Gustafson, Rod v. Arreola, Philip

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-3557 and 00-4020

Rod Gustafson and Javier Cornejo,

Plaintiffs-Appellees,

v.

Arthur Jones and Philip Arreola,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 94-C-1392--Aaron E. Goodstein, Magistrate Judge.

Argued May 15, 2001--Decided May 17, 2002

Before Ripple, Manion, and Diane P. Wood,

Circuit Judges.

Diane P. Wood, Circuit Judge. This is

the second time we have been asked to

consider the legal ramifications of

certain actions that then-Chief of Police

of the Milwaukee Police Department Philip

Arreola, and then-Deputy Inspector Arthur

Jones, took in November 1993 with respect

to Officers Rod Gustafson and Javier

Cornejo. In our first opinion, Gustafson

v. Jones, 117 F.3d 1015 (7th Cir. 1997)

(Gustafson I), we concluded that the

officers had stated a claim for

retaliation in violation of their First

Amendment rights that was not subject to

dismissal on qualified immunity grounds.

That part of the case was remanded for a

trial, which took place in January 2000.

The result was a jury verdict in favor of

Gustafson and Cornejo, awarding each

$10,000 in compensatory damages and

$180,000 in punitive damages. Jones and

Arreola have now appealed from the

adverse verdicts. Bearing in mind the

deference we owe to the jury’s resolution

of the contested factual issues, we

affirm.

I

Because the background facts became

clearer at the jury trial, and because

some information that was merely assumed

for purposes of the Rule 12(c) judgment

on the pleadings was clarified, we think

it important to restate the facts in

light of the full record now before us.

During the summer of 1993, the Milwaukee

Police Department was concerned that it

lacked the resources to respond

adequately to the increased number of

service calls that typically occur during

the warmer time of the year. In an effort

to address that problem, it instituted a

policy under which officers assigned to

the elite Tactical Enforcement Unit (TEU)

would be split into two groups during

their shifts. Some were designated as so-

called "490" units, whose job would be to

patrol designated districts and respond

to service calls relayed through the

district dispatchers. The others would

retain their usual TEU designation as

"700" units and perform normal TEU

duties.

Prior to July 13, 1993, TEU officers

assigned to 490 duty were permitted to

take themselves off patrol duty to

conduct follow-up investigations of

crimes they had previously begun to work

on, if two prerequisites were met: first,

they had to have permission from their

TEU supervisors, and second, they had to

notify the appropriate district dispatch

er of their plans. All of that changed on

the night of July 13, and it is that

change whose character governs the

outcome of this suit. On the night of

July 13, 1993, Jones was on duty as the

"Field Deputy Inspector," which meant

that he was in charge of the entire

department. Cornejo and Gustafson were

officers assigned to the TEU and they

were working as partners on the night

shift, 7:00 p.m. to 3:00 a.m. At roll

call, they were designated squad 493 and

assigned to patrol District III. They

arrived in District III at approximately

8:15 p.m. Within minutes they were

flagged down by Lois McDougal, a woman

who a week earlier had reported to

Gustafson that she and her family had

been held at gunpoint by a 12-year-old

member of the Vice Lords gang named

Sidney. McDougal stopped the officers in

order to report that her son had since

told her that Sidney fired ten shots at

him in an incident that occurred around

July 1. McDougal then provided the

officers with a number of addresses at

which her son indicated Sidney might be

found.

Following standard follow-up

investigation protocol, Gustafson used

his low-frequency radio to contact his

TEU supervisors Sergeant William

Skurzewski and Sergeant Gerald Filut and

explained the situation. Skurzewski and

Filut cleared Cornejo and Gustafson to

conduct a follow-up investigation of

Sidney provided they received clearance

from the District III dispatcher. As

instructed, the officers then contacted

the dispatcher, who also cleared them to

look into McDougal’s information. Because

of heavy rains, there were very few calls

that evening. The officers visited

several addresses and conducted

interviews between 8:30 and 9:45 p.m.

Each time they changed locations, they

contacted the dispatcher and their TEU

supervisors as required.

Shortly before 10:00 p.m., Gustafson and

Cornejo arrived at 2453 W. Brown Street.

This turned out to be Sidney’s house,

although only his mother was home. Once

the officers explained why they were

looking for Sidney, his mother became

concerned that Sidney might hurt someone

or himself and permitted the officers to

search Sidney’s room for the gun he

reportedly had been wielding. Sidney’s

mother informed the officers that Sidney

would arrive home at around 11:00 p.m.

and asked that they return and arrest him

before he hurt someone. The officers

agreed that they would return if they

were not called away to another

assignment. They left the house at

approximately 10:15 p.m.

When they returned to their squad car,

Gustafson and Cornejo received a call

from the District III dispatcher telling

them to go on a side channel to talk to

squad 123 from the Detective Bureau. At

the same time, squad 713 called them on

the low-band radio. Both calls were about

the same incident; squads 123 and 713

were working an attempted homicide that

Cornejo had worked on a week earlier.

Squad 713 requested that Gustafson and

Cornejo join them in District VII. The

officers proceeded to a secure call box

to explain their situation to the

dispatcher.

As Cornejo got out of the car to use the

call box, Gustafson got a call from

Deputy Inspector Jones, squad 197.

Without explanation or inquiry into the

nature of their situation, Jones directed

Gustafson to "discontinue the follow-up

investigation and only take assignments

from the dispatcher. The dispatcher

relayed the same directive from Jones to

Cornejo through the call box.

The officers were surprised at the

no-questions-asked order, but they

complied with it and returned to regular

patrol status. They were particularly

concerned that they could not continue

with the Sidney investigation. Given what

they had learned about Sidney and the

dangers he posed, they were afraid that

dropping their effort to arrest Sidney

that night might put the community at

risk and might expose them to potential

departmental discipline or legal

liability should Sidney injure someone.

Gustafson and Cornejo requested that

squad 713 follow up the Sidney

investigation for them, but the officers

in that squad refused, saying they

understood Jones’s order to be a clear

directive to abandon the investigation.

At 11:47 p.m., Skurzewski and Filut

contacted Gustafson and Cornejo and set

up a meeting in District III. At the

meeting, the officers asked the sergeants

to follow up the Sidney investigation,

but they too declined, explaining that

they had been "chewed out" by Jones, that

his order was clear, and that he had even

directed Skurzewski to issue an order at

roll call that 490 squads in the future

were not to engage in follow-up

investigations without Jones’s express

permission. This order represented a

substantial departure from established

follow-up protocol.

Jones later testified that the revised

protocol was necessary to overcome the

resistance of TEU officers to doing

regular patrol. He issued the command to

Gustafson and Cornejo on the night of

July 13 because he considered the fact

that they had spent the first two hours

of their shift doing follow-up to be an

act of resistance to Arreola’s "rapid

response" program, even though he had no

knowledge of the nature of the follow-up

they were conducting, nor did he

apparently take into account the fact

that they had received proper

departmental authorization for every step

they had taken. To the contrary,

according to Skurzewski and Filut, Jones

issued his "no follow-up" roll call order

even after learning from the sergeants

that Cornejo and Gustafson had been on

the trail of a potentially armed suspect

who had already fired on citizens on an

earlier occasion and that they had

properly cleared their investigation with

the dispatcher and their supervisors.

Following their shift, Gustafson and

Cornejo returned to the Department.

Everyone in the TEU was talking about

Jones’s order to the officers and his

roll call order. Supervisors and officers

alike were confused and concerned about

the implications of Jones’s actions. The

TEU officers were concerned that the roll

call order put them in an untenable

position. They were duty-bound to do

proper follow-up investigations, and

follow-up of some kind was

frequentlynecessary. Despite that, they

now understood that in every case they

would be required to obtain express

permission to perform follow-up work from

a deputy inspector, who would likely not

always be reachable. As Sergeant Michael

Kuspa, one of the TEU supervisors on duty

that night put it, officers feared the

order "would cause problems with initial

investigation in that . . . there was a

need to call the deputy inspector who if

he was not working or we were unable to

get ahold of him, if there was a need for

immediateinvestigation to continue, we

would not be able to provide that."

The level of confusion and concern about

Jones’s initial order was sufficiently

great that the next day the TEU’s

commanding officer, Lieutenant Ronald

Rebernick, went over Jones’s head to

discuss it with Inspector Thomas Harker.

Acknowledging that the order was overly

restrictive, Harker permitted Rebernick

to modify it somewhat. The new order

prohibited 490 squads only from engaging

in "self-initiated" follow-ups without

first contacting their supervisors.

This revised order left both the

sergeants and the officers as confused as

ever. Gustafson and Cornejo remained par

ticularly concerned. Their follow-up

investigation was the result of being

flagged down by a citizen. Was this

"self-initiated"? Was it "self-

initiated" if they asked for both the

supervising sergeants’ and area

dispatcher’s permission before they

undertook it? And what about the

Department regulations requiring timely

and complete follow-up? Even under the

revised order, no follow-up could be

conducted without express permission from

Jones. What were the officers to do at

times when Jones could not be reached?

Gustafson testified that he and Cornejo

were also concerned that according to the

order "the tactical 400 cars that were

supposed to be patrol cars were not

allowed to operate like all the other

patrol cars in the district, . . . we

were just supposed to drive around and

take assignments from the dispatcher."

The officers approached their sergeants

with all these concerns, as well as with

their particular concern about the

implications of having prematurely

abandoned the Sidney investigation. What

if Sidney had shot someone that night?

Among other concerns, Gustafson, Cornejo,

and their sergeants were aware that just

over a year earlier two patrol officers

were fired after failing to properly

follow up on information suggesting

criminal conduct by Jeffrey Dahmer--a

failure that the Department determined

contributed to Dahmer’s grisly murder of

a boy. (See Balcerzak v. City of

Milwaukee, 163 F.3d 993 (7th Cir. 1998)

(upholding summary judgment in favor of

Chief Arreola and the Milwaukee Board of

Fire and Police Commissioners on claims

brought by two officers who were

disciplined for their failure properly to

investigate Dahmer’s conduct in 1991 with

respect to one of his victims).) Their

sergeants and Lieutenant Rebernick said

there was nothing they could do about the

Sidney investigation or the problems

created by Jones’s roll call order. As

one TEU sergeant testified, Rebernick

informed the officers "there was nothing

more to add. . . . The officers were to

follow [the order]."

Having consulted their superiors without

success, and still concerned about the

untenable position that Jones’s order put

them in, Gustafson and Cornejo went to

see the president of their union, Bradley

DeBraska, "to get some answers."/1 They

took with them their notebooks and a sup-

plemental investigation report on the

Sidney incident that they had prepared

after their July 13 shift. That report

explained what they had learned through

their investigation and stated that they

broke off the investigation under unusual

circumstances after receiving an order

from Deputy Inspector Jones. Gustafson

and Cornejo gave these materials to

DeBraska and explained their various

concerns.

After hearing out Gustafson and Cornejo,

DeBraska informed them that he would do a

"complete investigation" into their

allegations and that if they had merit he

would not only write a letter to Chief

Arreola, but he would send the letter to

local elected officials and the Milwaukee

press. As Gustafson testified, that

letter was to contain "[our] concerns

that we had been limited in doing our

investigation, and that the order

contradicted several department rules and

regulations. Although the officers were

uncomfortable with the idea of going

public, DeBraska convinced them that

permitting him to go public with their

concerns was the only way the officers

could protect [themselves] from any of

these things happening, department

repercussions, [and] criminal/civil

liability, in the event that Sidney hurt

someone.

On July 21, 1993, DeBraska sent Arreola

a two-page letter criticizing Jones’s

roll call order. The letter alleged that

the order "contravenes a number of

Milwaukee Police Department Rules and

Regulations and Standard Operating

Procedures" as well as the overall law

enforcement objective of the Department.

DeBraska expressed "confusion" regarding

the expectations for members given the

Department’s past terminations of

officers who did not adequately follow up

investigations. As an example of the kind

of problem created by the order, DeBraska

described the Sidney investigation and

suggested it represented a willingness by

the Department to "discontinue an

investigation of a serious offense, even

where a known suspect was about to be ar

rested." The letter did not identify

Gustafson, Cornejo, or Sidney, referring

instead only to Sidney’s alleged conduct

and the scope of the investigation. The

letter closed with a request that Arreola

revoke the roll call order, or at a mini

mum that he "obtain a legal opinion from

the Attorney General" regarding officers’

potential criminal liability for failing

to investigate pursuant to that order and

that the Department agree to hold

officers harmless for any civil

liability.

As he said he would, DeBraska sent

copies of his letter to local elected

officials and the press. In response,

eight alderpersons signed a letter

questioning the wisdom of Jones’s order

and suggesting that it be repealed. At

trial, Alderwoman Suzanne Breier, one of

the letter’s signatories, testified that

the order particularly concerned her

because even at that time Jones, who had

since replaced Arreola as Chief, "tried

to do what he felt like doing and got

away with it" and that in this case the

order appeared to impose an unwarranted

limitation on the investigation of

serious criminal activity and thus placed

Milwaukee’s citizens at an unacceptable

risk: "I have to say that when someone is

investigating something as serious as

[the Sidney incident], obviously the only

thing worse is to have a death . . . and

I certainly would not want [the

investigation] handled that way if it did

happen in my district. That puts everyone

in danger as far as I am concerned."

On July 22, 1993 both the Milwaukee

Journal and the Milwaukee Sentinel ran

articles under similar headlines, "Police

union questions rule on follow-ups" and

"Police union objects to order." The

letter and both articles identified the

order as having issued from Jones.

Arreola responded to the alderpersons’

letter and the newspaper articles by

instructing Inspector Harker to look into

the roll call order and the events of

July 13. Captain August Tjaaland was

given the task of gathering information.

He instructed Skurzewski and Filut to

file a report on the incident. They

interviewed Gustafson and Cornejo.

Neither sergeant could find any evidence

that the officers had violated any

departmental rules or orders the night of

July 13. Similarly, in reviewing the

sergeants’ report, Tjaaland found no

evidence of any rule or order violations.

Tjaaland’s investigation resulted in a

letter on July 23 from Arreola to the

Alderpersons explaining the order and re

assuring them that it merely reflected a

resource allocation decision. Initially,

it thus appeared that neither Gustafson

nor Cornejo would ever receive so much as

a verbal reprimand for their actions on

the night of July 13. To the contrary,

the investigation revealed only that they

had played everything by the book.

Following the publication of the

articles and Arreola’s reply letter,

everything remained normal in the TEU. No

one, including the Department’s Deputy

Chief Koleas, testified to noticing any

morale, disciplinary, or performance

problems following the public disclosure

of Jones’s order, the evident public

interest it had generated, and the

general descriptions of the Sidney

investigation. Koleas testified that he

had no indication that the incident had

any negative effect on morale, and that

he had "no indication that it affected

[the Department’s] efficiency." He had no

problems with either Gustafson or Cornejo

following the incident, and there was no

evidence that the publicity impaired the

Department’s investigation and ultimate

arrest of Sidney or any other criminal

suspect (Gustafson arrested Sidney on

August 10, 1993). Lieutenant Rebernick

testified that following the publication

of the articles, there were no unusual

disciplinary problems in the unit and

that he had no knowledge of any member of

the TEU who was less likely to follow or

obey an order issued by Deputy Inspector

Jones. Both Gustafson and Cornejo

remained "very competent" officers and

their actions had "no impact whatsoever"

on how the unit "functioned and conducted

its activity." Similarly, Sergeant Kuspa

testified that following the publication

of the information, the unit returned to

"business as usual." No tactical officer

was any less inclined to obey an order

from Deputy Inspector Jones and both

Gustafson and Cornejo remained

"outstanding officers."

Because everything had been going so

smoothly and neither Gustafson nor

Cornejo had received anything other than

positive performance reviews following

the July 13 incident and the July 22

newspaper publications, members of the

TEU--officers and supervisors alike--were

stunned when nearly four months later, on

November 12, Gustafson and Cornejo were

involuntarily transferred from the TEU.

Typically, officers left the TEU only if

they sought a transfer or if they engaged

in misconduct. Gustafson and Cornejo had

not sought the transfer and they had not

been formally disciplined for anything,

much less something that would have

merited a transfer. When they asked the

TEU’s new commanding officer, Captain

Bialk, why they were being transferred,

he told them it was "for the good of the

unit." In fact, as Bialk later admitted

at trial, the two were transferred

because Jones was embarrassed by the

newspaper articles questioning his order.

According to Bialk, Jones had been

talking to him for months on almost a

weekly basis about his desire to transfer

Gustafson and Cornejo.

When the involuntary transfer order came

down, both Bialk and Rebernick objected

to Jones and Arreola that Gustafson and

Cornejo were outstanding officers, that

there had been no problems in the TEU

since June, and that they ought not to be

transferred. The transfers occurred

nonetheless, and the TEU’s morale

suffered as a result. There had been

indirect threats from Arreola and Jones

immediately following the publication of

the articles that if the leaks to the

press did not cease they would disband

the entire TEU, but the officers assumed

that by November the storm had passed.

Following their transfer, Gustafson and

Cornejo repeatedly applied to be

reassigned to the TEU. They regularly

were ranked at the top of the list for

assignment to the TEU and yet each time

they were passed over for other officers

ranked below them. At the time this case

went to trial they continued to be barred

from the unit. With no other relief in

sight, they sued.

II

Gustafson and Cornejo’s theory of their

case was that Jones and Arreola

transferred them and continued to prevent

them from returning to the TEU in

retaliation for engaging in speech

protected by the First Amendment. At

trial, Jones and Arreola both denied that

the speech in question had anything to do

with the transfer and also downplayed the

significance of the speech.

Significantly, they did not suggest that

the speech related only to purely

internal police department affairs and

thus did not rise to the level of a

matter of public concern.

Jones testified that he approached

Arreola about transferring Gustafson and

Cornejo on July 15 because he believed

the officers had disobeyed orders and

resisted their patrol assignment the

night of July 13. He also testified that

he was upset because he thought that the

language in Gustafson’s supplemental

investigation report showed a disrespect

for Jones’s authority. Nevertheless,

Jones conceded that the only discipline

that could properly have been taken in

response to an infraction related to

disrespect was "remedial," "talking with

the officers . . . tell them it was

inappropriate." When asked about the

articles, Jones denied that it was even

possible that they had anything to do

with his recommendation to transfer the

officers, for the simple reason that they

were published well after he approached

Arreola. He testified he had no idea that

the information in those articles stemmed

from Gustafson and Cornejo, or that they

had spoken to their union. He even denied

being aware that Gustafson and Cornejo

had spoken about his order to other TEU

officers and TEU supervisors. Finally, he

testified that he was not at all

embarrassed by the newspaper articles.

Notably absent from Jones’s testimony

was any indication that he had, or even

feared, any difficulty with discipline in

the TEU following Gustafson and Cornejo’s

internal and public complaints about his

order. There was similarly no testimony

that Gustafson, Cornejo, or any other TEU

officer was resistant to his orders or

showed any less respect for the

Department’s managerial hierarchy between

July 22 and November 12, when the

officers were transferred. Jones did not

testify to any actual or anticipated

problems with morale, nor did he indicate

that the articles in any way inhibited

the Sidney investigation or any other

ongoing investigation.

Chief Arreola’s defense at trial was

that he merely rubber-stamped the formal

recommendation he received to transfer

Gustafson and Cornejo. He testified that

he had no knowledge that the two officers

took information to DeBraska or even that

they complained to other TEU officers and

supervisors about Jones’s order. With

respect to the letters from DeBraska and

the alderpersons, Arreola testified that

he frequently received such letters and

that he simply routed them to other

administrators for review. He testified

that he could not recollect having read

the report prepared by Captain Tjaaland

documenting the events of July13 and that

he had no role in drafting the letter re

sponding to the alderpersons. He denied

that the newspaper articles either

angered or embarrassed him because such

criticism was a regular occurrence.

According to Arreola, the whole affair

"was not a significant event in any

mind."

Like Jones, Arreola did not testify to

any particular impact that the articles

either had or that he thought they might

have on the Department. Upon reviewing

the information at trial he stated that

the disclosure of a Department order,

other than through the Department’s

Public Information Bureau, would be a

violation of Department rules but "in a

technical sense." He also testified that

the disclosure of information from an

ongoing felony investigation report

"could be detrimental" to "the successful

conclusion, if you will, of an ongoing

investigation." Arreola, however, offered

no testimony with respect to how he

perceived the particular disclosures made

by Gustafson and Cornejo. There is no

evidence that he at any time feared that

the articles compromised the Sidney

investigation, much less that they

actually did so. He also offered no

testimony suggesting that the articles

critical of Jones’s order undermined

discipline or morale in the Department or

the TEU. Again, Arreola testified that he

considered the publicity surrounding the

incident to be nothing unusual.

Similarly, he did not suggest that the

publicity around Jones’s order either

made, or risked making, the TEU patrol

squad program less effective in carrying

out its mission.

In the end the jury chose not to believe

Jones’s and Arreola’s claims that they

were either ignorant of, or not concerned

about, Gustafson and Cornejo’s speech

when they decided to transfer them and

returned a verdict in favor of the

officers. Whether or not we may find the

commanding officers’ accounts plausible,

it was unquestionably the jury’s

prerogative to decide whose version of

the entire incident to credit. After the

verdict, Jones and Arreola moved for

judgment as a matter of law or for a new

trial, in the alternative; the court

denied both motions. In this appeal, they

do not challenge the jury’s conclusion

that they caused the officers to be

transferred and kept out of the TEU

because of their speech, nor do they

challenge the jury’s finding that absent

the speech the officers would not have

been transferred. Instead, Jones and

Arreola contend that the district court

erred in concluding as a matter of law

that the officers’ speech was protected

from punishment by the First Amendment

and that they were not entitled to

qualified immunity. The trouble for Jones

and Arreola is that they must live with

the evidentiary record they created at

trial, and on that record we can only

affirm the district court’s ruling.

III

Whether a government employee’s speech

is protected by the First Amendment is a

question of law that the district court

properly withheld from the jury, even

though it may have required predicate

factual determinations. Biggs v. Dupo,

892 F.2d 1298, 1300 n.1 (7th Cir. 1990).

Although our review of the court’s legal

conclusions is de novo, we review the

record as a whole, and we will accept the

district court’s conclusions of

historical fact unless they are clearly

erroneous. Falanga v. State Bar of

Georgia, 150 F.3d 1333, 1335 (11th Cir.

1998) (disputes of constitutional fact,

as opposed to historical fact, reviewed

de novo); Ezekwo v. New York City Health

& Hosps. Corp., 940 F.2d 775, 780 (2d

Cir. 1991) (applying clearly erroneous

standard to factual determinations in

First Amendment retaliation case); Rankin

v. Independent School Dist. No. I-3, 876

F.2d 838, 842 (10th Cir. 1989)

(historical facts reviewed under

"traditional standard of review"). Cf.

Ornelas v. United States, 517 U.S. 690,

699 (1996) (requiring clear error review

of historical facts in Fourth Amendment

context). With respect to those issues

decided by the jury and not relevant to

the question whether the employees’

speech was entitled to First Amendment

protection, we view the facts in the

light most favorable to the jury’s

verdict. Taylor v. Carmouche, 214 F.3d

788, 791 (7th Cir. 2000).

There are four elements to a First

Amendment retaliation claim in the

employment context. First, the plaintiffs

must prove that their speech was a matter

of public concern. Next, they must prove

that their speech played at least a

substantial part in the employer’s

decision to take an adverse employment

action against them. If the plaintiffs

can carry their burden on these two

elements, the defendants can only prevail

if they prove by a preponderance of the

evidence that the government’s interest,

as an employer, in efficiently providing

government services outweighs the

employees’ First Amendment interests, or

if they can prove that they would have

disciplined the employees even in the

absence of the speech. Klunk v. County of

St. Joseph, 170 F.3d 772, 775 (7th Cir.

1999). See also Hellstrom v. United

States Dep’t of Veterans Affairs, 201

F.3d 94, 97 (2d Cir. 2000).

Because the jury’s verdict has not been

challenged, the only three questions

before us are (1) Did the officers’

speech touch on a matter of public

concern? (2) If so, did Jones and Arreola

carry their burden of demonstrating that

their interests as employers outweighed

the officers’ interests in speaking out

on this matter of public concern? (3)

And, even if the speech was protected,

was that fact sufficiently well

established in November of 1993 to

deprive the defendants of qualified

immunity? Applying the line of cases that

began with Pickering v. Board of

Education, 391 U.S. 563 (1968), we

conclude that the district court properly

answered all three questions in favor of

Gustafson and Cornejo.

A. Matter of Public Concern

Whether a government employee’s speech

addresses a matter of public concern

depends upon "the content, form, and

context of [the speech] as revealed by

the whole record." Connick v. Myers, 461

U.S. 138, 147-48 (1983). Of these three

factors, content is most important.

Button v. Kibby-Brown, 146 F.3d 526, 529

(7th Cir. 1998); Marshall v. Porter

County Plan Comm’n, 32 F.3d 1215, 1219

(7th Cir. 1994); Belk v. Town of

Minocqua, 858 F.2d 1258, 1264 (7th Cir.

1988). The "public concern" element is

satisfied if the speech can fairly be

said to relate to a matter of political,

social, or other concern to the

community, rather than merely a personal

grievance of interest only to the

employee. Connick, 461 U.S. at 146.

Gustafson and Cornejo contend on appeal

that we need not reach the merits of this

issue because we previously held that

their speech was on a matter of public

concern in Gustafson I. The decision

there, they suggest, creates binding law

of the case. What we said, however, was

that "[b]earing in mind that we are just

evaluating the pleadings, we find that

the plaintiffs adequately alleged both

the content of their speech and the

defendants’ awareness of it." 117 F.3d at

1018. We similarly emphasized the fact

that our conclusions were based on the

pleadings when we discussed the "public

concern" element specifically. Id. Given

the fact that the disposition of this

issue must rest upon all relevant aspects

of the speech, we conclude that we have

an obligation to revisit this issue in

light of the full record. See, e.g.,

Connick, 461 U.S. at 148. See also

Kokkinis v. Ivkovich, 185 F.3d 840, 844

(7th Cir. 1999) (legal question requires

that we "delve deeper into the precise

content, form, and context of speech");

Campbell v. Towse, 99 F.3d 820, 827 (7th

Cir. 1996) (public concern determination

made based on "record as a whole").

Although the final record differs in

some respects from the details of the

pleadings, it is the evidence at trial

that controls. Looking at that record in

its entirety, we conclude once again that

the officers’ speech was on a matter of

public concern. Indeed, it would require

some mental gymnastics to see it

otherwise, given the high level of public

interest this incident commanded in the

Milwaukee press and among its elected

officials--although we address the

relevance of that outside interest in a

moment. With respect to content, we have

long recognized that "[i]t would be

difficult to find a matter of greater

public concern in a large metropolitan

area than police protection and public

safety." Auriemma v. Rice, 910 F.2d 1449,

1460 (7th Cir. 1990) (en banc). More

specifically, "[i]ssues involving proper

allocation of police patrols and other

departmental resources . . . are

questions of serious public import."

Campbell, 99 F.3d at 828. Such issues

undoubtedly "benefit from a full airing

in the public marketplace of ideas and

opinions." Id.

In this case, Gustafson and Cornejo

spoke directly to their fellow officers

and their union president about Jones’s

direct order to suspend further

investigation into Sidney’s whereabouts

and his general order limiting follow-up

investigations by TEU officers on patrol

assignments; those reports in turn were

passed along to the press and local

elected officials. As we said in our

earlier opinion, "[t]his was not speech

about merely personal matters; it related

to how police investigations are to be

conducted, and what kind of balance

between individual officer initiative and

central control was to be struck."

Gustafson I, 117 F.3d at 1019. Although

evidence of actual public interest is not

dispositive of whether speech is on a

matter of public concern, the fact that

the press and elected officials took such

a keen interest in Jones’s orders is

certainly relevant to the issue. See

Auriemma, 910 F.2d at 1460. Alderperson

Breier’s testimony at trial reflected the

community’s concern about the possibility

that Jones’s orders might needlessly lead

to dangerous suspects like Sidney evading

capture, thereby "put[ting] everyone in

danger," as she expressed it.

On appeal, Jones and Arreola do not

contest that the content of the speech

was of interest to the public. (Their

tentative suggestion that Gustafson and

Cornejo were "recklessly indifferent" to

the accuracy of the information they gave

to DeBraska is neither supported by any

fair reading of the record, much less one

favorable to the officers, nor is it

relevant to the question whether the

issue was a matter of public concern).

Having conceded content, Jones and

Arreola face a difficult task. They turn

instead to the second step of the

Pickering analysis and argue that this is

a case in which the context of the speech

should trump its content. They urge us to

read the record to show that Gustafson

and Cornejo’s speech was motivated by

their frustration with the department’s

decision to have TEU officers perform

district patrol duty and by their fear

that they might suffer departmental or

legal consequences if Sidney committed

some crime while at large. These

motivations, appellants argue, are

"purely personal" and thus the speech

cannot be considered to have been on a

matter of public concern. After an

exhaustive review of the record, however,

we find that this argument is not

supported by the facts, nor is it

persuasive on the law.

As a legal matter, while motive is

relevant to the "matter of public

concern" inquiry, we have consistently

held that it is not dispositive. See,

e.g., Button, 146 F.3d at 529; Campbell,

99 F.3d at 827; Cliff v. Board of Sch.

Comm’rs of Indianapolis, 42 F.3d 403, 409

(7th Cir. 1994). Motive matters to the

extent that even speech on a subject that

would otherwise be of interest to the

public will not be protected if "the

expression addresses only the personal

effect upon the employee," Marshall, 32

F.3d at 1219 (emphasis added), or if the

only point of the speech was "to further

some purely private interest." Kokkinis,

185 F.3d at 844 (officer’s public

comments on sex discrimination in depart

ment were not protected where his sole

motivation was to further a personal

vendetta against police chief). We

emphasize the word "only" because, while

speech that is only motivated by private

concerns may not be protected, "[a]

personal aspect contained within the

motive of the speaker does not

necessarily remove the speech from the

scope of public concern." Greer v.

Amesqua, 212 F.3d 358, 371 (7th Cir.

2000) (quoting Marshall, 32 F.3d at

1219). See also Cliff, 42 F.3d at 410;

Button, 146 F.3d at 529. Thus, even if

Gustafson and Cornejo were advancing some

private interests when they raised

concerns about Jones’s orders, their

claim survives as long as they also

intended to bring to light what they

believed to be the negative law

enforcement consequences of the new

policy. The jury so found, and there is

ample evidence in the record to support

this conclusion.

When Gustafson and Cornejo talked to the

other TEU officers and then with

DeBraska, they were worried about

potential departmental and legal

penalties if Sidney committed some new

crime, but their testimony makes clear

that they were also concerned about the

fact that Jones’s order would thwart both

their efforts to get a dangerous suspect

off the streets and the department’s

efforts in such cases more generally. It

is telling in that connection that their

complaints to DeBraska about Jones’s

orders and the fact that Sidney was able

to avoid capture conveyed the concerns of

many of their fellow TEU officers that

Jones’s roll call order would force

officers to abandon future investigations

involving time-sensitive information and

potentially dangerous suspects.

Contrary to Jones and Arreola’s

assertions on appeal, this is not a case

like Kokkinis. In that case, an officer

with a personal grudge against his

supervisor took advantage of a sex

discrimination complaint he knew nothing

about to embarrass his supervisor in the

press. Gustafson and Cornejo had

personally experienced the consequences

of Jones’s orders, they had discussed

them with their fellow officers and

supervisors, and they had real and

legitimate concerns about the effect of

the orders on the ability of TEU officers

to carry out their law enforcement

duties. Unlike in Kokkinis, there was no

evidence of a malicious motive, and Jones

testified that the public knowledge of

his order did not embarrass him. Based on

the content of the speech, the public’s

demonstrated interest in the issues

raised by the speech, and the context

within which Gustafson and Cornejo spoke,

we agree with the district court that the

speech touched on a matter of public

concern.

B. Pickering Balancing

Even if an employee’s speech is on a

matter of public concern, a government

employer is entitled to restrict that

speech if it can carry its burden of

proving that the interest of the public

employee as a citizen in commenting on

the matter is outweighed by the interest

of the state, as employer, in promoting

effective and efficient public service.

See Pickering, 391 U.S. at 568; Waters v.

Churchill, 511 U.S. 661, 675 (1994). The

stronger the employee’s interest in

speaking, the more substantial a showing

the state must make to justify its

restriction of that speech. Waters, 511

U.S. at 675.

Pickering contemplates a highly fact-

specific inquiry into a number of

interrelated factors: (1) whether the

speech would create problems in

maintaining discipline or harmony among

co-workers; (2) whether the employment

relationship is one in which personal

loyalty and confidence are necessary; (3)

whether the speech impeded the employee’s

ability to perform her responsibilities;

(4) the time, place, and manner of the

speech; (5) the context within which the

underlying dispute arose; (6) whether the

matter was one on which debate was vital

to informed decision-making; and (7)

whether the speaker should be regarded as

a member of the general public. Greer,

212 F.3d at 371.

Pickering balancing is not an exercise

in judicial speculation. While it is true

that in some cases the undisputed facts

on summary judgment permit the resolution

of a claim without a trial, that means

only that the Pickering elements are

assessed in light of a record free from

material factual disputes. Here, after

the trial, we must conduct this inquiry

in light of the full record viewed in the

light most favorable to the jury’s

verdict. This is precisely what the

Supreme Court did in Connick, where its

Pickering analysis looked to the actual

testimony of the employee’s supervisor

regarding the potential impact of the

employee’s speech and then evaluated the

other evidence in the record to determine

whether it supported the employer’s

fears. 461 U.S. at 150-54. We are not

entitled to speculate as to what the

employer might have considered the facts

to be and what concerns about operational

efficiencies it might have had, once the

record shows what those concerns really

were. To put the point another way, this

is not like "rational basis" review of

state legislation, under which it is

enough to imagine any rational

underpinning for the law the legislature

chose to enact. First Amendment rights

cannot be trampled based on hypothetical

concerns that a governmental employer

never expressed.

This court, in Jungels v. Pierce, 825

F.2d 1127 (7th Cir. 1987), reversed a

district court’s 12(b)(6) dismissal of a

First Amendment retaliation claim because

its conclusion that the employee’s speech

could have unduly interfered with the

mission of his employer was based solely

on "speculation." Id. at 1132. We held

that while it was "plausible" that the

employee’s speech properly could have

been sanctioned, the dismissal could not

be sustained because "[no] substantial

showing" had been made indicating the

disruptive potential of the speech. Id.

Likewise in Kokkinis, we sustained a

grant of summary judgment in favor of the

employer only after finding that

"[e]vidence in the record . . . reflects

that Mr. Kokkinis’ statements caused

embarrassment to his superiors and co-

workers and that his relationships with

them deteriorated." On this basis we

found the chief of police’s testimony

that he thought Kokkinis’s comments

reflected negatively on the Department

and would affect morale among the

officers to be reasonable and

uncontested. 185 F.3d at 846.

Even accepting the proposition that a

police department is a paramilitary

organization built on relationships of

trust and loyalty, and as such the

judgment of police officials regarding

the disruptive nature of an officer’s

speech is entitled to considerable--

although by no means complete--deference,

Waters, 511 U.S. at 677, Jones and

Arreola offered no evidence at trial even

hinting that they were punishing the

officers for their speech. Moreover,

there is no evidence that Gustafson and

Cornejo’s speech had any disruptive

effect on the department, nor is there

evidence that, despite the absence of any

actual disruption, Jones and Arreola

reasonably believed it would have future

disruptive consequences. Numerous

witnesses, including the department’s

Deputy Chief, testified to the contrary

that following publication of the

articles, everything remained normal in

the TEU. The officers in the TEU,

including Gustafson and Cornejo,

continued to respect Jones’s authority,

they obeyed his orders, and the unit

functioned efficiently and effectively.

In response to this factual finding,

Jones and Arreola now argue on appeal

that an employer is allowed to act on the

basis of the "potential disruptiveness"

of an employee’s speech and that it need

not wait for "events to unfold to the

extent that the disruption of the office

and the destruction of working

relationships is manifest before taking

action." Connick, 461 U.S. at 151. This

is an accurate statement of the law, but

it comes too late in the day for this

case. At trial, neither Jones nor Arreola

testified that they decided to transfer

Gustafson and Cornejo because they feared

the speech would cause future

disruptions. (Had they done so, the

plaintiff officers would have had an

opportunity to present evidence to the

contrary.) Instead, Jones flatly denied

any knowledge that Gustafson and Cornejo

had ever complained about his order,

either to other officers, the union, or

the press. He also denied that the

articles embarrassed him, and he offered

no testimony that he considered the

public challenges to the orders (whether

made by Gustafson and Cornejo or anyone

else) to be a threat to his ability to

manage or to Department morale. He did

testify that Gustafson and Cornejo’s

supplemental investigation report

contained inappropriate implicit

challenges to his authority, but

according to his own testimony this

misdeed warranted no more than an

informal verbal reprimand.

Arreola, meanwhile, denied being fazed

at all by the articles or their content.

He told the jury that he was not even

certain he had read the articles.

According to Arreola, such criticisms

were commonplace and of no particular

consequence. Nowhere did he testify that

he feared that the public criticism of

Jones’s order would undermine the

efficiency or morale of the TEU or the

departmental command hierarchy. Although

he testified that public disclosure of

the order was "technically" a violation

of Department policy and that disclosure

of confidential information regarding an

ongoing investigation could be disruptive

to the successful conclusion of that

investigation, he did not testify that

such transgressions in general would

justify a transfer from the TEU, much

less that Gustafson and Cornejo’s

particular disclosures warranted a

transfer. He conceded he had no

indication that their disclosures of

information regarding the Sidney

investigation in any way hampered their

ability to apprehend Sidney.

The absence of any evidence that either

Jones or Arreola considered Gustafson and

Cornejo’s speech potentially disruptive

is particularly telling in this case,

given that four months had passed without

any evidence of ill effects from the

speech before the transfers took place.

Mere assertions of a generalized

potential for disruption are in any event

insufficient, see Hulbert v. Wilhelm, 120

F.3d 648, 655 (7th Cir. 1997) (explaining

that under Connick "mere incantation of

the phrase ’internal harmony in the

workplace’ is not enough to carry the

day"), but where, as here, substantial

time has passed without incident, it

naturally becomes more difficult for an

employer to satisfy its burden of proving

that punishment on the basis of

anticipated disruption was reasonable.

Had such evidence been presented, we

would obviously have a different case;

but it was not.

On appeal, Jones and Arreola pin their

hopes on Kokkinis. They offer a plausible

story about how, given that (1) Gustafson

and Cornejo are police officers, (2)

their speech challenged a lawful order of

one of their superior officers, and (3)

they disclosed confidential information

to non-Department personnel, the

Department might have believed the

officers’ speech would be disruptive even

after four months of calm. Once again,

the critical difference is that Kokkinis

did not rely on a story told for the

first time on appeal; it rested instead

on a proper summary judgment record that

contained testimonial evidence from the

chief of police that he was concerned

about the efficiency and morale of the

police department, as well as on the

testimony of other officers that

supported the reasonableness of the

chief’s beliefs. See also Lickiss v.

Drexler, 141 F.3d 733, 744 (7th Cir.

1998) (reversing district court’s grant

of summary judgment to plaintiffs because

reasonable inference could be drawn from

evidence in the record that police

supervisors were concerned about the

disruptive effects of the officer’s

speech). In the end, this a case of

failure of proof, and should be taken as

no more than that. Jones and Arreola did

not meet their burden of proving by a

preponderance of the evidence that any of

the first three elements of the Pickering

balancing test supported restricting the

officers’ speech.

The other critical elements of the

Pickering balancing test also weigh

against Jones and Arreola on this record.

In particular, we have said that "[t]he

manner and means of the employee’s

protestation are key considerations in

balancing an employer’s and employee’s

interests under Pickering." Greer, 212

F.3d at 371. Gustafson and Cornejo began

by raising their concerns about Jones’s

orders by going up the internal chain of

command, speaking first with their

sergeants and then with their lieutenant.

Not only could these supervisors not

address their concerns, they themselves

were confused and concerned that Jones’s

roll call order would interfere with TEU

officers’ ability to conduct appropriate

follow-up investigations. It was only

after Lieutenant Rebernick informed them

that there was nothing to be done about

the orders that Gustafson and Cornejo

went to DeBraska. The district court

concluded that Gustafson and Cornejo had

properly taken their concerns up the

chain of command before seeking out

DeBraska, and there is ample support for

this conclusion in the record. See Wright

v. Illinois Dep’t of Children & Fam.

Servs., 40 F.3d 1492, 1504 (7th Cir.

1994) (recognizing that an employee’s

position is stronger under Pickering

where she has followed authorized

procedures and appealed to appropriate

authorities).

The officers went to DeBraska to seek

his advice on how to respond to the

orders. They provided him with copies of

Jones’s roll call order and their Sidney

investigation report as well as an

accurate description of the events that

had transpired over the previous days.

Although they may have been mistaken,

neither believed that providing such

information to their union president

violated the Department’s confidentiality

policy, and the information they provided

was centrally relevant to their concerns.

They subsequently approved DeBraska’s

suggestion that he disclose portions of

that information to the press and public

officials, but only after concluding that

disclosure was necessary given the nature

of their concerns and their supervisors’

unwillingness to do anything further

about the orders.

Contrary to the appellants’ suggestion,

this case is not at all like Greer, in

which we found that a fire department was

entitled to punish a firefighter who

"fired off his news release" about his

boss’s alleged favoritism without taking

advantage of any of the available

internal complaint procedures and without

making any effort to learn the facts of

the situation he was complaining about.

212 F.3d at 371-72. Gustafson and Cornejo

might have tried other avenues before

agreeing to DeBraska’s plan to go public,

and they might have taken better care not

to disclose unnecessary specifics of the

Sidney investigation to their union chief

(details which notably were never

disclosed to elected officials or the

press), but unlike in Greer, the "manner

and means" of the officers’ speech in

this case was not so objectionable as to

weigh against them in the Pickering anal

ysis.

Like the district court, our review of

the evidence persuades us that Jones and

Arreola have not carried their burden

under Pickering of demonstrating that

their interest, as employers, in

punishing Gustafson and Cornejo for their

speech outweighs the officers’

considerable interest in speaking out

about the potential risks created by

Jones’s orders.

C. Qualified Immunity

Last, Jones and Arreola contend that

even if we find that transferring

Gustafson and Cornejo on the basis of

their speech was not justified, they are

entitled to qualified immunity because

there was no clearly established law that

would have put them on notice of this

fact in November of 1993. Again, we

disagree.

As we pointed out in Gustafson I, the

key elements of this case have been clear

for years: a public employer may not

retaliate against an employee who

exercises his First Amendment speech

rights, including in particular through a

transfer to a less desirable position,

and speech about police protection and

public safety raises a matter of public

concern. 117 F.3d at 1021. Indeed, this

court held as early as 1979 that a public

employer may not retaliate against an

employee’s exercise of First Amendment

rights by a retaliatory transfer to a

different position, even if there is "no

loss of pay, seniority or other rights."

McGill v. Board of Educ. of Pekin Elem.

School Dist. No. 108, 602 F.2d 774, 780

(7th Cir. 1979); see also Walsh v. Ward,

991 F.2d 1344, 1345 (7th Cir. 1993)

("McGill recognizes a proposition that

cannot be denied: an employer can

penalize past speech and discourage

future speech by assigning a worker to an

undesirable job. Dissenters exiled to

Siberia (or the equivalents found within

many bureaucracies) quickly get the

message, even though the new postings

carry the same salary and title."). As

for the "public concern" point, speech

related to law enforcement and police

policies that have an impact on public

safety was recognized as speech touching

on a matter of public concern, even if

the speaker was partly motivated by

purely personal concerns. Auriemma, 910

F.2d at 1460 (public safety is matter of

public concern); Belk, 858 F.2d at 1264

(collecting cases indicating that to be

motivated in part by personal stake in

outcome of dispute does not necessarily

deprive speech of First Amendment

protection). We repeat again that at all

times relevant to this case, the law with

respect to both the public concern and

the antiretaliation elements of these

claims was well established.

On a different record, there might have

been a question about how clear it was

that the public employer could not punish

employees who exercised First Amendment

rights, if the employer cited efficiency

concerns as its reason. But this case

does not present that question. Instead,

the issue is whether any employer could

have thought it was entitled to punish an

employee for speech on a matter of public

concern where the speech caused no actual

disruption of any kind for four months,

and where the employer neither

articulates a belief that the speech has

the potential to be disruptive in the

future, nor has evidence to support the

reasonableness of such a belief. We need

look no further than Connick to know that

the answer to that question is no. The

law to that extent was clearly

established, and thus the district court

properly denied qualified immunity to the

defendants.

III

We emphasize again that our decision to

affirm the district court’s ruling on the

First Amendment issue, and the jury’s

conclusions about the facts that gave

rise to this case, is a narrow one that

is driven in large part by the trial

strategy that the defendants themselves

chose. At trial, Chief Arreola and Deputy

Inspector Jones elected not only to deny

that they were motivated to transfer

Gustafson and Cornejo because of their

speech, but also to deny having any

knowledge of the speech (Jones) or any

concerns regarding it (Arreola) at the

time they recommended that the officers

be transferred. Both denied that the

speech embarrassed them and neither

offered any testimony suggesting that the

officers’ speech either created, or

created the potential for, the kind of

disruption that would have warranted

punishing speech that is on a matter of

public concern. Downplaying the

significance of the speech was consistent

with--although not necessary to--the

defenses they offered at trial. Having

created this record, they are stuck with

it. Gustafson and Cornejo established

that their speech was on a matter of

public concern and the weight of the

evidence supports the conclusion that

their speech could not justifiably be

punished under Pickering. We therefore

Affirm.

FOOTNOTE

/1 Jones and Arreola argue in their brief that

Gustafson and Cornejo pleaded falsely that an

anonymous source had leaked the relevant docu-

ments to the newspapers. In fact, the complaint

actually says only that Gustafson and Cornejo

spoke to officials and that, "not at their direc-

tion," actions were taken which resulted in

adverse publicity. We do not read Gustafson and

Cornejo’s statement as a sweeping denial of their

involvement in the publicization of the affair as

opposed to an allegation that another person

(DeBraska) took the lead in publicizing the

affair. At trial they admitted that they were the

ones who gave this information to DeBraska--a

position consistent with the statement in the

pleadings. While the jury could have concluded

otherwise, it had before it both the accurate

information and the arguably contrasting informa-

tion from the pleadings. Because the jury thus

made its decision upon a full record, we can find

no justification for rejecting its credibility

determination.