Kenneth Hunter v. Town of Mocksville, North Caro

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1081

KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN,

Plaintiffs – Appellees,

v.

TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his

official capacity as Administrative Chief of Police of the

Mocksville Police Department and in his individual capacity;

CHRISTINE W. BRALLEY, in her official capacity as Town

Manager of the Town of Mocksville and in her individual

capacity,

Defendants – Appellants.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,

Amicus Supporting Appellees.

No. 14-1125

KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN,

Plaintiffs – Appellants,

v.

TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his

official capacity as Administrative Chief of Police of the

Mocksville Police Department and in his individual capacity;

CHRISTINE W. BRALLEY, in her official capacity as Town

Manager of the Town of Mocksville and in her individual

capacity,

Defendants - Appellees.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,

Amicus Supporting Appellants.

Appeals from the United States District Court for the Middle

District of North Carolina, at Greensboro. Catherine C. Eagles,

District Judge. (1:12-cv-00333-CCE-JEP)

Argued: December 9, 2014 Decided: June 15, 2015

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the majority

opinion, in which Judge Diaz joined. Judge Niemeyer wrote a

dissenting opinion.

ARGUED: Stephen John Dunn, VAN HOY, REUTLINGER, ADAMS & DUNN,

Charlotte, North Carolina, for Appellants/Cross-Appellees.

Robert Mauldin Elliot, Helen Parsonage, ELLIOT MORGAN PARSONAGE,

PLLC, Winston-Salem, North Carolina, for Appellees/Cross-

Appellants. ON BRIEF: Jaye E. Bingham-Hinch, Raleigh, North

Carolina, Patrick H. Flanagan, CRANFILL, SUMNER & HARTZOG, LLP,

Charlotte, North Carolina; Philip M. Van Hoy, VAN HOY,

REUTLINGER, ADAMS & DUNN, Charlotte, North Carolina, for

Appellants/Cross-Appellees. J. Michael McGuinness, THE

MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William J.

Johnson, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,

Alexandria, Virginia, for Amicus Curiae.

2

WYNN, Circuit Judge:

“Almost 50 years ago, th[e Supreme] Court declared that

citizens do not surrender their First Amendment rights by

accepting public employment.” Lane v. Franks, 134 S. Ct. 2369,

2374 (2014). A threshold question for determining “whether a

public employee’s speech is entitled to protection” is whether

the employee “spoke as a citizen on a matter of public concern.”

Id. at 2378 (quotation marks and citation omitted).

In this Section 1983 case alleging First Amendment rights

violations, viewing the evidence in their favor—as we must at

summary judgment, Plaintiffs—officers of the Mocksville Police

Department (“Mocksville PD”) in Mocksville, North Carolina—

reached out as concerned citizens to the North Carolina

Governor’s Office about corruption and misconduct at the

Mocksville PD. The district court therefore rightly rejected

Defendants’ argument that Plaintiffs’ outreach enjoyed no First

Amendment protection. For this and other reasons explained

below, we affirm the district court’s denial of summary judgment

to Defendants Robert W. Cook and Christine W. Bralley.

I.

Viewing the evidence in the light most favorable to

Plaintiffs, the non-movants, as we must at the summary judgment

stage, the evidence shows that Plaintiffs Kenneth L. Hunter

3

(“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin

(“Medlin”), served as police officers with the Mocksville PD.

Hunter, an assistant chief, had worked for the Mocksville PD

since 1985; Donathan, a lieutenant, had been with the Mocksville

PD since 1998; and Medlin had served as an officer since 2006.

All three Plaintiffs had distinguished careers with the

Mocksville PD, receiving honors and promotions throughout their

tenures.

Defendant Robert W. Cook (“Cook”) joined the Mocksville PD

as police chief in 2005. 1 Over time, Plaintiffs became concerned

about Cook’s behavior and leadership. For example, Plaintiffs

saw Cook drink alcohol publicly, excessively, and while in

uniform and feared that it reflected poorly on the Mocksville

PD. Plaintiffs also believed that Cook violated the law by

driving a police car with blue flashing lights and behaving as

if he were a certified law enforcement officer when, in reality,

he had never been certified and was only an “administrative”

chief. Plaintiffs suspected that Cook and his ally and deputy

chief, Daniel Matthews, were together mismanaging Mocksville PD

and other public funds and even using those funds for personal

gain. Plaintiffs perceived racial discrimination at the

1

Cook no longer serves as the Mocksville PD chief.

4

Mocksville PD. And Plaintiffs believed that Cook “fixed”

tickets for his friends.

Plaintiffs independently raised such concerns about Cook

with Mocksville Town Manager, Defendant Christine W. Bralley

(“Bralley”). Yet they noticed no improvement after reporting

their concerns to Bralley and instead perceived reasons to worry

about retaliation. Donathan, for example, raised his concerns

with Bralley and was soon thereafter criticized by Matthews

about a concern he had raised with Bralley. And a month after

Medlin sent Bralley a sealed letter detailing concerns about the

Mocksville PD, Cook demoted him. (That demotion was ultimately

reversed.)

In November 2011, the situation at the Mocksville PD

escalated. Cook reorganized the department, elevating Matthews

to second-in-command and stripping Hunter, one of only two

African-Americans at the Mocksville PD, of his supervisory

responsibilities. Hunter filed a grievance about his demotion,

but his grievance, and concerns, were dismissed. Donathan, on

the other hand, was invited to Cook’s home, instructed to

“adhere to the ‘politics’ of the MPD,” and promoted to

lieutenant. J.A. 161.

In early December 2011, five Mocksville PD officers,

including all three Plaintiffs, met privately to discuss their

concerns about Cook and his ally Matthews. At that meeting,

5

Plaintiffs decided to seek an investigation by an outside agency

into corruption at the Mocksville PD. According to Hunter,

Plaintiffs made this decision because they felt, “as citizens of

the community, that Mocksville deserved an effective police

force that served everyone equally” and not because they felt it

was “part of our job duties.” J.A. 137.

Plaintiffs set up a meeting with local representatives of

the National Association for the Advancement of Colored People

(“NAACP”), who, after hearing Plaintiffs’ concerns, advised them

to contact a state agency. Accordingly, Plaintiffs decided to

contact the North Carolina Attorney General. Hunter had his

“daughter purchase a disposable phone at Wal-Mart that could be

used to report our citizen complaints separately from our

affiliation with the MPD.” Id.

On December 14, 2011, Plaintiffs got together and used the

disposable phone to call the Attorney General’s Office. The

Attorney General, however, referred Plaintiffs to local

authorities who were closely aligned with Cook and whom

Plaintiffs therefore felt they could not contact. Plaintiffs

then called the North Carolina Governor’s Office, again using

the disposable phone. Without identifying either themselves or

the Mocksville PD, Plaintiffs conveyed some of their concerns,

including their suspicions that Cook embezzled funds, had a

drinking problem, and masqueraded as a certified officer with

6

powers to, for example, use blue lights and pull people over

even though he was only an administrative chief without the

authority to do so. The Governor’s Office representative asked

for a telephone number at which someone could return the call,

and Plaintiffs gave the number for the disposable phone.

Later that day, someone else from the Governor’s Office

called the disposable phone. Donathan answered the call, spoke

to the representative, and identified the Mocksville PD to the

representative. The Governor’s Office representative offered to

request that the State Bureau of Investigation (“SBI”)

investigate the Mocksville PD.

The next week, Medlin saw the local SBI Agent, D.J. Smith,

at the Mocksville PD offices. Plaintiffs knew that Smith had a

close relationship with both Cook and Matthews. Medlin saw

Smith show Matthews a piece of paper and saw the two men look

for Cook. On December 22, 2011, Plaintiffs received a message

from Smith, who called the disposable phone. Smith left a

message identifying himself and stating that he was following up

on the request for an investigation. Plaintiffs did not return

the call because “we did not trust any local authorities in

investigating our concerns because of Chief Cook’s influence”

and thus “disposed of the phone for fear that Chief Cook may

search the police department and find it.” J.A. 140.

7

As it turned out, the phone was nevertheless “found.”

Smith contacted the Davie County Sheriff’s Office, the county in

which Mocksville is located, and asked an officer there to check

whether the phone number used to make that complaint belonged to

anyone at the Sheriff’s Office. The Sheriff’s Department

officer contacted the Mocksville PD and asked an officer there

to run the number through Mocksville PD records. The officer

also called the disposable phone himself—though Plaintiffs did

not pick up.

On December 27, 2011, Bralley contacted Sprint customer

service to set up an online account, explaining that she wanted

to check call records for a specific telephone number. The

Sprint invoice issued that same day for the billing period

ending December 23, 2011 included phone calls to the disposable

phone’s number. Both Donathan and Medlin had placed calls to

and received calls from the disposable phone using their

Mocksville PD-issued mobile phones.

On December 29, 2011, Chief Cook fired all three

Plaintiffs. This was the first time Cook had fired anyone

during his tenure as the Mocksville PD chief. Officer

misbehavior—including illegal drug use and even criminal

activity—had previously occurred. But the officers in those

cases received lesser punishments or were allowed to voluntarily

resign rather than be fired.

8

All three Plaintiffs received similar termination letters

that gave performance justifications such as

“[i]nsubordinat[ion],” “[a]ttitude,” “[r]umored [f]alse [d]eter

mental [sic] [i]nformation,” and “other conduct unbecoming a

Officer.” J.A. 153, 178. Plaintiffs had been given no notice

of these performance issues before they were fired. In an

after-the-fact memo to the town attorney, Cook expressly

mentioned Plaintiffs’ telephone call to the Governor and SBI,

claiming Plaintiffs “conspire[d]” to discredit him, Bralley, and

others in calls to “SBI and Governor with false information”—

information Cook claimed “[t]he SBI and DA have determined . . .

to be slanderous and false.” J.A. 543. And around the time

Cook fired Plaintiffs, Cook called the local district attorney

and told him that “you can’t have people in-house that are

continually undercutting you and causing trouble.” J.A. 2009.

In April 2012, Plaintiffs brought suit against Cook,

Bralley, and the Town of Mocksville, alleging, among other

things, that their First Amendment rights were violated when

they were fired for speaking out about corruption and misconduct

at the Mocksville PD. Defendants answered, and discovery

ensued. Defendants then moved for summary judgment, which

Plaintiffs opposed. Initially, in October 2013, the district

court granted summary judgment to all Defendants on the Section

1983 claims but denied summary judgment as to the state law

9

wrongful discharge and constitutional claims. In January 2014,

however, the district court granted a motion for reconsideration

and reversed course as to Cook and Bralley, holding that neither

was entitled to qualified immunity.

The parties challenge aspects of both orders in this

appeal. We review these summary judgment rulings de novo,

viewing the evidence in the light most favorable to the non-

moving party—here, Plaintiffs—and drawing all reasonable

inferences in their favor. Miller v. Leathers, 913 F.2d 1085,

1087 (4th Cir. 1990) (en banc).

II.

Defendants argue that they are entitled to qualified

immunity, which shields government officials “who commit

constitutional violations but who, in light of clearly

established law, could reasonably believe that their actions

were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc). To successfully avail themselves of qualified

immunity, Defendants must show either that no constitutional

violation occurred or that the right violated was not clearly

established at the time it was violated. Id. Defendants argue

primarily that no violation occurred.

A.

10

With their first argument, Defendants contend that the

district court erred in ruling that Plaintiffs spoke as citizens

and not as employees when they reached out to the Governor’s

Office. Accordingly, per Defendants, the First Amendment does

not protect Plaintiffs from retaliation. We disagree.

1.

“Speech by citizens on matters of public concern lies at

the heart of the First Amendment, which ‘was fashioned to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.’” Lane, 134

S. Ct. at 2377 (quoting Roth v. United States, 354 U.S. 476, 484

(1957)). This remains true when speech concerns information

related to public employment. “After all, public employees do

not renounce their citizenship when they accept employment, and

this Court has cautioned time and again that public employers

may not condition employment on the relinquishment of

constitutional rights.” Id. (citing, inter alia, Pickering v.

Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391

U.S. 563, 568 (1968)).

In its most recent statement on public employee speech, a

unanimous Supreme Court underscored the “considerable value” of

“encouraging, rather than inhibiting, speech by public

employees. For government employees are often in the best

position to know what ails the agencies for which they work.”

11

Lane, 134 S. Ct. at 2377 (quotation marks, alterations, and

citation omitted). Were public employees not able to speak on

matters of public concern, “the community would be deprived of

informed opinions on important public issues.” San Diego v.

Roe, 543 U.S. 77, 82 (2004) (per curiam). Indeed, “[t]he

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.” Id. The Supreme Court thus underscored last

year in Lane that “[i]t bears emphasis that our precedents . . .

have recognized that speech by public employees on subject

matter related to their employment holds special value precisely

because those employees gain knowledge of matters of public

concern through their employment.” 134 S. Ct. at 2379.

Further, as the Supreme Court has recognized, “[t]he

importance of public employee speech is especially evident in

the context of . . . a public corruption scandal.” Id. at 2380.

Indeed “[i]t 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.” Id.

That being said, precedent makes clear that courts must

also consider “the government’s countervailing interest in

controlling the operation of its workplaces.” Id. at 2377.

12

“Government employers, like private employers, need a

significant degree of control over their employees’ words and

actions; without it, there would be little chance for the

efficient provision of public services.” Garcetti v. Ceballos,

547 U.S. 410, 418 (2006).

Accordingly, courts must “balance between the interests of

the [public employee], as a citizen, in commenting upon matters

of public concern and the interest of the State, as an employer,

in promoting the efficiency of the public services it performs

through its employees.” Pickering, 391 U.S. at 568. As the

Supreme Court explained in Garcetti, this balancing test boils

down to a two-step inquiry: The first question is “whether the

employee spoke as a citizen on a matter of public concern. If

the answer is no,” First Amendment protections are not

implicated. 547 U.S. at 418. If, however, the answer is yes,

then we must ask whether the employee’s interest in speaking out

about the matter of public concern outweighed the government’s

interest in providing effective service to the public. Id.

In determining whether the employee spoke as an employee or

as a citizen—the question at the heart of this appeal—the

Supreme Court has instructed us to engage in a “practical”

inquiry into the employee’s “daily professional activities” to

discern whether the speech at issue occurred in the normal

course of those ordinary duties. Garcetti, 547 U.S. at 422,

13

424. The Supreme Court expressly rejected a focus on “formal

job descriptions,” eschewing “the suggestion that employers can

restrict employees’ rights by creating excessively broad job

descriptions.” Id. at 424. And just last year in Lane, the

Supreme Court unanimously admonished lower courts for “read[ing]

Garcetti” and its employee speech implications “far too

broadly.” 134 S. Ct. at 2379. The Court emphasized that “[t]he

critical question . . . is whether the speech at issue is itself

ordinarily within the scope of an employee’s duties, not whether

it merely concerns those duties.” Id.

In Garcetti, the speech at issue was an internal memorandum

a deputy district attorney had prepared for his supervisors

recommending a particular disposition in a specific case. 547

U.S. at 410. The Supreme Court noted that the deputy “did not

act as a citizen when he went about conducting his daily

professional activities, such as supervising attorneys,

investigating charges, and preparing filings. In the same way

he did not speak as a citizen by writing a memo that addressed

the proper disposition of a pending criminal case.” Id. at 422.

Accordingly, the internal memorandum, which fell within the

scope of the deputy’s ordinary duties, did not constitute

protected speech. Id. at 421-22.

By contrast, in Lane, the Supreme Court held that a public

employee’s sworn testimony in a judicial proceeding was

14

“quintessential” citizen speech—“even when the testimony relates

to . . . public employment or concerns information learned

during that employment.” 134 S. Ct. at 2378-79. The Court

recognized that a testifying public employee “may bear separate

obligations to his employer—for example, an obligation not to

show up to court dressed in an unprofessional manner.” Id. at

2379. But any such obligation is distinct from “the obligation,

as a citizen, to speak the truth.” Id. Further, the Supreme

Court left no doubt that the subject matter of the speech at

issue in Lane—“corruption in a public program and misuse of

state funds—obviously involves a matter of significant public

concern.” Id. at 2380. And the defendants in Lane had failed

to demonstrate a governmental interest that could nevertheless

tip the balance in their favor. Id. at 2381.

Similarly, in Pickering, a teacher was fired after he wrote

a letter to the editor of a local newspaper critical of how the

superintendent of schools had handled proposals to raise school

revenue. Pickering, 391 U.S. at 564. The Supreme Court held

that the letter, which neither “impeded the teacher’s proper

performance of his daily duties in the classroom” nor

“interfered with the regular operation of the schools

generally,” constituted protected speech. Id. at 572-73. The

Supreme Court underscored that “whether a school system requires

additional funds is a matter of legitimate public concern.” Id.

15

at 571. On such matters, “free and open debate is vital,” and

teachers are “most likely to have informed and definite opinions

as to how funds allotted to the operation 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.” Id. at 571-72.

Even in our own Circuit, we have made clear that the “core

First Amendment concern” is “the actual workings—not just the

speeches and reports and handouts—of our public bodies.” Andrew

v. Clark, 561 F.3d 261, 273 (4th Cir. 2009) (Wilkinson, J.,

concurring). Therefore, in Andrew, we reversed the dismissal of

a Section 1983 complaint in which a former police commander

alleged retaliation for disclosing to the news media an internal

report he had authored questioning both a police shooting and

the police investigation into the shooting. It would have been

“inimical to First Amendment principles to treat too summarily

those who bring, often at some personal risk, [the government’s]

operations into public view.” Id.

Likewise, in Durham v. Jones, we upheld a jury verdict for

a plaintiff police officer terminated in retaliation for

speaking out about law enforcement misconduct. 737 F.3d 291

(4th Cir. 2013). In Durham, the plaintiff prepared a report

about an incident that had involved the use of force. Id. at

294. Other officers and detectives aggressively interrogated

16

the plaintiff and ordered him to revise his incident report. He

refused. Id. Ultimately, the plaintiff decided to “bring to

light actual or potential wrongdoing on the part of his

superiors, calling for an external investigation and media

coverage.” Id. at 300 (quotation marks and citation omitted).

He sent a letter and written materials to, among others, the

State’s Attorney and the Governor of Maryland. Id. We made it

clear that this situation was “no ordinary workplace dispute,”

and that “where public employees are speaking out on government

misconduct, their speech warrants protection.” Id. at 303

(quotation marks and citation omitted).

2.

Turning to the facts of this case, Defendants contend that

“Plaintiffs’ speech was not protected because they spoke as

employees, not as citizens.” Appellants’ Br. at 23. Defendants

argue that Plaintiffs’ “calling the Governor’s Office was

pursuant to their official duties . . . . When a police officer

reports a crime, he is literally just doing his job.” Id. at

30. With this characterization of Plaintiffs’ speech, we cannot

agree.

Nothing before us suggests that Plaintiffs’ “daily

professional activities,” Garcetti, 547 U.S. at 422, included

calling the Governor’s Office for any purpose, much less to

express concerns about the Mocksville PD. Nothing suggests that

17

Plaintiffs’ request that the Governor’s Office look into

suspected corruption and misconduct at the Mocksville PD was

“ordinarily within the scope of [Plaintiffs’] duties.” Lane,

134 S. Ct. at 2379. Indeed, a “practical” inquiry into

Plaintiffs’ day-to-day duties, Garcetti, 547 U.S. at 424,

manifestly does not lead to the conclusion that those included

reaching out to the Governor’s Office about anything at all.

Instead, the evidence viewed in the light most favorable

to Plaintiffs illustrates that Plaintiffs acted as private

citizens. It is undisputed that Plaintiffs first met, in their

free time and away from their Mocksville PD offices, with a non-

governmental organization—the NAACP—about perceived misconduct

and corruption at the Mocksville PD. The NAACP suggested

reaching out to a state agency. Accordingly, using a private

disposable phone away from the Mocksville PD, Plaintiffs first

contacted the North Carolina Attorney General’s Office and

ultimately the North Carolina Governor’s Office. Initially,

Plaintiffs identified neither themselves nor the Mocksville PD.

Only after a Governor’s Office representative offered to request

an SBI investigation did Plaintiffs name the Mocksville PD as

the subject of their concerns.

Defendants counter that Plaintiffs acted pursuant to their

official duties because all sworn police officers have a duty to

enforce criminal laws, and Plaintiffs, police officers,

18

suspected criminal conduct. While some of the suspected

corruption and misconduct at issue here, such as misusing public

funds for personal gain, might qualify as criminal, other

misconduct, such as racial discrimination within the Mocksville

PD, might not. Moreover, and more importantly, a general duty

to enforce criminal laws in the community does not morph calling

the Governor’s Office because the chief of police himself is

engaging in misconduct into part of an officer’s daily duties.

Defendants further argue that the Mocksville Police Manual

broadly obligated Plaintiffs to, among other things: “cooperate

with all Law Enforcement agencies, other City Departments, and

Public service organizations and . . . give aid and information

as such organizations may be entitled to receive,” J.A. 3306;

report in writing other “employees violating laws” (though

Defendants conveniently omit from their brief to whom such

written reports of employee malfeasance are to be submitted: “to

the Chief of Police”), J.A. 3318; and generally “enforce all

Federal, State, and City laws and ordinances coming within

departmental jurisdiction,” J.A. 3305. But the Supreme Court

has expressly rejected focusing on “formal job descriptions,” as

well as any “suggestion that employers can restrict employees’

rights by creating excessively broad job descriptions.”

Garcetti, 547 U.S. at 424.

19

In sum, privately reaching out to the Governor’s Office

about suspected corruption and misconduct at the Mocksville PD,

at the hands of the chief of police, cannot fairly or accurately

be portrayed as simply part of Plaintiffs’ “daily professional

activities.” Garcetti, 547 U.S. at 422. In reaching out to the

Governor’s Office, Plaintiffs were not “just doing [their] job.”

Appellants’ Br. at 30. Rather, Plaintiffs spoke as citizens, on

a matter of undisputedly public concern, 2 and no countervailing

government interest has even been suggested. Accordingly, the

district court rightly rejected Defendants’ motion for summary

judgment on this basis.

B.

With their next argument, Defendants contend that

Plaintiffs’ speech was not a motivating factor in their being

fired. Defendants contend that Plaintiffs therefore cannot

succeed with their First Amendment retaliatory discharge claims.

See, e.g., Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993)

(holding that a plaintiff claiming retaliatory discharge in

violation of his First Amendment rights “must show that his

protected expression was a ‘substantial’ or ‘motivating’ factor

2

Defendants do not even attempt to argue on appeal that

public corruption does not constitute a matter of public

concern.

20

in the employer’s decision to terminate him” (citation

omitted)). This issue is, however, not properly before us.

The Supreme Court has made clear that “a defendant,

entitled to invoke a qualified immunity defense, may not appeal

a district court’s summary judgment order insofar as that order

determines whether or not the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S.

304, 319-20 (1995). 3 Stated differently, “[i]f summary judgment

was denied as to a particular claim solely because there is a

genuine issue of material fact, that claim is not immediately

appealable and we lack jurisdiction to consider it.” Iko v.

Shreve, 535 F.3d 225, 235 (4th Cir. 2008).

3

By contrast, the Supreme Court has left no doubt that “a

district court’s order denying a defendant’s motion for summary

judgment [is] an immediately appealable ‘collateral order’

(i.e., a ‘final decision’) . . . where (1) the defendant was a

public official asserting a defense of ‘qualified immunity,’ and

(2) the issue appealed concerned, not which facts the parties

might be able to prove, but, rather, whether or not certain

given facts showed a violation of ‘clearly established’ law.”

Johnson, 515 U.S. at 311 (citations omitted). Indeed, this kind

of summary judgment is otherwise “‘effectively unreviewable,’

for review after trial would come too late to vindicate one

important purpose of ‘qualified immunity’—namely, protecting

public officials, not simply from liability, but also from

standing trial.” Id. at 312 (citation omitted).

21

Fatally for Defendants’ argument here, the district court

denied summary judgment because a material dispute of fact

existed on the causation issue:

The plaintiffs have offered sufficient evidence

to support a jury finding that the Town fired them for

reporting to the Governor’s office that the Mocksville

Police Department was experiencing corruption and

other issues. While the Town has offered evidence

that the plaintiffs were fired for performance issues,

that evidence does not entitle them to summary

judgment. It merely creates a disputed question of

material fact which a jury must decide. The

defendants are not entitled to summary judgment on

this basis.

Hunter v. Town of Mocksville, N.C., No. 1:12-CV-333, 2013 WL

5726316, at *4 (M.D.N.C. Oct. 21, 2013), vacated in part, 2014

WL 881136 (M.D.N.C. Jan. 22, 2014). Because the district court

rejected Defendants’ causation argument due to a dispute of

material fact, we must refrain from considering it. See Iko,

535 F.3d at 234-35.

C.

With their final argument on appeal, Defendants contend

that even if Plaintiffs’ First Amendment rights were violated,

those rights were not clearly established at the time, i.e., in

December 2011. Accordingly, Cook and Bralley argue that they

are entitled to qualified immunity protecting them from suit.

Qualified immunity shields government officials “who commit

constitutional violations but who, in light of clearly

established law, could reasonably believe that their actions

22

were lawful.” Henry, 652 F.3d at 531. Regarding whether a

right was clearly established, “[t]he relevant, dispositive

inquiry . . . is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.” Id. at 534 (quoting Saucier v. Katz, 533 U.S. 194,

202 (2001), overruled in part on other grounds, Pearson v.

Callahan, 555 U.S. 223 (2009)).

To ring the “clearly established” bell, there need not

exist a case on all fours with the facts at hand. In other

words, “the nonexistence of a case holding the defendant’s

identical conduct to be unlawful does not prevent the denial of

qualified immunity.” Edwards v. City of Goldsboro, 178 F.3d

231, 251 (4th Cir. 1999) (holding that First Amendment rights of

an off-duty officer communicating about concealed weapons were

sufficiently established by precedent regarding off-duty

officer’s entertainment performances). “Rather, the

unlawfulness must be apparent in light of pre-existing law.”

Trulock v. Freeh, 275 F.3d 391, 400 (4th Cir. 2001).

Turning to the right at issue here—namely First Amendment

expressive rights of public employees—we have expressly held

that “it was clearly established in the law of this Circuit in

September 2009 that an employee’s speech about serious

governmental misconduct, and certainly not least of all serious

misconduct in a law enforcement agency, is protected.” Durham,

23

737 F.3d at 303–04 (citation omitted). As discussed in greater

detail above, in Durham, a police officer claimed he was

terminated in retaliation for speaking out about law enforcement

misconduct. The plaintiff officer wrote a report about an

incident involving the use of force and refused to bow to

pressure to revise the report. After the plaintiff officer sent

written materials including the report to, among others, the

Governor of Maryland, he was fired. We called this situation

“no ordinary workplace dispute” and made clear that “where

public employees are speaking out on government misconduct,

their speech warrants protection.” Id. at 303 (quotation marks

and citation omitted).

In holding that “it was clearly established in the law of

this Circuit” in 2009 that “an employee’s speech about serious

governmental misconduct,” and especially “serious misconduct in

a law enforcement agency, is protected,” Durham, 737 F.3d at

303–04, we relied on Andrew, 561 F.3d at 266–68. In Andrew, we

concluded that an officer had stated a claim under the First

Amendment where he alleged retaliation for releasing to the

media an internal report he had authored questioning a police

shooting and the investigation into the shooting. Id. at 261-

62. As Judge Wilkinson noted in his concurring opinion, it

would be “inimical to First Amendment principles to treat too

summarily those who bring, often at some personal risk, [the

24

government’s] operations into public view.” Id. at 273

(Wilkinson, J., concurring). In Judge Wilkinson’s lyrical

words, “[i]t is vital to the health of our polity that the

functioning of the ever more complex and powerful machinery of

government not become democracy’s dark lagoon.” Id.

Andrew and Durham clearly established that, long before the

December 2011 speech and retaliation at issue here, “speech

about serious governmental misconduct, and certainly not least

of all serious misconduct in a law enforcement agency, is

protected.” Durham, 737 F.3d at 303–04 (citation omitted).

Defendants attempt to make much of the fact that, in both Andrew

and Durham, the plaintiffs had reached out to the news media

(though in Durham, the plaintiff also reached out to others,

including the Governor’s Office). That may be. But nothing in

this Court’s reasoning or broadly-worded holdings in either

Andrew or Durham suggests that that fact was somehow

dispositive. Nothing in either Andrew or Durham stands for the

proposition that only speech to a media organization can qualify

for First Amendment protection. And we agree with Justice

Stevens that it would be “perverse to fashion a new rule that

provides employees with an incentive to voice their concerns

publicly,” Garcetti, 547 U.S. at 427 (Stevens, J., dissenting)—

which is precisely what we would be doing, were we to adopt

Defendants’ position that exposing serious government misconduct

25

to the news media is protected, but exposing that same

misconduct to the Governor’s Office, as in this case, by

definition is not.

In sum, “it was clearly established in the law of this

Circuit” in December 2011 that speech about “serious misconduct

in a law enforcement agency[] is protected.” Durham, 737 F.3d

at 303–04. The district court therefore did not err in denying

qualified immunity to Cook and Bralley on this basis.

III.

In their lone argument on appeal, Plaintiffs contend that

“Bralley was the final decisionmaker with respect to the

employment of the plaintiffs, and that Cook was the final

policymaker of the MPD.” Appellees’ Br. at 47. Accordingly,

per Plaintiffs, the Town of Mocksville is liable for Cook’s and

Bralley’s unconstitutional retaliatory actions, and the district

court erred in holding otherwise and dismissing their claims

against the town. This issue is, however, not properly before

us.

“With a few exceptions not relevant here, this court has

jurisdiction of appeal from ‘final decisions’ only.” Cram v.

Sun Ins. Office, Ltd., 375 F.2d 670, 673 (4th Cir. 1967).

Generally, “a district court order is not ‘final’ until it has

resolved all claims as to all parties.” Am. Petroleum Inst. v.

26

Cooper, 718 F.3d 347, 353-54 n.7 (4th Cir. 2013) (quoting Fox v.

Baltimore City Police Dep’t, 201 F.3d 526, 530 (4th Cir. 2000)).

The district court’s disposal only of Plaintiffs’ claims

against the Town of Mocksville does not constitute a final

judgment. It is, therefore, not generally reviewable. See

Cram, 375 F.2d at 673 (noting that “a summary judgment as to one

of the parties is no exception to the rule” of finality and an

appeal thereof “must therefore be dismissed”).

A potential avenue for appealability nevertheless exists:

Civil Procedure Rule 54(b) “provides a vehicle by which a

district court can certify for immediate appeal a judgment that

disposes of fewer than all of the claims or resolves the

controversy as to fewer than all of the parties.” Fox, 201 F.3d

at 530. Under Rule 54, the district court “may direct entry of

a final judgment as to one or more, but fewer than all, claims

or parties”—but “only if the court expressly determines that

there is no just reason for delay.” Fed. R. Civ. P. 54(b).

Here, however, the record does not reflect that the

district court entered judgment for the Town of Mocksville under

Rule 54. On the contrary, the district court made plain in its

January 2014 order that “final judgment has not been entered as

to any party . . . pursuant to Rule 54.” Hunter, 2014 WL

27

881136, at *2. Accordingly, we must refrain from considering

this issue. 4

IV.

For the reasons explained above, the judgments of the

district court, to the extent they are reviewable at this

juncture, are

AFFIRMED.

4

Had the district court come down the other way on the

issue, moreover, it still would have been unreviewable. See

Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 43 (1995) (holding

that a county commission’s assertion that the sheriff was not

the county policymaker was a defense to liability, not an

immunity from suit, and that denial of summary judgment for the

county commission was thus not immediately appealable).

28

NIEMEYER, Circuit Judge, dissenting:

I would grant qualified immunity to Police Chief Robert

Cook and Town Manager Christine Bralley because it was not

clearly established at the time that Chief Cook fired the

plaintiff-officers that the officers had complained to the North

Carolina Governor’s Office as citizens, rather than as

employees. If the officers had complained as employees, “the

Constitution does not insulate their communications from

employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421

(2006).

In December 2011, Police Officers Kenneth L. Hunter,

Rick A. Donathan, and Jerry D. Medlin of the Mocksville Police

Department in Mocksville, North Carolina, used a disposable

telephone to call the Governor’s Office to anonymously report

perceived corruption and misconduct within the Police

Department, including corruption by Chief Cook, and to request

that an investigation be initiated. Two weeks later, after

Chief Cook allegedly learned of the call and consulted with Town

Manager Bralley, he terminated the three officers’ employment.

The officers commenced this action under 42 U.S.C. § 1983

against Chief Cook, Town Manager Bralley, and the Town of

Mocksville, alleging that the defendants violated their First

Amendment rights by terminating their employment in retaliation

for their exercise of free speech rights in calling the

29

Governor’s Office. They sought compensatory and punitive

damages, reinstatement, and injunctive relief against future

violations of their rights.

On the defendants’ motion for summary judgment, the

district court denied Chief Cook and Town Manager Bralley’s

claim of qualified immunity and granted judgment to the Town of

Mocksville, concluding that the officers failed to state a claim

for municipal liability. Chief Cook and Town Manager Bralley

filed this interlocutory appeal, challenging the district

court’s denial of their qualified immunity, and the officers

cross-appealed the dismissal of their municipal liability claim.

The majority affirms the qualified immunity ruling,

concluding that the officers’ complaint to the Governor’s Office

about departmental misconduct was protected by the First

Amendment because it was clearly established that the officers

were not simply carrying on their “daily professional

activities” but rather were speaking as citizens on a matter of

public concern. But in reaching this conclusion, the majority

fails to identify any controlling precedent that would have

informed Chief Cook and Town Manager Bralley that they were

acting unlawfully in firing the officers for going over their

heads to the Governor’s Office to complain about departmental

misconduct. The question of whether police officers speak as

employees or as citizens when complaining to the Governor’s

30

Office about departmental corruption and misconduct was

undecided in this circuit -- and has remained so before today --

and the proper application of relevant principles is murky at

best. Therefore, the relevant case law was not clearly

established at the time of the defendants’ conduct. In such

circumstances, Chief Cook and Town Manager Bralley are entitled

to qualified immunity, which shields government officials from

suits for damages when acting in their personal capacity unless

(1) they violate a statutory or constitutional right (2) that

was “clearly established at the time of the challenged conduct.”

Lane v. Franks, 134 S. Ct. 2369, 2381 (2014) (quoting Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)) (internal quotation

marks omitted). Accordingly, I would reverse and remand with

instructions to grant Chief Cook and Town Manager Bralley

qualified immunity. ∗

In considering whether a right was clearly established at

the time of the challenged conduct, courts are guided by three

principles. First, “as long as [an official’s] actions could

reasonably have been thought consistent with the rights [he is]

∗

I agree with the majority that we do not have subject

matter jurisdiction to address the officers’ cross-appeal of the

dismissal of their municipal liability claim for failure to

demonstrate that either Chief Cook or Town Manager Bralley was

the final policymaker for the Town.

31

alleged to have violated,” he is entitled to qualified immunity.

Anderson v. Creighton, 483 U.S. 635, 638 (1987). Second, while

an official may be denied qualified immunity without “the very

action in question ha[ving] previously been held unlawful,” id.

at 640, “existing precedent must have placed the statutory or

constitutional question beyond debate,” al-Kidd, 131 S. Ct.

at 2083 (emphasis added). Third, existing precedent is limited

to “the decisions of the Supreme Court, this court of appeals,

and the highest court of the state in which the case arose.”

Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999)

(quoting Jean v. Collins, 155 F.3d 701, 709 (4th Cir. 1998) (en

banc)).

The test for evaluating a First Amendment retaliation claim

is well-established and inquires:

(1) whether the public employee was speaking as a

citizen upon a matter of public concern or as an

employee about a matter of personal interest;

(2) whether the employee’s interest in speaking upon

the matter of public concern outweighed the

government’s interest in providing effective and

efficient services to the public; and (3) whether the

employee’s speech was a substantial factor in the

employee’s termination decision.

McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998). In

Garcetti, the Supreme Court refined the test, making clear 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

32

their communications from employer discipline.” 547 U.S. at 421

(emphasis added). Thus, in the wake of Garcetti, the inquiry

whether an employee was speaking as a citizen is logically

independent from the inquiry whether the employee was speaking

on a matter of public concern. See Lane, 134 S. Ct. at 2378–81

(determining first that the employee’s speech was “speech as a

citizen,” id. at 2378, before turning to whether his speech was

“speech on a matter of public concern,” id. at 2380).

Chief Cook and Town Manager Bralley concede that the law

was clearly established by December 2011 that the officers, when

complaining about criminal misconduct in their department, were

speaking on a matter of public concern and that their interest

in so speaking outweighed the Police Department’s interest in

providing effective and efficient services to the public. They

contend, however, that the officers’ “duties and obligations as

law enforcement officers included the reporting and

investigation of misconduct,” and therefore that the officers

“were speaking as employees rather than citizens” when they

complained to the Governor’s Office about such misconduct in the

Police Department. Recognizing the officers’ argument to the

contrary, Chief Cook and Town Manager Bralley maintain that,

“[a]t a minimum,” the state of the law in this circuit was

unsettled as to whether officers, complaining as these officers

did, speak as employees or as citizens.

33

I agree with the defendants that, as of December 2011, the

law was not clearly established -- nor, indeed, has it been at

any time before now -- that a police officer complaining to the

Governor’s Office of departmental corruption involving his

police chief speaks as a citizen. Given the lack of relevant

authority, it was entirely reasonable for Chief Cook and Town

Manager Bralley to have concluded that the officers were

complaining as employees in the course of their official duties

when making their complaints.

In deciding otherwise, the majority relies on two decisions

-- Andrew v. Clark, 561 F.3d 261 (4th Cir. 2009), and Durham v.

Jones, 737 F.3d 291 (4th Cir. 2013). But those cases only go so

far as to conclude unremarkably that exposing corruption within

a police department is a matter of public concern -- a

proposition with which Chief Cook and Town Manager Bralley

agree. Neither case addresses the independent inquiry of

whether the officers were speaking as citizens when reporting

departmental corruption for investigation.

In Andrew, a police officer alleged that his First

Amendment rights were violated when he was fired for leaking to

the press an internal memorandum that he had written regarding

whether the police department properly handled an investigation

of an officer-involved shooting. Andrew, 561 F.3d at 263. In

an apparent effort to insulate his claim from the argument that

34

he spoke as an employee, Andrew alleged in his complaint

(1) that he “was not under a duty to write the memorandum as

part of his official responsibilities”; (2) that “[h]e had not

previously written similar memoranda after other officer-

involved shootings”; (3) that he “would not have been derelict

in his duties . . . , nor would he have suffered any employment

consequences, had he not written the memorandum”; (4) that the

police commissioner characterized the memorandum as

“unauthorized” and ignored it; and (5) that he was not

responsible for investigating officer-involved shootings and did

not work with or have control over the units that bore that

responsibility. Id. at 264. The defendants replied that

because Andrew was the district commander, he was required to

write reports for all shootings within his district. Id.

at 266-67 & n.1. In reversing the district court’s grant of

qualified immunity, we concluded that “the question whether the

Andrew Memorandum was written as part of his official duties was

a disputed issue of material fact that [could not] be decided on

a motion to dismiss pursuant to Rule 12(b)(6).” Id. at 267

(emphasis added); see also id. (“At this stage of the

proceedings in this matter, we must conclude that there is ‘room

for serious debate’ regarding whether Andrew had an official

responsibility to submit a memorandum . . .”). Thus, in the

context of that factual dispute, Andrew provides no guidance

35

regarding when a police officer speaks as a citizen rather than

as an employee.

Durham is no different. There, we affirmed the district

court’s denial of qualified immunity to a sheriff who fired his

deputy for sending a packet of materials describing corruption

within the sheriff’s office to the media and various state

officials. Durham, 737 F.3d at 294. In doing so, we focused on

whether the deputy sheriff spoke on a matter of public concern

and on whether his interest in speaking outweighed his

employer’s interest in maintaining an effective work

environment. Id. at 298-304. We said nothing about whether the

deputy sheriff had been speaking as a citizen, an issue that the

sheriff never raised in his brief. See Br. of Appellant,

Durham, 737 F.3d 291 (No. 12-2303), 2013 WL 551533 (arguing

exclusively that the materials did not pertain to a matter of

public concern and that the interest of the sheriff’s office in

maintaining an efficient and effective law enforcement agency

outweighed any interest that the deputy sheriff claimed in

disseminating the materials).

Not only did Andrew and Durham not address whether police

officers speak as citizens when reporting corruption to a state

agency, but the facts of those cases also render them decidedly

distinguishable from the case before us. Whereas the terminated

officers in those cases had leaked information to members of the

36

media, either exclusively (Andrew) or in tandem with a

distribution to a broad spectrum of public officials (Durham),

the terminated officers in this case reported the corruption

exclusively to a single governmental agency that could have been

thought to have supervisory or investigatory responsibility over

the Police Chief and the Town Manager. In light of this factual

distinction, it can hardly be said that existing precedent

“placed the . . . constitutional question beyond debate,” al-

Kidd, 131 S. Ct. at 2083 (emphasis added).

The majority maintains that it would be “perverse” to hold

that employee speech regarding serious governmental misconduct

is protected when made publicly but not when made to the

Governor’s Office. Ante, at 25 (quoting Garcetti, 547 U.S.

at 427 (Stevens, J., dissenting)) (internal quotation marks

omitted). Maybe so, but that is not the proper inquiry.

Rather, the question is whether Durham and Andrew made it such

that a reasonable official would have understood that the

individual defendants’ conduct violated the plaintiffs’ First

Amendment rights. See Owens v. Balt. City State’s Attorney’s

Office, 767 F.3d 379, 398 (4th Cir. 2014), cert. denied, No. 14-

887, 2015 WL 275612 (U.S. Apr. 27, 2015). To the extent that

our prior case law suggested that a law-enforcement officer

speaks as a citizen when reporting corruption and misconduct to

the media for publication, it would not necessarily have been

37

apparent to a reasonable official that such an officer speaks as

a citizen when making such a report to a governmental agency for

investigation.

“Officials are not liable for bad guesses in gray areas;

they are liable for transgressing bright lines.” Maciariello v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Here, not only was

there no authority in this circuit holding that the defendants’

conduct was unlawful, but also there was no precedent regarding

when a police officer speaks as a citizen rather than as an

employee. Thus, Chief Cook and Town Manager Bralley were left

to speculate about and guess whether terminating the employment

of Officers Hunter, Donathan, and Medlin would violate their

First Amendment rights. Because those public officials are not

liable for incorrect guesses, I would grant them qualified

immunity and reverse the district court’s ruling denying that

immunity.

38