Branton v. City of Dallas

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-11206

DEBORAH A. BRANTON

Plaintiff - Appellant

v.

THE CITY OF DALLAS; BENNIE R. CLICK, Chief of Police Individually

& in His Official Capacity

Defendants - Appellees

- - - - - - - - - - - - - - - - - - - -

DEBORAH A. BRANTON

Plaintiff - Appellant

v.

THE CITY OF DALLAS

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

November 9, 2001

Before POLITZ, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

An internal affairs investigative officer in the Dallas

1

Police Department filed this 42 U.S.C. § 1983 suit for employment

retaliation in violation of her First Amendment right to free

speech. The officer was downgraded in performance rating,

removed from investigative and supervisory duties, and

effectively disqualified for promotions and overtime pay because

of her alleged improper ex parte communication with a hearing

officer, an assistant city manager, in a police disciplinary case

in which she served as investigator. The internal affairs

officer appealed from the district court’s grant of summary

judgment in favor of the Chief of Police and the Police

Department. We conclude that the statements made by the internal

affairs officer addressed a matter of public concern; that the

statements are entitled to First Amendment protection; and that

the internal affairs officer’s right to speak was clearly

established at the time the Chief acted. Whether the internal

affairs officer was subjected to adverse employment action

because of the exercise and content of her speech or because her

speech was improperly made in the form of an ex parte

communication is a genuinely disputed issue of material fact. We

therefore reverse the summary judgment and remand the case for

further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

2

In this case, before us for the second time,1 Plaintiff,

Deborah A. Branton, has been employed by the Dallas Police

Department since 1977. She has been a sergeant in the Office of

Professional Standards, Internal Affairs Division (“IAD”), since

1989. After nearly two decades, her departmental resume

contained twenty-one commendations and no indication of any

reprimands for misconduct. Prior to the events leading up to

this action, her duties included the investigation of internal

and external complaints filed against sworn and non-sworn

employees of the Dallas Police Department, supervising detectives

assigned to the IAD, and appearing at administrative appeal

hearings. At such hearings it was her duty as an internal

affairs investigator to present the findings of her investigation

of the case, to turn over her investigative file to the presiding

officer, an assistant city manager, and to observe and ensure

that no false or inaccurate information was offered.

In July 1995, Branton was assigned to investigate a

complaint filed by Officer DeLois Thomas against Officers Thomas

Popken and Billy Hattaway. In her complaint, Thomas alleged that

Popken, an “International Instructor” in the use of police

batons, had improperly accepted a fee of $125 from Hattaway for

baton instructions and training, partially while on duty.

Branton’s investigation and report indicated that Popken admitted

1

See Branton v. City of Dallas, No. 97-11352 (5th Cir. Dec.

10, 1998).

3

accepting a $125 check from Hattaway but claimed that he later

tore it up; he said he only accepted the check so that he could

honestly inform the international baton association that he had

complied with what he thought was its rule when he certified that

Hattaway had completed the course.

According to Branton’s investigation, Thomas and Popken had

apparently developed some animosity towards each other stemming

from their common ambition to become certified as an

International Instructor in police baton, of which there were

only thirty-five in the world. Popken had been invited by

Monadnock, the baton vendor who certified police officers

according to their level of knowledge and proficiency in the use

of the baton, to try out for certification. He applied to the

city for funds to finance his travel to Colorado for that

purpose. The officer in charge denied Popken’s application,

however, because Thomas had earlier been turned down for a

similar request after she claimed she had been invited to apply

for certification. The officer said that it would be unfair for

the city to pay Popken’s way after it refused to do so for

Thomas. Popken called Monadnock and was told that Thomas had

never been invited or told that she would be recommended for

certification. Subsequently, Popken traveled to Colorado at his

own expense and became certified as an International Instructor.

Popken’s new status authorized him to recertify Intermediate

4

Instructors such as Hattaway and Thomas to give baton

instructions to recruits or beginners.

Thomas’s internal affairs complaint against Popken

apparently arose out of their mutual animosity and her perception

that Popken had unduly delayed her recertification. When Thomas

told Branton that she had been invited by Lieutenant Art Sapp to

become an International Instructor, Branton called Sapp to

confirm this story. Sapp, however, denied “inviting” Thomas to

become an International Instructor, but said he had only

responded to her inquiry expressing interest in becoming one and

replied that she would first have to complete additional training

before he would consider nominating her.

Based on Branton’s investigation and report, Chief Click

suspended Popken for one day. Popken appealed the discipline

imposed. On November 26, 1996, a hearing on the appeal was held

before an Assistant City Manager, Levi Davis, the ultimate

decision-maker in the matter; his decision was final and

unappealable.

At the hearing, Thomas testified (not under oath) that Sapp

had invited her to become an International Instructor. Branton,

who attended the hearing as the investigating IAD officer,

considered the testimony of Thomas to be false and in

contravention of Chief Click’s departmental ethical policy

statement regarding truthfulness. Although Branton had, in

5

accordance with her responsibilities, submitted her investigative

report to Davis, Branton had personal knowledge that Davis did

not read reports prior to hearings and, therefore, would be

unaware that Thomas had testified falsely. Because one of her

duties as an IAD investigator was to ensure that the testimony

given at an official hearing was truthful, Branton said she felt

obliged to protect the integrity of the investigative process and

to report her concern about Thomas’s testimony.

Branton testified that it was her intent to tell Davis about

her concerns with Thomas’s testimony during the hearing, but she

was reluctant to create a confrontation with Thomas. Branton had

already corrected Thomas’s testimony on a different point during

the hearing after Thomas created the impression that some sort of

collusion was involved in the investigation of Popken’s

misconduct. Thomas testified that Executive Assistant Chief

Manuel Vasquez had reduced one of the allegations of misconduct

against Popken. Branton corrected this impression, stating that

Chief Click had instructed her to change the allegation. Branton

testified that when she brought this matter to Davis’s attention

during the hearing, the City Attorney appeared to be disturbed

and upset. Therefore, she intended to raise her other concerns

about Thomas’s testimony after Thomas left the stand and asked

the City Attorney when Thomas would be excused from the stand.

The City Attorney, apparently still “irritated” that Branton had

6

once before corrected Thomas’s testimony, dismissively informed

Branton that such a concern was “not [her] problem” but the

problem of Popken’s attorney.

Immediately after Thomas was excused, Davis closed the

hearing. As those in attendance began to leave, Branton, in the

presence of the City Attorney, requested the opportunity to speak

with Davis. Davis excused the City Attorney, and Branton

informed him of the inconsistency between Thomas’s statement and

Lieutenant Sapp’s disclosures and her belief that Thomas’s

testimony on that matter had been false. Branton made no attempt

to influence the outcome of the hearing or to persuade Davis as

to the appropriateness of Popken’s punishment. Davis made no

indication that their conversation was inappropriate.

On December 3, 1996, Mr. Davis issued his decision reducing

Popken’s one-day suspension to a “letter of counseling.” In

addition, Davis ordered that Popken be reimbursed for his out-of-

pocket expenses related to his International Instructor training,

if the Department continued to request that he certify

Intermediate baton instructors. Shortly after he received the

decision, Chief Click informed Branton that she was being

transferred out of IAD because of the post-hearing statement she

had made to Davis. Although the Chief rescinded the transfer

after conferring with the City Attorney, he stripped Branton of

her duties and responsibilities as an investigator and

7

supervisor, rescinded her authority to supervise detectives and

other personnel, and assigned her to handle the “walk-in”

complaints, a job viewed by IAD investigators as highly

undesirable. More importantly, perhaps, the Chief placed an

administrative disciplinary report in her file which is open to

the public, jeopardizes her ability to receive a promotion or

recover investigator status for at least three years, and

prevents her from earning overtime pay.

Branton claimed she had never been advised of a policy

against reporting a witness’s misconduct to an assistant city

manager, and she produced deposition testimony from Senior

Corporal Nancy Wallace and IAD Investigator Crista Walker that

they too had no knowledge and were given no training on such a

policy. In fact, both Chief Click and Assistant City Manager

Davis testified that there was no rule, regulation, or policy of

the Dallas Police Department that prohibited Branton’s post-

hearing communication. Moreover, post-hearing communication

between IAD investigators and assistant city managers does not

appear to have been an unknown practice in Dallas. Both Senior

Corporal Wallace and IAD Investigator Walker, in addition to

Sergeant Margie Cunningham of the IAD, testified that they too

had had communications and conversations with assistant city

managers after the conclusion of a hearing and outside the

presence of the appellant and his attorney. Sergeant Cunningham

8

and Senior Corporal Wallace testified that after an appeal

hearing before Davis, he invited them and a city attorney to his

office for further questioning. Crista Walker testified that

Assistant City Manager Mary Suhm had initiated such a post-

hearing conversation with her.2

Branton also contends that she thought it was her duty as

the IAD officer on the case to inform the Assistant City Manager

of any discrepancies in witnesses’ testimony and that it was her

duty to the City, the Department, and the public to do so.

Again, the testimony of other IAD investigators supports

Branton’s claim. IAD Investigator Walker testified that it was

“part of [her] responsibility” to bring false testimony to light;

Senior Corporal Wallace testified similarly.

Branton testified that she, at all times, believed she was

carrying out the goals and policies of Chief Click, as outlined

by the Chief in his honesty and truthfulness policy statement on

January 11, 1995, long before this case arose. Chief Click’s

memorandum on the subject of “Ethical Standards of Conduct” was

sent to all personnel and was clear and unequivocal.3 After

2

Walker, however, testified that the extent of the

conversation was one question by Suhm as to how long an officer had

been in the department. Further discussion was interrupted by

Assistant City Attorney Prema Velu.

3

Chief Click’s memorandum on the ethical standards of conduct

states as follows:

The Dallas Police Department Code of Conduct, Chapter

VIII, Section 8.3, 8.4, and 8.5 specifically address

9

citing the pertinent sections of the Dallas Police Department

Code of Conduct regarding honesty and truthfulness, the Chief

informed all personnel that the mission statement of the

standards of employees’ behavior and ethical conduct in

regards to honesty and truthfulness. The mission

statement of the Dallas Police Department which is being

prepared for distribution and display specifically states

that employees will:

Be examples of honesty and integrity in their

professional and personal lives, thereby earning

public trust.

The ethical standards of truthfulness and honesty form

the basis of public confidence. Every sworn officer not

only takes an oath of office to “faithfully” execute the

duties of the office of Police Officer for the City of

Dallas, but this oath is reaffirmed when we, as police

officers, are called to testify in any case and we swear

to tell the whole truth and nothing but the truth. This

standard for truthfulness applies to all aspects of our

duties, not only courtroom testimony, but in the

preparation of offense and arrest reports, administrative

internal statements, and in everything we say and write

while performing our duties. This standard will be

adhered to by all members of the Department, both sworn

and non-sworn employees.

I recognize that an overwhelming majority of the members

of this Department are honest and hardworking. As a

result of this, each member should take pride in the

Department’s outstanding reputation for integrity and

honesty, both internally and throughout the community.

We must all take responsibility for protecting this

standard of professional conduct. Untruthfulness or

dishonesty cannot and will not be tolerated. Therefore,

any employee found to be untruthful or dishonest will, in

most cases, be terminated.

The Dallas Police Department will remain committed to

providing the finest in police service.

/s/ Bennie R. Click

Bennie R. Click

Chief of Police

10

Department being prepared would state that employees will: “Be

examples of honesty and integrity in their professional and

personal lives, thereby earning public trust.” To this the Chief

added statements of his own stressing complete honesty by police

officers as a means of earning public confidence and trust:

(1) “The ethical standards of truthfulness and honesty form

the basis of public confidence.”

(2) “This standard for truthfulness [set forth in each

officer’s oath of office and court testimony] applies to all

aspects of our duties, not only courtroom testimony, but in the

preparation of offense and arrest reports, administrative

internal statements, and in everything we say and write while

performing our duties.” (emphasis added).

(3) “This standard will be adhered to by all members of the

Department, both sworn and non-sworn employees.”

(4) “We must all take responsibility for protecting this

standard of professional conduct. Untruthfulness or dishonesty

cannot and will not be tolerated. Therefore, any employee found

to be untruthful or dishonest will, in most cases, be

terminated.”

A printed motto appeared at the bottom: “The Only Reason You

And I Are Here Is To Serve The Citizens of Dallas.”

Chief Click described in his deposition what had caused him

to issue the Ethical Standards Conduct policy statement to all of

11

his personnel: “[After I became chief of police,] I was concerned

that I saw . . . too frequently what I felt were officers that,

particularly during internal investigations, were less than

truthful, either evasive, don’t know, don’t remember, wasn’t

there or in some cases just out and out lying about what

happened.”

On February 6, 1997, Branton filed suit under 42 U.S.C. §

1983 against the City of Dallas and Chief Click, alleging that

Chief Click had violated her First Amendment rights by punishing

her for the exercise and content of her free speech concerning

the false testimony by a police officer. The district court

granted Chief Click’s partial motion to dismiss under Rule

12(b)(6) on qualified immunity grounds. A panel of this court

reversed and remanded. After discovery, the district court

issued summary judgment in favor of the defendants, holding that

Branton’s speech was not protected by the First Amendment.

Branton’s present appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court’s conclusion that

summary judgment was proper. Victor v. McElveen, 150 F.3d 487,

453-54 (5th Cir. 1998). In reviewing the district court’s grant

of summary judgment, we must view all the disputed facts and

reasonable inferences in a light most favorable to the non-

12

movant, Branton, and determine whether she has set forth

sufficient evidence to demonstrate that her speech concerned a

matter of public import and, if so, whether Branton’s interest in

speaking outweighed the city’s interest in efficiency. Id.

Summary judgment is appropriate if the movant shows that there is

no genuine issue of material fact for trial. Fed. R. Civ. P.

56(c). To withstand summary judgment, Branton must show, by

affidavits, depositions, answers to interrogatories, and

admissions on file, that there are specific facts that create a

genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986).

III. FIRST AMENDMENT CLAIM

It is well established that a governmental employer “cannot

condition public employment on a basis that infringes the

employee’s constitutionally protected interest in freedom of

expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). We

review the plaintiff’s First Amendment retaliation claim under

the four-step test derived from Connick and Pickering v. Board of

Education, 391 U.S. 563 (1968). Teague v. City of Flower Mound,

179 F.3d 377, 380 (5th Cir. 1999)(quoting Harris v. Victoria

Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999)).

The first two questions are legal in nature and are for the

court to resolve. See Connick, 461 U.S. at 147-48, n.7; Teague,

13

179 F.3d at 380; Coughlin v. Lee, 946 F.2d 1152, 1156 (5th Cir.

1991). Initially, we must determine whether the employee’s

speech can be “fairly characterized as constituting speech on a

matter of public concern.” Connick, 461 U.S. at 146. If it can,

we must then balance the employee’s interest, as a citizen, in

commenting upon matters of public concern against “the interest

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

public service[s] it performs through its employees.” Rankin,

483 U.S. at 388 (citing Pickering, 391 U.S. at 568).

It is for a jury to resolve any remaining factual disputes

as to whether plaintiff’s protected speech was a substantial or

motivating factor in the adverse employment decision, or whether

the employer would have made the same employment decision in the

absence of the protected speech. Gardetto v. Mason, 100 F.3d 803,

811 (10th Cir. 1996).

A. Public Concern

Matters of public concern are those which can “be fairly

considered as relating to any matter of political, social, or

other concern to the community.” Connick, 461 U.S. at 146.

While speech pertaining to internal personnel disputes and

working conditions ordinarily will not involve public concern,

id. at 148, speech “complain[ing] of misconduct within the police

department . . . [is] speech addressing a matter of public

14

concern.” Thompson v. City of Starkville, Mississippi, 901 F.2d

456, 463 (5th Cir. 1990); Wallace v. Texas Tech. Univ., 80 F.3d

1042, 1051 (5th Cir. 1992). “Speech which discloses any evidence

of corruption, impropriety, or other malfeasance on the part of

city officials . . . concerns matter of public import.”

Thompson, 901 F.2d at 463 (quoting Conaway v. Smith, 853 F.2d

789, 796 (10th Cir. 1998) (per curiam)). In making this

determination, we consider the “content, form, and context of a

given statement, as revealed by the whole record.” Connick, 461

U.S. at 147-48.

The content of a public employee’s speech may relate to a

public concern for purposes of First Amendment analysis if it

does not involve solely personal matters or strictly a discussion

of management policies that is only interesting to the public by

virtue of a manager’s status as an arm of government. Connick,

461 U.S. at 147; Kennedy v. Tangipahoa Parish Library Bd. of

Control, 224 F.3d 359, 372 (5th Cir. 2000)(citing Wilson v. UT

Health Ctr., 973 F.2d 1263, 1269 (5th Cir. 1992); Terrell v.

Univ. of Texas Sys. Police, 792 F.2d 1360, 1365 n.5 (5th Cir.

1986)). “If releasing the speech to the public would inform the

populace of more than the fact of an employee’s employment

grievance, the content of the speech may be public in nature.”

Kennedy, 224 F.3d at 372 (citing Thompson, 901 F.2d at 463 n.5).

“Public employees by virtue of their public employment, may make

15

valuable contributions to public debate.” Gonzales v. Benavides,

774 F.2d 1295, 1299 (5th Cir. 1985). The nature of their

employment does not exclude the possibility that an issue of

private concern to the employee may also be an issue of concern

to the public. Id. at 1305. “Neither the [First] Amendment

itself nor our decisions indicate that . . . freedom [of speech]

is lost to the public employee who arranges to communicate

privately with his employer rather than to spread his views

before the public.” Givhan v. Western Line Consolid. Sch. Dist.,

439 U.S. 410, 415-16 (1979); see also Kennedy, 224 F.3d at 374;

Thompson, 901 F.2d at 467; Wilson, 973 F.2d at 1265; Benningfield

v. City of Houston, 157 F.3d 369, 373-74 (5th Cir. 1998); Brown

v. Texas A & M Univ., 804 F.2d 327, 337 (5th Cir. 1986).

It is undisputed that, at the time the adverse employment

action was taken, speech related to improper acts by public

officers qualified as a matter of public concern. Schultea v.

Wood, 27 F.3d 1112, 1120 (5th Cir. 1994) (“No reasonable public

official in 1992 could have assumed that he could retaliate

against an employee because of the employee’s disclosure of

instances of misconduct by a public official.”), superseded on

other grounds, 47 F.3d 1427 (1995)(en banc); see also

Benningfield, 157 F.3d at 375-77; Wilson, 973 F.2d at 1270;

Thompson, 901 F.2d at 463. Exposure of official misconduct,

especially within the police department, is generally of great

16

consequence to the public. Brawner v. City of Richardson, 855

F.2d 187, 191-92 (5th Cir. 1988). “There is perhaps no subset of

‘matters of public concern’ more important, [for purposes of

First Amendment protection of speech of public employees,] than

bringing official misconduct to light.” Davis v. Ector County,

40 F.3d 777, 782 (5th Cir. 1995); see also Denton v. Morgan, 136

F.3d 1038, 1043 (5th Cir. 1998); Thompson, 901 F.2d at 463.

Applying the relevant principles of law to the evidence with

reasonable constructions and inferences drawn in favor of the

non-mover, Branton, we conclude that the content, form, and

context of her statements to the Assistant City Manager,

reporting what she perceived to be dishonest testimony of another

police officer at a disciplinary hearing, was a matter of public

concern. Although Branton’s speech occurred at work, because her

job required her to report false testimony at official hearings,

Branton had not only an invitation but a duty to speak. Thus,

“the context factor weighs in h[er] favor.” Victor v. McElveen,

150 F.3d 451, 458 (5th Cir. 1998)(citing Bickel v. Burkhart, 632

F.2d 1251, 1252 (5th Cir. 1980)). According to Chief Click’s own

written statement of Police Department policy it is extremely

important to the public that police officers be truthful in all

aspects of their duties, not only in the courtroom, but in

“everything [they] say,” including “administrative internal

statements.” In the words of Chief Click, “[T]ruthfulness and

17

honesty form the basis of public confidence.” The Chief’s policy

is admirable and important itself, because police officers who

are constantly trained and reminded to be truthful in “everything

[they] say” will be less likely to give false evidence in court

or fabricate statements that might endanger the liberty of

innocent citizens.

B. Pickering Balancing Test

Because Branton’s statement addressed a matter of public

concern, Pickering next requires that we balance Branton's

interest in making her statement against “the interest of the

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

services it performs through its employees.” Pickering, 391 U.S.

at 568. The employee’s statement is not considered in a vacuum,

however. Rankin, 483 U.S. at 388. "In performing the balancing,

... the manner, time, and place of the employee’s expression are

relevant, as is the context in which the dispute arose.” Id.

(citing Connick, 461 U.S. at 152-53; Givhan, 439 U.S. at 415

n.4). “The Supreme Court has recognized as pertinent

considerations ‘whether the statement impairs discipline by

superiors or harmony among co-workers, has a detrimental impact

on close working relationships for which personal loyalty and

confidence are necessary, or impedes the performance of the

speaker’s duties or interferes with the regular operation of the

18

enterprise.’” Victor, 150 F.3d at 457 (quoting Pickering, 391

U.S. at 570-73).

The state interest considerations focus on the “effective

functioning of the public employer’s enterprise.” Rankin, 483

U.S. at 388. “Interference with work, personnel relationships,

or the speaker’s job performance can detract from the public

employer’s function; avoiding such interference can be a strong

state interest.” Id. “[R]eal, not imagined, disruption is

required, and the ‘close working relationship’ exception cannot

serve as a pretext for stifling legitimate speech. . . .”

McKinley v. City of Eloy, 705 F.2d 1110, 1115 (5th Cir. 1983).

In this respect, the defendants fail to demonstrate, without

dispute as to material facts, a state interest that outweighs

Branton’s First Amendment rights. Although Branton’s statement

was made at the workplace, there is a genuine dispute as to

whether it interfered with the efficient functioning of the

police department.

Viewed in the light most favorable to Branton, the evidence

of record shows that Branton’s statement caused no unanticipated

delays or disruption or interference with the disciplinary

proceedings or the functioning of the police department. Chief

Click admitted in his deposition that he had no evidence and

could cite no facts which showed that Branton’s statement

adversely affected the efficiency or morale of the police

19

department. Chief Click and Assistant City Manager Davis

testified that there were no rules, regulations, or standard

operating procedures that prohibited IAD investigating officers

from reporting misconduct or false testimony to an Assistant City

Manager as Branton had done. Moreover, they testified that there

had been no effort to train or instruct the IAD officers on what

was expected of them in connection with disciplinary hearings.

Although Chief Click said he had not been aware of other such

communications between IAD officers and assistant city managers,

there was evidence that the assistant city managers and city

attorneys had allowed such communications to occur.

Consequently, a reasonable trier of the facts could find or infer

that, despite the Chief’s claim of lack of knowledge, the actual

custom and practice of the department permitted post-hearing

conferences between IAD officers and the assistant city managers.

There was no evidence that the efficiency or morale of the

department or its officers had been adversely affected by that

custom or practice.

Further, Davis testified that, in addition to being the

hearing officer in Officer Popken’s case, he was primarily

responsible for administering the day-to-day operations of the

police and fire departments; that in effect he had been delegated

executive authority over the police department and its chief by

the city manager. Thus, the record does not establish that the

20

chief of police had exclusive or autonomous authority to

discipline officers for their conduct while acting as witnesses

or investigators assisting the assistant city managers in

disciplinary appeals, especially if the officers were innocently

acting in accord with procedures established by the assistant

city managers.

Although Chief Click professed to have no knowledge of

previous post-hearing communications between IAD investigators

and assistant city managers at disciplinary appeals, he did not

inquire into the practices or procedures established by the

assistant city managers or ascertain whether he had the authority

to modify their procedures unilaterally.4 The record reflects

that he consulted the city attorney only after he had ordered

Branton transferred out of the IAD; a sanction he modified after

receiving legal advice. Assuming the Chief had been allocated

the authority to regulate the conduct of IAD officers during

disciplinary appeals or related conferences, he offered no

evidence or explanation as to why he could not have remedied the

perceived institutional shortcoming by providing the IAD officers

with training, instructions, or regulations on the subject.

There was no evidence that the IAD officers knew or should have

4

The Dallas City Charter provides that the chief of police’s

“control of the police department, [is] subject to the supervision

of the city manager and also [is] subject to the rules,

regulations, and orders as the city manager may prescribe. . . .”

Dallas City Charter, Ch. XII, § 2 (emphasis added).

21

known that the practice was contrary to police department rules,

regulations, or policy. There was no evidence that Branton

knowingly acted improperly or in bad faith. Consequently, a

reasonable trier of fact could find that the Chief’s imposition

of severe punishment on Branton individually, instead of adopting

or recommending a new rule, regulation, instruction, or operating

procedure governing investigator-city manager communications in

disciplinary cases, was in fact retaliation against Branton for

the exercise and content of her speech that may have contributed

to the reduction of the Chief’s suspension of Popken, rather than

discipline for the time and manner of her post-hearing statements

to the assistant city manager.

Although Branton did not violate any known police department

rule, regulation, or policy, Chief Click testified that the

action taken against her was warranted because she should have

known through her common sense and her experience that ex parte

IAD officer/assistant city manager communications would lead to

unfair hearings and loss of confidence and morale among police

officers. In addition to all of the other factors recited above

that tend to undermine this argument, the assumption upon which

it is based, i.e., that the police department’s internal

disciplinary appeal closely replicates a trial or an appeal in a

court of law, is not borne out by the record. Testimony at the

disciplinary hearings is not taken under oath. The IAD

22

investigating officer presents to the assistant city manager her

total investigative file in support of the disciplinary charges

against the appellant. The IAD officer’s investigative file

consists of summaries of her interviews with various persons

having knowledge relevant to the case. The appellant, with or

without the assistance of counsel, is offered an opportunity to

respond. At the end of the hearing, the assistant city manager

takes the case under advisement, considers the investigative file

and the testimony heard, and in due course renders decision,

which is not further appealable. The police department’s

disciplinary appeal resembles a less than formal administrative

hearing more than a fully adversarial formal court proceeding.

Moreover, 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.

For example, in Wilson v. UT Health Center, 973 F.2d 1263, 1270

(5th Cir. 1992), the defendant argued that a police officer’s

interest in reporting sexual harassment within the department was

outweighed by the police force’s interest in eliminating

dissension and providing efficient police protection. This court

concluded, however, that if a jury determines that the police

officer “reported sexual harassment in good faith,” then the

state’s “interest in maintaining a police force that is free of

sexual intimidation, which [her] good faith reports would serve,

23

outweighs any interest in departmental efficiency and harmony.”

Id.

Similarly, Branton’s good faith comments serve a very

important state interest--the prevention or elimination of

perjury, other false testimony, and corruption within municipal

law enforcement departments. In fact, Chief Click agrees that it

would be entirely proper and salutary for an IAD officer to

present such information to the Assistant City Manager during the

disciplinary hearing. The Chief and the city attempt to justify

the severe adverse actions taken against Branton by arguing that

ex parte communications from the IAD investigators to the

assistant city managers may affect the integrity of the

disciplinary hearings and the morale of the police force. We

agree that their goals are laudatory, but these objectives

doubtlessly could be achieved more constructively and effectively

by adopting rules and regulations, or by providing the IAD

officers with instructions and training, instead of imposing

harsh employment sanctions that violate the First Amendment

rights of an innocent, well-intentioned individual government

employee.

Construed in the light most favorable to Branton, the record

contains no evidence that Branton made statements in bad faith or

with an intent to disrupt the hearing or the department’s

operations for an improper reason. Branton’s remarks were made

24

in response to what she considered her duty as a police officer,

pursuant to the Chief’s memo urging individual responsibility for

honest law enforcement and in her special capacity as the IAD

investigating officer assigned to the case to assist in seeking

the truth.

Viewing the facts from the summary judgment record and

inferences therefrom in a light most favorable to Branton, we

conclude not only that Branton’s speech addressed a matter of

public concern but also that under the Pickering balancing test,

Branton’s interest in speaking outweighs the defendants’ interest

in efficiency. Consequently, her conduct falls under the

protective aegis of the First Amendment. Accordingly, the

district court erred in granting summary judgment to the City and

Chief Click on these grounds.

IV. QUALIFIED IMMUNITY

Because Branton has established for purposes of summary

judgment practice that Chief Click violated her First Amendment

right to free speech under current law, we next turn to Click’s

argument that he is entitled to qualified immunity because the

law governing his conduct was not clearly established when the

conduct occurred; and, alternatively, if it was, that a

reasonable officer could have believed, in light of the clearly

established law, that his conduct was lawful.

25

A court required to rule upon the qualified immunity issue

must consider this threshold question: “Taken in the light most

favorable to the party asserting the injury, do the facts alleged

show the officer’s conduct violated a constitutional right? This

must be the initial inquiry.” Saucier v. Katz, 533 U.S. 991,___,

121 S.Ct. 2151, 2156 (2001) (citing Siegert v. Gilley, 500 U.S.

226, 232 (1991)); see also Price v. Roark, 256 F.3d 364, 369 (5th

Cir. 2001). “If no constitutional right would have been violated

were the allegations established, there is no necessity for

further inquiries concerning qualified immunity.” Saucier, 531

U.S. at ___, 121 S.Ct. at 2156. “On the other hand, if a

violation could be made out on a favorable view of the parties’

submissions, the next, sequential step is to ask whether the

right was clearly established.” Id.; see also Price, 256 F.3d at

369. The Supreme Court has emphasized “‘that the right the

official is alleged to have violated must have been clearly

established in a more particularized, and hence more relevant,

sense: The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.’” Saucier, 531 U.S. at ___, 121 S.Ct. at

2156 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

“The relevant, dispositive inquiry in determining whether a right

is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation

26

he confronted.” Id. (citing Wilson v. Layne, 526 U.S. 603, 615

(1999)).

This does not require that the courts must have agreed upon

the precise formulation of the standard. Id. “Assuming, for

instance, that various courts have agreed that certain conduct is

a constitutional violation under facts not distinguishable in a

fair way from the facts presented in the case at hand, the

officer would not be entitled to qualified immunity based simply

on the argument that courts had not agreed on one verbal

formulation of the controlling standard.” Id. at ___, 121 S.Ct.

at 2157.

Although we have just determined above that under present

law Chief Click’s punitive employment action against Branton

because of her speech pointing out dishonest conduct by another

officer violated the First Amendment, the question remains

whether this was clearly established in January of 1997, when

Click decided to strip her of all internal affairs investigative

duties and to relegate her to taking down walk-in complaints. We

conclude that, at that time, Branton’s right had been defined at

the appropriate level of specificity so that a court could

determine that it was clearly established and that its contours

had become sufficiently clear so that a reasonable official,

identically situated, would understand that what he was doing

violated that right.

27

For at least thirty-four years, it has been settled that a

state cannot condition public employment on a basis that

infringes the employee’s constitutionally protected interest in

freedom of expression. See Keyishian v. Bd. of Regents, 385 U.S.

589 (1967). In Pickering, 391 U.S. at 573-75, the Supreme Court

held that the public interest in having free debate on matters of

public concern--the core value of the Free Speech Clause of the

First Amendment--is so great that a public school teacher’s right

to speak on matters of public importance may not furnish the

basis for his dismissal from public employment. The Court’s

cases following Pickering also involved protecting speech of

government employees on matters of public concern. Perry v.

Sindermann, 408 U.S. 593 (1972) (state college teacher’s right to

testify before legislative committees in public debate regarding

whether college should be elevated to four-year status); Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977) (public school teacher’s right to leak administration’s

bond issue related dress code for teachers to radio station);

Givhan, 439 U.S. 410 (1979) (public employee’s right to private

expression to employer of views on school district’s racial

policies). In Connick, 461 U.S. at 147, the Court found that

improper pressure on assistant district attorneys to work in

political campaigns is a matter of public concern but concluded

that when a public employee speaks on matters only of personal

28

interest, such as an employee’s grievance on a job transfer and

not on a matter of public concern, that speech is unprotected,

absent the most unusual circumstances.

This Court of Appeals has further clarified the contours of

public employees’ First Amendment free speech rights to report

misconduct by fellow employees and officers. We have held that

public employees’ speech reporting official misconduct,

wrongdoing, or malfeasance on the part of public employees

involves matters of public concern. Wilson, 973 F.2d at 1269

(reporting sexual harassment by superiors); Schultea, 27 F.3d at

1119-20 (reporting suspected criminal activity of city council

member), superseded on other grounds, 47 F.3d 1427 (1995)(en

banc). In Brawner, 855 F.2d at 191, we held that a police

officer’s communication in his attorney’s letter accusing the

police department of non-criminal investigations of journalists,

citizens, and candidates for city council addressed matters of

public concern. “The disclosure of misbehavior by public

officials is a matter of public interest and therefore deserves

constitutional protection, especially when it concerns the

operation of a police department.” Id. at 191-92 (citing

Gonzalez v. Benavides, 712 F.2d 142 (5th Cir. 1983); Solomon v.

Royal Oak Township, 842 F.2d 862, 865 (6th Cir. 1988); O’Brien v.

Town of Caledonia, 748 F.2d 403, 407 (7th Cir. 1984); Brockell v.

Norton, 732 F.2d 664, 668 (8th Cir. 1984))(footnotes omitted).

29

In Denton, 136 F.3d at 1038, we held that in September of

1991 and January of 1992, when juvenile probation officers were

fired by a school district for going over its heads to report

perceived wrongdoing by the district to the state education

agency, they had a constitutional right to address that matter of

public concern. “[S]peech reporting official misconduct,

wrongdoing, or malfeasance on the part of public officials

involves matters of public concern.” Id. at 1043 (citing Wilson,

973 F.2d at 1269; Schultea, 27 F.3d at 1120; Brawner, 855 F.2d at

192).

In Warnock v. Pecos County, Texas, 116 F.3d 776, 781-82 (5th

Cir. 1997), we held that state judges’ decision not to reappoint

the county auditor violated the First Amendment, that the

relevant First Amendment law was clearly established when the

judges made their decision in 1993, and that firing a county

auditor for reporting violations of the law is objectively

unreasonable. And, in Frazier v. King, 873 F.2d 820, 827 (5th

Cir. 1989), we denied qualified immunity to the warden of a state

correctional center who fired a registered nurse in violation of

her clearly established right to report violations of nursing

practices in the infirmary. See also Thompson, 901 F.2d at 468-

70 (denying qualified immunity to police officials who terminated

a police officer for filing written grievances related to the

department’s promotion policy and for making oral complaints

30

about police misbehavior); Harris, 168 F.3d at 223-24 (denying

qualified immunity to school superintendent for reprimanding two

teachers who made critical remarks in 1995 about the school’s

principal and stating that “[t]he Defendants are not insulated

from their unconstitutional conduct merely because a balancing

test is involved in our [First Amendment] analysis”); 2 Ivan E.

Bodensteiner & Rosalie Berger Levinson, State & Local Government

Civil Rights Liability § 1A:05 n.88 (2000) (citing cases from all

circuits).

After reviewing the foregoing cases, we conclude that, at

the time Branton spoke out, it was clearly established under

facts “not distinguishable in a fair way from the facts in the

case at hand,” that Branton’s speech revealing false testimony by

a fellow police officer was protected and that “the officer would

not be entitled to qualified immunity based simply on the

argument that courts had not agreed on one verbal formulation of

the controlling standard.” Saucier, 531 U.S. at ___, 121 S.Ct.

at 2157. Consequently, a reasonably objective public official,

identically situated in Chief Click’s position, would have known

that adverse employment action against an employee for her speech

concerning false testimony by a fellow officer would violate a

clearly established constitutional right. Therefore, the

defendants here are not entitled to summary judgment on their

claim of qualified immunity.

31

While Branton must ultimately prove that the exercise and

content of her speech, rather than its time and manner, was the

motivating factor in the adverse employment action she suffered,

the determination of that issue turns on a genuine dispute of

material fact, and is a proper issue for trial, not for

resolution by summary judgment. We intimate no opinion on the

ultimate merits of the litigation. We simply hold that the

district court incorrectly granted summary judgment at this time

on the record before us.

For these reasons, the summary judgment is REVERSED and the

case is REMANDED for further proceedings.

32

JERRY E. SMITH, Circuit Judge, dissenting:

Defendants argue, and the district court found, that

Branton's report to Davis was of no concern to the public.

Agreeing with that assessment, I respectfully dissent and would

affirm.

Branton merely communicated her opinion that Thomas had lied

regarding an invitation to become an International Instructor.

As an independent matter, that content is obviously of no public

import, for the public is not concerned with Thomas's ambitions

regarding baton instruction. If the communication involved

serious police misconduct or corruption, however, it would be of

public concern. Thus, in Brawner v. City of Richardson, 855 F.2d

187, 191-92 (5th Cir. 1988), this court stated that “[t]he

disclosure of misbehavior by public officials is a matter of

public interest and therefore deserves constitutional protection,

especially when it concerns the operation of a police

department.”

Defendants correctly urge that an alleged lie during

testimony at an administrative hearing concerning a purely

internal police matter (i.e., a matter that did not concern the

public safety mission of the police department) is not of public

concern. Defendants point out that even if a lie at such a

hearing potentially could be of public concern, it is of no such

concern when it is completely tangential and irrelevant to the

purpose of the hearing. For example, if an officer lied

about his age, the fact that it occurred at a police

administrative hearing would not elevate that content to a matter

of public concern. Here, whether Thomas was requested to become

an International Instructor is irrelevant to Popken's wrongdoing.

Branton, citing language of this court, counters that any

falsehood during testimony at a police administrative hearing,

regardless of relevance, is police misconduct and therefore is of

public concern. The majority apparently agrees, emphasizing that

“because police officers who are constantly trained and reminded

to be truthful in 'everything [they] say' will be less likely to

give false evidence in court or fabricate statements that might

endanger the liberty of innocent citizens.”

In Brawner, this court held that speech regarding illegal

police investigations of citizens and politicians was of public

concern. See Brawner, 855 F.2d at 189-90. “Because the speech

at issue complained of misconduct within the police department,

it should be classified as speech addressing a matter of public

concern.” Id. at 192.

In Thompson v. City of Starkville, 901 F.2d 456, 463, 466

(5th Cir. 1990), we held that there was a fact issue whether

speech alleging theft of confiscated property and racial

34

discrimination in a police department constituted a matter of

public concern:

This court has held, albeit under different facts, that

where speech 'complained of misconduct within the

police department, it should be classified as speech

addressing a matter of public concern' [citing

Brawner]. If released to the public, Thompson's

affidavit would expose possible corruption in the

police force of the City.

The Thompson court went on to note that the case involved

allegations of widespread misbehavior within the police force

“which could potentially affect public safety,” such as the

allegation that certain officers might not respond to a request

for backup of a black officer. Id. at 466. Thompson's

recognition that the facts of Brawner were different, and its

discussion of the potential public interest in the specific

speech under consideration, demonstrate that Branton's broad

reading of Brawner is not the law of this circuit.

Branton's contention that every breach of internal employee

rules is of public concern merely because it takes place within a

police department is supported neither by our precedent nor by

logic. Even accepting all of Branton's factual

assertionsSSnamely, that she truly thought Thomas had lied, that

she breached no specific department guidelines by speaking when

she did, and that she acted in good faith and out of no ill

motiveSSthe content of her speech was not of public concern, and

therefore her First Amendment claim fails, without the need to

address the issue of the interests of the employer or of

35

qualified immunity.

This court should not sit in judgment of personnel actions

that do not violate the Constitution. I respectfully dissent.

36