Kinney v. Weaver

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 3, 2004
IN THE UNITED STATES COURT OF APPEALS April 15, 2004

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________

No. 00-40557
_____________________

DEAN KINNEY; DAVID HALL

Plaintiffs - Appellees

v.

BOBBY WEAVER, Etc.; ET AL

Defendants

J B SMITH, Smith County Sheriff; SMITH COUNTY TEXAS; W A
"BILL" YOUNG, Tyler Police Chief; CITY OF TYLER, TEXAS; EAST
TEXAS POLICE CHIEF’S ASSOCIATION; BOBBY WEAVER, Gregg County
Sheriff; BOB GREEN, Harrison County Sheriff; GREGG COUNTY
TEXAS; HARRISON COUNTY TEXAS; RONNIE MOORE, Kilgore Director
of Public Safety; CHARLES "CHUCK" WILLIAMS, City of Marshall
Police Chief; TED GIBSON, Nacogdoches Police Chief; CITY OF
KILGORE, TEXAS; CITY OF MARSHALL TEXAS; CITY OF NACOGDOCHES
TEXAS

Defendants - Appellants
_________________________________________________________________

Appeals from the United States District Court
for the Eastern District of Texas
_________________________________________________________________

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.*

KING, Chief Judge:

*
Judge Pickering was not a member of the court when this
case was submitted to the court en banc and did not participate
in the decision.
 Plaintiffs-Appellees Dean Kinney and David Hall brought suit

against seven law enforcement officials, the seven cities or

counties that employ these officials, and the East Texas Police

Chiefs Association, asserting four claims: (1) a 42 U.S.C.

§ 1985(2) claim alleging conspiracy against Kinney and Hall

because of their testimony in judicial proceedings, (2) a 42

U.S.C. § 1983 claim alleging violations of their rights to

freedom of speech under the First Amendment, (3) a § 1983 claim

alleging violations of their Fourteenth Amendment rights to due

process of law, and (4) a state law claim alleging tortious

interference with business relations. The law enforcement

officials now bring an interlocutory appeal of the district

court’s order denying their motion for summary judgment, in which

they asserted qualified immunity against the federal claims and

state official immunity against the tort claim. A panel of this

court affirmed in part and reversed in part. Kinney v. Weaver,

301 F.3d 253 (5th Cir. 2002), vacated and reh’g en banc granted,

338 F.3d 432 (5th Cir. 2003). On rehearing en banc, we now

AFFIRM the district court’s order denying the officials’ claim of

immunity from the § 1985 claim, the § 1983 First Amendment claim,

and the state law claim; given material factual disputes, these

claims cannot be disposed of on summary judgment. We REVERSE the

district court’s order denying immunity from the plaintiffs’

§ 1983 due process claim.

2
 I. FACTUAL AND PROCEDURAL BACKGROUND

While many of the basic facts in this case are uncontested,

a number of the legally relevant facts are still disputed at this

stage. In Parts II and III of this opinion, we elaborate the

appellate prism through which we must view the facts in this

interlocutory appeal from the district court’s decision denying

qualified immunity. As we explain there, we are required to

accept the truth of the plaintiffs’ summary judgment evidence,

and we lack jurisdiction to review the genuineness of those

factual disputes that precluded summary judgment in the district

court. Nonetheless, for ease of understanding and later

discussion, our recitation of the facts will note both sides’

assertions with respect to the material points of disagreement.

At the time of the events giving rise to this case, Kinney

and Hall were instructors at the East Texas Police Academy

(“ETPA”), a division of Kilgore College in Kilgore, Texas.

Founded by the East Texas Police Chiefs Association in 1966, the

ETPA provides basic and advanced training for law enforcement

officers in the greater East Texas area. Kinney and Hall had

been working at the ETPA for seventeen years and six years,

respectively, under renewable one-year employment contracts. The

seven law enforcement officials (collectively “the Police

Officials”) asserting qualified immunity in this case are police

chiefs or sheriffs who possess final authority over the training

3
of the officers employed by their respective agencies.1 Before

the fall of 1998, the Police Officials enrolled their officers in

ETPA courses on a regular basis, including courses taught by

Kinney and Hall. The Police Officials were not contractually

bound to continue using either the ETPA’s services or the

services of Kinney and Hall in particular.

In August 1998, Kinney and Hall testified as expert

witnesses for the family of Edward Gonzales, a teenager who was

fatally shot by a police sniper employed by the city of

Kerrville, Texas. The Kerrville case did not involve officers

who had trained at the ETPA or police agencies that sent trainees

to the ETPA, as Kerrville lies several hundred miles from

Kilgore, outside the region from which the ETPA draws its

students.2 Kinney and Hall had never before testified as expert

witnesses against police officers, though Kinney had previously

testified as an expert in defense of the police. The lawyer for

the victim’s family in the Kerrville case approached the two

1
The Police Officials are: Nacogdoches Police Chief Ted
Gibson, Harrison County Sheriff Bob Green, Kilgore Director of
Public Safety Ronnie Moore, Smith County Sheriff J.B. Smith,
Gregg County Sheriff Bobby Weaver, Marshall Police Chief Charles
“Chuck” Williams, and Tyler Police Chief W.A. “Bill” Young.
2
The driving distance between the two cities is
approximately 435 miles. As the district court noted by way of
comparison, that figure is roughly the same as the driving
distance between Boston, Massachusetts, and Washington, D.C. As
the crow flies, the distance between Kilgore and Kerrville is 300
miles.

4
instructors because he had experienced difficulty finding local

experts who were willing to testify against the police.

Based on their knowledge and experience as law enforcement

instructors specializing in the use of force and firearms, Kinney

and Hall testified that the Kerrville police officer had used

excessive force and that the Kerrville police department had

failed to implement the proper policies necessary to direct the

conduct of officers acting as snipers. Kinney and Hall were

technically under subpoena in the Kerrville case, but they

testified voluntarily. Although Kinney and Hall originally

planned to receive payment for their services, they decided,

shortly after their depositions and before trial, that they would

decline payment. Kinney’s explanation for this decision,

confirmed by Hall, is that the two “felt so strongly about the

incident and what had happened to Eddie Gonzales” that they

concluded that “it wouldn’t be right to charge.”

Soon after Kinney and Hall testified in the Kerrville case,

William Holda, the president of Kilgore College, received letters

from some of the Police Officials threatening to stop using the

ETPA for officer training. In a letter dated September 15, 1998,

Kilgore Director of Public Safety Ronnie Moore told Holda that he

was concerned about the instructors’ recent inquiries regarding a

gun confiscated by the Kilgore police, because “[i]t is a well

known fact within this agency that these instructors had

5
previously testified in another matter, against other Officers.”3

Moore said that testimony offered in support of the police was

“acceptable and reasonable,” but Kinney’s and Hall’s testimony

“is in direct conflict with the basic fundamentals and

expectations that we have come to enjoy from Academy

instructors.” Moore informed Holda that “[d]ue to these

circumstances, our agency will be exploring other options to

provide the professional training necessary for our Officers.”

In a letter dated September 29, 1998, Charles Williams, the

chief of the city of Marshall’s police department, also

complained to Holda about the instructors’ expert testimony. He

wrote, “I think it is deplorable . . . that instructors for our

Police Academy hire themselves out as an expert witness: AGAINST

law enforcement agencies.” Williams stated further that “[t]he

Marshall Police Department will not attend any courses taught by

3
Kinney and Hall offered an innocent explanation for
their inquiries about the seized gun, saying that they hoped to
shoot the gun for their own enjoyment and edification——as local
police had let them do on other occasions——not because they were
gathering information in order to testify as expert witnesses in
defense of the gun’s owner. The defendants’ briefs have
highlighted the gun incident, but the plaintiffs’ evidence
suggests that it was not a motivating factor in the boycott. As
described below, the other Police Officials who wrote to Holda
did not mention the gun incident; Kinney’s and Hall’s Kerrville
testimony was the only stated reason for threatening to boycott
the ETPA. The Kerrville testimony was, moreover, the only
complaint reflected in the minutes of the meeting at which the
local police agencies decided to boycott the plaintiffs. The
district court found that there was sufficient evidence for a
jury to conclude that the plaintiffs’ testimony was the reason
for the boycott. Kinney v. Weaver, 111 F. Supp. 2d 831, 838
(E.D. Tex. 2000).

6
Mr. David Hall or Mr. Dean Kinney due to the liability they place

on this Police Department.” Williams attached three newspaper

articles that mentioned Kinney’s and Hall’s roles as expert

witnesses for the plaintiffs in the Kerrville case.

The summary judgment evidence submitted by Kinney and Hall

includes Williams’s deposition, in which he testified that he

learned of Kinney’s and Hall’s involvement in the Kerrville case

when he received, probably in August 1998, an anonymous package

containing the three newspaper articles that he attached to his

letter to Holda. In addition to the articles, the package

contained a note telling Williams to contact Moore for more

information, which Williams did shortly after receiving the

package.

Williams forwarded copies of his September 29, 1998, letter

and the attached articles to Moore and four of the other Police

Officials, namely, Bill Young, the chief of police for the city

of Tyler; Bob Green, the sheriff of Harrison County; Bobby

Weaver, the sheriff of Gregg County; and J.B. Smith, the sheriff

of Smith County. The set of documents that Williams forwarded to

Young, which is in the summary judgment record, also included a

copy of Moore’s September 15 letter to Holda.

Young sent a letter to Holda on September 30, 1998, the day

after he received the letters and articles from Williams. Young

wrote that he was “greatly disturbed by the recent news that

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

7
Witnesses’ to testify against another law enforcement agency and

it’s [sic] officers.” He emphasized he was writing “not only as

Chief of Police of an agency that is one of your largest

customers, but also as President of the East Texas Police Chief’s

[sic] Association.” Noting that “[i]t is not our preference to

have these two instructors teach our officers and also engage in

legal combat with them in the judicial system,” Young stated that

“[t]his matter will force us to consider alternative methods to

achieve our training needs if not resolved as soon as possible.”

In an attempt to address the defendants’ complaints, Holda

met with Moore, Williams, and Young on September 30, 1998. Also

in attendance were three other law enforcement officers to whom

Williams had forwarded copies of his letter to Holda, including

Defendant Green. In his affidavit, Holda gave an account of this

meeting that was largely confirmed by Moore, Williams, Young, and

Green in their depositions. According to Holda, all four men

“made it clear” (1) that “they wanted Mr. Hall and Mr. Kinney

removed from the [ETPA] faculty because their testimony in the

Kerrville trial created a conflict of interest with their [ETPA]

responsibilities” and (2) “that they would no longer send

officers and recruits to the [ETPA] for training if Mr. Hall and

Mr. Kinney remained on the Academy faculty.”

Defendants Moore, Williams, and Green later agreed to send

students to the ETPA on the condition that their officers not be

instructed by Kinney and Hall, but Holda’s affidavit reports that

8
Young continued to insist that Kinney and Hall also be removed

from the ETPA faculty completely. According to Holda, “the

stated reason for [the attendees’] refusals to send their

officers and recruits for training by Mr. Hall and Mr. Kinney was

that their testimony in the Kerrville trial criticized the law

enforcement officer on trial.” Testifying in Kerrville had, in

the view of the defendants, “created a conflict of interest

between [the plaintiffs] and law enforcement officers and the law

enforcement community.”

The defendants repeatedly expressed a concern that Kinney’s

and Hall’s testimony created “conflicts of interest” and violated

principles of “cooperative responsibility,” but their letters and

affidavits do not elaborate upon the import of those phrases. In

their depositions, some of the Police Officials admitted that, in

their view, an unacceptable conflict of interest exists whenever

a police instructor testifies against a police officer,

regardless of location and regardless of whether the instructor

had trained the officer. Such a conflict does not exist, in

their view, when an instructor testifies for police officers.

Shortly after the September 30 meeting, Holda met with

Kinney and Hall to apprise them of the situation. Kinney and

Hall assured Holda that they would never testify as experts

against any officer who had been trained at the ETPA or any

9
agency that had sent officers to the ETPA for training.4 Kinney

further promised that he would not accept payment for any future

work on behalf of plaintiffs in police misconduct cases. In a

letter dated October 5, 1998, Holda conveyed Kinney’s and Hall’s

assurances to the attendees of the September 30 meeting and

invited them to attend another meeting along with other East

Texas law enforcement officials for the purpose of discussing

their concerns directly with Kinney and Hall. None of the

invitees indicated an interest in such a meeting or came to the

ETPA on the date suggested by Holda. Hall states in his

affidavit that one of the defendants told him, on October 13,

that the instructors had committed a “sin” for which they could

get no forgiveness.

On October 22, 1998, the East Texas Police Chiefs

Association held its quarterly meeting in Kilgore. The

attendance was unusually large. All of the Police Officials were

4
The defendants have suggested that Kinney and Hall told
their students that the students might someday face Kinney and
Hall in court. In their affidavits and depositions, Kinney and
Hall concede that, if subpoenaed to testify against one of their
students, they would testify truthfully as to what they taught
the student; Kinney and Hall also state, however, that they do
not tell their students that they would testify against them as
experts. Regarding the defendants’ assertion that Kinney once
said in class that he would “go to the highest bidder” and could
face the students as an expert witness, Kinney responds that he
might have made such a remark as a obvious joke. The students
apparently took the comment that way, as the only piece of
evidence relating to a student’s reaction to the comment says
that “I never gave much thought to what he said and believed in
my mind that he was just talking.”

10
present, except for Smith, who later spoke to a deputy who had

attended the meeting. The minutes of this meeting reflect that

Kinney’s and Hall’s involvement in the Kerrville case was

prominent on the agenda. Defendants Young (who was president of

the East Texas Police Chiefs Association at the time), Williams,

Moore, Gibson, and Weaver voiced their disapproval of Kinney’s

and Hall’s work on behalf of the plaintiffs in the Kerrville

case, and all five officials stated their intention to ensure

that Kinney and Hall did not train their officers. Subsequently,

the minutes state that “it was agreed that none of the Chiefs or

Sheriffs present would send their officers to any classes taught

by either [Kinney or Hall].” The minutes do not reflect

discussion of any other complaints concerning Kinney and Hall,

nor do they reflect any mention of the substance of the

instructors’ testimony in Kerrville. Some of the defendants

admitted in their depositions that they did not know what Kinney

and Hall had said in the Kerrville trial, only that they had

testified against the police.

Several local media organizations reported on the

controversy that had arisen between the ETPA and some of the area

police agencies. On television and in print, several defendants

are documented announcing their intention either to use a

training institution other than the ETPA or to bar their officers

from taking Kinney’s and Hall’s courses. Smith was quoted as

stating that Kinney and Hall had “prostituted themselves” by

11
testifying against another officer. Young was shown on

television stating that he would not send officers to the ETPA

until Kinney and Hall were reassigned or fired. A newspaper

article quoted Holda as saying that Young was “asking me to do

something he wouldn’t do.” According to Holda, the instructors

had received excellent evaluations and their testimony was

“freedom of speech.” Weaver told a television reporter that

Kinney and Hall had violated “an unwritten code.”5

The Police Officials followed through on their threats both

by cancelling enrollments in the plaintiffs’ classes and by

barring their officers from enrolling in the plaintiffs’ courses

in the future. The summary judgment evidence indicates that this

boycott was quite effective. Holda stated that Kinney’s and

Hall’s courses “were boycotted by a sufficient number of law

enforcement agencies so that enrollment was insufficient to make

their classes and, therefore, could not be economically

continued.” The boycott began in October 1998, and by November

10, 1998, all of Kinney’s and Hall’s basic classes had been

5
The defendants admitted (either in their pleadings,
depositions, or during the hearing in the district court) to
making the media-reported statements recounted in this paragraph,
and the defendants’ admissions are proper summary judgment
evidence. The record also contains a great many other newspaper
clippings quoting both Holda and the defendants; those reports
are relevant, without regard to the truth of the matter asserted,
to the defendants’ argument that the plaintiffs’ testimony
created a public rift between the ETPA and the local police
agencies.

12
dropped from the ETPA schedule, and many of their off-campus

classes had been cancelled.

Aware that the enrollment in his courses was down and

concerned that he would not be able to withstand a cut in pay,

Hall resigned from the ETPA effective January 3, 1999, because he

anticipated that his ETPA contract would not be renewed. He was

hired as a patrol officer at the Carrollton Police Department,

the job he had left to work at the ETPA six years earlier.

Kinney’s ETPA teaching contract extended through the 1998-

1999 academic year, and he continued to teach during that time.

The boycott remained in effect, however, and the ETPA provided

alternate instructors for all of Kinney’s classes to ensure that

the law enforcement agencies that refused to enroll their

officers in Kinney’s courses could still send trainees to the

ETPA. Kinney stated in his affidavit that he “had minimal class

time during the first few months of the 1999 calendar year”——

specifically, he “had no time in the basic police academy and

very little in the in-service classes.” In their depositions

taken in August 1999, the Police Officials stated that they

continued to prohibit enrollment either in Kinney’s courses or in

all ETPA courses because Kinney remained on the ETPA faculty.

Kilgore College did not renew Kinney’s 1998-1999 contract

for his position as an ETPA instructor, but rather offered him a

contract as a lecturer in the Criminal Justice Department of

Kilgore College for the following academic year. The salary for

13
this position was $15,000 less than Kinney earned as an ETPA

instructor. He had not taught in the Criminal Justice Department

previously, but rather had been an ETPA instructor for the entire

seventeen-year period that he had been working for Kilgore

College. According to Holda, “Kilgore College did not anticipate

a change in the teaching assignment for either Mr. Kinney or Mr.

Hall prior to the decisions by certain law enforcement agencies

to boycott classes taught by Mr. Hall and Mr. Kinney.”

On April 7, 1999, Kinney and Hall filed a complaint in

federal district court against the seven Police Officials, their

respective cities or counties of employment, and the East Texas

Police Chiefs Association, alleging that the defendants had

“blackballed” Kinney and Hall “in retaliation for their truthful

testimony on behalf of the victim of a police shooting.”6 Kinney

and Hall claimed violations of: (1) their rights to testify

freely under 42 U.S.C. § 1985(2), (2) their rights to free speech

under the First and Fourteenth Amendments, (3) their rights to

due process of law under the Fourteenth Amendment, and (4) Texas

tort law. The defendants (both the Police Officials and the

entities) moved for summary judgment on the merits of all four

claims, and the Police Officials also asserted qualified immunity

from the plaintiffs’ federal claims and state official immunity

6
The suit originally named an eighth police chief and
his agency of employment as additional defendants, but the
district court granted an agreed motion to dismiss the claims
against those parties.

14
from the state tort claim. The district court denied the

defendants’ motion for summary judgment on all grounds. Kinney,

111 F. Supp. 2d at 845.

The Police Officials brought an interlocutory appeal of the

district court’s order denying summary judgment on their immunity

defenses. A divided panel of this court affirmed the district

court’s order denying immunity with respect to the plaintiffs’

claims under § 1985, the First Amendment, and state law, but we

reversed the district court with respect to the due process

claim. Kinney, 301 F.3d at 286. The en banc court granted

rehearing in an order dated July 9, 2003, 338 F.3d 432 (5th Cir.

2003), and we heard oral argument on September 25, 2003.

II. JURISDICTION

We must first address our jurisdiction to hear this appeal.

This court has jurisdiction over appeals of “final decisions” of

the district courts. See 28 U.S.C. § 1291 (2000). Although a

denial of a defendant’s motion for summary judgment is ordinarily

not immediately appealable, the Supreme Court has held that the

denial of a motion for summary judgment based upon qualified

immunity is a collateral order capable of immediate review. See

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).7 Our jurisdiction

is significantly limited, however, for it extends to such appeals

7
This court has held that orders denying official
immunity under Texas law are immediately appealable to the same
extent as denials of qualified immunity under federal law. See
Cantu v. Rocha, 77 F.3d 795, 803-04 (5th Cir. 1996).

15
only “to the extent that [the denial of summary judgment] turns

on an issue of law.” Id.

As will be explained in greater detail below, officials

enjoy qualified immunity to the extent that their conduct is

objectively reasonable in light of clearly established law. See

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whenever the

district court denies an official’s motion for summary judgment

predicated upon qualified immunity, the district court can be

thought of as making two distinct determinations, even if only

implicitly. First, the district court decides that a certain

course of conduct would, as a matter of law, be objectively

unreasonable in light of clearly established law. Second, the

court decides that a genuine issue of fact exists regarding

whether the defendant(s) did, in fact, engage in such conduct.

According to the Supreme Court, as well as our own precedents, we

lack jurisdiction to review conclusions of the second type on

interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 313,

319-20 (1995); Lemoine v. New Horizons Ranch & Ctr., Inc., 174

F.3d 629, 634 (5th Cir. 1999).8 Stated differently, in an

8
Since we lack jurisdiction to review a denial of
summary judgment based on the district court’s conclusion that
fact questions exist regarding whether the defendants engaged in
conduct that would violate clearly established law, officials may
sometimes be required to proceed to trial even though the
ultimate resolution of those factual disputes may show that they
are entitled to qualified immunity from liability. The Supreme
Court recognizes that this “threatens to undercut” the policy of
affording immunity from trial, but the Court has said that
“countervailing considerations” nonetheless support this

16
interlocutory appeal we cannot challenge the district court’s

assessments regarding the sufficiency of the evidence——that is,

the question whether there is enough evidence in the record for a

jury to conclude that certain facts are true.9

We do, however, have jurisdiction to the review the first

type of determination, the purely legal question whether a given

course of conduct would be objectively unreasonable in light of

clearly established law. See Behrens v. Pelletier, 516 U.S. 299,

312-13 (1996) (stating that Johnson permits a defendant official

“to claim on appeal that all of the conduct which the District

Court deemed sufficiently supported for purposes of summary

judgment met the Harlow standard of ‘objective legal

reasonableness’”). That is, we have jurisdiction only to decide

whether the district court erred in concluding as a matter of law

that officials are not entitled to qualified immunity on a given

set of facts. As one of our cases succinctly puts it, “we can

review the materiality of any factual disputes, but not their

limitation on interlocutory jurisdiction. See Johnson, 515 U.S.
at 317-18.
9
The Johnson Court provided three reasons for its
conclusion that arguments relating to the sufficiency of the
evidence are not immediately appealable: (1) Mitchell had said
that interlocutory appeal was appropriate only for reviewing the
district court’s purely legal rulings, (2) questions regarding
sufficiency of the evidence are not “separable” from the
underlying merits of the case for purposes of the collateral
order doctrine, and (3) reviewing factual disputes on
interlocutory appeal was undesirable as a matter of judicial
administration. See Johnson, 515 U.S. at 313-17.

17
genuineness.” Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.

2000).

Given the above, the plaintiffs’ suggestion before the panel

that we lack jurisdiction over this appeal is incorrect. We do

have jurisdiction, but only to the extent that the appeal

concerns the purely legal question whether the defendants are

entitled to qualified immunity on the facts that the district

court found sufficiently supported in the summary judgment

record. See Behrens, 516 U.S. at 312-13.10

III. STANDARD OF REVIEW

The standard of review that we apply in an interlocutory

appeal asserting qualified immunity differs from the standard

employed in most appeals of summary judgment rulings.

Ordinarily, we would review the district court’s denial of

summary judgment de novo, applying the same standard as the

district court. See Vela v. City of Houston, 276 F.3d 659, 666

10
Although the briefs submitted by both parties in this
case address only the issue whether the district court properly
denied the Police Officials’ claims of qualified immunity, the
notices of appeal filed with this court name not only the Police
Officials, but also the cities, counties, and the East Texas
Police Chiefs Association. The doctrine of qualified immunity
applies only to government officials, and thus the portion of the
motion for summary judgment addressing the plaintiffs’ claims
against the cities, counties, and the East Texas Police Chiefs
Association attacked those claims on grounds apart from qualified
immunity. Because the district court’s order denying summary
judgment to the entities is not a final decision within the
meaning of § 1291, we do not have jurisdiction over an appeal of
such an order. Accordingly, we dismiss the appeal of the
district court’s summary judgment order brought by the cities,
counties, and the East Texas Police Chiefs Association.

18
(5th Cir. 2001). The district court, of course, applies the

standard of Rule 56, according to which summary judgment is

proper if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. FED. R.

CIV. P. 56(c). On appeal, we would ordinarily apply that same

Rule 56 standard, and we would reverse the district court’s

denial of summary judgment if we concluded that the district

court found a genuine factual dispute when, on our own review of

the record, no such genuine dispute exists. But, as explained

above, in an interlocutory appeal we lack the power to review the

district court’s decision that a genuine factual dispute exists.

Therefore, we do not apply the standard of Rule 56 but instead

consider only whether the district court erred in assessing the

legal significance of the conduct that the district court deemed

sufficiently supported for purposes of summary judgment. See

Behrens, 516 U.S. at 313; Jones, 515 U.S. at 313.

Where factual disputes exist in an interlocutory appeal

asserting qualified immunity, we accept the plaintiffs’ version

of the facts as true. Wagner, 227 F.3d at 320 (“Even where, as

here, the district court has determined that there are genuine

disputes raised by the evidence, we assume plaintiff’s version of

the facts is true . . . .”); see also Gonzales v. Dallas County,

249 F.3d 406, 411 (5th Cir. 2001) (“[O]n interlocutory appeal the

public official must be prepared to concede the best view of the

facts to the plaintiff and discuss only the legal issues raised

19
by the appeal.”).11 When the district court fails to set forth

the factual disputes that preclude granting summary judgment, we

may be required to review the record in order “to determine what

facts the district court, in the light most favorable to the

nonmoving party, likely assumed.” Johnson, 515 U.S. at 319. In

this case, however, the district court wrote a detailed opinion

that carefully identified those factual disputes that prevented

summary judgment.12 In so doing, the district court also

assessed the factual import of the plaintiffs’ summary judgment

evidence. Given the nature of our jurisdiction over an

interlocutory appeal asserting qualified immunity, these factual

disputes, together with the district court’s concomitant

assessment of what facts are supported by the plaintiffs’ summary

judgment evidence, necessarily play a critical role in our

decision. We therefore set them forth at length:

11
The defendants recognize this point and conceded in
their reply brief before the panel that they must “accept the
material facts reasonably suggested by Kinney’s and Hall’s
summary-judgment proof.”
12
To be sure, the district court’s opinion did not (and
could not be expected to) discuss every aspect of the conflicting
evidence. The Police Officials’ briefs have, at times, discussed
aspects of the facts that the district court did not explicitly
address. In responding to those arguments, we do not, as the
dissent alleges “freely evaluate[] the disputed evidence,” Jones
dissent at 5. We do not purport to resolve any factual disputes,
as this case is at the summary judgment stage. Rather, we seek
only to “determine what facts the district court, in the light
most favorable to the nonmoving party, likely assumed,” for
purposes of summary judgment. See Johnson, 515 U.S. at 319.

20
 The plaintiffs contend that the record reflects that
the defendants “blackballed” or boycotted the plaintiffs’
classes at the Academy because the plaintiffs broke the
“code of silence.” . . .
The defendants, on the other hand, have maintained
that they refused to send their officers to classes
taught by Kinney and Hall because of potential conflicts
of interests . . . .
. . . The record is full of evidence, both circumstantial
and direct, backing each of the respective party’s
positions. After reviewing the record and the arguments
of the parties, the court concludes that summary judgment
is not appropriate and this case may proceed to trial.

Kinney, 111 F. Supp. 2d at 835.

There is ample evidence currently in the record for a
jury to conclude that the defendants’ actions were
intended to suppress the plaintiffs’ rights to free
speech.

Id. at 839.

There is ample evidence in the record for a jury to
conclude that the defendants conspired to deter the
plaintiffs from testifying in court by boycotting their
business.

Id. at 840.

There are genuine issues of fact remaining in this case
as to whether the plaintiffs’ expert testimony could
legitimately cause any disruptions in the defendants’
operations. Moreover, it must be determined whether
these disruptions, if any, were the result of a perceived
“conflict of interest” or the “blackballing” of
plaintiffs for turning against one of their own.

Id. at 843.

Plaintiffs’ evidence reflects a dogged determination by
the defendants to rid Kilgore College of the plaintiffs
as instructors in retaliation for speaking out about
excessive force by police officers. The court concludes
that the acts alleged in the complaint and found in the
record, if proven at trial, would violate “clearly
established” law.

Id. at 845.

21
 In reviewing the district court’s conclusions concerning the

legal consequences——the materiality——of the facts, our review is

of course de novo. See Lemoine, 174 F.3d at 634.

IV. QUALIFIED IMMUNITY

The doctrine of qualified immunity seeks to strike a balance

between competing social objectives, providing breathing space

for the “vigorous exercise of official authority” while at the

same time allowing a possibility of redress for victims of

officials’ abuses. See Butz v. Economou, 438 U.S. 478, 504-06

(1978). Therefore, as against claims under federal law,13

“government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Harlow, 457 U.S. at 818. The Supreme Court noted in

Harlow that in most cases, the “of which a reasonable person

would have known” language in the qualified immunity standard

does not add anything to the “clearly established law”

requirement because “a reasonably competent public official

should know the law governing his conduct.” Id. at 818-19. Not

long after Harlow, the Court refined the qualified immunity

13
With respect to the plaintiffs’ state law claim, we
must apply the Texas law of official immunity, which differs
slightly from the federal standard. Since we reinstate the
portion of the panel opinion that dealt with the state law claim,
we do not discuss official immunity under Texas law in today’s
opinion.

22
standard by defining “clearly established” in a way that

encompasses the “objective reasonableness” inquiry: To be

“clearly established” for purposes of qualified immunity, “[t]he

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). Thus, as this court has recognized, in light of the

Anderson definition of “clearly established,” the question

“whether the . . . right was clearly established at the time the

defendant acted . . . requires an assessment of whether the

official’s conduct would have been objectively reasonable at the

time of the incident.” Conroe Creosoting Co. v. Montgomery

County, 249 F.3d 337, 340 (5th Cir. 2001).

The Supreme Court has recently provided us with additional

guidance regarding the nature of “clearly established” law. It

had already been known since Anderson that the “clearly

established” standard does not mean that officials’ conduct is

protected by qualified immunity unless “the very action in

question has previously been held unlawful.” 483 U.S. at 640.

In the Court’s latest pronouncement on the subject, Hope v.

Pelzer, 536 U.S. 730, 739 (2002), the Court held that one of our

sister circuits had erred in defining clearly established law in

such a way that qualified immunity was mandated unless the facts

of past cases were “materially similar” to the conduct then being

23
challenged. The requirement of “materially similar” facts, the

Court determined, was “not consistent with our cases.” Id.

Yet, at the same time, an official does not lose qualified

immunity merely because a certain right is clearly established in

the abstract. It is clearly established that the government may

not deny due process or inflict cruel and unusual punishments,

for example, but those abstract rules give officials little

practical guidance as to the legality of particular conduct.

Qualified immunity should not be denied unless the law is clear

in the more particularized sense that reasonable officials should

be “on notice that their conduct is unlawful.” Saucier v. Katz,

533 U.S. 194, 206 (2001). The central concept is that of “fair

warning”: The law can be clearly established “despite notable

factual distinctions between the precedents relied on and the

cases then before the Court, so long as the prior decisions gave

reasonable warning that the conduct then at issue violated

constitutional rights.” Hope, 536 U.S. at 740 (internal

quotation marks omitted).

“A necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is ‘clearly

established’ at the time the defendant acted is the determination

of whether the plaintiff has asserted a violation of a

constitutional right at all.” Siegert v. Gilley, 500 U.S. 226,

232 (1991). Therefore, before engaging in the inquiry into

whether the official unreasonably violated clearly established

24
law, we should first determine whether the challenged conduct,

viewed in the light most favorable to the plaintiff, would

actually amount to a violation of federal law in the first place.

Saucier, 533 U.S. at 201. In conducting this initial inquiry, we

employ currently applicable constitutional standards. McClendon

v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)

(per curiam).

V. CLAIM UNDER 42 U.S.C. § 1985

Section 1985 provides, in relevant part:

(2) If two or more persons in any State or Territory
conspire to deter, by force, intimidation, or threat, any
party or witness in any court of the United States from
attending such court, or from testifying to any matter
pending therein, freely, fully, and truthfully, or to
injure such party or witness in his person or property on
account of his having so attended or testified . . .
(3) . . . in any case of conspiracy set forth in
this section, if one or more persons engaged therein do,
or cause to be done, any act in furtherance of the object
of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising
any right or privilege of a citizen of the United States,
the party so injured or deprived may have an action for
the recovery of damages occasioned by such injury or
deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985 (2000).

According to Kinney and Hall, the Police Officials violated

the statute by conspiring to mount a campaign of economic

retaliation——which took the form of boycotting Kinney’s and

Hall’s classes and attempting to have them terminated——on account

of the instructors’ testimony against a police officer in the

Kerrville case. The district court denied the defendants’ motion

25
for summary judgment, finding that the plaintiffs had produced

sufficient evidence of an illegal conspiracy and that the

plaintiffs’ rights under § 1985 were clearly established at the

time. Kinney, 111 F. Supp. 2d at 840.

Much of the argument in the district court concerned the

issue of whether the plaintiffs adduced sufficient evidence of a

conspiracy. The district court’s determination that there was

sufficient evidence of a conspiracy is not at issue in this

interlocutory appeal. Instead, the Police Officials’ main

argument on appeal has been the legal argument that § 1985 offers

no protection to expert witnesses, but instead reaches only fact

witnesses. This argument faces an immediate textual impediment,

inasmuch as the statute says “any party or witness.”

Nonetheless, the defendants would draw a distinction between the

two kinds of witnesses based upon the assertion that expert

testimony, unlike fact testimony, is “readily accessible” and can

easily be replaced with the testimony of another expert. Expert

witnesses, in the defendants’ view, therefore need less

protection from intimidation. The Police Officials contend,

moreover, that the enacting Congress could not have meant to

protect expert witnesses because the practice of calling expert

witnesses did not exist at the time that § 1985 was enacted, in

the aftermath of the Civil War.

Based upon the statute’s plain language, we have little

difficulty in concluding that “any party or witness” includes

26
expert witnesses. Since the language is clear on this point,

there is little room for the defendants’ extra-textual arguments

for excluding experts. In any case, to the extent that their

arguments are relevant, they fail to persuade. The defendants

are simply incorrect when they claim that the enacting Congress

could not have been familiar with expert witnesses. Expert

witnesses have been known for hundreds of years. See Learned

Hand, Historical and Practical Considerations Regarding Expert

Testimony, 15 HARV. L. REV. 40, 45-50 (1901). Leaving that to one

side, the defendants are also incorrect in assuming that the

statute’s reach is restricted to those factual scenarios that the

enacting legislature could have specifically contemplated. On

the contrary, the Supreme Court has instructed that

Reconstruction-era civil rights statutes are to be given “‘a

sweep as broad as [their] language,’” Griffin v. Breckenridge,

403 U.S. 88, 97 (1971) (alteration in original) (quoting United

States v. Price, 383 U.S. 787, 801 (1966)), ensuring that their

protections remain relevant to modern circumstances.14

In answer to the defendants’ argument that expert testimony

is easily replaceable and therefore less worthy of protection

than fact testimony, we would point out that expert testimony on

14
In calling for a narrow construction of § 1985(2) that
departs from the text, Judge Barksdale’s dissent cites Kush v.
Rutledge, 460 U.S. 719 (1988). But Kush is notable because it
rejected a non-textual limiting construction that certain
circuits, including this one, had erroneously embraced. Id. at
723, 726.

27
police procedures will not be “readily accessible” if, as

happened here, police officials can prevent the persons with the

relevant expertise from testifying, even in cases hundreds of

miles away.15 This court’s cases involving Sixth Amendment

claims of witness intimidation have not suggested that experts

need less protection than fact witnesses. See, e.g., United

States v. Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002); United

States v. Dupre, 117 F.3d 810, 822-23 (5th Cir. 1997). In any

case, the defendants’ unsupported conjectures about experts’

relative “need” for protection cannot displace the text’s plain

words: “any party or witness.” We therefore hold that § 1985(2)

protects expert witnesses.

We further conclude that the statute’s coverage of expert

witnesses was “clearly established” for purposes of qualified

immunity. No reasonable official would find the terms “any . . .

witness” ambiguous on this point. Although a body of cases is

typically required in order to give clear shape to vague

constitutional provisions referring to “due process of law” or

“cruel and unusual punishments,” we believe that the text is

itself sufficient to put reasonable officials on notice that the

15
As described earlier, the defendants’ position is that
no testimony against the police is too distant to warrant
condemnation. The plaintiffs in the Kerrville case sought help
from Kinney and Hall because they had experienced difficulty
finding an expert from their local area.

28
word “witness” includes expert witnesses.16 No case of which we

are aware has even remotely suggested that § 1985(2) does not

apply to experts. On the contrary, the only case addressing the

issue treats it as obvious that the statue encompasses experts.

See Chahal v. Paine Webber Inc., 725 F.2d 20 (2d Cir. 1984).

Given the clarity of the phrase “any . . . witness,” the absence

of more cases like Chahal is hardly surprising. Nor would an

official find a basis for excluding experts if he or she happened

to be familiar with the law in related contexts. As we have just

mentioned, no distinction between fact witnesses and expert

witnesses exists in our Sixth Amendment witness intimidation

cases, nor is any such distinction drawn in cases involving the

absolute immunity that protects witnesses from civil liability

arising from their testimony.17

16
We find untenable any general proposition that cases
are necessarily required in order to create clearly established
law. As the Supreme Court explained in a case involving the
criminal counterpart to § 1985, the civil doctrine of qualified
immunity has “the same objective” as the rule that due process
requires “fair warning” before criminal liability may be imposed.
See United States v. Lanier, 520 U.S. 259, 270-71 (1997). “[T]he
touchstone is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time that the
defendant’s conduct was criminal.” Id. at 267 (emphasis added).
We doubt that the Police Officials would be willing to agree that
the contents of the Texas Penal Code or Title 18 of the U.S. Code
are inherently incapable of giving notice of their own meaning,
even as to phrases as transparent as “any . . . witness.”
17
See Briscoe v. LaHue, 460 U.S. 325, 341-42 (1983);
Storck v. Suffolk County Dep’t of Soc. Servs., 62 F. Supp. 2d
927, 945 (E.D.N.Y. 1999) (“[The absolute] immunity extends to all
persons, whether governmental, expert, or lay witnesses, integral
to the trial process.”) (citing Briscoe).

29
 The defendants make a more plausible argument when they

assert that their conduct did not “injure” Kinney and Hall in

their “person[s] or property” within the meaning of the statute.

Pointing out that they were not contractually obligated to

continue sending their officers to the ETPA or to any particular

instructor for training, the Police Officials argue that Kinney

and Hall lacked a property interest in the Police Officials’

enrollment of their officers in Kinney’s and Hall’s courses. The

Police Officials further contend that Kinney and Hall were at-

will employees of the ETPA; thus, under precedents interpreting

the Due Process Clause, the instructors lacked any property

interest in continued employment at the ETPA.18 Consequently,

the Police Officials argue, it would have been reasonable for

them to believe that their conduct did not “injure [a] witness in

his person or property” for purposes of the statute.

Regarding the question whether the plaintiffs have set forth

a violation of the statute under current law, the Police

Officials’ argument is foreclosed by Haddle v. Garrison, 525 U.S.

121 (1998), in which the Supreme Court held that “third-party

interference with at-will employment relationships[] states a

claim for relief under § 1985(2).” Id. at 126. In Haddle, the

18
Kinney and Hall had contracts for the 1998-1999
academic year, so they were not at-will employees for that term.
The relationship was at-will in the sense that Kinney and Hall
had no contract for continued employment beyond the contract
period, i.e., no right to automatic renewal.

30
Court reasoned that because “[t]he gist of the wrong at which

§ 1985(2) is directed is not deprivation of property, but

intimidation or retaliation against witnesses in federal-court

proceedings,” the loss of at-will employment can injure a

plaintiff for purposes of the statute even though he or she lacks

a property interest for purposes of the Due Process Clause. Id.

at 125-26. The Police Officials certainly interfered with

Kinney’s and Hall’s employment within the meaning of Haddle. Not

only did they avowedly act in concert to pull their students from

the plaintiffs’ classes, but, according to the district court,

they also tried to have the plaintiffs fired from their jobs.

See Kinney, 111 F. Supp. 2d at 845 (referring to evidence of “a

dogged determination by the defendants to rid Kilgore College of

the plaintiffs”); see also supra at pp. 8, 12 (recounting the

Police Officials’ demands that Kinney and Hall be fired). The

plaintiffs suffered economic injury as a result of the

defendants’ actions: Kinney’s ETPA contract was not renewed, and

Hall left the ETPA in apprehension of suffering the same fate.

Holda’s affidavit confirms that, before the defendants began

their campaign, the ETPA anticipated renewing the plaintiffs’

contracts. Coercing an employer into firing an employee is the

classic case of interfering with employment relations.19

19
Given the facts of this case, it is incorrect to say,
as Judge Barksdale’s dissent repeatedly does, that the only thing
that the Police Officials did was to benignly decline to enroll
their officers in the plaintiffs’ classes. The defendants

31
 Although a precedent so commanding as Haddle is not

necessary to establish that a reasonably competent official would

have understood that certain conduct was unlawful, we agree with

the Police Officials that it was not clearly established before

Haddle that the “property” contemplated by § 1985(2) included

at-will employment. The Supreme Court granted certiorari in

Haddle to resolve a split among the circuits with regard to the

status of at-will employment, 525 U.S. at 124, and this circuit

had not clearly announced its view on the subject. Thus, given

the absence of a definitive judicial interpretation of “property”

for purposes of § 1985(2), coupled with the fact that at-will

employment is not “property” for purposes of the Due Process

Clause, we cannot conclude that § 1985(2) by its terms clearly

established that third-party interference with at-will employment

was injury to property. On this point, the law became clearly

established only after Haddle.20

interfered with the plaintiffs’ employment, and if that is an
absurd result, then the dissent’s quarrel is with Haddle, not
with us.
20
Hall left the ETPA before the expiration of his
contract for the 1998-1999 academic year, assertedly because of
fears over job security. To the extent that the Police Officials
interfered with Hall’s rights under this contract, as opposed to
Hall’s prospects of continued employment beyond the contract, the
Police Officials did more than merely interfere with at-will
employment. However, the plaintiffs have not argued that the
defendants’ interference with Hall’s contract violated law that
was clearly established even before Haddle, and thus we need not
decide that question.

32
 The Police Officials and Judge Barksdale argue that Haddle

is irrelevant to this case because it was issued on December 14,

1998, after the events of September and October 1998, when the

conspiracy began. They are mistaken in believing that the

conduct that forms the basis of the plaintiffs’ statutory claim

took place solely in or before October 1998. Subsection

1985(3)’s cause of action specifically extends liability to any

persons who “do, or cause to be done, any act in furtherance of

the object of [a] conspiracy [to injure a witness in retaliation

for his or her testimony].” (emphasis added).21 Kinney and Hall

provided evidence that the Police Officials affirmatively

21
In their petition for rehearing, the defendants raised
for the first time an argument that the plaintiffs do not have
statutory standing to sue under § 1985(3). The argument is that
even though § 1985(2) prohibits the intimidation of “part[ies] or
witness[es]” (as well as many other categories of persons), the
remedy described in the last clause of § 1985(3) uses the phrase
“party so injured” to mean “litigant so injured” rather than
“person so injured.” There is a split of authority with respect
to the point raised by the defendants. Compare Chavis v. Clayton
County Sch. Dist., 300 F.3d 1288, 1292 (11th Cir. 2002),
Heffernan v. Hunter, 189 F.3d 405, 409-10 (3d Cir. 1999), and
Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1125 n.7 (10th Cir.
1994) (all holding that non-party witnesses have standing), with
Blankenship v. McDonald, 176 F.3d 1192, 1196 (9th Cir. 1999), and
Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175, 1180 (7th Cir.
1989) (both holding that non-party witnesses lack standing). We
note that there is a question as to our jurisdiction to entertain
an argument relating to statutory standing (as opposed to
constitutional standing) in the context of an interlocutory
appeal. See Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326,
1334-36 (11th Cir. 1999); Triad Assoc. v. Robinson, 10 F.3d 492,
496 n.2 (7th Cir. 1993). We need not resolve the question,
however, as the defendants did not raise this issue in the
district court or before the panel. They are of course free to
raise the argument in further proceedings below.

33
committed “act[s] in furtherance” of their conspiracy to have

Kinney and Hall removed from their ETPA positions long after

Haddle, not just before. In particular, Kinney and Hall claim

(and the Police Officials conceded in their depositions) that the

Police Officials continued to prohibit their officers from

enrolling in Kinney’s or Hall’s classes for the entire time that

they were working as instructors at the ETPA; at least one of the

defendants continued to boycott the entire ETPA during that time.

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

1999, and Kinney’s ETPA contract did not expire until September

1999. Viewing the summary judgment record in the light most

favorable to Kinney and Hall, it is reasonable to infer that if

the Police Officials had ceased their boycott in the wake of

Haddle, Holda may have reconsidered his conclusion that it was no

longer economically viable for Kilgore College to offer Kinney’s

and Hall’s courses, and thus Kinney and Hall might not have been

injured. In the end, it may be that much of the damage was done

while the Police Officials still enjoyed qualified immunity;

nonetheless, Kinney and Hall are entitled to pursue their claims

for any damages traceable to “act[s] in furtherance” that

occurred after the illegality of the Police Officials’ actions

become clear.

Viewing the facts in the light most favorable to Kinney and

Hall, the conduct at issue in this case falls within the core of

§ 1985’s post-Haddle meaning. There was sufficient evidence to

34
show that the defendants agreed to retaliate against Kinney and

Hall on account of the instructors’ testimony against police

officers in a federal case, and, as in Haddle, the retaliation

took the form of interference with the instructors’ employment

relationship, namely by boycotting their classes and pressuring

the ETPA to fire them. We thus conclude that the Police

Officials’ conduct was objectively unreasonable in light of

clearly established law, and the district court properly denied

their motion for summary judgment with respect to the § 1985

claim.

We emphasize that the statute does not create liability for

every adverse action taken against a witness after the witness

testifies in a federal case. In addition to the requirement that

there be a cognizable injury to the witness or his property

(discussed above), the statute itself contains another limiting

principle: the conspirator must threaten or injure the witness

“on account of his having so attended or testified”——that is,

because of, and by reason of, a person’s participation as a

witness. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 13 (1963)

(defining the phrase “on account of” to mean “for the sake of: by

reason of: because of”).22 The defendants have said that they

22
Our reading of the “on account of his having so
attended or testified” language in § 1985 parallels the Supreme
Court’s interpretation of similar language in 18 U.S.C. § 241,
the criminal counterpart to § 1985. Section 241 criminalizes,
inter alia, conspiracies to injure or intimidate a citizen in the
free exercise and enjoyment of federal rights “because of [the

35
had concerns about the instructors’ abilities and ethics. The

district court found, however, that there was sufficient evidence

for a jury to conclude that the defendants acted to punish the

plaintiffs because they had testified against the police. In

further proceedings in this case, the defendants may be able to

resolve this factual dispute in their favor.

VI. FIRST AMENDMENT CLAIM

Kinney and Hall claim that the defendants unlawfully

retaliated against them for exercising their rights to free

speech guaranteed by the First Amendment and made applicable to

state actors by the Fourteenth Amendment. The district court

evaluated the plaintiffs’ claim according to the law governing

First Amendment retaliation claims brought by public employees.

See Kinney, 111 F. Supp. 2d at 837. Acknowledging that Kinney

and Hall were not employees of the Police Officials, the district

court noted that in Board of County Commissioners v. Umbehr, 518

U.S. 668 (1996), the Supreme Court held that the First Amendment

analysis applicable to claims by public employees also applies to

First Amendment claims brought by the government’s independent

contractors. Having considered the relationship between Kinney

and Hall and the police agencies that have long used their

citizen’s] having so exercised the same.” Interpreting this
language in United States v. Guest, 383 U.S. 745 (1966), the
Court stated that § 241 would not reach every conspiracy that
affected a federal right, but only a conspiracy whose
“predominant purpose” was to deter or punish the exercise of the
federal right. Id. at 760.

36
services, the district court concluded that Kinney and Hall are

“the equivalent of . . . governmental independent contractor[s].”

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

As the district court recognized, a First Amendment

retaliation claim in the employment context has four elements:

(1) the plaintiff suffered an adverse employment decision, (2)

the plaintiff’s speech involved a matter of public concern, (3)

the plaintiff’s interest in speaking outweighed the governmental

defendant’s interest in promoting efficiency, and (4) the

protected speech motivated the defendant’s conduct. See Lukan v.

N. Forest ISD, 183 F.3d 342, 346 (5th Cir. 1999). The district

court determined that Kinney and Hall had proffered sufficient

evidence to withstand summary judgment on those elements. First,

the district court found that both instructors presented evidence

that they had suffered adverse employment actions by being forced

to accept lower paying jobs as a result of the Police Officials’

boycott. Kinney, 111 F. Supp. 2d at 838. Second, the court

determined that the plaintiffs’ testimony regarding the use of

excessive force by police officers was unquestionably a matter of

public concern. Id. Third, applying the balancing test set

forth in Pickering v. Board of Education, 391 U.S. 563, 568

(1968), the district court determined that the balance weighed in

favor of Kinney and Hall; that is, the instructors’ interest in

commenting on a matter of public concern outweighed the Police

Officials’ interest in promoting the efficient delivery of public

37
services. Kinney, 111 F. Supp. 2d at 838.23 Fourth, the

district court found that the instructors’ speech motivated the

Police Officials’ actions. Id. Then, turning specifically to

the question of qualified immunity, the court determined that the

relevant law was clearly established at the time of the alleged

violation and that the Police Officials’ conduct was objectively

unreasonable in light of that clearly established law. See id.

at 840-44.

As we noted in our analysis of the plaintiffs’ § 1985

claims, the threshold issue in a qualified immunity inquiry is

whether, taken in the light most favorable to the party asserting

the injury, Kinney and Hall have shown that the Police Officials’

conduct violated their constitutional rights. See Saucier, 533

U.S. at 201. Only if we determine that the plaintiffs’ evidence

shows a constitutional violation do we address the question

whether “[t]he contours of the right [were] sufficiently clear

23
This balancing was of course informed by the district
court’s evaluation of the summary judgment evidence.
Specifically, regarding the Police Officials’ assertions that the
instructors’ speech threatened to disrupt the efficient provision
of public services, the district court remarked as follows:

There are genuine issues of fact remaining in this case
as to whether the plaintiffs’ expert testimony could
legitimately cause any disruptions in the defendants’
operations. Moreover, it must be determined whether
these disruptions, if any, were the result of a perceived
“conflict of interest” or the “blackballing” of
plaintiffs for turning against one of their own.

111 F. Supp. 2d at 843.

38
[at the time of the alleged violation] that a reasonable official

would understand that what he is doing violates that right.”

Anderson, 483 U.S. at 640. We begin, then, by asking whether the

Police Officials’ conduct amounts to a violation of the

plaintiffs’ right to free speech. This requires us first to

identify the proper First Amendment analysis.

A. What is the applicable First Amendment analysis?

The First Amendment shields speech “not only [from] direct

limitations . . . but also [from] adverse government action

against . . . individual[s] because of [their speech],” including

the denial of public benefits to punish individuals for their

speech. Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999).

At the outset, the Police Officials contend that their

conduct is not actionable under the First Amendment because their

decisions on whether and where to enroll officers are

discretionary in the sense that no contract required them to

enroll their officers in Kinney’s and Hall’s courses. This

assertion overlooks the fundamental point that governmental

discretion is always constrained by the Constitution. As the

Supreme Court stated in Perry v. Sindermann, the locus classicus

of the “unconstitutional conditions” doctrine:

For at least a quarter-century, this Court has made clear
that even though a person has no “right” to a valuable
governmental benefit and even though the government may
deny him the benefit for any number of reasons, there are
some reasons upon which the government may not rely. It
may not deny a benefit to a person on a basis that

39
 infringes his constitutionally protected interests——
especially, his interest in freedom of speech.

408 U.S. 593, 597 (1972). The county officials in Umbehr were

under no duty to place contracts with the plaintiff’s trash-

hauling business, nor did the plaintiff have a right to those

contracts; it was an at-will relationship. See Umbehr, 518 U.S.

at 670-71. The point of such cases, as we have long made plain,

is the government’s duty not to punish protected speech, not the

citizen’s supposed “right” to government patronage.24 In the

instant case, the district court found sufficient evidence not

only that the defendants deprived Kinney and Hall of the benefit

of continued enrollment in their courses——a form of public

patronage——but also that at least some of the defendants sought

to have the instructors removed from the academy altogether.

That no contract forbade this is irrelevant.

The Police Officials also suggest that their relationship

with Kinney and Hall was too attenuated to create the requisite

governmental power over the instructors. Specifically, the

Police Officials argue that their conduct did not deny Kinney and

24
See N. Miss. Communications, Inc. v. Jones, 792 F.2d
1330, 1337 (5th Cir. 1986) (“Although the [plaintiff newspaper]
may have had no ‘right’ to receive certain legal advertising from
the County Board of Supervisors, it would violate the
Constitution for the Board to withhold public patronage, in the
form of its advertising, from the [newspaper] in retaliation for
that newspaper’s exercise of first amendment rights, or, in
similar reprisal to threaten commercial advertisers with a loss
of county business should they continue to advertise in the
[newspaper].”).

40
Hall the benefit of employment because Kilgore College, and not

the Police Officials, held the authority to refuse to renew

Kinney’s and Hall’s contracts. We reject this line of argument.

The Supreme Court has made it clear that First Amendment

protection does not depend on whether the governmental action at

issue is “direct” or “indirect.” To hold that the Police

Officials’ conduct cannot constitute a First Amendment violation

because they did not directly deprive Kinney and Hall of their

jobs, but instead used governmental power to exert economic

pressure on the instructors’ employer in order to achieve that

same result, “would allow the government to ‘produce a result

which [it] could not command directly.’” Perry, 408 U.S. at 597

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

(alteration in original). The defendants’ “attenuation” argument

is fundamentally misguided, for the situation in which the

economic relationship between the government and the speaker is

the most attenuated would be the case in which the speaker is an

ordinary citizen with no employment-related ties to the

government. In this limiting case for the defendants’

attenuation argument, the First Amendment would plainly forbid

the government from pressuring the citizen’s employer to fire the

citizen as punishment for trial testimony that the government

disliked. The degree of attenuation present in a given case may

well bear on causation——that is, it may be easier for a

government official to fire his own employee than to persuade a

41
contractor to fire one of its employees——but this does not change

the official’s First Amendment duty. We thus reject the

defendants’ initial arguments that the First Amendment has no

bearing on this case.

While all citizens enjoy the protections of the First

Amendment, the appropriate analytical framework for applying the

“unconstitutional conditions” doctrine to a given First Amendment

claim depends on the context in which the claim arose. As the

Supreme Court explained in Umbehr, the cases form a “spectrum”

ranging from, at one end, cases involving “government employees,

whose close relationship with the government requires a balancing

of important free speech and government interests” and, on the

other end, cases involving “ordinary citizens whose viewpoints on

matters of public concern the government has no legitimate

interest in repressing.” 518 U.S. at 680.

Because the government has no legitimate interest in denying

a benefit to “ordinary citizens” on account of their speech on

matters of public concern, there is no interest balancing

involved in the First Amendment analysis for “ordinary citizen”

cases. Rather, the First Amendment is violated in “ordinary

citizen” cases if the individual engaged in conduct protected by

the First Amendment and the government took action against the

person because of that protected conduct. See, e.g., Rolf v.

City of San Antonio, 77 F.3d 823, 827 (5th Cir. 1996). In

42
“governmental employee” cases, by contrast, courts must be

attentive to the “[t]he government’s interest in achieving its

goals as effectively and efficiently as possible,” which interest

“is elevated from a relatively subordinate interest when it acts

as sovereign to a significant one when it acts as employer.”

Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality

opinion).

The Supreme Court set out the basic analytical structure for

“governmental employee” balancing cases in Pickering v. Board of

Education, 391 U.S. at 568. In that case, the Court held that a

board of education violated a teacher’s First Amendment rights by

discharging him in retaliation for his criticism of the board’s

budget decisions. Id. at 566, 574-75. In so holding, the Court

emphasized that government employees “may [not] constitutionally

be compelled to relinquish the First Amendment rights they would

otherwise enjoy as citizens to comment on matters of public

interest in connection with the operation of the public

[institutions] in which they work.” Id. at 567-68. The Court

also recognized, however, that “the State has interests as an

employer in regulating the speech of its employees that differ

significantly from those it possesses in connection with

regulation of the speech of the citizenry in general.” Id.

Thus, explained the Court, it is necessary “to arrive at a

balance between the interests of the teacher, as a citizen, in

commenting upon matters of public concern and the interest of the

43
State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Id. at 568.

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

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

that the “governmental employee” version of the unconstitutional

conditions doctrine——that is, the Pickering balancing inquiry——is

also appropriate where an independent contractor alleges a First

Amendment violation against the government. See O’Hare Truck

Serv., 518 U.S. at 720-24; Umbehr, 518 U.S. at 677-78, 684-85.

The Court reasoned that “[i]ndependent government contractors are

similar in most relevant respects to government employees.”

Umbehr, 518 U.S. at 684. Specifically, the Court noted:

The government needs to be free to terminate both
employees and contractors for poor performance, to
improve the efficiency, efficacy, and responsiveness of
service to the public, and to prevent the appearance of
corruption. And, absent contractual, statutory, or
constitutional restriction, the government is entitled to
terminate them for no reason at all. But either type of
relationship provides a valuable financial benefit, the
threat of the loss of which in retaliation for speech may
chill speech on matters of public concern by those who,
because of their dealings with the government, “are often
in the best position to know what ails the agencies for
which they work.”

Id. at 674 (quoting Waters, 511 U.S. at 674).25

25
Based on reasoning similar to that of the Supreme Court
in Umbehr and O’Hare Truck Service, this court has also applied a
Pickering balancing test in First Amendment retaliation cases
arising outside the public employment context. See, e.g., Copsey
v. Swearingen, 36 F.3d 1336, 1344 (5th Cir. 1994) (holding that a
Pickering balancing analysis was the appropriate framework for
evaluating a vending stand operator’s First Amendment claim based
on a state agency’s revocation of his license after he publicly

44
 As we have explained in past cases, the determination

whether the relationship between the government and an individual

falls on the “governmental employee” end of the Umbehr spectrum

turns on whether the relationship is sufficiently “analogous to

an employment relationship.” See Blackburn v. City of Marshall,

42 F.3d 925, 932 (5th Cir. 1995). Applying this standard in

Blackburn, we held that the Pickering balancing test was not

applicable to a wrecker service owner’s First Amendment

retaliation claim against police officials for revoking his

permission to use the police radio frequency after he criticized

the police department’s contracting procedures. Id. at 930, 934.

The revocation of radio privileges rendered the service unable to

participate in a rotation system for removing damaged vehicles

from the scenes of accidents. Id. at 930. We reasoned in

Blackburn that the business relationship between the wrecker

service owner and the police department did not implicate

employment-type ties but was instead similar to the relationship

between the parties in North Mississippi Communications, another

case in which we applied the “ordinary citizen” version of the

“unconstitutional conditions” doctrine. See Blackburn, 42 F.3d

at 934. North Mississippi Communications involved a newspaper’s

criticized the licensing program); Caine v. Hardy, 943 F.2d 1406,
1415-16 (5th Cir. 1991) (en banc) (treating an anesthesiologist
with clinical privileges at a public hospital as a “public
employee” for purposes of his First Amendment claim based on the
hospital’s permanent suspension of his clinical privileges after
he opposed a proposal made by the chief of anesthesiology).

45
First Amendment claim alleging that county officials had ceased

placing legal notices in the newspaper in retaliation for the

newspaper’s publication of editorials that criticized the board

and its members. 792 F.2d at 1337. We did not apply a Pickering

balancing test to the newspaper’s First Amendment claim, but

rather held that “it would violate the Constitution for the Board

to withhold public patronage, in the form of its advertising,

. . . in retaliation for that newspaper’s exercise of first

amendment rights.” Id.

The parties in this case disagree over which First Amendment

analysis——Pickering balancing on the one hand or the “ordinary

citizen” framework on the other——should apply to this case.

Earlier, in arguing that their actions did not deny Kinney and

Hall any actionable “benefits” for purposes of the

unconstitutional conditions doctrine, the Police Officials

emphasized their lack of employment-type ties to Kinney and Hall.

In support of their argument regarding the appropriate First

Amendment analysis, however, the Police Officials now

characterize their relationship with the ETPA and ETPA

instructors as sufficiently akin to employment to warrant a

balancing of the Police Officials’ interests against the free

speech interests at stake in this case. Relying on North

Mississippi Communications and Worrell v. Henry, 219 F.3d 1197

(10th Cir. 2000), Kinney and Hall respond that the “ordinary

citizen” analysis is better suited to the circumstances of the

46
instant case than is the “governmental employee” test. In

Worrell, the Tenth Circuit declined to apply a Pickering

balancing test to a First Amendment claim alleging that the law

enforcement defendant pressured the plaintiff’s employer to

rescind the plaintiff’s job offer in retaliation for the

plaintiff’s having testified as an expert witness on behalf of a

criminal defendant. See 219 F.3d at 1202, 1209-12. Rather, the

Worrell court determined that the appropriate First Amendment

analysis for evaluating the plaintiff’s claim was the “ordinary

citizen” version of the unconstitutional conditions doctrine.

See id. at 1212-13.

We agree with the district court and the Police Officials

that a Pickering balancing analysis is appropriate in this case.

The relationship between the Police Officials and ETPA

instructors such as Kinney and Hall implicates governmental

interests similar to those involved in the public employment

context. Law enforcement agencies have a legitimate interest in

exercising discretion over the choice of the instructors who

train the officers who will, in turn, carry out the agencies’

public duties. Those interests include, for example, ensuring

that the instructors are competent and knowledgeable, that they

are adept at conveying that knowledge to officer-students, and

that they maintain a good working relationship with law

enforcement agency officials so that those officials can monitor

the training that their officers receive. These interests are

47
all relevant to the ultimate governmental interest that the

Pickering balancing analysis is meant to protect, namely the

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

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

The defendants do not dispute that the instructors spoke on

a matter of public concern, nor can they question (in this

interlocutory appeal) the district court’s factual determinations

regarding causation. Accordingly, we now consider whether, under

Pickering, the district court correctly balanced the First

Amendment interest in protecting Kinney’s and Hall’s speech

against the Police Officials’ interests in suppressing it.

B. Was there a First Amendment violation?

The Pickering test requires us to balance the speaker’s

First Amendment interests against the government’s legitimate

interests in the efficient provision of public services. In

performing this balance, we must take care not to exceed the

scope of our interlocutory appellate jurisdiction. As explained

earlier, see supra Parts II-III, we must accept the existence of

those genuine issues of fact identified by the district court and

the district court’s concomitant characterization of the

plaintiffs’ summary judgment evidence. The question for us is

whether the district court committed legal error in balancing the

interests supported by the summary judgment record, viewing the

record in the light most favorable to the non-movants.

48
 Starting first with the plaintiffs’ side of the scales, we

conclude that Kinney and Hall present an extremely strong First

Amendment interest. The weight of the First Amendment interest

is, of course, not measured solely by the instructors’ own

personal gain, if any, from speaking.26 It is, rather, a

function of the social value of that speech. See, e.g., Connick

v. Myers, 461 U.S. 138, 145 (1983) (“[S]peech concerning public

affairs is more than self-expression; it is the essence of self-

government.”) (alteration in original) (internal quotation marks

and citation omitted); Brawner v. City of Richardson, 855 F.2d

187, 192 (5th Cir. 1988) (discussing, in the course of a

Pickering balancing case, “the public’s interest in the

disclosure of misconduct or malfeasance” (emphasis added)). This

court has emphasized the great First Amendment significance of

speech bearing on official misconduct, “especially when it

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

F.2d at 191-92. Indeed, because individuals working in law

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

26
Contrary to some of the Police Officials’ intimations,
the plaintiffs’ interests in speaking cannot be reduced to a mere
pecuniary interest in, as the defendants put it, “moonlighting as
experts-for-hire.” The plaintiffs originally planned to be paid
for their work in the Kerrville shooting case——just as Kinney had
been paid in the past when he had testified as an expert in
support of police officers——but they later decided that “it
wouldn’t be right to charge” because they “felt so strongly about
the incident.” As we explain in the text, the speech in this
case is uncommonly valuable because of the public’s interest in
identifying, preventing, and remedying official misconduct, not
because of any personal advantage to Kinney and Hall.

49
occurrence of official misconduct, Umbehr, 518 U.S. at 674, “it

is essential” that such well-placed individuals “be able to speak

out freely” about official misconduct, Pickering, 391 U.S. at

572. Kinney and Hall, two experienced law enforcement trainers

with expertise in weapons and the use of force, are ideally

placed to offer valuable public comment about excessive force and

the adequacy of police training and supervision, the key issues

in the Kerrville trial.27 Moreover, as the district court

pointed out, “[i]ndividuals will have a hard time succeeding in

an excessive force case without the assistance of experts who are

intimately acquainted with police procedures.” Kinney, 111 F.

Supp. 2d at 838. Expert testimony is thus essential both in

providing victims with “the only realistic avenue for vindication

of constitutional guarantees,” Harlow, 457 U.S. at 814, as well

as in serving § 1983’s parallel deterrent function, see Owen v.

City of Independence, 445 U.S. 622, 651 (1980). We thus conclude

27
The fact that Kinney and Hall spoke as expert witnesses
does not mean that their speech was less valuable than other
forms of speech that reveals official misconduct. By virtue of
their experience and expertise, witnesses like Kinney and Hall
play an essential role in identifying police misconduct. There
was no secret about the fact that Eddie Gonzales had been shot by
the police in Kerrville; the public did not need an expert
witness to reveal that. The public does need experts like Kinney
and Hall, however, to reveal whether the shooting was an
unjustified use of force or the result of inadequate training or
supervision.

50
that Kinney and Hall have a particularly weighty First Amendment

interest on their side of the Pickering scales.28

We turn next to the Police Officials’ side of the Pickering

balance. Stated in its most general terms, the government has an

interest in “promoting the efficiency of the public services

[that the governmental agency] performs.” Pickering, 391 U.S. at

568. In the instant case, given the Police Officials’ objective

of providing effective law enforcement, all sides recognize that

they have a strong interest in assuring the effective training of

their law enforcement personnel. As the Supreme Court has made

clear, however, the relevant issue is not the weight of the

governmental interest considered in abstract terms; we look

instead to how the speech at issue affects the government’s

interest in providing services efficiently. It is the speech’s

detrimental effect on the efficient delivery of public services

that gives the government a legitimate interest in suppressing

it. This is illustrated, for example, by Rankin v. McPherson,

483 U.S. 378, 381 (1987), a case in which an employee in a

constable’s office remarked, upon hearing about the attempted

28
Judge Jones would minimize the importance of the free
speech interest at stake here on the ground that Kinney and Hall
testified voluntarily. (Kinney and Hall were actually
subpoenaed, but they admit that they appeared voluntarily.) In
doing so, she relies on the Third Circuit’s decision in Green v.
Philadelphia Housing Authority, 105 F.3d 882 (3d Cir. 1997). The
plaintiff in Green was demoted after he agreed to testify, as a
favor for a friend, as a character witness at the friend’s son’s
bail hearing. Id. at 884. Such testimony is of much less public
importance than the testimony here.

51
assassination of President Reagan, “[I]f they go for him again, I

hope they get him.” The Rankin Court did not consider the

defendant constable’s generalized interest in maintaining

discipline——certainly an important interest——but the Court

instead asked whether the speech at issue, given the context and

the employee’s duties, actually impaired office operations. “In

performing the [Pickering] balancing, the statement will not be

considered in a vacuum; the manner, time, and place of the

employee’s expression are relevant, as is the context in which

the dispute arose.” Id. at 388. Thus, the question in this case

is not whether the police have an interest in “effective

training”——no one would deny that——but rather whether, on this

record, they could reasonably think that interest threatened by

the plaintiffs’ protected speech such that the Police Officials

may legitimately suppress that speech.

In recognizing that the governmental interests at stake in a

particular case necessarily depend upon the facts of the case, we

most certainly do not, as the dissent asserts, pervert the First

Amendment analysis by changing the Pickering balancing inquiry

into a question for the jury. It is for the court to determine

the importance of a plaintiff’s speech interest, to determine the

importance of a governmental interest in efficient operations,

and to balance the relative weight of each. But the governmental

interests that are at stake in a particular case necessarily

depend on the facts of the case. As a matter of law, the Police

52
Officials surely have an array of weighty interests in various

matters, but those interests are only relevant to this case if,

as a matter of fact, a certain interest is threatened. In this

case——an interlocutory appeal of a denial of summary judgment——we

are not permitted to indulge in our own preferred view as to the

true facts of the case, much less can we simply accept the

defendant’s version of the disputed facts as true. Instead, we

must accept the genuine factual disputes identified by the

district court and conduct the inquiry as if the plaintiffs’

version is true. That is how this circuit, like other circuits,

handles the substantive law of Pickering balancing in the

procedural posture of summary judgment when the material facts

are disputed. See, e.g., Victor v. McElveen, 150 F.3d 451, 457

(5th Cir. 1998) (explaining that a sheriff was unable to show

that his interests in efficient functioning of the department

outweighed a deputy’s speech interests, given that it was

disputed whether the comment was disruptive).29 The dissent is

29
See also Johnson v. Ganim, 342 F.3d 105, 114-15 (2d
Cir. 2003) (denying summary judgment and qualified immunity
because of factual dispute regarding whether plaintiff’s speech
reasonably could disrupt the government employer’s operations);
Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002) (“Pickering
balancing is not an exercise in judicial speculation. While it
is true that in some cases the undisputed facts on summary
judgment permit the resolution of a claim without a trial, that
means only that the Pickering elements are assessed in light of a
record free from material factual disputes.”); Domina v. Van
Pelt, 235 F.3d 1091, 1098-99 (8th Cir. 2000) (denying summary
judgment and qualified immunity due to factual dispute over
whether employee’s speech created workplace disharmony and
affected morale); Johnson v. Univ. of Cincinnati, 215 F.3d 561,

53
thus incorrect if it suggests that First Amendment cases present

an exception to the general rule that we do not resolve genuine

factual disputes at the summary judgment stage. Put differently,

engaging in Pickering balancing is not like performing rational

basis review, where we uphold government action as long as there

is some imaginable legitimate basis for it. Gustafson, 290 F.3d

at 909-10; see Boddie v. City of Columbus, 989 F.2d 745 (5th Cir.

1993) (“There was no interest to balance [in the Pickering

inquiry] when this [potential] reason was rejected factually.”).

We do not let the governmental defendant prevail, on summary

judgment, by relying on interests that, viewing the record in the

non-movant’s favor, are not reasonably threatened in the case.

With these principles in mind, we now turn to the Police

Officials’ asserted grounds for taking action against Kinney and

Hall. In canvassing the possible harms caused by the plaintiffs’

Kerrville testimony, we note first that some of the workplace

disruptions cited by the Police Officials are simply irrelevant

to the Pickering calculus. It is of course true, as the

defendants point out, that the boycott strained the relationship

between the ETPA and the local police agencies. In addition, the

boycott may have caused tension between Holda and the plaintiffs,

585 (6th Cir. 2000) (reversing grant of summary judgment because
material factual disputes bore on Pickering balance); cf. Shands
v. City of Kennett, 993 F.2d 1337, 1342-43 (8th Cir. 1993)
(instructing district courts to submit special interrogatories to
the jury on the question of whether the employee’s speech was
disruptive).

54
although Holda did defend Kinney and Hall in the media and

attempt to resolve the boycott amicably. Those types of

disruptions might have given the ETPA a sound reason for taking

action against Kinney and Hall, but they cannot be counted in the

Police Officials’ favor. The disruptions just noted were caused

by the Police Officials’ boycott, so the Police Officials can

hardly rely on those disruptions as a justification for their

boycott. The question is whether the plaintiffs’ testimony posed

a threat to the Police Officials’ ability to deliver police

services, not whether the Police Officials caused a disruption in

response to it.30

With regard to the question whether the plaintiffs’ speech

impaired the Police Officials’ training operations, the district

court concluded, based upon its review of the record before it,

that the defendants had not identified any damage to the

efficiency of their operations brought about by Kinney’s and

30
Cf. Kennedy v. Tangipahoa Parish Library Bd. of
Control, 224 F.3d 359, 378 n.19 (5th Cir. 2000). Other courts
have likewise rejected the circular argument advanced by the
Police Officials. See Worrell, 219 F.3d at 1210-11 (“[A]cting
with retaliatory intent, a third party upon whose cooperation the
employer depended could refuse to cooperate with the employer
unless a particular employee were fired, demoted, or transferred.
By withholding cooperation, the third party could effectively
create the very workplace disruption that, under the Pickering
approach, could be used to justify the limitation of First
Amendment rights.”); cf. Hughes v. Whitmer, 714 F.2d 1407, 1434
(8th Cir. 1983) (McMillian, J., dissenting) (“It would be
anserine to permit the government to discipline its employees
because of disruption caused by the government’s repressive
reaction to the employee’s first amendment activities.”).

55
Hall’s testimony in Kerrville. Kinney, 111 F. Supp. 2d at 842.

This finding is not itself determinative, for we (like those in

dissent) are mindful of the fact that a prudent administrator

will often wish to take action before a risk ripens into an

actual workplace disruption. The key limitation on preemptive

action, however, is that the officials’ predictions of disruption

must be reasonable. See Waters, 511 U.S. at 673; Connick, 461

U.S. at 154; Brawner, 855 F.2d at 192 (asking whether speech was

“likely” to disrupt police department’s operations); see also

Gustafson, 290 F.3d at 911 (denying police officials’ request for

qualified immunity and remarking that “mere incantation of the

phrase ‘internal harmony in the workplace’ is not enough to carry

the day” (internal quotation marks omitted)). “Even in

situations where courts have recognized the special expertise and

special needs of certain decisionmakers, the deference to their

conclusions has never been complete.” Waters, 511 U.S. at 677.

The reason for this rule should be obvious: Disruption is always

possible, but to give deference to unfounded predictions of harm

would allow the government arbitrarily to punish speech under the

guise of preempting disruption. That is, it would permit the

government “to silence discourse, not because it hampers public

functions but simply because superiors disagree with the content

of employees’ speech,” Rankin, 483 U.S. at 384. The district

court addressed the issue of whether disruption was a reasonable

prospect, and its conclusion was that “[t]here are genuine issues

56
of fact remaining in this case as to whether the plaintiffs’

expert testimony could legitimately cause any disruptions in the

defendants’ operations.” Kinney, 111 F. Supp. 2d at 843.31 We

are not free to disregard that conclusion in this appeal.

The Police Officials claim that Kinney’s and Hall’s

testimony damaged training by creating a “conflict of interest”

and “violat[ing] . . . principles of cooperative responsibility

[and] trust.” Needless to say, reasonable officials should be

concerned about conflicts of interest, and they can rightfully

demand that their employees and contractors not abuse the trust

the government places in them. Based upon the summary judgment

record, however, the district court was unable to determine

whether the Police Officials had concerns about genuine conflicts

of interest or were instead, as Kinney and Hall contend, merely

interested in enforcing a “code of silence” against the

plaintiffs. Id. at 835, 838, 843.32 One of the main reasons for

31
In this regard, it should be remembered that the record
does not contain any affidavits or depositions from trainees who
stated that they lost confidence in the instructors. Kinney and
Hall stated that their relationships with students were not
adversely affected.
32
The so-called “code of silence,” as we have explained
in previous cases, is the informal rule according to which one
police officer does not report on or testify against another
police officer, regardless of the nature of the accused officer’s
conduct. See, e.g., Snyder v. Trepagnier, 142 F.3d 791, 797 n.6
(5th Cir. 1998) (citing an expert witness).
The Police Officials have asserted in their briefs that
Kinney and Hall admitted that the Police Officials had genuine
and reasonable concerns about conflicts of interest. We do not
believe that the Police Officials’ reading of the record is

57
the district court’s conclusion was that the Police Officials

have asserted an interest in suppressing testimony that involved

a police agency hundreds of miles away, well outside of the

ETPA’s service area. The record shows that the Police Officials

see a conflict of interest whenever and wherever a police trainer

testifies against police officers. Regardless of whether one

uses the label “code of silence,” we believe that, on this

record, the defendants’ asserted notion of “conflicts of

interest” sweeps so broadly as to undermine its status as a

legitimate government interest that can properly weigh in the

Pickering balance.33 The persuasiveness of the Police Officials’

asserted concern sinks further still when one considers that they

not only refused to send students to Kinney’s and Hall’s

classes——that might be a proper response to concerns about an

instructor——but the Police Officials also tried to have the

instructors fired, which tends to imply that the defendants were

warranted. In their depositions, Kinney and Hall admitted that
reasonable people could be concerned about conflicts of interest
when an instructor testifies against his own students. They
deny, however, that reasonable people would be concerned about
conflicts of interest in this case, and they deny that the Police
Officials held genuine concerns about conflicts.
33
The Pickering balance takes account of legitimate
interests only. See Umbehr, 518 U.S. at 675 (referring to
“legitimate countervailing government interests”) (emphasis
added); Wilson v. UT Health Ctr., 973 F.2d 1263, 1270 (5th Cir.
1992) (“Though the speech of public employees may be of public
concern, that speech still does not enjoy First Amendment
protection if legitimate government interests in limiting the
speech outweigh the employees’ interest in speaking.”) (emphasis
added).

58
trying to do more than prevent a conflict of interest. If

anything, the Police Officials’ sweeping (yet one-sided) notion

of “conflicts of interest” tends to impair the efficient

provision of public services, inasmuch as it thwarts the

important public objective of preventing police misconduct.34 As

the Supreme Court counseled in Rankin, another case that arose in

the law enforcement context, “[v]igilance is necessary to ensure

that public employers do not use authority over employees to

silence discourse, not because it hampers public functions but

simply because superiors disagree with the content of employees’

speech.” 483 U.S. at 384.

Similar comments are in order regarding the Police

Officials’ asserted interests in loyalty and esprit de corps,

heavily relied upon by the dissent. No one would doubt but that

those are important considerations, especially in a police

department. Even within a police department, however, the mere

34
As this court has recognized, government agencies have
an interest in protecting speech relating to official misconduct,
and there are circumstances in which that interest
counterbalances the governmental interest in suppressing
disruptive speech. See Victor, 150 F.3d at 457 (observing, in
connection with a deputy sheriff’s First Amendment claim, that
“concerns about maintaining harmony and eliminating disruption
cannot be the sole measure of government interest when the
employee’s speech furthers other important state interests”);
Frazier v. King, 873 F.2d 820, 826 (5th Cir. 1989) (stating, in a
First Amendment case brought by a nurse who worked in a prison,
that “[a]lthough [the plaintiff’s] ‘whistle blowing’ obviously
created tension and difficulties at [the prison], when weighed
against the exposure of unethical medical practices affecting
hundreds of inmates, the disruption is a minimal interest”).

59
assertion of interests in preserving loyalty and close working

relationships does not end the debate as it would if this were a

rational basis inquiry. See Branton v. City of Dallas, 272 F.3d

730, 741 (5th Cir. 2001). When the dissent trumpets the need for

“institutional loyalty,” Jones dissent at 35, one must ask what

institution the plaintiffs have wronged by testifying against

distant officers that they have never met. The Police Officials’

charge of disloyalty makes sense only if Kinney and Hall owe

fealty to law enforcement universally. Indeed, the Police

Officials’ stated view is that one is disloyal——and has committed

an unforgivable “sin”——whenever one testifies against law

enforcement officers anywhere. A concept of loyalty that sweeps

so broadly is not one that may legitimately trump compelling

interests in speaking on matters of public concern.

The district court’s conclusions with respect to the

question of workplace disruption——or rather, the absence

thereof——distinguish the instant case from a case like Tedder v.

Norman, 167 F.3d 1213 (8th Cir. 1999). In Tedder, the deputy

director of a police academy testified as an expert witness

against one of the agencies that sent trainees to the academy.

It is quite understandable how this could raise real concerns,

including concerns about conflicts of interest. Accordingly, the

Tedder court found that the “actual disruption and potential

further disruption” caused by the plaintiff’s testimony justified

the academy’s decision to demote him. Id. at 1215. Here, in

60
contrast, the district court concluded that there was a genuine

dispute over whether the plaintiffs’ activities did in fact, and

reasonably could be expected to, impair proper training.

When we accept the factual disputes identified by the

district court and view the disputed facts in the light most

favorable to Kinney and Hall, we find that the Police Officials

have not articulated any relevant, cognizable interests in

suppressing the plaintiffs’ speech, while Kinney and Hall have

presented a strong First Amendment interest in testifying about

police brutality and inadequate supervision and training.

Therefore, we conclude that, at the summary judgment stage, the

instructors’ interest in testifying easily outweighs the Police

Officials’ interest in suppressing their speech, given that the

speech involved unrelated police agencies hundreds of miles away.

Our decision should not be taken to mean that police

agencies do not enjoy broad latitude in managing the training of

their officers, including significant discretion over the choice

of instructors. There are any number of legitimate reasons why

police officials can stop using a particular instructor or

academy; barring contractual commitments, they can do so for no

good reason at all. In order to do so on a basis that penalizes

protected speech, however, they must explain why their need to

suppress the speech outweighs the countervailing First Amendment

interest in free expression. At this early stage of the

proceedings, there is a genuine dispute as to whether the Police

61
Officials had any legitimate interests that could justify their

decision to boycott and seek the termination of instructors who

had testified in a distant trial against unrelated police

agencies.

To summarize: Kinney and Hall spoke on a matter of public

concern, and the value of their speech prevails, at the summary

judgment stage, over the opposing governmental interests in the

Pickering balance. Since the district court also found that

Kinney and Hall established a genuine factual issue regarding

whether the Police Officials boycotted Kinney’s and Hall’s

courses and sought to have them removed from the ETPA faculty

because of their testimony, Kinney, 111 F. Supp. 2d at 838, 843,

the facts set forth by Kinney and Hall are sufficient to state a

First Amendment violation. The first step of the qualified

immunity analysis is thus complete. We next turn to the question

of “clearly established” law——that is, whether it would have been

apparent to a reasonable officer at the time of the alleged

violation that the Police Officials’ conduct violated the First

Amendment.

C. Are the Police Officials entitled to qualified immunity?

The First Amendment right to free speech was of course

clearly established in general terms long before the events

giving rise to this case. In order to defeat the Police

Officials’ claim of qualified immunity, however, Kinney and Hall

62
must show that “[t]he contours of the right [were] sufficiently

clear that a reasonable official would understand that what he is

doing violates that right.” Anderson, 483 U.S. at 640.

Qualified immunity should not be denied unless the law is such

that reasonable officials should be “on notice [that] their

conduct is unlawful.” Saucier, 533 U.S. at 206. It bears

repeating once more that our factual guide is the district

court’s view of the record, and the legal question is whether the

defendants’ conduct violated clearly established law measured

against the facts that the district court believed the plaintiffs

could prove at trial. See Behrens, 516 U.S. at 313.

There is no question that it was clearly established well

before October 1998 that Kinney’s and Hall’s testimony was of

public concern and thus was speech protected by the First

Amendment.35 The Police Officials do not attempt to argue

otherwise, but rather suggest that it was not clear that the

First Amendment imposed any restrictions on their conduct

vis-à-vis Kinney and Hall as their training instructors. This,

of course, is the same argument we rejected earlier, in

discussing whether Kinney and Hall had set forth evidence of

35
Testimony in judicial proceedings “is inherently of
public concern.” Johnston v. Harris County Flood Control Dist.,
869 F.2d 1565, 1578 (5th Cir. 1989); see also Reeves v. Claiborne
County Bd. of Educ., 828 F.2d 1096, 1100 (5th Cir. 1987)
(testimony in civil proceedings); Smith v. Hightower, 693 F.2d
359, 368 (5th Cir. 1982) (testimony in criminal proceedings);
Rainey v. Jackson State Coll., 481 F.2d 347, 349-50 (5th Cir.
1973) (testimony of expert witness).

63
conduct that would amount to a constitutional violation at all.

In arguing for qualified immunity, the Police Officials contend

that there was at least a reasonable legal basis for their view,

even if it was ultimately wrong. More specifically, the Police

Officials say that their duties with respect to Kinney and Hall

were unclear because the instructors were “employees of a

‘disappointed bidder’——i.e., Kilgore College.” The Police

Officials apparently base this contention in part on the Umbehr

Court’s admonishment that “[b]ecause [this] suit concerns the

termination of a pre-existing commercial relationship with the

government, we need not address the possibility of suits by

bidders or applicants for new government contracts who cannot

rely on such a relationship.” 518 U.S. at 685.

Initially, we reject the defendants’ attempt to characterize

Kinney and Hall as employees of a disappointed bidder. Neither

Kilgore College nor ETPA instructors such as Kinney and Hall were

mere “bidders” in the sense that they lacked a “pre-existing

commercial relationship” of the sort that the Court was concerned

about in Umbehr——i.e., a relationship that the Police Officials

could use to inhibit speech. See id. at 674 (reasoning that a

Pickering balancing analysis is appropriate in cases involving

the government’s independent contractors or providers of regular

services as well as its employees because both “type[s] of

relationship provide[] a valuable financial benefit, the threat

of the loss of which in retaliation for speech may chill speech

64
on matters of public concern”). The Police Officials had the

power to deny Kinney and Hall significant benefits as ETPA

instructors, and it is the existence of that sort of power——and

not mere labels describing governmental relationships——that is

relevant for purposes of the First Amendment. See O’Hare Truck

Serv., 518 U.S. at 721-22; Umbehr, 518 U.S. at 678-79.

More fundamentally, we reject the Police Officials’

suggestion that it would have been reasonable for officers in

their positions to believe that they were unfettered by the First

Amendment merely because their economic relationship with Kinney

and Hall was non-employment and non-contractual. Both the

Supreme Court and this court have explicitly rejected such

reasoning. In O’Hare Truck Service, the Court rejected “the

proposition . . . that those who perform the government’s work

outside the formal employment relationship are subject to what we

conclude is the direct and specific abridgment of First Amendment

rights.” 518 U.S. at 720. Similarly, in Blackburn, we stated

that the “assumption that only public employees enjoy the

protections of the First Amendment” rested on “inverted”

reasoning because “[e]very citizen enjoys the First Amendment’s

protections against governmental interference with free speech.”

42 F.3d at 931. As we explained in Blackburn, the Supreme Court

did not formulate the “governmental employee” version of the

“unconstitutional conditions” doctrine in order to limit the

First Amendment to the public employment context, but rather in

65
order to take into account that “the First Amendment rights of

public employees are restricted by the nature of the

employer-employee relationship.” Id. Indeed, the Supreme

Court’s decisions in Pickering, Umbehr, and O’Hare Truck Service

are predicated on the assumption that although the government may

have other relationships with individuals in addition to the

citizen-sovereign relationship, individuals do not, as a result

of such relationships, cease to be citizens with First Amendment

rights that the government is obligated to respect. Thus, we

have little difficulty concluding that the Police Officials would

be unreasonable in failing to recognize that they had First

Amendment obligations toward Kinney and Hall.

Part VI.A of this opinion determined that the Police

Officials were entitled to have the plaintiffs’ First Amendment

claim analyzed under a Pickering balancing inquiry, a framework

that recognizes the Police Officials’ legitimate interests in

suppressing some speech that interferes with the provision of

public services. To the extent that there was any uncertainty

about the proper analytical framework, the uncertainty could not

redound to the defendants’ benefit, as the alternative would have

been to hold the Police Officials to the higher standards that

they must observe with respect to ordinary citizens. It is plain

that the government cannot harry the employer of an ordinary

citizen who gave unwelcome testimony, seeking to have the

employee fired in retaliation. Giving the Police Officials the

66
benefit of the Pickering balancing test, we must ask whether it

was clearly established at the time of the Police Officials’

conduct that the First Amendment forbade them from retaliating

against Kinney and Hall, the employees of their contractor, on

account of the instructors’ Kerrville testimony. We conclude

that it was.

Given that it is well-established in the jurisprudence of

both the Supreme Court and this court that official misconduct is

of great First Amendment significance, and that this court has

repeatedly emphasized the need to protect speech regarding police

misconduct in particular, see, e.g., Brawner, 855 F.2d at 192, it

would have been objectively unreasonable for an officer to

conclude that Kinney’s and Hall’s testimony was anything other

than highly valuable speech.36 Suppressing that speech could be

justified, they should have realized, only by a weighty

governmental interest. See Matherne v. Wilson, 851 F.2d 752, 761

(5th Cir. 1988) (explaining that a greater disruption must be

shown when the speech is of greater public concern).

As explained earlier, at this stage of the case it is

disputed whether the Police Officials’ legitimate interests were

threatened by Kinney and Hall. The district court found that it

was disputed whether the instructors’ testimony in Kerrville

36
As we explained earlier, that Kinney and Hall testified
as experts rather than as fact witnesses does not mean that their
speech fell outside of this particularly protected category. See
supra notes 26-27 and accompanying text.

67
disrupted, and even legitimately could disrupt, the Police

Officials’ training objectives. Kinney, 111 F. Supp. 2d at 843.

On this record, the Police Officials’ asserted interest in

loyalty is unreasonable given the events at issue; certainly such

interests cannot justify an attempt to force the instructors out

of the academy altogether. Viewing the summary judgment facts in

the light most favorable to the non-movants, the Police Officials

pursued Kinney and Hall not because of genuine conflicts of

interest but instead merely because Kinney and Hall had testified

against a police officer. Id. at 838-39, 843, 845. When the

disputed facts are viewed from the perspective of the plaintiffs’

evidence——and that is the only perspective allowed on this

interlocutory appeal, see Behrens, 516 U.S. at 313——the

illegality of the Police Officials’ actions is readily apparent.

Summary judgment is therefore inappropriate.

The Police Officials contend that their conduct was

reasonable in light of the fact that, when the boycott started in

October 1998, the Texas Legislature and Texas A&M University had

enacted policies that effectively prohibited state employees from

serving as expert witnesses against the state, ostensibly because

of inherent conflicts of interest. See Hoover v. Morales, 164

F.3d 221, 223-24 (5th Cir. 1998) (describing the policies). But

the Police Officials could hardly have reasonably relied on these

state policies as support for their own stand against purported

conflicts of interest: The state policies had been challenged as

68
violative of free speech, and a federal judge had preliminarily

enjoined their enforcement on August 7, 1997, over a year before

the boycott. This court affirmed that decision in an opinion

issued July 23, 1998.37 It would therefore have been

unreasonable to rely on these state policies for guidance on the

meaning of the First Amendment.

In any event, we had spoken to such issues long before the

controversy over the policies at issue in Hoover. For example,

we held in Rainey v. Jackson State College that a teacher stated

a claim under the First Amendment when a state college denied him

37
The defendants have stated that Hoover was not decided
until December 1998, after much (but by no means all) of the
conduct at issue in this case. Their belief is probably based on
the fact that the version of the Hoover opinion printed in the
bound volume of the Federal Reporter 3d bears a date of Dec. 31,
1998. The July version of the opinion was published at 146 F.3d
304 in the advance sheet of the Reporter, but it was withdrawn
from the bound volume in favor of the December version. The only
difference between the two versions is the addition of one
paragraph, placed at the end of the majority opinion,
acknowledging that some restrictions on employee testimony——
restrictions not before the court——might pass constitutional
muster. See Hoover, 164 F.3d at 227. The Police Officials’
conduct in no way resembles the types of restraints that Hoover’s
appended paragraph suggested might be permissible. The paragraph
indicated, for instance, that the state may have a greater
interest in preventing policymaking employees from testifying,
and that restraints are less troublesome if they are
content-neutral. Id. Wholly unlike those examples, the conduct
in the instant case looks much more like the blanket,
viewpoint-based ban condemned in Hoover itself. Indeed, if we
take the Police Officials at their word, their policy is that
people like Kinney and Hall——the very people with the expertise
that is required to prove claims of excessive force and
inadequate police supervision and training——cannot testify in any
case, anywhere, against the police because doing so is a conflict
of interest.

69
employment in retaliation for his expert testimony for the

defendant in a criminal obscenity case. See 435 F.2d at 1034

(Rainey I). In a later appeal of the same case, we noted that a

college trustee had admitted that the plaintiff was denied the

teaching position because of his testimony and the publicity

surrounding the same; we observed that “[t]hese facts make out

what appear to us to be a clear case of impermissibly freighting

plaintiff’s contract with a deprivation of the First Amendment

right to free speech,” and we ultimately held that the plaintiff

was entitled to a judgment as a matter of law. Rainey v. Jackson

State Coll., 481 F.2d 347, 350 (5th Cir. 1973) (Rainey II).38

The Rainey decisions are themselves part of a long series of

First Amendment cases in which we have condemned retaliation

against court testimony, including retaliation against employees

who gave testimony adverse to their employers’ interests. See

Johnston, 869 F.2d at 1568 (county employee fired for testifying

on co-worker’s behalf in an administrative hearing); Reeves, 828

38
Part of the Rainey plaintiff’s underlying claim had
been mooted by the passage of time by the date of the second
appeal; we reached the merits of the claim in order to determine
whether he was entitled to attorneys’ fees. Rainey II, 481 F.2d
at 349. This was nonetheless a holding on the merits of the
First Amendment claim, as a later appeal in the same saga
recognized: “Our opinion in Rainey II considered and made
findings on the merits and entered a judgment sustaining Rainey’s
claim that his termination of employment was unconstitutional.”
Rainey v. Jackson State Coll., 551 F.2d 672, 675 (5th Cir. 1977)
(Rainey III).

70
F.2d at 1097-99 (school employee demoted for her civil testimony

in favor of her co-employee against their employer).

Judge Jones’s dissent discusses in some detail three cases

from other circuits that, in her estimation, show that the

defendants did not violate the First Amendment and should in any

event be entitled to qualified immunity. Only one of these, the

Third Circuit’s decision in Green, was on the books when the

Police Officials began their activities.39 The plaintiff in

Green, a police officer on a drug task force, agreed to testify

as a character witness at the bail hearing of the son of a

longtime friend. 105 F.3d at 884. The plaintiff left the

hearing without testifying after he learned that the son was

associated with organized crime. Id. The police agency demoted

the officer anyway, citing their interest in avoiding the

appearance of an association with organized crime. Id. at 884-

85. Surely it would cast a police agency into disrepute if its

vice officers were thought to consort with mob figures, but the

Police Officials in this appeal cannot seriously claim that their

agencies will be exposed to public obloquy if a police instructor

they patronize testifies for the plaintiff in an excessive force

39
The Eighth Circuit decided Tedder in February 1999,
after the boycott had already caused Kinney’s and Hall’s classes
to be cancelled and after Hall had already left ETPA. The Tenth
Circuit decided Worrell in 2000. Both cases are discussed supra.

71
case, just as he has before testified in favor of the police.40

Green in no way supports the Police Officials’ actions.

While some of the relevant First Amendment retaliation

precedents in place in the fall of 1998 involved schools (like

the Rainey cases and Reeves), and others of them (such as Brawner

and Victor) have involved police departments, we concede that our

past cases do not include one that has specifically addressed

retaliation against instructors at a police academy. We do not

see the absence of such a case as an embarrassment to our

conclusion that the Police Officials are not entitled to

qualified immunity. If we accepted the defendants’ view of what

it means for the law to be clearly established, qualified

immunity would be available in almost every case, even those

cases in which “in the light of pre-existing law the unlawfulness

[was] apparent,” Anderson, 483 U.S. at 640. As the Supreme Court

has recently admonished, “officials can still be on notice that

their conduct violates established law even in novel factual

circumstances.” Hope, 536 U.S. at 741.

40
Relatedly, we do not understand the Police Officials’
assertion, advanced by the dissent, Jones dissent at 32, that
Kinney and Hall somehow exploited their association with ETPA.
The instructors did not seek out their role in the Kerrville
case; the victim’s family approached them after failing to find
any qualified local experts who would testify against the police.
In order to establish their competence to offer expert opinion,
surely the instructors’ testimony would have to mention their
place of employment. The Police Officials never complained about
misuse of the good name of ETPA when an instructor gave expert
testimony, with pay, in favor of the police.

72
 Although we are sensitive to the fact that reasonable

officials might not always be able to predict the outcome of a

balancing test such as that used in Pickering cases, see Noyola

v. Tex. Dep’t of Human Res., 846 F.2d 1021, 1025 (5th Cir.

1988),41 we believe that in this case the illegality of the

Police Officials’ conduct is sufficiently clear that they can

fairly be said to have been on notice of the impropriety of their

actions. Indeed, given the factual disputes identified by the

district court and taking the plaintiffs’ side of those disputes,

41
Noyola observed that, because of the balancing required
in Pickering cases, “[t]here will rarely be a basis for a priori
judgment that the termination or discipline of a public employee
violated ‘clearly established’ constitutional rights.” 846 F.2d
at 1025. We do not think that this remark can be taken to set
forth a rule of law to the effect that qualified immunity is
mandated in Pickering cases; indeed, the Noyola opinion itself
went on to analyze whether the plaintiff’s alleged right actually
was clearly established. See id. at 1025-26. Noyola’s statement
facially takes the form of a prediction that denials of qualified
immunity will be “rare[]” in the Pickering context. Qua
prediction, it may not be an unreasonable one. Nonetheless, a
number of this court’s Pickering cases have denied qualified
immunity. See, e.g., Branton, 272 F.3d at 741-46; Wilson v. UT
Health Ctr., 973 F.2d at 1270; Frazier, 873 F.2d at 826-27.
Underscoring the fact that Noyola does not purport to command a
particular result, three of the four Fifth Circuit Pickering
cases that cite Noyola deny the official’s claim of qualified
immunity. Compare Gunaca v. Texas, 65 F.3d 467 (5th Cir. 1995)
(upholding a claim of qualified immunity), with Harris v.
Victoria Indep. Sch. Dist., 168 F.3d 216 (5th Cir.), reh’g denied
and opinion clarified, 336 F.3d 343 (5th Cir. 1999), Boddie v.
City of Columbus, 989 F.2d 745 (5th Cir. 1993), and Brawner, 855
F.2d 187 (all denying qualified immunity). (It should be noted
that Brawner cites Noyola for a different proposition.) As we
state in the text, Noyola is at its predictive nadir when, as in
this case, there is no true balancing required because the
defendant official has not set forth any substantial legitimate
interest.

73
this case does not require any real balancing at all, for the

Police Officials do not have any relevant, legitimate interests

to put on their side of the Pickering scales. Our cases show

that it is entirely appropriate to deny qualified immunity when

the balance of cognizable interests weighs so starkly in the

plaintiff’s favor. See, e.g., Boddie, 989 F.2d at 750; Frazier,

873 F.2d at 826. This means that summary judgment must sometimes

be denied in Pickering cases because of genuine factual disputes

concerning whether admittedly legally important government

interests are implicated on a given record. See, e.g., Branton,

272 F.3d at 741; Kennedy, 224 F.3d at 378-79; Victor, 150 F.3d at

457; see also supra note 29 (citing cases from other circuits).

Of course, the ultimate resolution of those factual disputes may

show that the Police Officials are entitled to qualified immunity

from liability. See supra note 8.

We close our discussion of qualified immunity by noting

that, contrary to the position asserted by the Police Officials,

the district court’s review of the reasons for the Police

Officials’ boycott does not mean that the lower court, or this

court, has engaged in a “subjective” analysis of the type

condemned in Harlow. The Police Officials’ position, apparently,

is that they are entitled to qualified immunity as long as there

exists some conceivable set of reasons that would have made their

actions appropriate. Such factual scenarios doubtless exist. It

would have been permissible for the Police Officials to pull

74
their students out of Kinney’s and Hall’s classes if (for

instance) the Police Officials learned that the instructors were

unskilled. Therefore, the Police Officials suggest, we

necessarily engage in a forbidden “subjective” inquiry if we take

cognizance of a genuine dispute over the reasons for their

actions against the instructors. What the defendants’ approach

would mean, of course, is that there can never be liability for

any violation for which the elements include the official’s

intent or reasons for action. Most § 1983 claims do not include

such an element, but First Amendment retaliation claims do: The

First Amendment protects employees only from “termination because

of their speech on matters of public concern,” Umbehr, 518 U.S.

at 675, not from termination simpliciter. Similarly, the

Constitution forbids officials from discriminating on the basis

of race only when their discrimination is intentional. See

Washington v. Davis, 426 U.S. 229, 239-48 (1976). In such cases,

reading Harlow as forbidding all discussion of intent would allow

the qualified immunity defense to preclude recovery even when the

law was clearly established, for plaintiffs would be barred from

proving an essential legal element of their case.42

42
Indeed, the Supreme Court has explicitly distinguished,
on the one hand, the focused inquiry into intent that a court
must undertake in connection with certain constitutional
violations, from, on the other hand, the wide-ranging
“subjective” inquiry into bad faith condemned in Harlow. Harlow
sought to prevent “an open-ended inquiry into subjective
motivation [with the] primary focus . . . on any possible animus
directed at the plaintiff.” Crawford-El v. Britton, 523 U.S.

75
 When an official’s intent or the reasons for his or her

actions are an essential element of the underlying violation, we

have treated factual disputes over intent just like any other

factual dispute that can justify a denial of qualified immunity.

See Tompkins v. Vickers, 26 F.3d 603, 607-10 (5th Cir. 1994)

(holding that the existence of a retaliatory motive was a factual

issue that precluded summary judgment on qualified immunity in a

First Amendment case in which a teacher claimed that he had been

transferred in retaliation for criticizing the school

superintendent); see also Coleman v. Houston Indep. Sch. Dist.,

113 F.3d 528, 535 & n.6 (5th Cir. 1997) (stating that the court

lacks jurisdiction on interlocutory appeal to review whether

there is a genuine issue of fact as to intentional

discrimination). Other circuits take the same view.43

574, 592 (1998). That inquiry would burden officials
unnecessarily, because whether the defendant official bore a
generalized ill will toward the plaintiff is irrelevant to the
question whether the defendant official has violated clearly
established law. But when intent is an element of the predicate
violation, such as in claims of intentional racial discrimination
or First Amendment retaliation, the inquiry into intent is
permissible because it is “more specific,” focusing on “an intent
to disadvantage all members of a class that includes the
plaintiff or to deter public comment on a specific issue of
public importance.” Id. (citation omitted).
43
See, e.g., Rivera-Torres v. Ortiz Velez, 341 F.3d 86,
97 (1st Cir. 2003); Thomas v. Talley, 251 F.3d 743, 746 (8th Cir.
2001) (“In considering a qualified immunity defense, a court
cannot disregard evidence of the intent that is an element of the
plaintiff's case because if it did so the plaintiff could not
show that the defendant violated clearly established law.”);
Walker v. Schwalbe, 112 F.3d 1127, 1132-33 (11th Cir. 1997)
(citing cases and stating that “[w]here the official’s state of

76
 As we have said, accepting the Police Officials’ position

would mean that every claim of qualified immunity would

necessarily be upheld in those categories of cases that require

proof of intent or motive. The proper approach, which treats

intent as one fact issue among others, does not lead to the

opposite extreme, namely that qualified immunity is never

available in such cases. That too would be an intolerable

result. Fortunately, in no area of the law can bare accusations

of malice or evil intent withstand a properly supported motion

for summary judgment. See Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986); Krim v. BancTexas Group, Inc., 989 F.2d 1435,

1449 (5th Cir. 1993) (stating that unsupported assertions of bad

faith cannot create a genuine issue of fact; in such a case,

“summary judgment is proper even if intent is an essential

element of the nonmoving party’s case”). Insubstantial suits

against public officials can be handled through the “firm

application of the Federal Rules of Civil Procedure,” Butz, 438

U.S. at 508, including the restrictions on discovery available in

mind is an essential element of the underlying violation, the
state of mind must be considered in the qualified immunity
analysis or a plaintiff would almost never be able to prove that
the official was not entitled to qualified immunity. We hold, as
every Circuit that has considered this issue has held, that where
subjective motive or intent is a critical element of the alleged
constitutional violation the intent of the government actor is
relevant.”).

77
Rule 26.44 The case before us is not a case in which a plaintiff

seeks to impugn an otherwise legitimate official action by

casting bare accusations of malice, bad faith, and retaliatory

animus. Kinney and Hall showed the district court sufficient

evidence, both direct and circumstantial, and much of which came

from the defendants’ own words, to raise a genuine issue of fact

as to their claims.

The Police Officials’ conduct, as presented in the summary

judgment record and viewed in the plaintiffs’ favor, was

objectively unreasonable in light of clearly established First

Amendment law. The district court therefore correctly determined

that the Police Officials are not entitled, at least at this

point, to qualified immunity from Kinney’s and Hall’s § 1983

claims alleging violations of their rights to freedom of speech

under the First and Fourteenth Amendments.

VII. DUE PROCESS AND STATE LAW CLAIMS

In addition to their § 1985 and First Amendment claims,

Kinney and Hall also alleged a denial of due process and a state

law claim for tortious interference with business relations. The

district court denied the defendants’ motion for summary judgment

44
Indeed, several of the defendants in the instant case
moved the district court to limit discovery until the question of
qualified immunity was resolved. The court granted the motion in
part, limiting discovery to the issue of the availability of
qualified immunity. Therefore, it is not precisely accurate to
say, as Judge Jones does, that “all discovery is complete.”
Jones dissent at 5.

78
on these claims. The panel of this court that initially heard

the Police Officials’ interlocutory appeal reversed the district

court on the due process claim, finding that Kinney and Hall had

not stated a violation. The panel affirmed the district court’s

denial of summary judgment on the state law claim. As the issues

on rehearing centered upon the § 1985 and First Amendment claims,

we now reinstate those portions of the panel opinion that rule on

the due process and state law claims, namely Parts IV.C and V.

VIII. CONCLUSION

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

denial of the Police Officials’ motion for summary judgment on

the plaintiffs’ § 1985 and First Amendment claims. We reinstate

Part IV.C of the panel opinion, which REVERSED the district

court’s denial of summary judgment on the due process claim, and

we reinstate Part V of the panel opinion, which AFFIRMED the

district court’s denial of summary judgment on the state law

claim. We DISMISS the appeal of the cities, counties, and East

Texas Police Chiefs Association for the reasons set forth in note

10 supra. Finally, we REMAND the case to the district court for

further proceedings not inconsistent with this opinion. The

Police Officials shall bear the costs of this appeal.

79
RHESA HAWKINS BARKSDALE, Circuit Judge, joined by Judges Jones,

Smith, Emilio M. Garza, and Clement, concurring in part and

dissenting in part:

The privilege of absurdity; to which no living
creature is subject but man only.
THOMAS HOBBES, LEVIATHAN pt. I, ch. 5 (1651).

Primarily at issue is qualified immunity vel non against §§

1983 (First Amendment) and 1985 claims. I respectfully dissent

from its being denied, as well as official immunity’s being denied,

as a result, against the state law claim. (I concur, of course, in

immunity’s being granted against the Fourteenth Amendment due

process claim.) Because I join Judge Jones’ splendid dissent

concerning the First Amendment claim, I address only § 1985.

Though well intended (as always), the majority has lost sight

of the proverbial forest for the proverbial trees (as did the

majority for the divided panel). First, the majority’s reading of

§ 1985 has stretched that statute beyond all recognition; the new

law it has confected leads to an absurd result. Second, it has

turned its back on the fundamental, compelling reasons for

qualified immunity; it ignores the discretionary element that lies

at the heart of that doctrine.

With all due respect to my esteemed colleagues in the

majority, it is simply nothing short of absurd to hold that the

police chiefs and sheriffs are not vested with discretion in

choosing which teachers to use (and pay) for training the police
chiefs’ and sheriffs’ own student-officers — the very persons the

police chiefs and sheriffs are responsible for training. This

cannot be the law.

I.

Recitation of the material facts brings the ultimate issue

into sharp focus. In 1998, while instructors at the East Texas

Police Academy (ETPA), part of Kilgore College in Tyler, Kinney and

Hall testified voluntarily in a federal court action as expert

witnesses supporting an excessive force claim against the

Kerrville, Texas, police department. The police chiefs and

sheriffs (Officers) who sent (paid for) their student-officers to

ETPA for training were concerned about a conflict of interest

evidenced by Kinney’s and Hall’s testimony; discussed that conflict

with ETPA; and decided in 1998 not to send (pay for) their student-

officers to Kinney’s and Hall’s classes. As a result, ETPA

discontinued those classes because they were no longer economically

feasible.

Kinney and Hall had one-year contracts with ETPA. Thinking

that his contract might not be renewed, Hall resigned from ETPA to

find other employment. Kinney stayed until his contract expired

and then accepted a new contract in a different position with the

college.

In 1999, Kinney and Hall filed this action against Officers,

their respective cities and counties, and the East Texas Police

Chiefs Association, claiming violation of: § 1985(2); free speech

81
under the First Amendment and due process under the Fourteenth; and

Texas law. Among other rulings on motions for summary judgment,

qualified immunity was denied Officers. A divided panel of our

court reversed the qualified immunity denial for the due process

claim; but it affirmed the denial for the remainder (against my

dissent). Kinney v. Weaver, 301 F.3d 253 (5th Cir. 2002), vacated

and reh’g en banc granted, 338 F.3d 432 (5th Cir. 2003).

II.

At issue is qualified immunity (interlocutory appeal), not the

merits (appeal from final judgment). Restated, this appeal

concerns only whether now, or when Officers acted in 1998, their

alleged conduct was proscribed by law. The answer is “no”;

qualified immunity must be granted.

Our standard of review for qualified immunity interlocutory

appeals requires us to accept the facts in the light most favorable

to Plaintiffs. But, of course, that standard does not require us

to accept Plaintiffs’ contentions on points of law. For an

interlocutory appeal from the denial of qualified immunity, we have

jurisdiction to accept the facts as assumed by the district court

and determine whether, as a matter of law, they preclude qualified

immunity. E.g., Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir. 2002)

(quoting Nerren v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th

Cir. 1996)). Applying that standard to this record, we must hold,

82
as a matter of law, that Officers are entitled to qualified

immunity.

Section 1985 makes it unlawful to, inter alia, “injure [a]

party or witness in his ... property on account of having ...

testified [freely and truthfully in a court of the United States]”.

42 U.S.C. § 1985(2). In denying qualified immunity for the § 1985

claim, the majority holds: (1) the statute applies to expert

witnesses; and (2) Officers’ choosing to send (pay for) their

student-officers to teachers other than Plaintiffs is a requisite

injury to property under the statute. In so doing, the majority

has lost sight of the well-known purpose for qualified immunity —

to protect government officials in their discretionary actions, the

illegality of which is not apparent. Accordingly, government

officials are liable individually for their conduct “only if they

reasonably can anticipate when [it] may give rise to liability for

damages”. Davis v. Scherer, 468 U.S. 183, 195 (1984). Again, the

ultimate issue for this interlocutory appeal is whether Officers

could reasonably anticipate in 1998 that their alleged conduct

could give rise to § 1985 liability. In straying from the proper

inquiry, the majority has undercut the very reason for qualified

immunity — the discretion that lies at its heart.

Under the well-known, two-step inquiry for deciding such

immunity, the first asks whether, under current law, a valid claim

has been asserted — whether a right has been violated. E.g.,

83
Siegert v. Gilley, 500 U.S. 226, 232 (1991). “[I]f no [such] right

[has] been violated[,]... there is no necessity for further

inquiries concerning qualified immunity”. Saucier v. Katz, 533

U.S. 194, 201 (2001); see, e.g., Hare v. City of Corinth, Miss.,

135 F.3d 320, 325 (5th Cir. 1998).

Only if a valid claim has been asserted is the second step

taken: was defendants’ conduct objectively unreasonable under then

existing clearly established law. Hare, 135 F.3d at 326. Of

course, for this interlocutory appeal, as discussed supra, the

issue of fact on whether Officers’ conduct in 1998 was objectively

unreasonable under then existing law is not at issue for this

second step; we can consider only an issue of law — whether the law

underlying the claimed violation of § 1985 was clearly established

at the time of that conduct in 1998. Plaintiffs fail the first

step; they do not assert a claim under § 1985 — for several

reasons, it does not apply to expert witnesses’ claims of the type

made in this action concerning Officers’ conduct. That ends the

inquiry. In the alternative, the law underlying the claimed

violation of § 1985 was not clearly established when Officers acted

in 1998. For purposes of demonstrating why qualified immunity is

compelled, this two-step analysis will be applied twice: first,

for examining why the statute does not apply to Plaintiffs qua

expert witnesses (part A.); second, for examining why Officers’

conduct is not subject to the statute (part B.).

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 A.

In holding against qualified immunity, the majority improperly

expands § 1985 by holding that expert witnesses may bring the claim

at issue here if they are injured on account of their testimony.

We cannot read § 1985(2) so broadly; Plaintiffs qua expert

witnesses cannot assert this claim. In the alternative, we cannot

hold that this right for expert witnesses — now newly created by

our court for this case (year 2004) — was clearly established when

Officers acted in 1998.

1.

First, Plaintiffs do not assert a valid claim under § 1985 —

it does not apply to the post-testimony economic claim made

concerning their expert testimony. It is true that expert

witnesses have been used for hundreds of years; on the other hand,

the professional expert witness who profits considerably from such

testimony is a recent development. E.g., Timothy Perrin, Expert

Witness Testimony: Back to the Future, 29 U. RICH. L. REV. 1389,

1411 (1995) (discussing growing industry of individuals who spend

substantial portions of their time testifying or consulting with

litigants and even advertise their services). Congress could never

have envisioned protecting against loss of income for this type of

testimony when it enacted § 1985 in 1871. Even assuming, arguendo,

the majority is correct in holding that § 1985’s plain meaning

encompasses the claim by these expert witnesses, Maj. Opn. at 27,

85
this is not necessarily determinative. Even where a statute’s

meaning is plain, “we may depart from its meaning ... to avoid a

result so bizarre that Congress could not have intended it”. Moosa

v. INS, 171 F.3d 994, 1008 (5th Cir. 1999)(internal quotation marks

omitted). This is just such an instance.

By enacting § 1985, Congress intended, inter alia, to protect

those who testified in federal court and were integral to the

proper functioning of those courts, not to provide a post-

testimony, economic loss claim of the type at issue here for expert

witnesses. Even allowing for the salutary “broad sweep” of

Reconstruction-era civil rights statutes, Maj. Opn. at 28, the

majority has stretched § 1985 much too far. The reading it accords

§ 1985 leads to an absurd result, as evidenced by the following

examples.

Expert witnesses are quite necessary to litigate certain

claims (including, in some instances, those for excessive force);

but such experts are readily available — to say the least. For

example, for an excessive force claim, there may be only a few fact

witnesses who can testify about the force used, but there are

countless experts who can opine on whether it was excessive. Such

fact witnesses are of the utmost importance; they may be able to

offer the only independent evidence about what force was employed.

Moreover, a fact witness is usually under subpoena and, therefore,

has no choice about whether to testify. Accordingly, there are

86
compelling reasons to give fact witnesses a high level of

protection against an injury to them or their property on account

of their federal court testimony.

Obviously, the same policy considerations are not in play in

protecting expert witnesses. Given their abundance and other

factors bearing on their status, they are not obligated to testify

in a particular case. An expert should not be given the additional

protection of a private right of action if adverse economic

consequences flow from his testimony.

It is true, for example, that we do not distinguish between

fact and expert witnesses for claims that witnesses were

intimidated in a criminal trial. As another example, we do not

distinguish between fact and expert witnesses in cases involving

the absolute immunity that protects them from civil liability

arising from their testimony. Those matters involve the integrity

of the underlying action; accordingly, we cannot permit expert

witnesses to be intimidated into changing their testimony any more

than we can permit that for fact witnesses; all must testify freely

and truthfully.

On the other hand, a § 1985 claim of the type at issue

concerns providing a remedy for an expert witness who suffers post-

trial economic injury. In other words, the claim protects an

expert witness’ interests after he has freely and truthfully given

his testimony. In many respects, however, testifying as an expert

is a business; such witnesses are able to weigh the economic

87
benefits and risks of their testimony before agreeing to testify.

Therefore, expert witnesses who choose to testify in a case (and

are usually paid to do so, often quite handsomely) should not be

able to avail themselves of § 1985 later, if adverse economic

consequences flow from their testimony.

Consider the wide-ranging, truly absurd results arising out of

extending § 1985 to cover post-testimony economic injury to expert

witnesses of the type claimed here. Arguably, every person who

testifies as an expert and is later denied employment could file an

action under § 1985 against the would-be employer. For example,

assume an urban planner routinely testifies in litigation against

cities. Is a city now subject to § 1985(2) liability if it refuses

to hire that person if he applies for a job in its planning

department? The majority’s permitting expert witnesses to bring

claims under this statute for such injury opens the door (perhaps

the proverbial floodgates) for this type claim.

2.

As noted, even if an expert witness is protected under the

statute for the claim at hand, a claim could be asserted only if it

arose from conduct occurring after the date we render our decision

for this appeal; in other words, the majority has confected a new

claim. Accordingly, for the second step of the qualified immunity

analysis, it was not clearly established at the time of Officers’

88
conduct in 1998 that expert witnesses are protected under § 1985

through a claim of the type at issue here.

In fact, as the majority admits, Maj. Opn. at 30, it appears

that only one opinion (Second Circuit) had ever applied the statute

to experts; this was done without analysis and concerned a claim

for preventing testimony — a far cry from this case. Chahal v.

Paine Webber, 725 F.2d 20 (2d Cir. 1984). Chahal’s failure to

specifically address expert witnesses does not imply that § 1985

obviously applies to them. On the contrary, the fact that there is

only one opinion involving expert witnesses in the long history of

this statute compels concluding that expert witnesses simply do not

present claims under it, precisely because it does not apply to

them.

Moreover, one Second Circuit opinion about preventing

testimony could not have clearly established in Tyler, Texas, in

1998 that Officers’ actions with respect to these expert witnesses

could violate § 1985. It is true that, even without judicial

interpretation, violation of a statute can be clearly established

for qualified immunity purposes. This is not such an instance; the

very questions at issue about application of § 1985(2) to economic

injury for expert witnesses compel holding, for qualified immunity

purposes, that, when Officers in Tyler, Texas, acted in 1998, it

was not clearly established that their conduct could violate §

1985(2).

89
 B.

Assuming, arguendo, that § 1985 covers expert witnesses for

the claim presented in this action, Officers are still entitled to

qualified immunity because the requisite “injury to property” by

Officers for § 1985 liability is lacking. Therefore, Plaintiffs

still fail to assert a claim; in the alternative, when Officers

acted in 1998, this law was not clearly established.

1.

Officers’ actions underlying the § 1985 claim are not the kind

proscribed by the statute. For the majority to hold otherwise is

to stretch § 1985(2) beyond all recognition.

a.

Regardless of Officers’ reasons for doing so, electing in 1998

not to enroll (pay for) their student-officers in a class cannot be

the requisite injury to property violative of § 1985. Haddle v.

Garrison, 525 U.S. 121 (1998), is not to the contrary. The fact

that, under Haddle, a plaintiff has a § 1985 claim for interference

with at-will employment does not compel holding that Officers’

choice in 1998 not to enroll student-officers in Plaintiffs’

classes is an injury under the statute. Plaintiffs’ status as at-

will employees is irrelevant, because sending student-officers to

teachers at ETPA other than Plaintiffs is not a cognizable injury

under § 1985.

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 In Haddle, the Supreme Court analogized to tort law claims

concerning interference with economic relationships and held that

third-party interference with at-will employment can constitute an

injury under § 1985. Id. at 126. The Court defined tortious

interference with economic relations as “maliciously and without

justifiable cause induc[ing] an employer to discharge an employee,

by means of false statements, threats or putting in fear”. Id.

(quoting 2 T. COOLEY, LAW OF TORTS 589-591 (3d ed. 1906))(emphasis

added). The majority states that, “according to the district

court, [Officers] ... tried to have the plaintiffs fired from their

jobs”, Maj. Opn. at 32 (emphasis added); but, in the next breath

and quite contrary to our limited standard of review, the majority

greatly overstates Officers’ “trying” conduct by equating it with

“coercing an employer into firing an employee”, id. Trying to

coerce an employer into firing an employee is not tortious

interference with employment. Rather, as the majority concedes,

id., the “classic case” for such interference (as evidenced by all

cases cited both by the majority and this dissent, including

Haddle) concerns a plaintiff’s being actually discharged. Kinney

was not discharged; Hall resigned of his own volition; and neither

claims he was constructively discharged. Therefore, Officers’

conduct does not constitute an injury to property under tort law or

§ 1985(2).

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 For qualified immunity purposes here, and if we analogize to

tort law, refusing to enroll (pay for) student-officers in a class

does not equate with “maliciously inducing” an employer to

discharge an employee. A typical case of such tortious

interference with economic relations would involve a defendant’s

demanding that a plaintiff be fired, or telling lies about him in

order to have him fired, followed by the employee’s being fired.

E.g., Ahrens v. Perot Systems Corp., 205 F.3d 831, 836 (5th Cir.)

(discussing in judicial estoppel context plaintiff’s earlier claim

that she had been fired because defendants tortiously interfered

with her employment by revealing confidential and disparaging

information about her), cert. denied, 531 U.S. 819 (2000); Sterner

v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) (upholding finding

tortious interference because defendant directed plaintiff’s

employer to fire him).

It is simply not the law that the refusal to enroll (pay for)

student-officers (regardless of Officers’ motive) is the kind of

interference actionable under tort law, especially for § 1985.

b.

While the analogy to tort law is instructive, the purpose and

history of § 1985 also compel holding that Plaintiffs do not assert

a claim. The Supreme Court noted in Kush v. Rutledge, 460 U.S.

719, 727 (1988), that “[p]rotection of the processes of the federal

courts was an essential component of Congress’ solution [via § 1985

92
enacted in 1871] to disorder and anarchy in the Southern States”.

When it enacted § 1985 in an effort to protect such processes,

Congress cannot possibly have intended a scenario akin to

compelling Officers’ to enroll (pay for) their student-officers in

Plaintiffs’ classes. Allowing Officers to decide who teaches their

student-officers, even if motivated by Plaintiffs’ expert

testimony, is hardly the type of “disorder and anarchy” that

Congress was addressing in 1871. Although the statutory language

of § 1985 is broad, it cannot be read so broadly as to encompass

Officers’ actions — especially where, as here, the issue is

qualified immunity, not the merits. To so read § 1985 is, again,

to give it an absurd result and to create new law. The majority’s

comments concerning Kush’s rejection of a racial animus requirement

for certain § 1985 claims, Maj. Opn. at 28 n.14, are irrelevant to

our conclusion that Plaintiff’s injury is not cognizable under the

statute. Instead, Kush elucidates that allowing a claim based on

Officers’ choice not to enroll their students in classes produces

an absurd result in the light of the Congressional goal for §

1985(2) — protecting the processes of the federal courts.

The majority tries to limit its holding by stating that “the

statute does not create liability for every adverse action taken

against a witness after the witness testifies in a federal case”,

because of the limiting principle in § 1985 that the injury must be

“on account of his having so attended or testified”. Maj. Opn. at

93
36. The majority pays lip service to the other important limiting

principle contained in § 1985 — that the adverse action taken

against the witness be an “injury to property”. Even assuming that

Officers acted “on account of” Plaintiffs’ testimony, Officers’

choice to enroll (pay for) their student-officers in other

instructors’ classes is not the requisite injury to property.

The majority would allow any reaction to a witness’ testimony

to be actionable if it were in response to that testimony. This is

too broad. The statute limits actionable responses to those that

injure the witness’ property. Although interference with at-will

employment is such an injury, choosing not to enroll (pay for)

student-officers in a particular class, is not. Plaintiffs do not

assert a claim. Accordingly, our inquiry should stop at step one.

2.

In the alternative, taking the second step for qualified

immunity analysis only makes it more evident that Officers are

entitled to qualified immunity. Surely, this step compels awarding

it. Again, this step involves deciding whether Officers’ conduct

in 1998 was objectively unreasonable in the light of then clearly

established law. Hare, 135 F.3d at 325. As discussed, and for

this interlocutory appeal, we are concerned only with an issue of

law — whether the law was clearly established when Officers acted

in 1998; we are not concerned with an issue of fact — whether

94
Officers’ conduct in 1998 was objectively unreasonable in the light

of then existing clearly established law.

Officers stopped sending (paying for) their student-officers

to Plaintiffs’ classes in October 1998. Despite the majority’s

take on this, Maj. Opn. at 31-36, Haddle’s being decided two months

later in December did not clearly establish that Officers were then

(or later) violating § 1985(2). Moreover, Haddle was decided after

Kinney’s and Hall’s classes were removed in November from the

schedule. The majority contends that Officers acted in furtherance

of the conspiracy after December because they “continued to

prohibit their officers from enrolling in Kinney’s or Hall’s

classes”, Maj. Opn. at 34; but Officers could not have prohibited

enrollment in classes that were not on the schedule. The

majority’s continuing conspiracy theory attempts to obscure the

obvious — it was not clearly established when Officers acted in

1998 that their actions violated the statute. In addition, Haddle

gave no indication, nor has any other case, that an act as benign

as Officers’ sending (paying for) their student-officers to

different teachers at a police academy is an injury to property

under § 1985(2).

III.

The ultimate issues for this interlocutory appeal are whether

Plaintiffs assert a valid claim; and, only if so, whether that law

was clearly established when Officers acted in 1998. Plaintiffs do

95
not assert a § 1985 claim; moreover, given the majority’s extreme

extensions of existing § 1985 law needed in order to hold against

qualified immunity, it is obvious that the law now confected by the

majority was not clearly established when Officers acted in 1998.

Therefore, qualified immunity must be awarded against the §

1985 claim. For the reasons stated by Judge Jones, it must also be

awarded against the First Amendment claim. Finally, as a result

and for the reasons stated in my dissent from the panel opinion,

301 F.3d at 296, official immunity must be awarded against the

state law claim.

Accordingly, I respectfully dissent from not granting immunity

against those claims.

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EDITH H. JONES, Circuit Judge, with whom SMITH, BARKSDALE, EMILIO
M. GARZA, and CLEMENT, Circuit Judges, join, Concurring in Part and
Dissenting in Part:

With all due respect to our colleagues, one of Judge

Barksdale’s opening statements puts this case in perspective:

[I]t is simply nothing short of absurd to hold that the
police chiefs and sheriffs are not vested with discretion
in choosing which teachers to use (and pay) for training
the police chiefs and sheriffs’ own student-officers —
the very persons the police chiefs and sheriffs are
responsible for training. This cannot be the law.

In holding otherwise, as he says, the majority “has turned its back

on the fundamental, compelling reasons for qualified immunity; it

ignores the discretionary element that lies at the heart of that

doctrine.” The majority has rendered a very un-balanced analysis

of the balancing tests required in this case. This portion of our

dissent will address the qualified immunity claim of the police

officials as it relates to the teachers’ claims for First Amendment

retaliation. Judge Barksdale’s portion of the dissent discusses

the police officials’ potential liability for violating 18 U.S.C.

§ 1985 and their corresponding immunity claim.

I. Background

To set the stage for the police officials’ actions

against Kinney and Hall, it is useful to recount undisputed facts

concerning their expert testimony and the officials’ concerns.

They agreed, without following ETPA instructions to obtain prior

approval, to become paid experts in 1997 on behalf of the

plaintiffs in Gonzales v. City of Kerrville. A year later, at

trial, the Kerrville newspaper reported that eyewitnesses testified
the suspect had fired in excess of forty shots while standing on

the Guadalupe River Dam hitting objects including an apartment

window, a garbage can and a patrol car window. The defendant

police sniper testified that he first told the suspect to drop his

rifle, and when the suspect lifted the rifle and pointed it at him,

the officer killed the suspect in self-defense. Kinney’s and

Hall’s expert conclusions were that the sniper’s failure to apply

his training and defendant, City of Kerrville’s lack of a proper

policy were proximate causes of the tragic shooting and that the

sniper’s use of deadly force amounted to excessive force.

Rejecting these expert opinions, the jury found in favor

of the Kerrville police officer, and the federal district judge

overturned the award against the city. After Kinney’s and Hall’s

opinion was rejected, the take-nothing judgment was affirmed by

this court on appeal. See Gonzalez v. City of Kerrville, 205 F.3d

1337 (5th Cir. 1999).

The police officials have deposed or attested, inter

alia, that appellees’ expert testimony hurt the close working

relationship required between academy instructors and representa-

tives of the cities and counties; damaged teamwork required among

those involved in training officers; threatened the confidentiality

of information city and county officers share with Kinney and Hall

about their procedures and practices; undermined feelings of

loyalty and confidence; and represented an improper use of the

instructors’ affiliation with ETPA.

98
 II. Standard of Review

While the majority correctly cites the general standards

of review for summary judgment and qualified immunity appeals, they

repeatedly mischaracterize the court’s function in free speech

cases and thus would send to the jury issues that it is our

obligation to decide. This case is, we are agreed, governed by the

balancing test framed by the Supreme Court in Pickering v. Bd. of

Educ., 391 U.S. 563, 88 S.Ct. 1731, 1734-35 (1968), and refined and

extended by Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983),

and Board of County Commissioners v. Umbehr, 518 U.S. 668,

116 S.Ct. 2342 (1996). The relevant issues are: (1) whether an

employee’s or contractor’s speech constituted a matter of public

concern; (2) whether the public employer’s legitimate

countervailing government interests outweigh the value of the

protected speech; (3) whether the protected speech was a

substantial or motivating factor in the discipline or termination;

and (4) whether the employer would have acted against the employee

for some other conduct regardless of the speech. See Umbehr, 518

U.S. at 675, 116 S.Ct. at 2347. The first two issues are matters

for the court to decide de novo while the last two may comprise

jury issues. See Williams v. Seniff, 342 F.3d. 774, 782 (7th Cir.

2003); Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th

Cir. 1989). Courts, not juries, determine the extent of protection

accorded to First Amendment conduct as matters of policy and

99
uniformity. Melton, 879 F.2d at 713 (concluding that “the trial

court improperly submitted to the jury the question of whether [the

plaintiff’s] speech was constitutionally protected”).

The majority, unfortunately, appears to have confused the

second and third issues and thus would leave to the jury the

fundamental question of First Amendment protection that is ours to

decide. The majority holds that because a fact dispute exists as

to whether Kinney and Hall were “blackballed” or “boycotted” to

enforce a “code of silence” (the third Pickering issue), this court

may not take into account the police officials’ proffered

institutional reasons for disenrolling their officers from

appellees’ classes (the second issue). The majority reasons

because it must give Kinney and Hall the benefit of drawing all

inferences in their favor on summary judgment review, a trial is

required to determine the legitimacy of the governmental interests.

The weight those interests receive in the Pickering balance is,

however, for this court to decide. Accordingly, sending to the

jury issues crucial to the Pickering balance would be improper.

That this court alone decides the Pickering balance is

reinforced by several facts. First, all discovery is complete, and

there is no real dispute about the operative facts. Second,

whether one characterizes the police officials’ actions as merely

“disenrolling” students from appellees’ classes or as “black-

balling” or “boycotting” the instructors is a matter of semantics,

not motive. Third, there is no evidence that the officials

100
themselves used the term “blackball” or “boycott” to describe their

actions; those pejoratives were used by ETPA President Holda and

pervade the appellees’ complaint and the district court opinion.

Finally, the majority opinion itself concludes that the police

officials advanced no legitimate interests to place in the

Pickering balance, and it freely evaluates the disputed evidence.

See, e.g., Kinney v. Weaver, __ F.3d __, (footnotes 3, 4, 25) (5th

Cir. 2003) (en banc). In other words, while purporting to rest on

the existence of disputed fact issues, the majority has rendered

its conclusion on the first and second Pickering issues listed

above. The majority’s de facto balancing is additionally

undermined, not only by its failure to take the entire record into

account, but by its erroneous requirement that the police officials

prove actual disruption, to the exclusion of potential disruption,

caused in their departments by the protected speech. The Supreme

Court has held, to the contrary, that an employer’s legitimate

concern about potential disruption arising from protected speech is

entitled to deference. Umbehr, 518 U.S. at 676, 116 S.Ct. at 2348

(recognizing that the Court has “consistently given greater

deference to government predictions of harm used to justify

restriction of employee speech”) (citations and quotations

omitted).

The majority’s miscalculation of Pickering balancing

necessarily affects its conclusion on qualified immunity, as the

101
majority reiterates that there are no legitimate governmental

interests on the police officials’ side of the balance.

Unlike the majority, we neither wash our hands of the

crucial responsibility to determine the extent of protection owed

to Kinney’s and Hall’s voluntary expert testimony, nor obscure the

Pickering determination with erroneous or unsupported fact issues.

Thus, while deferring balancing at this point, we must acknowledge

the existence of legitimate governmental interests on the police

officials’ side.

III. Qualified Immunity

The doctrine that confers qualified immunity from suit on

public officials performing discretionary functions is not an

“insignificant aberration.” See Pierce v. Smith, 117 F.3d 866, 882

(5th Cir. 1997). For over twenty years, the Supreme Court has

explained that qualified immunity strikes a balance between

providing redress to individuals for abuses of public office and

protecting society against claims that “frequently run against the

innocent as well as the guilty[.]” Harlow v. Fitzgerald, 457 U.S.

800, 814, 102 S.Ct. 2727, 2736 (1982). Society bears the cost of

unfounded lawsuits in “the expenses of litigation, the diversion of

official energy from pressing public issues, and the deterrence of

able citizens from acceptance of public office.” Id. There is also

the “danger” that “fear of being sued will ‘dampen the ardor of all

but the most resolute, or the most irresponsible [public

102
officials], in the unflinching discharge of their duties.’” Id.

(citation and quotation omitted).

For these reasons, qualified immunity shields discre-

tionary official conduct to prevent lawsuits that do not allege

violations of clearly established constitutional law of which a

reasonable person would have known. Harlow, 457 U.S. at 819, 102

S.Ct. at 2739. The standard of conduct embodies objective legal

reasonableness. So measured, qualified immunity affords “ample

protection to all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341,

106 S.Ct. 1092, 1096 (1985). To disentitle public officials to

qualified immunity, the unlawfulness of their conduct “must be

apparent,” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.

3034, 3039 (1987), and “all reasonable officials would have

realized the particular challenged conduct violated the constitu-

tional provision sued on[.]” Pierce, 117 F.3d at 871 (citations

omitted). Indeed, if “officers of reasonable competence could

disagree on th[e] issue, immunity should be recognized.” Malley,

475 U.S. at 341, 106 S. Ct. at 1096. The law is clearly

established only where “it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156 (2001)

(emphasis added).

No doubt, the test of objective legal reasonableness does

not always require immunity in the absence of an identical or even

103
“materially similar” case to guide official conduct. See Hope v.

Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 2516 (2002). In Hope,

the Court held that Alabama prison officials could have readily

inferred from pre-existing authority that it was unconstitutional

to chain recalcitrant prisoners painfully and long to a “hitching

post.” Id. As a context-specific denial of qualified immunity,

Hope does not spring eternal for Kinney and Hall. The contrasts

between the two cases are plain.

First, the Eighth Amendment proscribes “unnecessary and

wanton infliction of pain” on prisoners, Whitley v. Albers, 475

U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986). With only two para-

graphs of discussion, the Court in Hope found in the prisoner’s

allegations an “obvious” Eighth Amendment violation. Hope, 536

U.S. at 741, 122 S.Ct. at 2516. In this case, however, rather than

dealing with an “obviously cruel” practice (compare Hope, 536 U.S.

at 745, 122 S. Ct. at 2518), the court confronts a First Amendment

protection of free speech that is not unequivocal; courts must

accommodate the public interest in effective provision of

government services when the speaker works for or on behalf of the

government. No rigid rule of liability exists. See Pickering, 391

U.S. at 568, 88 S.Ct. at 1734-35. Thus, the majority requires well

over 20 pages of legal reasoning to explain why the police

officials could not constitutionally disenroll their students from

Kinney’s and Hall’s classes.

104
 Just as the governing constitutional standard in Hope was

simpler, so was the determination that the law was clearly

established. An earlier circuit court case had specifically held

unconstitutional, inter alia, the practice of handcuffing prisoners

to “the fence and to cells for long periods of time . . . .” Gates

v. Collier, 501 F.2d 1291, 1306 (5th Cir. 1974).45 Another case had

held it unconstitutional to deny water to a prisoner as punishment

for his refusal to work, explaining that conduct which jeopardizes

the prisoner’s health or inflicts physical abuse after he stops

resisting authority is actionable. Ort v. White, 813 F.2d 318, 325

(11th Cir. 1987). Finally, a Department of Justice report to

Alabama authorities condemned exactly the corporal punishment at

issue in Hope.

Despite the majority’s creative review of Fifth Circuit

government employee free speech precedents, none of our cases had

remotely conducted the free speech balancing inherent in the

relation between law enforcement departments and police academy

instructors. As will be seen, the only related authorities were

decided outside this Circuit and uniformly denied liability or

granted immunity.

Thus, that “fair warning” could be given to the prison

officials in Hope does not modify the general test for qualified

45
As the Supreme Court noted, cases decided by the Fifth
Circuit before the split that created the Eleventh Circuit remain
binding in the Eleventh Circuit.

105
immunity applicable in this case. As the Court acknowledged, “in

some circumstances, as when an earlier case expressly leaves open

whether a general rule applies to the particular type of conduct at

issue, a very high degree of prior factual particularity may be

necessary.” Hope, 536 U.S. at 741-42, 122 S.Ct. 2516 (quoting

United States v. Lanier, 520 U.S. 259, 269, 117 S.Ct. 1219

(1997))(internal citations and quotations omitted). Nor did Hope

cast doubt on the Court’s decision that to determine whether the

law is clearly established, public officials should consider

controlling cases in their own jurisdiction or, alternatively,

refer to a consensus of persuasive authority outside it. Wilson v.

Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 1700 (1999).

Only recently, this Court expressed en banc our caution

toward denying qualified immunity in novel factual cases. In

McClendon v. City of Columbia, 305 F.3d 314, 332 (5th Cir. 2002)(en

banc), the author of today’s majority opinion found it compelling

that no court in 1993 had applied the state-created danger theory

of § 1983 liability to a similar factual context. This court held

that “qualified immunity should be granted ‘if a reasonable

official would be left uncertain of the law’s application to the

facts confronting him.’” Id. at 332 (quoting Salas v. Carpenter,

980 F.2d 299, 311 (5th Cir. 1992))(other citation omitted).46

46
Likewise, there is no case in this circuit that denied
qualified immunity under the circumstances presented here. The
majority’s failure to point to such a case is persuasive evidence
that these officers were “uncertain of the law’s application to

106
Further, despite the adoption of the state-created danger theory of

liability by nearly all other circuit courts at the time of the

conduct in question, this court denied that they comprised a

consensus of cases of persuasive authority sufficient to provide

“fair warning,” because the constitutional right was not defined

with “sufficient clarity to enable a reasonable official to assess

the lawfulness of his conduct.” Id. at 332-33. This court

concluded that:

The fact that the state-created danger theory was
recognized at a general level in [other courts’]
precedents did not necessarily provide Officer Carney
with notice that his specific actions created such a
danger. . . . [T]his is not a situation where ‘a
general constitutional rule already identified in the
decisional law . . . appl[ied] with obvious clarity to
the specific conduct in question.’

Id. (internal citation and quotation omitted). McClendon then

states: “Indeed, general principles of the law are less likely to

provide fair warning where, as here, applicability of the doctrine

is highly context-sensitive.” Id. at 332 n.13 (citation omitted).

As the foregoing authorities suggest, for immunity

purposes, the question “is not whether other reasonable or more

reasonable courses of action were available” to public officials.

See Pierce, 117 F.3d at 883. Immunity shields officials so long as

their conduct is reasonable, even though wrong in hindsight.

Saucier, 533 U.S. at 205, 121 S. Ct. at 2158. The question here is

whether, among police chiefs and sheriffs similarly situated to the

the facts confronting [them].” Id.

107
appellants, “all but the plainly incompetent” would have realized

at the time that what they did violated Kinney’s and Hall’s First

Amendment rights to testify voluntarily as expert witnesses.

Pierce, 117 F.3d at 883 (citing Hunter v. Bryant, 502 U.S. 224,

228, 112 S.Ct. 534, 537 (1991)).

To apply these principles of qualified immunity, the

Supreme Court’s two-step test normally begins by considering

whether, on the facts alleged by the plaintiffs, any constitutional

violation occurred; if a violation could be made out, “the next,

sequential step is to ask whether the right was clearly

established,” i.e., whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted. Saucier, 533 U.S. at 201-02, 121 S.Ct. at 2156.

The majority’s errors become evident by inverting the

process here. Consequently, let us assume arguendo that the police

chiefs and sheriffs violated the First Amendment by disenrolling

their students from Kinney’s and Hall’s classes. Assume, that is,

that the appellees engaged in some level of protected speech, and

Pickering/Connick balancing applies. The qualified immunity

question is as framed by the majority:

We must ask whether it was clearly established at the
time of the Police Officials’ conduct that the First
Amendment forbade them from retaliating against Kinney
and Hall, the employees of their contractor, on account
of the instructors’ Kerrville testimony.

Kinney, __ F.3d at __. Our answer is resoundingly that the law was

not clearly established.

108
 The law was not clearly established for three reasons.

First, this court and seven other circuits have recognized that

public officials are more likely entitled to qualified immunity

when the underlying constitutional law depends on balancing tests

enforced by the judiciary, and no factually similar case exists.

Second, the Fifth Circuit cases relied on by the majority are

critically different from this case, while other circuits’ more

relevant precedents either found no liability or qualified immunity

for law enforcement officials. Third, in an unprecedented approach

to Pickering/Connick balancing, the majority inflates the value of

the appellees’ “speech,” while discounting from the balancing test

the police officials’ legitimate interests; no “clearly established

law” supports the majority’s approach.

A. Qualified Immunity and Constitutional Balancing.

At the heart of Kinney’s and Hall’s First Amendment claim

is the case- and context-specific Pickering/Connick balancing test.

In Pickering and its progeny, the Supreme Court has balanced the

interest of each plaintiff as a citizen in commenting on matters of

public concern against the interests of the state, as an employer

or contractor, in promoting the efficiency of the public services

it performs. Id. at 568, 88 S.Ct. at 1735; see also Connick, 461

U.S. at 140, 103 S.Ct. at 1686. Pickering emphasized, however,

that in view of the “enormous variety of fact situations” in which

critical statements by public employees may be thought by their

109
superiors to furnish grounds for dismissal, it was not “appropriate

or feasible to attempt to lay down a general standard” for

resolving free-speech claims of public employees and that it could

only “indicate some of the general lines along which an analysis of

the controlling interests should run.” Pickering, 391 U.S. at 569,

88 S.Ct. 1735. Subsequently, the Court acknowledged that the

particularized balancing required by Pickering is difficult even

for judges to accomplish. See Connick, 461 U.S. at 150, 103 S.Ct.

at 1692. In short, “while it may have been clear since 1968 that

a citizen does not forfeit First Amendment rights entirely when he

becomes a public employee [or contractor], the scope of those

rights in any given factual situation has not been well defined.”

Benson v. Allphin, 786 F.2d 268, 276 (7th Cir. 1986).

For immunity determinations, the implications of this

rule-avoiding constitutional standard seem obvious. The Supreme

Court has alluded to the enhanced likelihood of granting qualified

immunity in First Amendment cases:

Even when the general rule has long been clearly
established (for instance, the First Amendment bars
retaliation for protected speech), the substantive legal
doctrine on which the plaintiff relies may facilitate
summary judgment . . . . [T]here may be doubt as to the
illegality of the defendant’s particular conduct (for
instance, whether a plaintiff’s speech was on a matter of
public concern).

Crawford-El v. Britton, 523 U.S. 574, 592-93, 118 S. Ct. 1584, 1594

(1998). Fifteen years ago, this court explained that:

One consequence of case-by-case balancing is its
implication for the qualified immunity of public

110
 officials whose actions are alleged to have violated an
employee’s First Amendment rights. There will rarely be
a basis for a priori judgment that the termination or
discipline of a public employee violated “clearly
established” constitutional rights.

Noyola v. Texas Dep’t of Human Res., 846 F.2d 1021, 1025 (5th Cir.

1988). Noyola’s “self-evident tenet of qualified immunity

jurisprudence,” see Moran v. Washington, 147 F.3d 839, 846 (9th

Cir. 1998), has been embraced by at least seven other circuits.47

Even before Noyola, the Seventh Circuit held that when a

constitutional rule involves the balancing of competing interests,

the standard may be clearly established, but its application is so

fact dependent that the “law” can rarely be considered “clearly

established.” Benson, 786 F.2d at 276. In such cases, “the facts

of the existing case law must closely correspond to the contested

47
Moran v. Washington, 147 F.3d 839, 847 (9th Cir. 1998)
(stating that in Pickering balancing cases, “the law regarding
such claims will rarely, if ever, be sufficiently ‘clearly
established’ to preclude qualified immunity”); Kincade v. City of
Blue Springs, Mo., 64 F.3d 389, 398 (8th Cir. 1995) (“[W]hen
Pickering[]. . .is at issue, the asserted First Amendment right
can rarely be considered ‘clearly established’. . . .”); DiMeglio
v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (noting that only
“infrequently” will the law be clearly established when a
balancing of interests is involved); O’Connor v. Steeves, 994
F.2d 905, 917 n.11 (1st Cir. 1993) (same); McDaniel v. Woodard,
886 F.2d 311, 314 (11th Cir. 1989) (quoting Noyola and finding
qualified immunity applicable because the constitutional right
was unclear); Melton v. City of Oklahoma City, 879 F.2d 706, 729
(10th Cir. 1989) (“In some circumstances, the fact-specific
nature of the Pickering balancing may preclude a determination of
‘clearly established law’. . . .”), vacated on other grounds, 928
F.2d 920 (10th Cir. 1991) (en banc); Benson v. Allphin, 786 F.2d
268, 276 (7th Cir. 1986) (stating that the application of fact-
dependent law “can rarely be considered ‘clearly established’”).

111
action before the defendant official is subject to liability under

Harlow [v. Fitzgerald].” Id. Noyola, Moran and Benson express the

consensus view among circuit courts.

While the majority relegates Noyola to a footnote, that

case remains the law of this Circuit. Judge Higginbotham, for

instance, cited Noyola when observing that, “the fact-specific

balancing test of Pickering complicates the question of whether an

act violated clear law. This is because the question is not only

the clarity of the standard but its clarity in application.”

Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993).

Judge Garwood added that qualified immunity

principles have particular force where, as here,
resolution of whether the defendant’s conduct violated
the constitutional provision sued on is heavily dependent
on a balancing or weighing against each other of
different factors according to the degree they are
present in the matrix of facts constituting the
particular context in which the asserted violation
occurred.

Pierce, at 882. Noyola has been frequently cited in our court.48

48
See Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002);
Harris v. Victoria Indep. Sch. Dist., 336 F.3d 343, 345 (5th Cir.
1999) (on petition for reh’g) (per curiam) (specifically stating
that Noyola “reflects the law of this circuit”); Pierce v. Smith,
117 F.3d 866 (5th Cir. 1997); Wallace v. Texas Tech Univ., 80
F.3d 1042 (5th Cir. 1996); Vander Zee v. Reno, 73 F.3d 1365 (5th
Cir. 1996); Gunaca v. Texas, 65 F.3d 467 (5th Cir. 1995); Brady
v. Ford Bend County, 58 F.3d 173 (5th Cir. 1995); Boddie v.
Columbus, 989 F.2d 745 (5th Cir. 1993); Caine v. Hardy, 943 F.2d
1406 (5th Cir. 1991) (en banc); Kinsey v. Salado Indep. Sch.
Dist., 916 F.2d 273 (5th Cir. 1990), vacated by, 950 F.2d 988
(5th Cir. 1992) (en banc); Connelly v. Comptroller of Currency,
876 F.2d 1209 (5th Cir. 1989); Price v. Brittain, 874 F.2d 252
(5th Cir. 1989); Evans v. Dallas, 861 F.2d 846 (5th Cir. 1988)
(per curiam); Brawner v. Richardson, 855 F.2d 187 (5th Cir.

112
 Noyola counsels judicial reticence toward abrogating

qualified immunity in government employee First Amendment cases,

but it does not act as a dispensation of the duty to examine each

case carefully. In several cases, after citing Noyola, this court

has denied the defense.49 When, as here, the First Amendment case

law is dissimilar from the precedents, we must echo the caution

expressed in Noyola, Boddie, Pierce, and among the circuits that

fact-sensitive balancing of “the matrix of factors constituting the

particular context in which the asserted violation occurred” gives

particular force to an immunity defense. In such cases, “a very

high degree of prior factual particularity may be necessary.”

Hope, 536 U.S. at 741, 122 S. Ct. at 2516; see also McClendon, 305

F.3d at 332 n.13.

B. Finding Similar Cases for Immunity Comparison.

Against the backdrop of Noyola and the First Amendment

balancing standards, we conclude that no reasonable police chiefs

and sheriffs could have clearly understood in October, 1998 that

they were violating the First Amendment by refusing to enroll their

recruits in Kinney’s and Hall’s classes. No compelling or

compellingly analogous Fifth Circuit case law gave the officials

“fair warning” in this context-sensitive balancing area of

1988).
49
See Harris, 168 F.3d at 225; Boddie, 989 F.2d at 750;
Brawner, 855 F.2d at 193. These cases have little bearing on the
application of Pickering balancing here.

113
constitutional law. Cases from other circuits uniformly granted

extra deference to law enforcement officials’ decisions.

The majority apparently overlooks the requirement that

there be a higher degree of similarity between cases to satisfy the

clearly established law prong of qualified immunity. The majority

concedes that “our past cases do not include one that has

specifically addressed retaliation against instructors at a police

academy.” Instead, the majority relies exclusively on ordinary

whistleblower cases50 and one case brought by a college professor

who testified as an expert witness.51 Such cases entail, however,

a significantly different mix of interests for balancing purposes

than the one before us.

Consider first the “ordinary” whistleblower cases. This

court has consistently held that a public employee is “speaking out

on a matter of public concern” when he becomes a “whistleblower”

and thus complains of, or testifies against, fellow employees’

misconduct or against his employer’s practices. This court has

protected a wide variety of whistleblower conduct, some of it

emanating from within law enforcement agencies. All of these

50
Brawner, 855 F.2d at 191-92; Matherne v. Wilson, 851
F.2d 752, 761 (5th Cir. 1998).
51
Rainey v. Jackson State Coll., 481 F.2d 347 (5th Cir.
1973). Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096
(5th Cir. 1987), is also cited by the majority as a case
concerning an educator, but it does not involve expert testimony
and protects truthful fact testimony against one’s employer’s
interest.

114
cases, however, concerned fact witnesses, employees who had

personal knowledge of misconduct within their own governmental

units.

In holding that ordinary whistleblower cases afford

“clearly established law” for this case, the majority elides

several critical distinctions. Foremost, Kinney’s and Hall’s

testimony did not equate with whistleblower conduct. Their

opinions were valuable only insofar as they correspond with someone

else’s account of the underlying facts. But it is the eyewitness

who “blows the whistle,” not the expert who simply synthesizes and

interprets the factual testimony. Qualified expert testimony is

fungible, not irreplaceable. The majority implies, nevertheless,

that without Kinney’s and Hall’s expert testimony, the plaintiff in

the Kerrville case would have been unable to pursue his claim.

Thus the public has a special interest in receiving expert

opinions. This suggestion blinks reality. Our litigious culture

affords well-qualified experts in every conceivable specialty,

including law enforcement practices and training. If the majority

intends, not so subtly, to hint that these experts had unique

credibility because of their affiliation with ETPA, their

implication proves the police officials’ contention: Kinney and

Hall created a conflict of interest by taking advantage of their

job titles in the courtroom.

Not only is the speech in whistleblower cases generically

different from appellees’ expert testimony, but the corresponding

115
interests of public employers are different. This court has been

unsympathetic to employer retaliation against government whistle-

blowers, since their unorthodox conduct may furnish the public’s

only protection against internal misconduct. A public employer has

little, if any, legitimate interest in hiding dirty linen from the

taxpaying public. The case before us is not, however, so easily

pigeonholed. The police officials are not concealing misdeeds

within their departments. Indeed, since the Kerrville plaintiff on

whose behalf Kinney and Hall testified left court empty-handed, the

police officials’ “retaliation” did not ultimately stifle the

exposure of wrongdoing. The majority’s facile analogy with

ordinary whistleblower cases is simply wrong. We have here assumed

that the police officials’ actions would not satisfy the

Pickering/Connick balancing test after careful analysis, but such

a legal conclusion does not so ineluctably follow from a few

citations to whistleblower cases as to “clearly establish” the

guiding law.

The majority’s analogy to cases involving educators is

also weak. In Rainey, this court concluded that a college

teacher’s contracts were unconstitutionally breached because of his

testimony as a defense expert witness in a pornography case.

Rainey v. Jackson State Coll., 481 F.2d 347, 349 (5th Cir. 1973).

Holding that the breach violated Rainey’s First Amendment rights,

this court did not engage in Pickering balancing. Id. at 349-50.

By its nature, Rainey’s testimony could not have conflicted with

116
the interests of his employer. No countervailing employer

interests were advanced by the college against Rainey’s right to

testify. Legally and factually, Rainey is a poor fit with this

case.

Closer factually to the instant case is the policy of

Texas A&M University (and a state legislative appropriation

provision), implemented before the police officials took action

directed at Kinney and Hall, that broadly forbade university

employees from testifying as expert witnesses for parties adverse

to the state’s interests. See Hoover v. Morales, 164 F.3d 221,

223-24 (5th Cir. 1998). The police officials cite the policy as

reflecting clearly established law in the Fifth Circuit. The

majority discounts appellants’ reliance, because the policies were

under federal court challenge, and ultimately did not survive. We

agree that Hoover’s context is sufficiently different as not to

furnish controlling authority in support of the police officials.

By the same token, however, the majority ought to concede

that Hoover reinforces the principle that in this context-sensitive

balancing area of constitutional law, what is clearly established

must be closely related factually and legally to a case at hand.

Significantly, this Court in Hoover “assumed that there will be

occasions when the state’s interests in efficient delivery of

public services will be hindered by a state employee acting as an

expert witness or consultant . . . .” 164 F.3d at 226 (emphasis

added). Hoover concludes by stating:

117
 But our task in this case requires us to apply a
Pickering case-by-case analysis, and in doing so we
conclude that the expert witness rider and TAMUS policy
No. 3105 are impermissibly overbroad. Our opinion does
not foreclose consideration of rules and regulations
aimed at limiting expert testimony of faculty members or
other state employees which adhere to our First Amendment
jurisprudence.

164 F.3d at 227. Unlike the majority opinion, Hoover does not

oversimplify Pickering balancing and in its way lends powerful

support to the officials’ plea that no clearly established Fifth

Circuit law condemned their actions regarding Kinney and Hall.

While the majority has strained to find that clearly

established Fifth Circuit law was contrary to the police officials’

conduct, they ignore or minimize, in the immunity discussion, three

circuit court cases involving alleged retaliation by law

enforcement agencies for non-whistleblower testimony.

The case most closely on point is Tedder v. Norman, 167

F.3d 1213 (8th Cir. 1999), decided only a few months after the

events at issue here. Tedder was the Deputy Director of the

Arkansas Law Enforcement Training Academy. After voluntarily

testifying as an expert for the plaintiff in an excessive use of

force case, Tedder was demoted. The Eight Circuit affirmed a

summary judgment in Tedder’s First Amendment lawsuit against his

supervisor. The court held that:

Testimony concerning possible misconduct of public
officials is speech on a matter of public concern that
warrants constitutional protection, . . . but, as the
district court stated, “it is not the place for an
employee of ALETA, let alone its Deputy Director to
volunteer to give such testimony without a subpoena.”

118
167 F.3d at 1215. Further, the court found a “significant threat

of disruption to the relationships between the [academy] and the

law enforcement agencies that it trains.” Id. at 1215. On

balancing the relevant interests, the court ruled for the defendant

against Tedder’s claim of unconstitutional retaliation. Id.

The majority would distinguish Tedder because the

defendant there testified against an officer employed by a law

enforcement agency actually trained by the Arkansas academy. The

Tedder court never specifically emphasizes this fact, however, and

it found that the testimony caused “actual disruption and potential

further disruption” to the academy. Id. Tedder not only undercuts

the majority’s First Amendment analysis, but clearly supports a

finding of qualified immunity. It would be a strange

constitutional rule indeed that protects a public employer’s

adverse action against an employee for expert testimony, but

punishes the non-employer for concerns over the very same activity.

Even stranger would be the denial of qualified immunity to the non-

employer whose internal relations are most affected by the expert

testimony, while Tedder’s supervisor was granted qualified

immunity. Id.

The majority also ignores a Third Circuit case, decided

well before the events here, which exonerated a law enforcement

agency that demoted one of its officers for voluntarily appearing

as a character witness (for a friend’s son) at a bail bond hearing.

Green v. Philadelphia Hous. Auth., 105 F.3d 882 (3rd Cir. 1997).

119
In Green, the officer left the hearing, declining to take the

stand, when he learned that the son was charged with involvement in

a drug ring. The court found that the officer’s decision to

testify constituted First Amendment protected activity, but also

that the public’s interest in his voluntary court appearance is

“somewhat more limited than it would be if his appearance were

subpoenaed.” 105 F.3d at 888 (citing cases).

Ultimately, the Pickering/Connick balancing test weighed

in the department’s favor, as an employer, because of its

significant interests in protecting the department’s reputation and

in successfully fighting drugs and crime. The court held that “any

risk of departmental injury or disruption weighs heavily under the

Pickering balancing test.” Id. Green thus found for the police

department even though Green’s supervisor had previously approved

his court appearance.

For immunity purposes, Green is closely related

contextually to the present case. Green attributed significant

weight to the police department’s justification for its

disciplinary action, and it carefully explains why not all court

testimony is equivalent for First Amendment purposes. In these

ways, Green furnishes a backdrop for the police officials’ conduct

just the opposite of the synthetic “clearly established law”

concocted by the majority.

The third case relevant for immunity purposes was brought

against an Oklahoma district attorney and agents for the Oklahoma

120
Bureau of Narcotics and Dangerous Drugs, alleging that the

rescission of an offer of employment to coordinate the DA’s drug

task force was based on the plaintiff’s previous expert witness

testimony for a murder defendant. Worrell v. Henry, 219 F.3d 1197

(10th Cir. 2000). The murder trial in which the would-be employee

testified involved the killing of one of the narcotics bureau’s

agents. The court granted summary judgment for the district

attorney, who was the prospective employer, but it denied summary

judgment and qualified immunity to the chief narcotics bureau

agent. The Tenth Circuit held that Pickering/Connick balancing was

appropriate to evaluate the First Amendment consequences of the

district attorney’s refusal to hire Worrell, but it did not find

Pickering appropriate to analyze the alleged retaliation by the

non-employer, non-contractor agents of the narcotics bureau. In

reaching the latter conclusion, the court acknowledged “that there

may be instances in which the operations of a third party agency

are so intertwined with the operations of the employing agency that

the Pickering balancing should be applied.” Worrell, 219 F.3d at

1212, n.3.

Worrell demonstrates that if the police officials’ role

is viewed through the Pickering/Connick lens, their claim to

immunity should be ironclad. Even if their position more closely

resembles that of the narcotics bureau agents, however, they could

argue that they fall under Worrell’s caveat because their

operations are closely intertwined with ETPA.

121
 We may end this section where we began. Because this

case involves constitutional balancing, the “clearly established

law” must have existed at a higher level of specificity than might

be required in other types of immunity cases. This is hardly an

extraordinary conclusion. It follows as a negative implication

from this court’s en banc holding in McClendon that, absent

controlling circuit authority, “a ‘consensus of cases of persuasive

authority’ might, under some circumstances, be sufficient to compel

the conclusion that no reasonable officer could have believed that

his or her actions were lawful.” McClendon, 305 F.3d at 329. In

this case, the Fifth Circuit precedents cited by the majority

involve fundamental distinctions in the nature of the speech as

well as the public employer’s interests. While useful, such cases

hardly compel the conclusion that the police officials could not

properly disenroll their officers from Kinney’s and Hall’s classes.

The majority overlooked other circuits’ cases that discussed

Pickering balancing in the specific context of law enforcement

agencies and various types of testimony. Whether or not the

majority would agree with the outcome of those cases, two of them

predate the police officials’ conduct here, and they should be

regarded as constituting a consensus of persuasive authority

arrayed against the majority’s conclusion. At best, one must

conclude that there was no “clearly established law” that gave the

police officials “fair warning” of the unconstitutionality of their

conduct. See McClendon, 305 F.3d at 332-33 (no consensus of cases

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from other jurisdictions where those cases applied the

constitutional rule differently and facts were insufficiently

similar; qualified immunity granted to police officer).

C. Novelty in the Majority’s Balancing Exercise.

The third proof of error in the majority’s qualified

immunity analysis arises from the way it strikes the

Pickering/Connick balance. In October, 1998, no court had held

that a law enforcement employee’s right to testify voluntarily as

an expert witness outweighed the interests of the agency. See

Worrell, 299 F.3d at 1206-07 (discussing prior circuit court cases

and noting that even where Pickering balancing favored the

employee, a different result might be reached where an agency could

show a disruption in its operations). And to this day, no cases

have, in the law enforcement context, elevated non-whistleblower

testimony so high, or rated the department’s interests so low, as

the majority does here. This is not to say (at this point) that

the majority is incorrect, but the novelty of this balance cuts

against any conclusion that “clearly established law” proscribed

the police officials’ conduct. The appellants’ position thus

resembles that of the county supervisors in Umbehr, whose qualified

immunity was upheld on appeal while the Supreme Court approved the

application of Pickering/Connick balancing to the relations between

independent contractors and government entities. See generally,

Umbehr, 518 U.S. 668, 116 S.Ct. 2342.

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 Because the majority has exaggerated the analogy between

voluntary expert testimony and whistleblower testimony, it elevated

Kinney’s and Hall’s interests in testifying as voluntary expert

witnesses to almost absolutely protected status. The majority has

thus extended or partially overruled Hoover v. Morales, which

rejected such an absolutist approach. See Hoover, 164 F.3d at 227.

From the perspective of other circuits, too, the majority’s

conclusion is unprecedented. The Tenth Circuit has specifically

held otherwise: “First Amendment protection of public employees’

testimony is not absolute. There are instances in which government

entities’ interests as employers outweigh employees’ interests in

free expression and the policy of encouraging truthful and

uninhibited testimony.” Worrell, 219 F.3d at 1205. Worrell then

described with approval the way in which the courts in Green and

Tedder evaluated the clash between law enforcement officers’ rights

to testify and their agency’s significant interests. Worrell, 219

F.3d at 1206-07. In Green, as noted above, the Third Circuit held

that the officer’s voluntary appearance at a bail hearing, although

constitutionally significant, was entitled to less weight. Green,

105 F.3d at 888-89. The Eighth Circuit in Tedder also decided that

the voluntariness of the deputy director’s expert testimony in a

police brutality case lessened its First Amendment protection.

Tedder, 167 F.3d at 1215. No other case has ascribed to voluntary

expert witness testimony like that of Kinney and Hall such elevated

First Amendment status.

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 Likewise, in unprecedented fashion, the majority holds

for naught the police officials’ description of their institutional

interests in controlling the education of department officers.52

The majority’s hostility toward the police officials’ position is

contrary to Waters v. Churchhill, which described the government’s

“significant” interest as an employer as follows:

When someone who is paid a salary so that she will
contribute to an agency’s effective operation begins to
do or say things that detract from the agency’s effective
operation, the government employer must have some power
to restrain her.

511 U.S. 661, 675, 114 S.Ct. 1878, 1887-88 (1994). Waters further

noted:

[W]e have consistently given greater deference to
government predictions of harm used to justify
restrictions of employee speech than to predictions of
harm used to justify restrictions on the speech of the
public at large. Few of the examples we have discussed
involve tangible, present interference with the agency’s
operation. The danger in them is mostly speculative.

511 U.S. at 673, 114 S.Ct. at 1887. In Umbehr, too, the Court

reminded that, “Pickering requires a fact-sensitive and deferential

weighing of the government’s legitimate interests.” Umbehr, 518

U.S. at 677, 116 S.Ct. at 2348.

As was previously explained, the expert testimony caused

an uproar because police officials and student-officers feared

52
The majority relies on two cases in concluding the
appellants have no legitimate interests in the Pickering
balancing. Both are inapposite. In one of these, the policeman
was disciplined for associating with a union. See Boddie, 989
F.2d at 747. The other involved a prison nurse’s whistleblower
activity. Frazier v. King, 873 F.2d 820, 826 (5th Cir. 1989).

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Kinney and Hall might use information gleaned in their classes to

testify against the sponsoring agencies; that their testimony

interfered with unfettered classroom discussions; and that they

misused their affiliation with ETPA to enhance their testimony.

One can certainly understand the sensitivity of the police

officials about Kinney’s and Hall’s testimony. Far from exhibiting

wanton police brutality, the Gonzales case portrayed an officer’s

life endangered by a deranged shooter. Such situations are the

stuff of law officers’ nightmares and domestic tragedies. There is

no evidence that Kinney and Hall were lawyers, and they are

entitled to their professional opinions as law enforcement

instructors. Nevertheless, feelings of loyalty, confidence and

teamwork between the agencies and the instructors were

understandably strained by this testimony. Further, it is evident

that the instructors enhanced their credibility because of their

association with ETPA, and that the police officials might

legitimately question whether the instructors’ impartiality was

undermined because they initially agreed to be paid experts.

The majority might refuse to defer and throw all these

institutional concerns to the winds in its First Amendment

analysis. But in doing so, not only does it abuse the general

cautions expressed by the Supreme Court, but it contradicts

authorities from several circuits. In Green, the Third Circuit

described as “very significant” the interests of the housing

authority police department as an employer where the officer’s

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voluntary testimony created a “risk of departmental injury based on

the ‘potential disruptiveness of the speech.’” (Green, 105 F.3d at

888, quoting Waters, 511 U.S. at 680, 114 S.Ct. at 1890.)

In Tedder, the court concluded that Tedder’s testimony

caused actual disruption and potential further disruption between

ALETA and the law enforcement agencies that it was charged with

training. Tedder, 167 F.3d at 1215. The court was concerned that

students’ loss of faith in the ALETA’s Deputy Director, who had the

authority to approve or veto lesson plans, could spread to every

class taught there. See id. The Eighth Circuit has elsewhere

recognized in emphatic terms the heightened interests of law

enforcement agencies. See, e.g., Shands v. City of Kennett,

993 D.2d 1337, 1344-45 (8th Cir. 1993); Tindle v. Caudell, 56 F.3d

966, 971-73 (8th Cir. 1995).

In Worrell, the Tenth Circuit reiterated that “personal

loyalty and confidence among employees are especially important in

law enforcement” and noted that “[t]hese concerns are heightened in

smaller offices and departments, where relatively minor distur-

bances in morale may create significant problems.” Worrell,

219 F.3d at 1208. The court adds that the district attorney was

not obliged to wait for an actual breakdown in the functioning of

his taskforce before taking action. Id. at 1208-09. He was

entitled to rely on reasonable predictions of workplace disruption.

Id.; see also Waters, 511 U.S. at 673, 114 S.Ct. at 1887 (noting

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the “substantial weight [afforded] to government employers’

reasonable predictions of disruptions”).

The Seventh Circuit has repeatedly held that

“‘[d]eference to the employer’s judgment regarding the disruptive

nature of an employee’s speech is especially important in the

context of law enforcement.’” Williams v. Seniff, 342 F.3d 774,

783 (7th Cir. 2003) (quoting Kokkinis v. Ivkovich, 185 F.3d 840,

845 (7th Cir. 1999)).

Finally, the Sixth Circuit has held that police officials

are entitled to qualified immunity for taking reasonable

administrative action to preclude one of their officers from

exploiting his uniform and his position in the police department to

advocate on behalf of the National Rifle Association. See

generally, Thomas v. Whalen, 51 F.3d 1285 (6th Cir. 1995). While

acknowledging the protected status of the officer’s political

speech, the court pointed out that “no court has recognized a right

to exploit one’s rank in public employment solely for the purpose

of enhancing credibility for personal or political gain.” Whalen,

51 F.3d at 1291.

In addition, the majority wholly overlooks that public

employers are entitled to deference in dealing with employees whose

trust and loyalty are essential to the functioning of a public

office. See, e.g., Connick, supra, 461 U.S. at 151-52, 103 S.Ct.

at 1692 (“When close working relationships are essential to

fulfilling public responsibilities, a wide degree of deference to

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the employer’s judgment is appropriate.”); Kinsey v. Salado Indep.

Sch. Dist., 950 F.2d 988, 994 (5th Cir. 1992) (en banc). There can

hardly be any dispute that law enforcement instructors occupy a

sensitive and extremely important position with respect to the

agencies’ mission. If training fails because the trainees have

lost confidence in their instructors and are unwilling to discuss

issues frankly with them, the consequences can be disastrous. The

above-cited cases specifically refer to institutional loyalty as a

quality especially required in law enforcement agencies, yet the

majority ignores it.

At this point, we have assumed the correctness of the

majority’s final conclusion that a First Amendment violation

occurred. But in its novel approach to balancing the instructors’

interests against those of the law enforcement agencies, the

majority is making new law, not simply expounding “clearly

established law.” Kinney and Hall may choose to pursue their suits

against the municipal entities, but the individual defendants are

entitled to qualified immunity.

IV. Was There a Violation of the First Amendment?

Although we have demonstrated that the police officials

were entitled to qualified immunity regardless of whether their

conduct violated the First Amendment, we would also hold that their

actions were not, under the Pickering/Connick balancing test,

unconstitutional.

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 Pickering “requires a fact-sensitive and deferential

weighing of the government’s legitimate interests.” Umbehr,

518 U.S. at 677, 116 S.Ct. at 2348. In holding that Pickering

balancing applies to cases in which a governmental entity appears

to condition the provision of contracts on a third party’s

constitutionally protected expression, the Supreme Court observed

that the “nuanced” Pickering approach, “which recognizes that a

variety of interests may arise in independent contractor cases, is

superior to a bright-line rule distinguishing independent

contractors from employees.” Id. at 678. The Court also found it

“far from clear, as a general matter, whether the balance of

interests at stake is more favorable to the government in

independent contractor cases than in employee cases.” Id. at 680,

116 S.Ct. at 2350.

Whether Kinney and Hall are classified as third-party

independent contractors or as employees is not as significant as

how their overall function, and their voluntary expert testimony,

affected the law enforcement agencies’ performance of a public

mission. Compare Umbehr, id. at 679, 116 S.Ct. at 2349 (noting

that a bright-line rule that “would leave First Amendment rights

unduly dependent on whether a state law labels a government service

provider’s contract” as one of employment or a contract for

services is “a very poor proxy for the interests at stake”). To

the extent the majority opinion depends on labeling Kinney and Hall

as independent contractors rather than employees, its analysis is

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oversimplified and inconsistent with Umbehr.53 Further, the

majority’s reliance on this court’s cases involving government

contractors is hollow, since neither the speech at issue in those

cases nor the governmental interests at stake is comparable to the

present case.54

Balancing the interests in this case on a clean slate,

the appellees’ testimony constituted speech on a matter of public

concern and was entitled to some level of constitutional

protection. For reasons previously discussed, we, unlike the

majority, do not characterize the protection as “extremely strong.”

Other circuits’ opinions have properly distinguished voluntary

testimony from testimony under subpoena. See Green, 105 F.3d at

888; Tedder, 167 F.3d at 1215. Further, voluntary expert witness

testimony is distinct from standard whistleblower conduct, and on

the facts of this case, Kinney’s and Hall’s expert opinions were

not essential to exposing wrongdoing by a policeman or a police

department.

53
In the foregoing qualified immunity discussion, this
opinion, like the majority’s, necessarily focuses on government
employee cases, since those are the most common. Proper
Pickering analysis, however, balances the relevant interests
without regard to labels.
54
See N. Miss. Communications v. Jones, 792 F.2d, 1330
(5th Cir. 1986) (county board retaliated against newspaper for
critical editorials and stories) and Blackburn v. City of
Marshall, 42 F.3d, 1925 (5th Cir. 1995) (wrecker service denied
permission to use police radio frequency after complaint to
police chief; no Pickering analysis at all).

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 The interests of the law enforcement agencies have been

well-documented in other cases, where it has been held that there

is a “special need for deference to the employment decisions of

those responsible for insuring public safety.” Kokkinis, 185 F.3d

at 845. Law enforcement agencies have “a more significant interest

than the typical government employer in regulating the speech

activities of [their] employees in order to promote efficiency,

foster loyalty and obedience to superior officers, maintain morale,

and instill public confidence.” Tyler v. City of Mountain Home, 72

F.3d 568, 570 (8th Cir. 1995) (internal quotation marks and

citations omitted). The police officials here deposed or attested

that appellees’ expert testimony hurt the close working

relationship required between academy instructors and

representatives of the cities and counties; damaged teamwork

required among those involved in training officers; threatened the

confidentiality of information officers share with their

instructors about procedures and practices; undermined feelings of

loyalty and confidence; and represented an improper use of the

instructors’ affiliation with ETPA. The police officials offered

evidence of actual and potential disruption to their training

programs and departments.

Two factors detract, in the majority’s view, from the

strength of these articulated interests and the deference they are

due. First, it is contended that because appellees testified “400

miles away” from ETPA and in a case not involving a trainee or

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department sponsor of the ETPA program, the police officials’

concerns are misplaced. The distance between Kerrville and

Kilgore, Texas, is a red herring. Both cities are in Texas, both

are governed by the same regime of state and federal law, and there

is no showing that police officers trained in east Texas rarely or

never migrate to other areas of the state, or that ETPA’s influence

spreads no further than the boundaries of its sponsoring

department. The “400 mile argument” is disingenuous.55

That the expert testimony posed a conflict of interest

with Kinney’s and Hall’s status as instructors, despite its taking

place outside ETPA’s formal jurisdiction, is a conclusion entitled

to deference. As the majority notes, the police officials did not,

in events leading up to this case, explain how they used the term

conflict of interest, but the officials’ ineloquence does not mean

their judgment is entitled to no weight. Moreover, it is evident

that in testifying before a Kerrville jury, the appellees’ status

as instructors at a Texas police academy would enhance their

credibility and lend the prestige of ETPA to their words. By their

status, the instructors necessarily implicated the sponsoring

departments (despite any professional disclaimers) in the legiti-

macy of their expert opinions. Even if other possible standards

for conflicts of interest, e.g., detracting from their time

55
We need not and do not speculate whether expert
testimony given outside the State of Texas would have a different
impact on the evaluation of the agencies’ interests.

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available to prepare for and conduct ETPA classes or “double-

dipping” on salary and witness fees, are excluded, a conflict

existed in this sense. See, e.g., Thomas v. Whalen, 51 F.3d at

1292 (discussing a government entity’s interest in preserving the

appearance of impartiality).

More consequential is the majority’s criticism that the

police officials could not legitimately discipline Kinney and Hall

to enforce an “unwritten code” of silence, whereby police officers

do not testify against each other. We agree that enforcing the

“code of silence” to stifle speech concerning police misconduct is

not a legitimate governmental interest. The evidence shows,

however, that this was not a contemporaneous justification formally

offered for the police officials’ conduct, and, in fact, reference

to an “unwritten code” was made by only one of the appellants,

during a television interview. As can be seen from the wealth of

detail in the majority opinion, this case contained an abundance of

contemporary oral and documentary evidence as well as

post-litigation depositions that explored the police officials’

reasons for their action. That only one reference appears

throughout the record to an “unwritten code” is significant. This

stray remark should not be blown out of proportion.

The dominant theme in cases that have considered the

Pickering balance in the context of law enforcement is the need for

a high degree of personal loyalty and confidence, esprit de corps,

harmony and good morale within departments and between instructors

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and trainees. Tedder, for instance, relied on the interests of the

actual employer, the police training academy, which has only an

indirect stake in the results of training. Tedder, 167 F.3d at

1215. Tedder reflects the even stronger interests of the officials

in this case, whose departments and officers rely on the academy’s

training for the sake of the public. In Worrell, the Tenth Circuit

held that a district attorney’s interest in preventing disruption

with other law-enforcement agencies outweighed the applicant’s

interest in avoiding retaliation for his testimony as an expert

witness against a police officer. Worrell, 219 F.3d at 1208-09.

In Green, the reputation and law enforcement capacity of the

housing authority police were held to prevail over an officer’s

decision to testify voluntarily. Green, 105 F.3d at 888-89. The

Seventh Circuit has on several occasions held that protected speech

was subordinate to the institutional interests of law-enforcement

agencies. See Seniff, 342 F.3d at 783-85; Kokkinis, 185 F.3d at

844-45.

In stark contrast to those cases, the majority here

ignores the paramilitary interests of the law-enforcement agencies

and reduces their “legitimate” concerns to the instructors’

competence and teaching ability. As a matter of law, and based on

this record, those interests are too narrowly defined.

We conclude that this is a closer case under Pickering

balancing than others in the law enforcement area. While Kinney

and Hall engaged in protected conduct, their voluntary expert

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testimony did not carry such a high degree of public importance, in

general or in the facts of this case, as ordinary whistleblower

testimony. Further, we owe special deference to the law

enforcement agencies’ legitimate interests in maintaining

discipline, harmony, confidentiality and morale in their

departments and training programs. We also note that while the

police officials opined that Kinney and Hall should be fired, they

succeeded only in disenrolling their students from the instructors’

classes. They did not and could not directly terminate appellees’

employment.

On balance, we conclude that the police officials did not

violate the First Amendment by disenrolling their students from

appellees’ classes. The officials have the discretion to decide,

consistent with the First Amendment, by whom their officers will be

taught.

V. Conclusion

For the foregoing reasons, I respectfully dissent from

the denial of qualified immunity on the appellees’ First Amendment

claims, and I join Judge Barksdale’s dissent.

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E. Grady Jolly, Circuit Judge, Dissenting:

I respectfully dissent and agree with Judges Jones and

Barksdale that the defendant law enforcement officers are entitled

to qualified immunity and should be released from personal

liability. It seems disingenuous to hold that the law is clearly

established when it takes 20,467 words to explain, and when six

United States Court of Appeals judges sharply disagree about it.

To my way of reasoning, the majority has turned the words, and the

doctrine, of “clearly established” on its head when it denies

immunity in this novel case.

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