stating that court must balance “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” and a “government employee’s ability to speak freely, since public employees contribute to civil discussion by adding their well-informed views”
How later courts described this case
- stating that court must balance “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” and a “government employee’s ability to speak freely, since public employees contribute to civil discussion by adding their well-informed views”
- understanding an assistant state attorney’s official duty to cooperate in the pursuit of justice to include testifying against his supervisor “follows only if one places dispositive weight on an ‘excessively broad job description! ]’ ... [which] is precisely what the Garcetti Court instructed us not to do when evaluating employee-speech claims”
- county prosecutor's testimony to grand jury and at trial regarding alleged wrongdoing by his supervisors was protected
- “[P]ublic employees’ speech is not subject to restriction simply because it occurs inside the office.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2811
KIRK CHRZANOWSKI,
Plaintiff‐Appellant,
v.
LOUIS A. BIANCHI, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 12 C 50020 — Philip G. Reinhard, Judge.
____________________
ARGUED APRIL 5, 2013 — DECIDED AUGUST 2, 2013
____________________
Before EASTERBROOK, Chief Judge, and FLAUM and WOOD,
Circuit Judges.
WOOD, Circuit Judge. From January 2006 until he lost his
job in December 2011, Kirk Chrzanowski was an assistant
state’s attorney in the McHenry County State’s Attorney’s
Office. Problems arose for Chrzanowski in early 2011, when
a special prosecutor began investigating suspected
wrongdoing by Chrzanowski’s boss, McHenry County
State’s Attorney Louis Bianchi. Bianchi allegedly had
2 No. 12‐2811
improperly influenced the handling of cases involving his
relatives and political allies. Under command of a subpoena,
Chrzanowski testified before the grand jury, and later, after
receiving another subpoena, he testified at Bianchi’s trial. A
few months after the trial, Chrzanowski was called into
Bianchi’s office, interrogated about his testimony by Bianchi
and another prosecutor, Michael Combs, and fired.
Chrzanowski believes that this was “in retaliation for his
truthful testimony.” He filed suit a month later, alleging that
Bianchi and Combs violated his rights under the First
Amendment and various state statutes.
The defendants moved to dismiss Chrzanowski’s § 1983
claims, arguing that the First Amendment’s protections do
not apply to any of his testimony because his statements
were given “pursuant to [his] official duties” as a public
employee. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
The district court agreed, holding that Chrzanowski had not
presented a valid constitutional claim; in the alternative, the
court held that the defendants were entitled to qualified
immunity, since any First Amendment protections that
might have attached to his testimony were not “clearly
established” at the time. We reverse.
I
Our analysis relies on the facts contained in Chrzanow‐
ski’s complaint, which at this stage we accept as true and
construe in Chrzanowski’s favor. Justice v. Town of Cicero, 577
F.3d 768, 771 (7th Cir. 2009).
Chrzanowksi began working in the McHenry County
State’s Attorney’s Office as an assistant state’s attorney in
January 2006. Initially he was assigned to the Office’s
No. 12‐2811 3
misdemeanor division, but eventually he assumed
responsibility for prosecuting more serious drug offenses
and other felonies. He received positive performance
reviews and raises in 2006, 2007, 2008 (twice), 2009 and 2010.
In early 2011, Chrzanowksi received a subpoena to testify
before a grand jury. He complied and gave sworn testimony
concerning allegations that Bianchi had improperly influ‐
enced a negotiated plea in a case for which Chrzanowski
was principally responsible. On February 24, 2011, the grand
jury returned an indictment against Bianchi on charges of
official misconduct in violation of 720 ILCS 5/33‐3(b).
Chrzanowski was listed as a potential trial witness on April
6, 2011, and he received a trial subpoena two months later.
He testified in the prosecution’s case‐in‐chief on August 1,
2011.
From the outset, Bianchi and his allies were concerned by
Chrzanowski’s cooperation with the investigation. Upon
learning of the grand jury subpoena, Ron Salgado, the chief
investigator in the McHenry County State’s Attorney’s
Office (and a friend and political ally of Bianchi), tried to
speak with Chrzanowski. Chrzanowski avoided his calls.
Terry Ekl, Bianchi’s defense counsel, also tried to contact
Chrzanowski after the special prosecutor identified
Chrzanowski as a potential trial witness, but again
Chrzanowski ignored requests to discuss the Bianchi
investigation. On cross‐examination at Bianchi’s trial, Ekl
pointedly brought up Chrzanowski’s refusal to discuss the
case before the trial:
Q: And you didn’t feel that you owed your boss any
obligation to talk to his lawyer before this trial, right?
4 No. 12‐2811
A: My only obligation is to tell the truth here, sir.
Over the same period, Bianchi began placing memoranda
and notes in Chrzanowski’s personnel file; these notes bore
little relation to Chrzanowski’s work performance. For in‐
stance, on June 6, 2011, Bianchi placed a negative report in
Chrzanowski’s file because Chrzanowski failed to introduce
Bianchi to “two college females” who were interning in the
office. “He never would have thought of introducing me to
them had I not stopped him and made a point of it,” Bianchi
wrote. Chrzanowski was unaware of these additions to his
personnel file and did not have an opportunity to contest
them.
On December 2, 2011, Chrzanowski was summoned from
his regular courtroom duties to Bianchi’s office. There, Bian‐
chi and Combs “confronted and interrogated” Chrzanowski
about his grand jury and trial testimony. They presented
him with transcripts of the proceedings and eventually Bian‐
chi asked for Chrzanowski’s resignation. When Chrzanow‐
ski refused, Bianchi told him, “You’re terminated. Get out.”
Chrzanowski alleges that he was “fir[ed] in retaliation for his
truthful testimony against … Bianchi.”
Chrzanowski responded to these events by filing suit in
federal court, asserting claims against Bianchi and Combs
pursuant to 42 U.S.C. § 1983 and state law. The defendants
moved to dismiss the complaint in its entirety, arguing that
Chrzanowski failed to state a valid First Amendment claim
and that his state counts should be dismissed once the feder‐
al claim disappeared. Relying heavily on this court’s deci‐
sion in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008),
the district court concluded that, when testifying against
Bianchi, Chrzanowski was “a public employee … speak[ing]
No. 12‐2811 5
pursuant to [his] official duties,” and not “a private citizen
[speaking] on a matter of public concern.” The First
Amendment offers no protection to “expressions [public]
employees make pursuant to their professional duties,” Gar‐
cetti, 547 U.S. at 426, and accordingly, the district court dis‐
missed the § 1983 claim under Federal Rule of Civil Proce‐
dure 12(b)(6). In the alternative, the court held that “if the
conclusion that there was no constitutional violation is in‐
correct, it cannot be said that the right was so clearly estab‐
lished that defendants cannot avail themselves of qualified
immunity.” The court then granted Chrzanowski’s request
voluntarily to dismiss the remaining state law claims. This
appeal followed.
II
In Garcetti v. Ceballos, the Supreme Court held that “when
public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insu‐
late their communications from employer discipline.” 547
U.S. at 421. In that case, a deputy district attorney alleged
that supervisors had penalized him for writing an internal
“disposition memorandum” that highlighted police miscon‐
duct in a pending criminal prosecution. Id. at 420. The plain‐
tiff also asserted that he was punished for speaking out
about the case in other settings: for instance, discussing the
matter with his supervisors, testifying truthfully at a hearing
in which the defendant challenged the validity of a search
warrant, and delivering a speech about the case at a bar
meeting. The Court limited its opinion to the question
whether the memorandum warranted First Amendment
protection. The dispositive fact, it explained, was that writ‐
6 No. 12‐2811
ing such “disposition memoranda” was exactly what the
plaintiff was employed to do in his capacity as a “calendar
deputy.” Id. at 421. The Court highlighted the fact that “the
parties … [did] not dispute that Ceballos wrote his disposi‐
tion memo pursuant to his employment duties.” Id. at 424.
Disciplinary action on the basis of such speech does not of‐
fend the First Amendment because “[r]estricting employee
speech that owes its existence to a public employee’s profes‐
sional responsibilities does not infringe any liberties the em‐
ployee might have enjoyed as a private citizen.” Id. at 421‐
22.
Although the Garcetti Court chose not to “articulate a
comprehensive framework for defining the scope of an em‐
ployee’s duties in cases where there is room for serious de‐
bate,” id. at 424, it did provide guidance on the subject. Pub‐
lic employee speech does not lose First Amendment protec‐
tion because it concerns the subject matter of the employee’s
job. Id. at 421. To the contrary, the Court reaffirmed that
public employees are often “the members of a community
most likely to have informed and definite opinions” on mat‐
ters of public concern, and that it remains “essential that
they be able to speak out freely on such questions without
fear of retaliatory dismissal.” Id. (quoting Pickering v. Bd. of
Ed. of Township High School Dist. 205, Will Cnty., 391 U.S. 563,
572 (1968)). Likewise, public employees’ speech is not sub‐
ject to restriction simply because it occurs inside the office,
since “[m]any citizens do much of their talking inside their
respective workplaces.” Id. at 420‐421. In other words,
speech does not “owe[] its existence to a public employee’s
professional responsibilities” within the meaning of Garcetti
simply because public employment provides a factual predi‐
cate for the expressive activity; rather, Garcetti governs
No. 12‐2811 7
speech that is made “pursuant to official duties” in the sense
that it is “government employees’ work product” that has
been “commissioned or created” by the employer. Id. at 422
(citing Rosenberger v. Rector and Visitors of Univ. of Va., 515
U.S. 819, 833 (1995)).
In assessing whether a public employee is speaking as an
employee or as a citizen, the Court emphasized that “[t]he
proper inquiry” must be “a practical one.” Id. at 424. The
dissenting Justices voiced concern that public employers
might begin “defining [employees’] job responsibilities ex‐
pansively” in an effort to remove protected speech from the
First Amendment’s purview (e.g., “investing [employees]
with a general obligation to ensure sound administration” of
public institutions), id. at 431 n.2 (Souter, J., dissenting), but
the majority forcefully rejected “the suggestion that employ‐
ers can restrict employees’ rights by creating excessively
broad job descriptions. Id. at 424. Instead, the Court ex‐
plained that we must ask whether the speech is part of the
employee’s “daily professional activities.” Id. at 422; see also
Ceballos v. Garcetti, 361 F.3d 1168, 1189 (9th Cir. 2004)
(O’Scannlain, J., specially concurring) (“[W]hen public em‐
ployees speak in the course of carrying out their routine, re‐
quired employment obligations, they have no personal in‐
terest in the content of that speech that gives rise to a First
Amendment right.”) (emphasis added).
In Fairley v. Fermaint, 471 F.3d 826 (7th Cir. 2006) (Fairley
I), rehearing denied 482 F.3d 897 (7th Cir. 2007) (Fairley II),
we had occasion to consider how Garcetti applies to
testimony that state employees give in lawsuits filed by third
parties, as contrasted with statements made as part of their
duties at work. There, we held that “[a]ssistance to prisoners
8 No. 12‐2811
and their lawyers in litigation is not part of a guard’s official
duties.” Fairley I, 471 F.3d at 829; Fairley v. Andrews, 578 F.3d
518, 524‐25 (7th Cir. 2009) (Fairley III). Indeed, we thought
this principle so well established that we denied qualified
immunity to the defendants, taking the facts in the light
most favorable to the plaintiffs. Fairley II, 482 F.3d at 902‐03.
In language that applies equally to this case, we observed in
Fairley III that “[e]ven if offering (adverse) testimony is a job
duty, courts rather than employers are entitled to supervise
the process. A government cannot tell its employees what to
say in court, see 18 U.S.C. § 1512, nor can it prevent them
from testifying against it.” 578 F.3d at 525.
With these considerations in mind, we turn to the speech
at issue in Chrzanowski’s complaint.
III
Chrzanowski alleges that he was interrogated and
dismissed “in retaliation for his truthful [grand jury and
trial] testimony.” The district court concluded that his
testimony was “part of his official duties and responsibilities
as an assistant state’s attorney” because “an assistant state’s
attorney [is] obligated to pursue all criminal offenses, even
those allegedly perpetrated by his supervisors.” See 55 ILCS
5/3‐9005(a)(1) (“The duty of each State’s attorney shall be …
to commence and prosecute all actions, suits, indictments
and prosecutions, civil and criminal, in the circuit court for
his county, in which the people of the State or county may be
concerned.”). Since it was “part of [Chrzanowski’s] job to
serve the people of McHenry County in the proper
administration of justice …, it was part of those duties as a
prosecutor that obligated [him] to cooperate in the pursuit of
any criminal charges involving his supervisors, including
No. 12‐2811 9
testifying as a material witness if necessary.” In relevant
respects, the district court found this case to be a replica of
Garcetti: “there can be no question …, after Gacretti [sic], that
[Chrzanowski] was acting and speaking in his role as
prosecutor as opposed to a private citizen when he
testified.”
This conclusion follows only if one places dispositive
weight on an “excessively broad job description[]” without
assessing, as a practical matter, what “task[s] [Chrzanowski]
was paid to perform” in the course of his “daily profession‐
al activities.” Id. at 422. This is precisely what the Garcetti
Court instructed us not to do when evaluating employee‐
speech claims. Indeed, the Court expressly rejected the ar‐
gument that job descriptions such as those at issue here (e.g.,
“a general obligation to ensure sound administration” of
public institutions) could place otherwise protected speech
outside the ambit of the First Amendment. Instead, we must
ask whether the public employee spoke “because that is part
of what [the public employee] was employed to do.” Id. at
421.
So what is an assistant state’s attorney “assigned to a
felony trial courtroom” employed to do? Prosecute felonies.
In the course of that work, Chrzanowski presumably
engaged in a wide range of expressive activity: the work of a
prosecutor entails making opening and closing statements to
juries, filing reports with supervisors, perhaps speaking to
reporters after a high‐profile verdict. It is even possible that
in the course of his employment Chrzanowski testified
before a grand jury as an “investigating witness,” though
Illinois courts have emphasized that “this practice could be
subject to abuse and is not encouraged.” People v. Bissonnette,
10 No. 12‐2811
313 N.E.2d 646, 649 (Ill. Ct. App. 1974). But appearing as an
“investigating witness” is a far cry from giving eyewitness
testimony under subpoena regarding potential criminal
wrongdoing that Chrzanowski happened to observe while
on the job. The McHenry County State’s Attorney’s Office
does not pay Chrzanowski to witness crimes and then testify
about them; it pays him to prosecute crimes. And when
there is a potential conflict of interest, as with an
investigation into wrongdoing by other members of the
McHenry County State’s Attorney’s Office, those
prosecutorial responsibilities are assigned to a special
prosecutor with a healthy measure of independence. See 55
ILCS 5/3‐9008. Although there may be cases where a judge
will have an “imperfect understanding of the precise duties
associated with a public sector job when all he or she knows
is a job title,” Huppert v. City of Pittsburg, 574 F.3d 696, 719
(9th Cir. 2009) (Fletcher, J., dissenting), thus requiring
further development of the factual record before a
determination can be made, this case presents no such
difficulty.
To be sure, Chrzanowski was called as a witness to
discuss his employment with the McHenry County State’s
Attorney’s Office, and his testimony focused exclusively on
“allegation[s] that … Bianchi had improperly influenced
and/or arranged a negotiated plea in a case for which
[Chrzanowski] was principally responsible.” But the fact
that his testimony “concern[ed] the subject matter of [his]
employment” does not mean that Chrzanowski’s speech
“owe[d] its existence” to his official responsibilities as the
Garcetti Court used the phrase. 547 U.S. at 421. His speech
was no different from that of a schoolteacher who writes a
newspaper editorial criticizing the School Board and
No. 12‐2811 11
superintendant, Pickering, 391 U.S. at 566, or of an assistant
district attorney who speaks with her co‐workers about
potential corruption within the District Attorney’s office,
Connick v. Myers, 461 U.S. 138, 149 (1983). See also Garcetti,
547 U.S. at 424 (affirming that the “statements or complaints
… at issue in cases like Pickering and Connick [were] made
outside the duties of employment.”). Like Chrzanowski, the
plaintiffs in both of these cases were disciplined for sharing
information learned and opinions formed in the course of
their public employment. Chrzanowski worked in the
criminal justice system and his speech occurred in the course
of judicial proceedings. Nonetheless, when he spoke out
about potential or actual wrongdoing on the part of his
supervisors, he too was speaking “outside the duties of
employment.”
IV
The Fairley line of cases provides an independent reason
why Chrzanowski’s case is not governed by Garcetti: the
speech for which Chrzanowski was penalized was given
under subpoena, both before the grand jury and at trial, in
an action filed by a third party. The district court found this
fact irrelevant, because “[t]he subpoena was merely a proce‐
dural mechanism to obtain his presence at the grand jury
and trial and did not detract from his overarching duty to
cooperate in the criminal prosecution as an assistant state’s
attorney and public employee.” As we already have ex‐
plained, this focus on Chrzanowski’s general professional
obligations is misguided; we are to look only at whether par‐
ticular speech is “made pursuant to official duties” (and,
thus, not “as a citizen”) in a more limited sense. When a
public employee gives testimony pursuant to a subpoena,
12 No. 12‐2811
fulfilling the “general obligation of [every] citizen to appear
before a grand jury or at trial,” Branzburg v. Hayes, 408 U.S.
665, 686 (1972), he speaks “as a citizen” for First Amendment
purposes. See also Fairley III, 578 F.3d at 524‐25.
Careful attention to the reasoning behind Garcetti shows
why this is so. Typical public employee speech cases require
a “balanc[ing] between the interests of the [public employee]
and 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; see also Garcetti, 547
U.S. at 417‐20. The general public also shares an important
interest in the government employee’s ability to speak freely,
since public employees contribute to civil discussion by
adding their well‐informed views. Garcetti, 547 U.S. at 419;
id. at 420 (“The interest at stake is as much the public’s
interest in receiving informed opinion as it is the employee’s
own right to disseminate it.”) (quoting San Diego v. Roe, 543
U.S. 77, 82 (2004) (per curiam)). Public employee speech
“made pursuant to official duties” has a different character,
the Garcetti Court explained. First, restrictions on such
speech “do not infringe any liberties the employee might
have enjoyed as a private citizen.” Id. at 422. Someone hired
to be the governor’s spokesperson is paid to articulate and
disseminate the governor’s views, not to offer her own
opinions on the topics of the day. Second, restrictions on
such speech in no way undermine “the potential societal
value of employee speech,” since employees “retain the
prospect of constitutional protection for their contributions
to the civic discourse.” Id. Finally, a contrary approach to
such speech would “commit state and federal courts to a
new, permanent, and intrusive role, mandating oversight of
communications between and among government
No. 12‐2811 13
employees and their superiors in the course of official
business,” and would “displace[] … managerial discretion.”
Id. at 423.
This reasoning is not applicable to situations in which a
public employee—prosecutor, police officer, or anyone
else—is compelled to give testimony pursuant to a subpoe‐
na. First, the individual person has a strong interest in com‐
plying with the demands of a subpoena: apart from what‐
ever desire a public employee might have to assist in the
administration of justice, failure to comply with a subpoena
can result in lengthy incarceration. See, e.g., Kim Murphy,
Two Freed in Anarchist Case, L.A. TIMES, Mar. 1, 2013, at A8
(“[t]wo activists … held for more than five months, mostly in
solitary confinement[,] to pressure them to testify about sus‐
pected anarchists”); Jesse McKinley, 8‐Month Jail Term Ends
as Maker of Video Turns Over a Copy, N.Y. TIMES, Apr. 4, 2007,
at A9 (freelance journalist held for 224 days for “refusing to
turn over a videotape” of demonstration). It would be
strange to have a constitutional rule that prohibits the State
from conditioning public employment on a basis that re‐
stricts an employee’s right to speak freely, Connick, 461 U.S.
at 142, yet allows the State to condition public employment
on an employee’s willingness to impede the judicial process
by remaining mute. Indeed, as we held in Fairley III, a gov‐
ernment has no right to tell its employees what to say in
court. 578 F.3d at 525.
The public also has a substantial interest in hearing such
speech. Indeed, the extraordinary power to jail those who
refuse to cooperate with grand juries is rooted in the
“longstanding principle that ‘the public … has a right to
every man’s evidence.’” Branzburg, 408 U.S. at 688 (quoting
14 No. 12‐2811
United States v. Bryan, 339 U.S. 323, 331 (1950)). Public‐
employee speech often provides society with information
that is essential for democratic self‐governance:
[A]s the state grows more layered and impacts lives
more profoundly, it seems inimical to First Amend‐
ment principles to treat too summarily those who
bring, often at some personal risk, its operations into
public view. It is vital to the health of our polity that
the functioning of the ever more complex and power‐
ful machinery of government not become democra‐
cy’s dark lagoon.
Andrew v. Clark, 561 F.3d 261, 273 (4th Cir. 2009) (Wilkinson,
J., concurring). Unlike restrictions on speech “made pur‐
suant to official duties,” threats or punishment for subpoe‐
naed testimony undoubtedly chill valuable “contributions to
the civic discourse” in significant and pernicious ways.
Finally, it cannot be said that affording Chrzanowski’s
speech some level of constitutional protection would commit
the courts to an “intrusive role, mandating oversight of
communications between and among government employ‐
ees and their superiors in the course of official business.” Id.
at 423. As Garcetti explained, “sound principles of federalism
and the separation of powers” caution against judicial inter‐
vention when an employee’s expressive activity is truly
“commissioned or created” by a public employer. Id. at 423,
422. But if the defendants here had some legitimate manage‐
rial interest in dissuading Chrzanowski from testifying
truthfully pursuant to a subpoena, we cannot imagine what
it might be. In short, none of the rationales justifying the rule
announced in Garcetti applies here.
No. 12‐2811 15
V
The district court went on to hold that “even if the
conclusion that there was no constitutional violation is
incorrect, it cannot be said that the right was so clearly
established that defendants cannot avail themselves of
qualified immunity.” To qualify as “clearly established,” the
right must be “particularized” in the sense that “[t]he
contours of the right [were] sufficiently clear that a
reasonable official would understand that what he [was]
doing violate[d] that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). Given our rationale in the Fairley line of
cases, we have little trouble concluding that reasonable
officials in the defendants’ shoes would understand that
retaliating against Chrzanowski for giving truthful grand
jury and trial testimony would violate the First Amendment.
The defendants maintain that this court’s decision in Ta‐
mayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008), cast some
doubt on whether official testimony could be entitled to First
Amendment protection, but this argument misapprehends
the reasoning and scope of that opinion. In Tamayo, the for‐
mer Interim Administrator of the Illinois Gaming Board
(IGB) alleged (among other things) that she was retaliated
against in response to her public testimony before the Illinois
House Gaming Committee. Id. at 1078‐80, 1091. As we ex‐
plained, this particular form of testimony did not qualify for
First Amendment protections:
An employee with significant and comprehensive re‐
sponsibility for policy formation and implementation
certainly has greater responsibility to speak to a wider
audience on behalf of the governmental unit. When,
as here, a complaint states that the senior administra‐
16 No. 12‐2811
tor of an agency testified before a committee of the
legislature charged with oversight of the agency
about allegedly improper political influence over that
agency, the natural reading of such an allegation is
that the official, in so informing the legislators, was
discharging the responsibilities of her office, not ap‐
pearing as “Jane Q. Public.”
Id. at 1091‐92 (citations omitted). Although we also noted
that Tamayo “had a duty to see that the law was adminis‐
tered properly” and “a duty to bring alleged wrongdoing
within her agency to the attention of the relevant public au‐
thorities,” id. at 1091, our holding did not rest on these broad
and general characterizations of Tamayo’s “official respon‐
sibilities.” Rather, we explained that Tamayo’s testimony did
not receive First Amendment protection because, as a practi‐
cal matter, she was expected to engage in such speech in the
regular course of her employment. Testifying before the
House Gaming Committee was an important part of the job
of a high‐ranking official like Tamayo; the same was not true
for Chrzanowski.
Our opinion in Morales v. Jones, 494 F.3d 590 (7th Cir.
2007), has much greater bearing on this case. There, a Mil‐
waukee police officer alleged that he was transferred to
night‐shift patrol duty after being deposed pursuant to a
subpoena in a civil suit brought by a fellow officer against
the Chief of Police. Id. at 598. We concluded that “being de‐
posed in a civil suit pursuant to a subpoena was unques‐
tionably not one of Morales’ job duties because it was not
part of what he was employed to do.” Id.; accord Karl v. City
of Mountlake Terrace, 378 F.3d 1062 (9th Cir. 2012); Reilly v.
City of Atlantic City, 532 F.3d 216, 220 (3d Cir. 2008). But see
No. 12‐2811 17
Huppert, 574 F.3d at 707. Like Chrzanowski, Morales un‐
doubtedly had a professional obligation (not to mention a
personal obligation) to comply with the subpoena, but this
did not somehow convert his deposition testimony into
speech “made pursuant to official duties.” Defendants point
out that Morales involved testimony in the civil context,
whereas this case involves testimony in criminal proceed‐
ings, but this is a distinction without a difference: providing
eyewitness testimony regarding potential wrongdoing, civil
or criminal, was never “part of what [Chrzanowski] was
employed to do.” Chrzanowski’s rights were clearly estab‐
lished at all relevant times.
VI
We conclude by emphasizing that we express no opinion
on the merits of Chrzanowski’s claims. We hold only that at
this preliminary stage, he has stated a valid First Amend‐
ment claim. We REVERSE the district court’s judgment and
REMAND for further proceedings consistent with this opin‐
ion.