly established” inquiry is distinct from the inquiry into

whether a right was violated “in a more particularized, and hence

more relevant, sense: The contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Id. (quoting

Anderson, 483 U.S. at 640).

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. The Police Chiefs and Sheriffs do not attempt to

argue otherwise, but rather suggest that it was not clearly

established that the First Amendment imposed any restrictions on

their conduct vis-a-vis Kinney and Hall in their capacity as

training instructors. The Police Chiefs and Sheriffs point out

that there is no controlling caselaw directly addressing a First

Amendment claim in the specific circumstances of this case, i.e.,

where a plaintiff has provided services to the governmental

defendant but is neither an employee of the defendant nor in a

contractual relationship with the defendant. More specifically,

the Police Chiefs and Sheriffs characterize Kinney and Hall as

“employees of a ‘disappointed bidder’ —— i.e., Kilgore College.”

The Police Chiefs and Sheriffs apparently base this contention in

part on the Court’s admonishment in Umbehr that “[b]ecause

53
Umbehr’s 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 implication of the Police Chiefs’

and Sheriffs’ argument that it would have been reasonable for an

officer in their positions to believe that they were completely

unfettered by the First Amendment merely because their

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 district court’s “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 931.22

22
Moreover, the analysis that this court set forth in
Blackburn for determining whether a First Amendment claim
alleging retaliatory denial of governmental benefits is governed
by the “ordinary citizen” or “governmental employee” version of
the “unconstitutional conditions” doctrine assumes that one of
these two levels of First Amendment scrutiny applies. Blackburn
does not leave open the possibility that there are circumstances

54
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 applicability of the

First Amendment to the public employment context, but rather in

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 Court’s decisions in

Pickering, Umbehr, and O’Hare Truck Service are based on the

assumption that although the government may have relationships

with individuals in addition to a government/citizen

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.

The Police Chiefs and Sheriffs also incorrectly assume that

a decision addressing the specific circumstances of the instant

case is a necessary condition of “clearly established” law. “The

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.” Saucier, 121 S. Ct. at 2156. As this court has

explained, “[t]he term ‘clearly established’ does not necessarily

refer to commanding precedent that is factually on all-fours with

the case at bar,” but rather is based on the premise that

in which a governmental denial of benefits is not subject to any
First Amendment restrictions.

55
“officials must observe general, well-developed legal

principles.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 455

(5th Cir. 1994) (en banc) (internal quotations and citations

omitted). In light of our 1995 opinion in Blackburn and the

Court’s 1996 opinions in Umbehr and O’Hare Truck Service, it was

clearly established in October 1998 that if the government’s

relationship with an individual is sufficiently similar to an

employment relationship in terms of the relative interests at

stake, a Pickering balance is appropriate. Otherwise, the

general rule is that the government has no more interest in

inhibiting the plaintiff’s speech than any other citizen’s

speech, and thus an “ordinary citizen” First Amendment

retaliation analysis is appropriate. See Blackburn, 42 F.3d at

932, 934.

In light of this law that was clearly established in October

1998, it would have been apparent to reasonable officials in the

Police Chiefs’ and Sheriffs’ positions that their attempts to

inhibit Kinney’s and Hall’s speech on matters of public concern

were governed by a Pickering analysis. Kinney and Hall were not

nearly as removed from the financial benefit afforded by the

Police Chiefs’ and Sheriffs’ enrollment of their officers in

Kinney’s and Hall’s courses as the Police Chiefs and Sheriffs’

“bidder” characterization might suggest. Neither Kilgore College

nor ETPA instructors such as Kinney and Hall were mere “bidders”

in the sense that they lacked a “pre-existing commercial

56
relationship” of the sort that the Court was concerned about in

Umbehr —— i.e., a relationship that the Police Chiefs and

Sheriffs could use to inhibit speech. See 518 U.S. 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 on matters of public concern”). In these

circumstances, reasonable officials in the Police Chiefs’ and

Sheriffs’ positions would have understood that they had the power

to deny Kinney and Hall significant benefits as ETPA instructors

and that it is the existence of that sort of power —— and not

mere labels describing governmental relationships —— that is

determinative in First Amendment “denial of benefit” cases. See

O’Hare Truck Serv., 518 U.S. at 722 (“Recognizing the distinction

[between governmental employees and regular providers of

services] would invite manipulation by government, which could

avoid constitutional liability simply by attaching different

labels to particular jobs.”); Umbehr, 518 U.S. at 678-79

(declining to create “a bright-line rule distinguishing

independent contractors from employees,” reasoning that such a

rule “would leave First Amendment rights unduly dependent on

whether state law labels a government service provider’s contract

as a contract for employment or a contract for services, a

57
distinction which is at best a very poor proxy for the interests

at stake”).

Similarly, the Police Chiefs and Sheriffs had employment-

type interests in their relationship with Kinney and Hall.

Indeed, the Police Chiefs and Sheriffs persuasively asserted such

interests at oral argument. For example, the Police Chiefs and

Sheriffs pointed out that the East Texas Police Chiefs’

Association founded the ETPA in 1966, that they had been sending

their officers to the ETPA for training since then, that they sat

on the ETPA’s advisory board after the ETPA became a part of

Kilgore College, that they worked closely with the training

instructors, and that they had a role in designing the ETPA’s

curriculum. In light of this relationship that the Police Chiefs

and Sheriffs had with Kinney and Hall and the controlling Fifth

Circuit and Supreme Court precedent at the time of the alleged

violation, no reasonable official would have believed that the

Police Chiefs’ and Sheriffs’ use of their relationship with the

ETPA to impose restrictions on Kinney’s and Hall’s freedom to

speak on matters of public concern was limited by anything less

than a Pickering balancing analysis.

The Police Chiefs and Sheriffs also contend that, even

assuming it was clearly established that their conduct vis-a-vis

Kinney and Hall was governed by the “governmental employee”

version of the unconstitutional-conditions doctrine, it was not

clearly established that their conduct violated the First

58
Amendment under a Pickering balancing analysis. In particular,

the Police Chiefs and Sheriffs note that two Texas policies

denying benefits to state employees who testified as expert

witnesses against the state were in effect in October 1998. See

Hoover v. Morales, 164 F.3d 221, 223-24 (5th Cir. 1998)

(describing the two policies).23 However, reasonably competent

23
In Hoover, this court affirmed the district court’s
issuance of a preliminary injunction enjoining the state from
enforcing the two policies because we determined them to be
overbroad in violation of the First Amendment. 164 F.3d at 227.
In arguing that the unlawful nature of the Police Chiefs’
and Sheriffs’ conduct was not clearly established at the time of
the alleged violation, the dissent relies heavily on this court’s
recognition in Hoover that “there may be occasions when the
State’s interest in efficient delivery of public services will be
hindered by a state employee acting as an expert witness or
consultant.” Id. According to the dissent, “considering that,
at the very time [the Police Chiefs and Sheriffs] were acting,
our court left open the possibility that the government could
legitimately curtail the First Amendment rights of an employee
testifying as an expert witness, it simply cannot be the case
that it is apparent a reasonable official (sheriff or police
chief) would have then known that refusing to send their officers
to teachers who have testified as expert witnesses against law
enforcement would violate those teachers’ First Amendment
rights.” This conclusion, however, fails as a matter of logic
because it proves too much. The fact that we limited our
decision in Hoover to the two policies at issue, which
effectively “prohibit[ed] state employees from acting as
consultants or expert witnesses on behalf of parties opposing the
State in litigation,” 164 F.3d at 223, in no way implies that it
would be reasonable for a governmental official to conclude that
any other type of governmental restriction on expert testimony
adverse to another government entirely is consistent with the
First Amendment. Indeed, such a conclusion is inconsistent with
Pickering, which makes clear that the Pickering balancing
analysis is a case-specific inquiry:
Because of the enormous variety of fact situations in
which critical statements by teachers and other public
employees may be thought by their superiors, against whom
the statements are directed, to furnish grounds for
dismissal, we do not deem it either appropriate or
feasible to attempt to lay down a general standard

59
officials do not look to state law to ascertain the federal law

governing their conduct. Moreover, we are not persuaded that the

existence of these Texas policies demonstrates that a reasonably

competent official might have believed that it was constitutional

to deny benefits to individuals because of their expert testimony

against the government.

Given (1) that it is well-established in the jurisprudence

of both the Supreme Court and this court that exposure of

misconduct by a governmental official is of great First Amendment

significance, and (2) that this court has repeatedly emphasized

the need to protect speech exposing police officer misconduct in

particular, it would have been objectively unreasonable for an

officer to conclude that Kinney’s and Hall’s testimony bore no

significant weight for purposes of a Pickering balancing

analysis.24

against which all such statements may be judged.
However, in the course of evaluating the conflicting
claims of First Amendment protection and the need for
orderly school administration in the context of this
case, we shall indicate some of the general lines along
which an analysis of the controlling interests should
run.
391 U.S. at 569 (emphasis added).
24
The Police Chiefs and Sheriffs also suggest that a
reasonable officer would not necessarily have understood the
First Amendment import of Kinney’s and Hall’s speech because it
was in the form of expert testimony. That Kinney and Hall
testified as expert witnesses does not diminish the First
Amendment interest in ensuring that the speech is uninhibited.
Indeed, we concluded as much in Rainey v. Jackson State College,
481 F.2d 347 (5th Cir. 1973), where we held that the refusal of
state university administrators to renew a teacher’s contract
because he had testified as an expert witness for the defense in

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 Moreover, in light of the law clearly established at the

time of the alleged violation, no reasonable official in the

Police Chiefs’ and Sheriffs’ position would have believed that

exerting pressure on Kilgore College to remove Kinney and Hall

from the ETPA faculty could be justified on the grounds that

their testimony created a “conflict of interest” and violated

amorphous and questionable “principles” such as “personal

loyalty” and “cooperative responsibility.” Whatever interests

lie behind these words, no reasonable officer would have believed

that they were legitimate interests in the circumstances of this

case, much less that any such interest was sufficient to outweigh

the strong First Amendment interest in ensuring that individuals

such as Kinney and Hall, who are in the best position to know

about official misconduct, are not inhibited from testifying as

to official misconduct.25

a criminal trial established “a clear case of impermissibly
freighting the [teacher’s] contract with a deprivation of the
First Amendment right to free speech.” Id. at 350.
25
The dissent does not argue that it was not clearly
established that the Pickering balancing analysis applied to the
Police Chiefs’ and Sheriffs’ alleged conduct, but rather that it
was not clearly established that their conduct violated the First
Amendment under that analysis. In particular, the dissent
maintains that “[t]he majority fails to cite a single case
rendered prior to the conduct at issue both dealing with a
factually analogous situation and deciding that such conduct
violates a First Amendment right.” We are convinced that Umbehr
and O’Hare Truck Service are two such cases. Further, even
assuming that those two cases are not directly controlling, it is
unquestionable that the authority clearly established at the time
of the alleged violation dictates (1) that Kinney’s and Hall’s
speech —— being in the form of judicial testimony and being about
official misconduct —— is quintessential “First Amendment” speech

61
 Thus, we conclude that the Police Chiefs’ and Sheriffs’

alleged conduct not only violated a constitutional right, but

also, in light of the law clearly established at the time that

the conduct occurred, was objectively unreasonable in the

particular circumstances of this case.26 The district court

correctly determined that the Police Chiefs and Sheriffs are not

entitled to qualified immunity from Kinney’s and Hall’s § 1983

bearing significant weight for purposes of the Pickering
balancing analysis, and (2) that enforcing a code of silence, at
least in the circumstances that obtained here, is not a
legitimate governmental interest. Accordingly, viewing the facts
in the light most favorable to Kinney and Hall, and presuming
that reasonably competent officers “observe general, well-
developed legal principles,” Doe, 15 F.3d at 455 (citation and
internal quotations omitted), we find it manifest that no
reasonable officer in the Police Chiefs’ and Sheriffs’ position
at the time of the alleged violation would have determined that
it was permissible under the First Amendment to boycott Kinney’s
and Hall’s courses in retaliation for their testimony in an
excessive-force case against a police officer who had never
trained at the ETPA and a police department that had never
enrolled its officers in ETPA courses.
26
Contending that we apply the “clearly established”
inquiry only to the question whether the Pickering balancing
analysis governed the Police Chiefs’ and Sheriffs’ conduct vis-a-
vis Kinney and Hall, but not to the question whether the Police
Chiefs’ and Sheriffs’ conduct violated the First Amendment under
that analysis, the dissent maintains that we consequently
“conflate[] the qualified immunity inquiry into a decision on the
merits —— whether [the Police Chiefs and Sheriffs] violated a
constitutional right.” As the foregoing analysis makes clear,
however, we conclude that the contours of the law were
sufficiently clear at the time of the alleged violation that a
reasonable official in the Police Chiefs’ and Sheriffs’ position
would have understood both that Pickering was the governing First
Amendment law and that, in the circumstances of the instant case,
the First Amendment interests in protecting Kinney’s and Hall’s
expert testimony outweighed any legitimate governmental interests
in suppressing that speech. We do not, as the dissent suggests,
conclude merely that the First Amendment interests did in fact
outweigh the governmental interests.

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claims alleging violations of their rights to freedom of speech

under the First and Fourteenth Amendments.

C. The § 1983 Claim Invoking the Right to Due Process of Law
Under Fourteenth Amendment

The district court also denied the Police Chiefs and

Sheriffs qualified immunity against Kinney’s and Hall’s § 1983

claims alleging that the Police Chiefs and Sheriffs violated the

Due Process Clause of the Fourteenth Amendment.27 Under Supreme

Court jurisprudence, the Due Process Clause’s protection of an

individual’s life, liberty, and property has both a procedural

and a substantive component. See County of Sacramento v. Lewis,

523 U.S. 833, 840 (1998). The procedural component requires

states to provide constitutionally adequate procedures before

depriving an individual of life, liberty, or property, and the

substantive component “bars certain arbitrary, wrongful

government actions regardless of the fairness of the procedures

used to implement them.” Zinermon v. Burch, 494 U.S. 113, 125

(1990) (internal quotations and citations omitted). Because

“[t]he Due Process Clause is only implicated when a person has a

constitutionally protected interest in life, liberty, or

property,” Conner v. Lavaca Hosp. Dist., 267 F.3d 426, 437 (5th

Cir. 2001), such an interest must be established to state a cause

of action under both the procedural and the substantive

27
The Due Process Clause prohibits states from
“depriv[ing] any person of life, liberty, or property, without
due process of law.” U.S. CONST. amend. XIV, § 1.

63
components of the Clause, see Mahone v. Addicks Util. Dist., 836

F.2d 921, 929 n.8 (5th Cir. 1988).

Although Kinney’s and Hall’s due process claims are

ambiguously pled, it appears that they allege violations of the

procedural, rather than the substantive, component of the Clause.

In support of their due process claim, Kinney and Hall allege

that the Police Chiefs and Sheriffs “blackballed [them] and cost

them their jobs without providing any process at all.” More

specifically, Kinney and Hall note that the Police Chiefs and

Sheriffs “refused to even listen to [them] when Dr. Holda set up

a meeting.” However, regardless whether their claim is based on

substantive or procedural due process (or both), Kinney and Hall

have failed to allege that they have been deprived of a life,

liberty, or property interest.

Kinney and Hall contend, and the district court agreed, that

they had “property interests in their continued employment at the

Academy.” Kinney, 111 F. Supp. 2d at 839. The property

interests protected by the Due Process Clause “‘are created and

their dimensions are defined by existing rules or understandings

that stem from an independent source such as state law.’”

Conner, 267 F.3d at 437 (quoting Bd. of Regents v. Roth, 408 U.S.

564, 577 (1972)). Under Texas law, “the employment relationship

is generally at-will unless the parties enter into an express

agreement that provides otherwise.” City of Midland v. O’Bryant,

18 S.W.3d 209, 215 (Tex. 2000). Because Kinney and Hall had one-

64
year employment contracts, they were not at-will employees.

Thus, they had a property interest in their employment as long as

one of these contracts was in effect. However, Kinney and Hall

apparently do not rely on these contracts as the source of their

asserted property interest. Instead, they apparently assert a

property interest in their “continued employment,” i.e., the

renewal of their contracts.28

The Police Chiefs and Sheriffs contend that because Kilgore

College was not obligated to renew Kinney’s and Hall’s contracts

each year, their continued employment from one year to the next

was at-will. Thus, the Police Chiefs and Sheriffs assert, Kinney

and Hall had no property interest in their “continued employment”

within the meaning of the Due Process Clause. Kinney and Hall do

not dispute that their employment from one contract to the next

was at-will. Rather, they point to the “unconstitutional-

conditions” doctrine, which establishes 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, . . . [i]t may not deny a benefit to a person on a basis

that infringes his constitutionally protected interests.” Perry,

28
Kinney continued to work under the contract in effect at
the time that the boycott began until that contract expired.
Although Hall resigned approximately seven months before his
contract would have expired, he, like Kinney, does not allege
that he was deprived of a property interest in employment
established by that one-year contract, but rather that he was
deprived of an interest in continued employment at the ETPA in
future years.

65
408 U.S. at 597. According to Kinney and Hall, the

unconstitutional-conditions doctrine thus prevents the Police

Chiefs and Sheriffs from effectively denying Kinney and Hall the

benefit of contract renewal on grounds that violate

constitutionally protected interests. However, where the Due

Process Clause is the source of constitutional protection

invoked, the only property interests that are “constitutionally

protected” are those that are created by some independent source,

such as state law.

Kinney and Hall do not allege that their continued

employment at the ETPA was a property interest derived from state

law or some other source independent of the Constitution.

Accordingly, for the purpose of this appeal, we assume without

deciding that Kinney and Hall have not asserted a property

interest established by state law or some similarly independent

source. In the absence of such an assertion, their alleged

“property interests” in continued employment are not sufficient

to trigger the protections of the Due Process Clause.

Because we conclude that Kinney and Hall have not stated a

violation of their Fourteenth Amendment right to due process of

law, we need not engage in the “clearly established” inquiry of

qualified-immunity analysis.29 Accordingly, we reverse the

29
At oral argument, Kinney and Hall appeared to suggest
that the Police Chiefs’ and Sheriffs’ “blackballing” and the
resulting harm to their professional reputations may somehow
render their property interest adequate for purposes of the Due
Process Clause. However, in Paul v. Davis, 424 U.S. 693 (1976),

66
district court’s summary judgment order denying the Police Chiefs

and Sheriffs qualified immunity from Kinney’s and Hall’s § 1983

due process claims.

V. TEXAS LAW “OFFICIAL IMMUNITY”

Finally, the district court denied the Police Chiefs and

Sheriffs “official immunity” against Kinney’s and Hall’s state-

law claims of tortious interference with business relations.

“[O]rders premised on the denial of qualified immunity under

Texas state law are appealable in federal court to the same

extent as district court orders premised on the denial of federal

law immunity.” Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir. 1996).

Accordingly, we have supplemental jurisdiction over the legal

questions presented by the Police Chiefs’ and Sheriffs’ appeal of

the district court’s denial of state law immunity. See id.; see

also supra Part II.

Texas law provides government officials with “official

immunity from suit arising from the performance of their (1)

discretionary duties in (2) good faith as long as they are (3)

acting within the scope of their authority.” City of Lancaster

v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). It is undisputed

that the Police Chiefs and Sheriffs had authority to decide where

and by whom their respective agencies’ officers were trained, and

the Supreme Court held that an interest in “reputation,” at least
when unaccompanied by deprivation of a property or liberty
interest grounded in state law, does not amount to a liberty or
property interest protected by the Due Process Clause. See id.
at 701, 711-12.

67
that such decisions were among the Police Chiefs’ and Sheriffs’

discretionary duties. The issue in contention is whether they

acted in good faith in refusing to enroll their officers in

Kinney’s and Hall’s courses. See Kinney, 111 F. Supp. 2d at 844.

The “good faith” standard established by the Texas Supreme

Court “is derived substantially from the test that has emerged

under federal immunity law for claims of qualified immunity.”

Chambers, 883 S.W.2d at 656. Like qualified immunity, the good-

faith standard focuses on the objective legal reasonableness of

the officer’s conduct. Officers are presumed to have acted in

good faith if they are able to show that a reasonably prudent

officer in the same or similar circumstances could have believed

that the conduct in question was justified. Id. at 656-67. To

rebut this presumption of good faith, “the plaintiff must show

that no reasonable person in the defendant’s position could have

thought the facts were such that they justified defendant’s

acts.” Id. at 657 (internal quotations omitted). However, Texas

law official immunity differs from qualified immunity in that the

good-faith test does not depend on whether the right was clearly

established at the time of the alleged violation. Id.

The Police Chiefs and Sheriffs argue that they acted in good

faith because “a reasonable officer could have believed that

expressing his concerns to Dr. Holda and changing the training of

his officers to meet those concerns was reasonable.” However, in

applying the good-faith test of official immunity, Texas courts

68
assume the plaintiff’s version of the facts to be true. O’Bryant

v. City of Midland, 949 S.W.2d 406, 412 (Tex. App.–Austin 1997),

rev’d on other grounds, 18 S.W.3d 209, 216 (Tex. 2000). Thus,

the Police Chiefs and Sheriffs must show that a reasonable

officer could have believed that denouncing Kinney and Hall in

various communications to Holda (by letter as well as in person)

and boycotting Kinney’s and Hall’s courses were justified because

of their expert testimony against law enforcement. The Police

Chiefs and Sheriffs have failed to make such a showing. For the

reasons that we stated above in determining that the Police

Chiefs and Sheriffs are not entitled to qualified immunity

against Kinney’s and Hall’s free speech claims, we conclude that

no reasonable officer in the Police Chiefs’ and Sheriffs’

position could have believed that the alleged conduct was

justified. The district court correctly denied the Police Chiefs

and Sheriffs official immunity from Kinney’s and Hall’s state

tort claims.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

summary judgment denying the Police Chiefs and Sheriffs qualified

immunity from Kinney’s and Hall’s § 1985(2) claims, their § 1983

claims invoking their rights to freedom of speech, and their

state tort claims. However, we REVERSE the district court’s

denial of qualified immunity on Kinney’s and Hall’s § 1983 claims

invoking their Fourteenth Amendment rights to due process of law.

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Finally, as explained above, we DISMISS the appeals of the

cities, counties, and East Texas Police Chiefs’ Association.30

Accordingly, we REMAND the case to the district court for entry

of judgment in favor of the Police Chiefs and Sheriffs on the

§ 1983 due process claims and for trial on the remaining claims.

The Police Chiefs and Sheriffs (the individual Defendants-

Appellants) shall bear the costs of this appeal.

30
See supra, note 7.

70