Anthony Gibson v. Jeffrey Kilpatrick

Case: 12-60905 Document: 00512866704 Page: 1 Date Filed: 12/11/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60905 United States Court of Appeals

Fifth Circuit

FILED

ANTHONY GIBSON, December 11, 2014

Lyle W. Cayce

Plaintiff-Appellee Cross-Appellant Clerk

v.

JEFFREY KILPATRICK, in His Individual Capacity,

Defendant-Appellant Cross-Appellee

Appeals from the United States District Court

for the Northern District of Mississippi

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.

KING, Circuit Judge:

The Supreme Court has vacated the judgment in this case and remanded

for further consideration in light of Lane v. Franks, 573 U.S. ---, 134 S. Ct. 2369

(2014). While serving as the Chief of Police in Drew, Mississippi, Anthony

Gibson reported Mayor Jeffrey Kilpatrick to outside law enforcement agencies

for misuse of the city gasoline card. Months later, Kilpatrick began issuing

written reprimands to Gibson for a panoply of alleged deficiencies. Gibson

subsequently filed a lawsuit alleging unconstitutional retaliation as well as

state tort law claims. Kilpatrick moved for summary judgment, raising the

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defense of qualified immunity and arguing that the state tort law claims were

barred because Gibson failed to comply with state notice requirements. The

district court denied the motion with respect to qualified immunity, but

granted it with respect to the state tort claims. Kilpatrick now brings this

interlocutory appeal of the district court’s order denying qualified immunity,

and Gibson cross-appeals the district court’s dismissal of one of his tort claims.

Kilpatrick moves to dismiss the cross-appeal for lack of jurisdiction. We hold

that Kilpatrick is entitled to qualified immunity and reverse the district court’s

order to the extent that it denied qualified immunity. Additionally, because

we lack jurisdiction to hear Gibson’s cross-appeal, we grant Kilpatrick’s motion

to dismiss the cross-appeal.

I. Factual and Procedural Background

In 2006, Anthony Gibson applied to be Chief of Police in Drew,

Mississippi. Mayor Jeffrey Kilpatrick opposed Gibson’s application and

supported another candidate. The city’s Board of Aldermen (“Board”) rejected

Kilpatrick’s recommendation and hired Gibson in August 2006. As Chief of

Police, Gibson reported directly to Kilpatrick and the Board.

Sometime within the first four months of Gibson’s employment, a

subordinate at the police department informed Gibson that Kilpatrick was

misusing the city gasoline card to fuel his vehicle for personal trips. Gibson

confidentially reported his suspicions to the Federal Bureau of Investigation

(“FBI”), Drug Enforcement Agency (“DEA”), 1 Mississippi Office of the State

Auditor (“OSA”), and Mississippi Attorney General’s Office. His reports to the

FBI and DEA were through contacts with whom he had worked in an official

capacity on prior occasions. The OSA initiated an investigation, and Gibson

1 Gibson heard rumors that Kilpatrick might be involved in illicit drugs; however, this

allegation was never investigated or substantiated. It did prompt his decision to contact the

DEA.

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worked with Investigator Karen Swain to assist in the OSA’s efforts. Because

Kilpatrick had to come to the police department to obtain the gasoline card,

Gibson was able to monitor Kilpatrick’s activities. Gibson instructed two police

dispatchers to make log entries every time Kilpatrick asked to use the card,

and he ordered a police officer to observe Kilpatrick following receipt of the

card. Gibson and Swain also directed the city clerk to monitor receipts from

Drew’s gasoline provider to compare them with the information recorded in the

log. In September 2008, the investigation concluded, finding that Kilpatrick

had misused the city gasoline card, and the OSA ordered Kilpatrick to repay

approximately $3,000 to the City of Drew for his unauthorized use of the card.

Approximately nine months after the conclusion of the investigation,

Kilpatrick began entering written reprimands into Gibson’s personnel file.

The first reprimand came on June 8, 2009, and the reprimands continued for

over two years. 2 In addition to the reprimands, Kilpatrick recommended

Gibson’s termination to the Board on several occasions, including for

insubordination, lack of visibility in the community, and failure to work an

adequate number of hours.

On December 1, 2010, Gibson brought this action in federal court against

Kilpatrick in his individual capacity, alleging violations of his First

Amendment right to free expression under 42 U.S.C. § 1983, and malicious

interference with employment and intentional infliction of emotional distress

under Mississippi law. Less than a year later, on October 5, 2011, the Board

2 The record contains nine different reprimands of Gibson from Kilpatrick over this

period for, inter alia, Gibson’s tardiness to a meeting because he was driving to the emergency

room for medical care; assisting a neighboring police department with a domestic violence

stand-off without first obtaining prior approval from the Board; holding a staff meeting that

caused the city to incur overtime payments; and allowing citizens to play basketball in the

new community center after the Board had approved the center’s use for a luncheon for city

employees.

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voted to terminate Gibson’s employment. Gibson subsequently amended his

complaint to add the City of Drew as a defendant, alleging that the city violated

his First Amendment rights in retaliation for his filing suit against Kilpatrick.

Kilpatrick and the City of Drew jointly moved for summary judgment

on Gibson’s First Amendment and state law claims. Kilpatrick asserted that

he was entitled to qualified immunity as to the First Amendment claim

because Gibson’s speech was not constitutionally protected nor were

Kilpatrick’s actions objectively unreasonable. As for the state law claims,

Kilpatrick and the City of Drew argued that Gibson failed to file a notice of

claim in compliance with the Mississippi Tort Claims Act (“MTCA”), so the

claims were barred. See Miss. Code Ann. § 11-46-11 (2013). The court

“reserved judgment” as to whether Kilpatrick had violated Gibson’s

constitutional rights and whether Kilpatrick was entitled to qualified

immunity; however, it entered judgment in the defendants’ favor with respect

to the state law tort claims. Kilpatrick moved for reconsideration of his

qualified immunity defense, and the court held that Kilpatrick was not entitled

to qualified immunity because Gibson’s speech was protected under the First

Amendment and the right was clearly established.

Kilpatrick timely appealed the district court’s summary judgment and

reconsideration orders. Gibson timely cross-appealed the district court’s

dismissal of his state law tort claim for malicious interference with

employment. Kilpatrick moved to dismiss the cross-appeal for lack of

jurisdiction, and the court ordered that motion to be carried with the case.

After we issued our opinion in this case, Gibson v. Kilpatrick, 734 F.3d

395 (5th Cir. 2013), the Supreme Court decided Lane, vacated our judgment,

and remanded for further consideration in light of that opinion, Gibson v.

Kilpatrick, 134 S. Ct. 2874, 2874 (2014) (mem.).

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II. Qualified Immunity

A. Standard of Review

Typically, a party may not immediately appeal a district court’s decision

to deny summary judgment, but the denial of a motion for summary judgment

based on qualified immunity is a collateral order capable of immediate review.

Brown v. Strain, 663 F.3d 245, 248 (5th Cir. 2011). This court has jurisdiction

over such an order only “to the extent that the district court’s order turns on

an issue of law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). We

may not review a district court’s decision to deny qualified immunity based on

evidentiary sufficiency on an interlocutory appeal, because such a

determination is not considered a “final decision.” Johnson v. Jones, 515 U.S.

304, 313 (1995); Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). This

court “consider[s] 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.” Kinney v. Weaver, 367 F.3d 337, 348 (5th

Cir. 2004) (en banc). “Where factual disputes exist in an interlocutory appeal

asserting qualified immunity, we accept the plaintiffs’ version of the facts as

true.” Id. “In reviewing the district court’s conclusions concerning the legal

consequences—the materiality—of the facts, our review is of course de novo.”

Id. at 349.

B. Discussion

To rebut a defendant’s qualified immunity defense, the plaintiff must

show: “(1) that the official violated a statutory or constitutional right, and (2)

that the right was ‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011) (citation omitted). A court

may consider either prong of the qualified immunity analysis first. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). We begin and end by addressing the

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second prong—whether Kilpatrick’s reprimands violated Gibson’s clearly

established First Amendment rights.

Determining whether a public employee’s speech is protected by the First

Amendment involves a two-step inquiry. Lane v. Franks, 573 U.S. ---, 134 S.

Ct. 2369, 2378 (2014). The first step requires the court to determine whether

the employee spoke as a citizen on a matter of public concern. Id. If he did,

the second step requires the court to determine whether the government

employer had a constitutionally sufficient justification for punishing the

employee for his speech by balancing the interest in allowing the speech

against the interest in penalizing it. Id.; Pickering v. Bd. of Educ. of Twp. High

School Dist. 205, Will Cnty., 391 U.S. 563, 574–75 (1968); Connick v. Myers,

461 U.S. 138, 150–51 (1983).

The first step of the analysis subtly sets out two predicates for public-

employee speech to receive First Amendment protection; the speech must be

made as a citizen and on a matter of public concern. It is the first

requirement—that the public employee speak as a citizen—that is dispositive

here.

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court made

clear that the “as a citizen” requirement draws a distinction between when

public employees speak in their private capacities and when they speak

“pursuant to their official duties.” Garcetti, 547 U.S. at 421. When public

employees speak “pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.” Id.

Yet despite its enunciation of that rule of law, the Supreme Court had

“no occasion to articulate a comprehensive framework for defining the scope of

an employee’s duties in cases where there is room for serious debate.” Id. at

424. The Court did state, however, that job descriptions are not dispositive, id.

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at 424–25, that the fact that speech concerns the subject matter of employment

is not dispositive, id. at 421, and that whether the employee expresses himself

in the office is not dispositive, id. at 420. Rather, “the proper inquiry is a

practical one,” and it focuses solely on whether the speech was performed

“within the scope of the employee’s professional duties.” Id. at 424–25.

Now the Supreme Court has once again spoken on this issue, in Lane v.

Franks, 573 U.S. ---, 134 S. Ct. 2369 (2014), and this case has been remanded

to us for reconsideration in its wake. In Lane, an administrator of a state

program reported an employee—who was also an Alabama state legislator—

for collecting pay for hours she had not worked. Lane, 134 S. Ct. at 2375. After

meeting with the legislator, Lane ordered her to show up for the hours she had

promised to work, and, when she did not, he fired her. Id. The legislator’s

termination drew the attention of the FBI, and a federal prosecution began.

Id. Lane was subpoenaed to testify before a federal grand jury and did so. Id.

He was fired shortly thereafter and sued, alleging that he was retaliated

against for his testimony before the grand jury. Id. at 2376. The Eleventh

Circuit held that Garcetti precluded Lane’s claim because Lane learned the

information in his testimony through his employment and therefore he spoke

pursuant to his official duties. Id. at 2376–77. The Supreme Court reversed,

holding that “[t]ruthful testimony under oath by a public employee outside the

scope of his ordinary job duties is speech as a citizen for First Amendment

purposes.” Id. at 2378. The Court reiterated that the mere fact that speech

concerns information that was learned through public employment does not

remove the speech from the ambit of First Amendment protection. Id. at 2379.

Lane seems to us to be an application of prior Supreme Court precedent.

It was, after all, undisputed in Lane that “Lane’s ordinary job responsibilities

did not include testifying in court proceedings.” Id. at 2378 n.4. Garcetti had

indicated that the mere fact that speech concerns information learned while

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performing official job duties does not preclude First Amendment protection.

Garcetti, 547 U.S. at 421 (“The memo concerned the subject matter of Ceballos’

employment, but this, too, is nondispositive.”). More fundamentally, the

Court’s reasoning in Pickering indicated that the high value of public

employees’ contributions to civic discourse often derives from the knowledge

they gain from their public employment, Pickering, 391 U.S. at 572 (“Teachers

are, as a class, the members of a community most likely to have informed and

definite opinions as to how funds allocated to the operations of the schools

should be spent. Accordingly, it is essential that they be able to speak out

freely on such questions without fear of retaliatory dismissal.”), a premise that

was reiterated in Garcetti, 547 U.S. at 421. Given that precedent, Lane does

not appear to have altered the standard for whether public employees speak

pursuant to their official duties, but appears rather to be an application of

Garcetti’s rule. Yet three aspects of the Lane opinion merit discussion, as they

appear to offer the prospect of new law. The first is Lane’s injection of the word

“ordinary” into the “pursuant to official duties” test. Compare Lane, 134 S. Ct.

at 2378 (“Truthful testimony under oath by a public employee outside the scope

of his ordinary job duties is speech as a citizen for First Amendment

purposes.”), with Garcetti, 547 U.S. at 421 (“We hold 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 insulate their communications from employer

discipline.”). The second is Lane’s discussion of the importance of public-

employee speech in ferreting out public corruption. The third is Lane’s

discussion of the affirmative legal obligation to testify truthfully in reasoning

that the speech at issue was speech as a citizen. We discuss each in turn.

We begin with the formulation “ordinary job duties,” which Lane has

inserted into the Garcetti rule. Lane, 134 S. Ct. at 2378. Much of the treatment

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of Lane thus far has speculated that the insertion of “ordinary” may signal a

narrowing of the Supreme Court’s position on Garcetti’s coverage. See, e.g.,

Mpoy v. Rhee, 758 F.3d 285, 295 (D.C. Cir. 2014) (“In particular, the use of the

adjective ‘ordinary’—which the court repeated nine times—could signal a

narrowing of the realm of employee speech left unprotected by Garcetti.”);

Hagan v. City of N.Y., --- F. Supp. 2d ---, No. 13-cv-1108 (JPO), 2014 WL

4058067, at *21 (S.D.N.Y. Aug. 15, 2014) (“First, Garcetti’s ‘pursuant to official

duties’ standard remains good law. However, it must be understood in light of

Lane’s ‘ordinary job responsibilities’ standard, which the court repeatedly used

in lieu of Garcetti’s more cryptic language.” (internal citations omitted)).

Whatever may come of Lane’s use of the “ordinary” modifier, at this point it

likely has not altered the rule in Garcetti, at least not in any way that can be

said to be clearly established. It was undisputed in Lane that the employee

had not spoken pursuant to his official duties. See Lane, 134 S. Ct. at 2378 n.4

(“It is undisputed that Lane’s ordinary job responsibilities did not include

testifying in court proceedings.”); id. at 2383 (Thomas, J., concurring) (“The

petitioner in this case did not speak ‘pursuant to’ his ordinary job duties

because his responsibilities did not include testifying in court proceedings, and

no party has suggested that he was subpoenaed as a representative of his

employer. Because petitioner did not testify to ‘fulfill a work responsibility,’ he

spoke ‘as a citizen,’ not as an employee.” (internal brackets and citations

omitted) (quoting Garcetti, 547 U.S. at 421)). As such, there was no occasion

for the Court to refine the standard for determining when an employee speaks

pursuant to his official duties. Therefore, whatever change in the

jurisprudence “ordinary” may augur, we are unable to discern any change in

Garcetti’s rule from Lane applicable to this case, for any change resulting from

Lane cannot be said to have been “‘clearly established’ at the time of the

challenged conduct.” Al-Kidd, 131 S. Ct. at 2080 (emphasis added).

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Second, we turn to Lane’s discussion of the context of public corruption

and its impact on whether the speech in that case was protected by the First

Amendment. Lane’s discussion of whether the plaintiff spoke as a citizen or as

an employee concludes by addressing the necessity of public-employee

whistleblowing in stemming public corruption:

The importance of public employee speech is especially

evident in the context of this case: a public corruption scandal. The

United States, for example, represents that because “[t]he more

than 1000 prosecutions for federal corruption offenses that are

brought in a typical year ... often depend on evidence about

activities that government officials undertook while in office,”

those prosecutions often “require testimony from other

government employees.” Brief for United States as Amicus Curiae

20. It would be antithetical to our jurisprudence to conclude that

the very kind of speech necessary to prosecute corruption by public

officials—speech by public employees regarding information

learned through their employment—may never form the basis for

a First Amendment retaliation claim. Such a rule would place

public employees who witness corruption in an impossible position,

torn between the obligation to testify truthfully and the desire to

avoid retaliation and keep their jobs.

Lane, 134 S. Ct. at 2380. We doubt that this discussion means that speech is

“as a citizen” whenever public corruption is involved, as that could conflict with

the opinion in Garcetti. See Garcetti, 547 U.S. at 425–26 (stating that the

exposure of governmental inefficiency and misconduct must be enforced

through other laws and constitutional provisions than the First Amendment

when dealing with public employees speaking pursuant to their official duties).

Rather, the passage must be read in the context of Lane’s facts and in light of

Lane’s statement that the opinion does “not address in this case whether

truthful sworn testimony would constitute citizen speech under Garcetti when

given as part of a public employee’s ordinary job duties.” Lane, 134 S. Ct. at

2378 n.4. In Lane, it was undisputed that the employee was not speaking as

part of his ordinary job duties. Id. The testimony of public-employees is

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frequently necessary to prosecute public corruption. But it cannot be said to

be strictly necessary that they be speaking pursuant to their official duties

when they testify in order to prosecute public corruption. As such, it cannot be

said that Lane’s discussion of public corruption alters Garcetti in a way that is

clearly established for purposes of this case.

Lastly, we must confront Lane’s discussion of the legal obligation to

testify truthfully and its relation to classifying speech as citizen-speech. In

Lane, the Court held that a public-employee’s testimony before a grand jury

was citizen speech “for a simple reason: Anyone who testifies in court bears an

obligation, to the court and society at large, to tell the truth.” Lane, 134 S. Ct.

at 2379. The Court noted that any “obligations as an employee are distinct and

independent from the obligation, as a citizen, to speak the truth.” Id. Lane

thus relied upon an independent legal obligation to tell the truth. See id.

(citing “18 U.S.C. § 1623 (criminalizing false statements under oath in judicial

proceedings)” and “United States v. Mandujano, 425 U.S. 564, 576 (1976)

(plurality opinion) (‘Perjured testimony is an obvious and flagrant affront to

the basic concept of judicial proceedings’)”). Citing this discussion in Lane,

Gibson points to 18 U.S.C. § 4 and Roberts v. United States, 445 U.S. 552, 557–

58 (1980), as establishing a similar duty of citizens to affirmatively report

crime. But any such independent legal obligation is only relevant if Gibson

was speaking pursuant to his official duties; otherwise, his speech would be

outside of Garcetti’s ambit regardless. And, fatally, if Gibson was speaking

pursuant to his official duties and was under an independent legal obligation

as a citizen to report crime, it would raise the question that Lane expressly

declined to answer, that is, whether there are obligations as a citizen that

preempt obligations as an employee for First Amendment purposes. Lane, 134

U.S. at 2378 n.4 (“We accordingly need not address in this case whether

truthful sworn testimony would constitute citizen speech under Garcetti when

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given as part of a public employee’s ordinary job duties, and express no opinion

on the matter today.”). As such, we could not say that such a right was “clearly

established” at the time Gibson was allegedly retaliated against.

Therefore, we turn to the central issue—whether Gibson was acting

pursuant to his official duties in reporting Kilpatrick’s use of the gas card to

outside agencies.

In making that inquiry, one of the factors that we have considered is

whether the employee’s complaint was made within the chain of command or

to an outside actor, such as a different government agency or the media. See

Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008). In Davis, we noted that

if “a public employee takes his job concerns to persons outside the work place

in addition to raising them up the chain of command at his workplace, then

those external communications are ordinarily not made as an employee, but as

a citizen.” Id. Yet that is only ordinarily the case, as no single fact or factor is

dispositive. There is no heuristic for Garcetti’s applicability; rather, “[t]he

proper inquiry is a practical one.” Garcetti, 547 U.S. at 424. For when an

employee’s official duties include communicating with outside agencies or the

press, it would be in dissonance with Garcetti to conclude that, when he does

so, he enjoys First Amendment protection. See id. at 422 (“The fact that his

duties sometimes required him to speak or write does not mean his supervisors

were prohibited from evaluating his performance.”). Further, where, as here,

the employee is reporting the misconduct of his supervisor, an outside agency

may be the most appropriate entity to which to report the misconduct. See

Patterson v. City of Earlington, 650 F. Supp. 2d 674, 680–81 (W.D. Ky. 2009)

(holding that a police chief’s report of a mayor’s alleged election law violations

to state police is not protected because state police were the most appropriate

authority to carry out the investigation); Mantle v. City of Country Club Hills,

No. 4:07-CV-55 (CEJ), 2008 WL 3853432, at *4 (E.D. Mo. Aug. 15, 2008)

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(holding that a police chief’s report of a mayor’s criminal conduct to a municipal

court judge is not protected because the police chief had no departmental

supervisor and the judge was the most appropriate authority to whom he could

report).

In turning to the instant case, we cannot say that Kilpatrick’s

reprimanding Gibson for reporting the illegal use of the gas card to outside

agencies violated Gibson’s clearly established constitutional rights. Gibson

was the Chief of Police for the city, indicating that communicating with outside

law enforcement agencies was part of his job responsibilities. The presumption

is buttressed by Gibson’s admission that he reported his concerns about the

gas card to law enforcement officers at the outside agencies whom he had met

through his official duties. It is also supported by his statement in a letter to

the Mayor and Board of Aldermen that he worked with the FBI and DEA as

part of his role as Chief of Police. Further, Gibson’s statutory duties provide

additional support to the notion that he was acting pursuant to his official

duties. As a law enforcement officer, Gibson’s “primary responsibility [was]

the prevention and detection of crime . . . [and] the apprehension of criminals.”

See Miss. Code Ann. § 45-6-3(c). Gibson, as Chief of Police, was the City of

Drew’s “chief law enforcement officer” and had “control and supervision of all

police officers employed by” the city. Miss. Code Ann. § 21-21-1. While we

cannot, and do not, rely on official job descriptions, even statutory ones, in

applying Garcetti’s rule, they can be instructive. See Williams v. Riley, 275 F.

App’x 385, 389 (5th Cir. 2008) (unpublished) (per curiam). In addition, given

that Gibson reported to the Mayor and the Board of Aldermen, there was,

arguably, no one else to whom Gibson could confidentially report the

information. Gibson was the “chief law enforcement officer,” see Miss. Code

Ann. § 21-21-1, and according to the district court’s findings of fact, the only

entities to which he could have reported within the chain of command were

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Kilpatrick and the Board. Reporting to Kilpatrick—the suspected

perpetrator—clearly was undesirable, while reporting to the Board might have

required public disclosure of Gibson’s suspicions, perhaps endangering the

subsequent investigation. Indeed, it appears that once Board members

learned of the investigation, one of them informed Kilpatrick. The state

agencies Gibson contacted may well have been the most appropriate entities to

receive the information, a fact other courts have found instructive. See

Patterson, 650 F. Supp. 2d at 680; Mantle, 2008 WL 3853432, at *4.

Moreover, the facts of this case make plain that Gibson was acting

pursuant to his official duties when he made the reports to the OSA. For

Gibson did not merely make a report to the OSA on his personal time after

work. He met with the investigator in his office, he coordinated his

department’s resources with the OSA, and he instructed his employees to aid

extensively in the investigation. All of this is compelling circumstantial

evidence that Gibson reported the misuse of the gas card not as a citizen, but

in his official capacity as Chief of Police. See Garcetti, 547 U.S. at 422 (“The

fact that his duties sometimes required him to speak or write does not mean

his supervisors were prohibited from evaluating his performance.”); id.

(“Refusing to recognize First Amendment claims based on government

employees’ work product does not prevent them from participating in public

debate. The employees retain the prospect of constitutional protection for their

contributions to the civic discourse. This prospect of protection, however, does

not invest them with a right to perform their jobs however they see fit.”). The

fact that what was being reported in this case was public corruption does not

change the result—Garcetti’s rule is a broad one, and it must be applied even

where it may lead to a potentially distasteful result in an individual case. As

such, any reprimand based on Gibson’s reports to the OSA cannot be said to

violate his clearly established constitutional rights.

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Similarly, reprimanding Gibson for his report to the Attorney General

would not have violated his clearly established First Amendment rights.

Gibson communicated his concerns about the gas card at the “Chief of Police

Conference” to the Mississippi Attorney General in person. He spoke with the

Attorney General and others who were with him for about twenty minutes.

Given that Gibson was attending a chief of police conference when he met with

the Attorney General and expressed his concerns, it would not have been

objectively unreasonable for Kilpatrick to believe Gibson made the report while

performing his official duties. To the extent that additional facts could show

that Gibson was not acting pursuant to his official duties when he made his

report to the Attorney General, Gibson has failed to meet his burden of

producing evidence sufficient to show that Kilpatrick violated his clearly

established constitutional rights. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th

Cir. 2010) (“Once a defendant invokes qualified immunity, the burden shifts to

the plaintiff to show that the defense is not available.”).

The reports to the FBI and DEA present a closer case. Gibson made a

call to an FBI agent that he had met through his law enforcement work. He

then met with two FBI agents, including the agent he already knew, at schools

in Drew rather than at his office. He testified that he believed his report to the

FBI was confidential. He also made his initial complaint to the DEA via

telephone, then met with DEA agents, and agents from other federal law

enforcement agencies, at the DEA office in Oxford, Mississippi, again not at

his office in Drew. Gibson testified that he believed his report to the DEA was

also confidential. Gibson did, however, testify that he had previously met the

agents he contacted at the FBI and the DEA through his official duties.

Further, he stated in a letter to the Mayor and Board of Aldermen that he

generally worked with outside agencies, including the DEA and FBI, “to help

with crimes within the city of Drew.” Additional facts could elucidate Gibson’s

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role when he made his complaints in this case. Whether he spoke with the

agents during working hours, whether he was in uniform, and whether he

offered the assistance of local law enforcement would all be instructive as to

whether he acted pursuant to his official duties. But those facts are not present

in the record, and, there being no genuine dispute as to the facts, we take

record as it is. Given the lack of evidence clarifying Gibson’s role when he

made his reports to the FBI and the DEA, we hold that Gibson has not met his

burden of producing evidence sufficient to show that Kilpatrick violated his

clearly established constitutional rights, and, as such, summary judgment

should have been granted for Kilpatrick. See Kovacic, 628 F.3d at 211;

Michalik v. Hermann, 422 F.3d 252, 258 (5th Cir. 2005) (“The plaintiff bears

the burden of proving that a government official is not entitled to qualified

immunity.”). We do not hold that, as the Chief of Police, any report of criminal

activity Gibson made to outside agencies was part of his official duties. We

hold only that Gibson has adduced insufficient evidence here to meet his

burden of producing evidence showing that his reports here were made as a

citizen rather than in his official capacity. He has therefore failed to come

forward with evidence showing that his clearly established constitutional

rights were violated.

As such, Gibson’s communications to the outside agencies in this case

are distinguishable from previous cases in which we have held that

communications outside the chain of command are speech as a citizen.

Therefore, we cannot say that reprimanding Gibson for reporting violations of

the law to outside law enforcement agencies violated his clearly established

constitutional rights.

III. Motion to Dismiss

The district court dismissed Gibson’s tort claims without prejudice for

failure to comply with the MTCA notice requirement. Gibson cross-appeals,

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Case: 12-60905 Document: 00512866704 Page: 17 Date Filed: 12/11/2014

No. 12-60905

arguing that the district court erred in dismissing his malicious interference

with employment claim, but he does not appeal the dismissal with respect to

his other tort claims. Kilpatrick moved to dismiss this appeal for want of

jurisdiction. We agree. See Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,

565 (5th Cir. 2003) (declining to exercise pendent appellate jurisdiction over a

state law tort claim in an interlocutory appeal of the district court’s order

denying qualified immunity). Accordingly, we grant Kilpatrick’s motion to

dismiss Gibson’s cross-appeal for lack of jurisdiction.

IV. Conclusion

For the foregoing reasons, we REVERSE the district court’s order

denying Kilpatrick’s motion for summary judgment based on qualified

immunity and GRANT the motion to dismiss Gibson’s cross-appeal for lack of

jurisdiction. Finally, we REMAND the case to the district court for further

proceedings consistent with this opinion. Gibson shall bear the costs of this

appeal.

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