Schad, George C. v. Jones, Arthur L.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-3396

GEORGE C. SCHAD,

Plaintiff-Appellee,

v.

ARTHUR L. JONES, Police Chief,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 C 544—J.P. Stadtmueller, Judge.

____________

ARGUED MAY 3, 2005—DECIDED JULY 15, 2005

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Before FLAUM, Chief Judge, and KANNE and SYKES, Circuit

Judges.

FLAUM, Chief Judge. Plaintiff-appellee George C. Schad,

a police officer with the Milwaukee Police Department

(“MPD”), filed suit pursuant to 42 U.S.C. § 1983, alleging

that the City of Milwaukee, Wisconsin, and Arthur L. Jones,

former Chief of Police for Milwaukee, violated the First

Amendment to the United States Constitution by trans-

ferring Schad in retaliation for his statements to a fellow

officer. The district court denied defendants’ motion for

summary judgment, holding that Schad’s speech was

2 No. 04-3396

constitutionally protected and that Chief Jones was not en-

titled to qualified immunity. Chief Jones appeals and, for

the reasons stated herein, we reverse.

I. Background

From November 1999 through February 2001, Officer

Schad served as a member of the Warrant Squad of the

MPD. The Warrant Squad, which is responsible for locating

and arresting people wanted on outstanding warrants, is a

desirable assignment within the MPD for which officers are

specially selected.

In late January or early February 2001, the MPD’s

Tactical Enforcement Unit was in a 24-hour standoff with

a suspect named Lesmes Rivera. Members of the Unit suc-

ceeded in arresting Rivera only after using teargas to draw

him out of the house in which he had barricaded himself.

On February 14, 2001, Rivera posted bail and was

released.1 The same day, Chief Jones transmitted Rivera’s

name to all MPD district stationhouses, stating that Rivera

was wanted on three felony warrants.

At the February 14, 2001 Warrant Squad roll call, Schad

and the other squad members on duty were instructed to

locate and arrest Rivera. They were given Rivera’s photo-

graph and possible addresses where he might be found. Fol-

lowing roll call, the acting Criminal Investigation Bureau

shift commander, Lieutenant William Jessup, called Schad

and told him that he had received an anonymous tip about

Rivera’s location. When Lieutenant Jessup asked him to

check the address located in Milwaukee’s district no. 2,

Schad responded that neither he, nor any of the other

Warrant Squad officers on duty, were available to follow up

1

It is not clear from the record whether Rivera was released in

error.

No. 04-3396 3

on the tip at that time. The call ended with Lieutenant

Jessup saying “we have to get somebody out there,” or

something to that effect.

Following Lieutenant Jessup’s call, another Warrant

Squad officer suggested that Schad call Officer Matthew

Knight who was assigned to district no. 2 and who was

familiar with the Rivera case. Rather than relaying this

suggestion to Lieutenant Jessup, Schad called Knight

directly. Knight agreed to follow up on the tip and, after

receiving permission from his sergeant, went with his

partner to the address provided by Schad. Upon entering

the building at that address, Knight found Rivera in the

hallway and told him that he was under arrest. When

Rivera reached for a pistol in his waistband, Knight

knocked it away and a “major struggle” ensued. Rivera

eventually was subdued and taken into custody.

Soon after Rivera’s arrest, Schad learned that Chief Jones

was angry that he had disclosed the Rivera tip to Knight.

The earlier standoff with Rivera made Chief Jones con-

cerned about officer safety and he wanted the specially

trained Tactical Enforcement Unit to make the arrest.

Lieutenant Jessup had in fact contacted the Tactical

Enforcement Unit after his call to Schad, but Knight and

his partner arrested Rivera before officers from the Unit

could arrive on the scene. Schad later heard rumors that

the real reason Chief Jones had wanted the Tactical

Enforcement Unit to make the arrest was that he hoped it

would make up for the Unit’s earlier standoff with Rivera

that had made the chief look bad.

Two days after Rivera’s arrest, Chief Jones transferred

Schad from the Warrant Squad to patrol duty, a much less

desirable assignment. Chief Jones stated that he trans-

ferred Schad because he had breached the MPD’s confiden-

tiality rule by disclosing Rivera’s whereabouts to someone

outside of the Warrant Squad. He said that he believed that

4 No. 04-3396

Schad “placed officers’ lives in danger by releasing informa-

tion to those officers [to whom] he was not authorized to

release [it].”

On June 4, 2002, Schad filed a First Amendment retalia-

tion suit in federal court against Chief Jones and the City

of Milwaukee. Defendants moved for summary judgment,

arguing that Schad’s speech was not protected by the First

Amendment because it was not on a matter of public con-

cern, and asserting Chief Jones’s entitlement to qualified

immunity. The district court held that Schad’s speech was

protected and denied Chief Jones’s claim of qualified

immunity.

II. Discussion

Although the denial of summary judgment did not end

this case in the district court, we have jurisdiction to review

whether the district court properly denied defendant-

appellant Jones’s claim of qualified immunity. See Kiddy-

Brown v. Blagojevich, 408 F.3d 346, 352 (7th Cir. 2005);

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[A] district

court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 28 U.S.C. § 1291 notwith-

standing the absence of a final judgment.”). Where a

defendant has asserted entitlement to qualified immunity,

we review de novo a district court’s denial of summary

judgment. Leaf v. Shelnutt, 400 F.3d 1070, 1077 (7th Cir.

2005). Summary judgment is appropriate if the evidence

presented by the parties “show[s] that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c).

Government officials enjoy qualified immunity and are

shielded from civil liability, “as long as their actions could

reasonably have been thought consistent with the rights

No. 04-3396 5

they are alleged to have violated.” Anderson v. Creighton,

483 U.S. 635, 638 (1987). To determine whether an official

is entitled to qualified immunity, we ask: (1) whether the

facts alleged, taken in the light most favorable to the party

asserting the injury, demonstrate that the official’s conduct

violated a constitutional right; and (2) whether the right

was “clearly established” such that it would have been clear

to a reasonable official “that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201-

02 (2001). We need not address the second question in this

case because, for the reasons explained below, we answer

the first in the negative. See id. at 201 (“If no constitutional

right would have been violated were the allegations estab-

lished, there is no necessity for further inquiries concerning

qualified immunity.”).

Schad contends that Chief Jones violated his First

Amendment right to freedom of speech by retaliating

against him for disclosing the Rivera tip to Knight. “A gov-

ernment employee does not relinquish all First Amendment

rights otherwise enjoyed by citizens just by reason of his or

her employment.” City of San Diego v. Roe, 125 S. Ct. 521,

523 (2004). Because “the government as an employer has an

interest in conducting its operations as effectively as

possible,” however, “public employees do not have an unfet-

tered right to express themselves on matters related to

their jobs, and courts must give due weight to the govern-

ment’s interest in efficient employment decisionmaking

when evaluating retaliation claims.” Brooks v. Univ. of Wis.

Bd. of Regents, 406 F.3d 476, 479 (7th Cir. 2005) (citing

Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092, 1098 (7th Cir.

2004); Waters v. Churchill, 511 U.S. 661, 675 (1994)). To

establish a claim of First Amendment retaliation, a plaintiff

must prove “that the speech in question is constitutionally

protected and that it was a substantial, or motivating,

factor in the employer’s retaliatory actions.” Brooks, 406

F.3d at 479. “If the plaintiff establishes these elements, the

6 No. 04-3396

burden shifts to the government to prove that it would have

taken the same action in the absence of the protected

speech.” Id. In this case, there is no dispute that

Chief Jones transferred Schad to a less desirable assign-

ment because he disclosed the Rivera tip to Knight, and

that the transfer would not have occurred had Schad not

done so. Therefore, the only issue before us is whether

Schad’s speech was constitutionally protected.

In determining whether a government employee’s speech

is constitutionally protected, we apply the two-step

Connick-Pickering test. Cygan, 388 F.3d at 1099 (citing

Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of

Educ. of Township High Sch. Dist. 205, 391 U.S. 563

(1968)). First, under Connick, we must determine whether

the employee spoke “as a citizen upon matters of public

concern.” Connick, 461 U.S. at 147; see also Cygan, 388 F.3d

at 1099. In making this determination, we examine “the

content, form, and context of a given statement, as revealed

by the whole record.” Connick, 461 U.S. at 147-48. Second,

under Pickering, we balance “the interests of the [em-

ployee], 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; see also

Cygan, 388 F.3d at 1099. The parties, as well as the district

court, addressed only the Connick part of the test, and so

shall we. See Spiegla v. Hull, 371 F.3d 928, 940 (7th Cir.

2004) (appellate court will not apply the Pickering balanc-

ing test where arguments on the application of the test

were not presented in the defendant’s motion for summary

judgment and the district court was silent on the issue).

We begin our inquiry into whether Schad spoke as a citi-

zen on a matter of public concern by examining the content

of his speech. “Speech by a government employee relating to

ordinary matters of internal operation and lacking connec-

tion to ‘any matter of political, social, or other concern to

No. 04-3396 7

the community’ is not entitled to First Amendment protec-

tion.” Spiegla, 371 F.3d at 936 (quoting Connick, 461 U.S.

at 146). The speech at issue here consists only of Schad’s

telephone call to Knight in which he disclosed the anony-

mous tip about Rivera’s location. Although “police protec-

tion and public safety are generally a matter of public

concern,” Delgado v. Jones, 282 F.3d 511, 517 (7th Cir.

2002), not all speech by police department employees is

“upon matters of public concern” under the Connick analy-

sis. See, e.g., Gonzalez v. City of Chicago, 239 F.3d 939 (7th

Cir. 2001) (reports regarding instances of police misconduct

written by a police department employee were not upon

matters of public concern). As we observed in

Kuchenreuther v. City of Milwaukee:

While speech addressing matters of police protection

and public safety are matters of public concern, we have

cautioned that if every facet of internal operations

within a governmental agency were of public concern,

and therefore any employee complaint or comment upon

such matters constitutionally protected, no escape from

judicial oversight of every government activity down to

the smallest minutia would be possible.

221 F.3d 967, 974 (7th Cir. 2000) (internal quotations and

citations omitted). Rather than relying on the fact that

Schad’s speech concerned the general topic of law enforce-

ment, we must “delve deeper into the precise content” to

determine whether what was said on this topic was of pub-

lic concern. Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7th Cir.

1999).

In Connick, the Supreme Court considered a retaliation

claim by assistant district attorney Sheila Myers, whose

employment was terminated after she circulated a question-

naire to coworkers asking about their confidence and trust

in various supervisors, the level of office morale, and the

need for a grievance committee. 461 U.S. at 140-42. Myers

8 No. 04-3396

had distributed the questionnaire after learning that she

was slated for an unwanted transfer, and the Court deter-

mined that her questions were “mere extensions of Myers’

dispute over her transfer.” Id. at 148. The Court went on to

explain why the content of her speech was not of public

concern even though the general topic of employee satisfac-

tion in a prosecutor’s office might be of interest to the

community:

Myers did not seek to inform the public that the District

Attorney’s office was not discharging its governmental

responsibilities in the investigation and prosecution of

criminal cases. Nor did Myers seek to bring to light

actual or potential wrongdoing or breach of public trust

on the part of [the District Attorney] and others. . . .

While discipline and morale in the workplace are

related to an agency’s efficient performance of its

duties, the focus of Myers’ questions is not to evaluate

the performance of the office but rather to gather

ammunition for another round of controversy with her

superiors.

Id.

Based on this guidance, “our cases have consistently held

that speech alleging government corruption and malfea-

sance is of public concern in its substance.” Spiegla, 371

F.3d at 937 (collecting cases). For instance, correctional

officer Nancy Spiegla was transferred after she questioned

a new vehicle search policy and reported the suspicious

conduct of two of her superiors who appeared to be using

that policy to facilitate unlawful behavior. Id. at 936. Al-

though the content of Spiegla’s speech was “comfortably on

the socially valuable side of the constitutional line,” we

explained that the case might have been different had

Spiegla merely questioned the policy pursuant to which the

officials were acting and had not disclosed the officials’

suspicious conduct. Id. at 937. We emphasized that “[t]here

No. 04-3396 9

must be a communicative element to speech that puts the

listener on alert that a matter of public concern is being

raised,” and that “the specificity and seriousness of the

allegations against [Spiegla’s superiors]” were essential to

our conclusion that her speech was protected. Id. at 937,

939.

In this case, the content of Schad’s speech was the tip

about Rivera’s possible location, the type of information

typically transmitted between officers in a police depart-

ment. As in Connick, Schad did not seek to inform the

public that the police department was not discharging its

governmental responsibilities in the arrest of wanted in-

dividuals. He did not bring to light actual or potential

wrongdoing, nor did he set out to remedy the flawed func-

tioning of the department by reporting needed changes to a

superior. Nothing in Schad’s speech could have alerted

Knight, or anyone else, that a matter of public concern was

being raised.

Although the public is generally concerned with the safe

arrest of dangerous suspects, the focus of Schad’s call to

Knight was not the evaluation of the MPD’s performance in

accomplishing this task. Rather, he agreed with Chief Jones

about the importance of arresting Rivera and disclosed the

tip to Knight in an effort to accomplish this goal. That

Schad chose a course different from the one preferred by

Chief Jones is of no consequence because, unlike Spielga,

Schad did not follow his standard transmission of informa-

tion with a civic-minded critique of Chief Jones’s strategy

for arresting Rivera or report that the chief was not acting

with the best interest of the community in mind. Schad let

the matter rest after his routine call to Knight, suggesting

that his speech was an ordinary part of the internal

operation of the police department, and indicating that he

did not speak as a citizen addressing a matter of public

concern.

10 No. 04-3396

The form of Schad’s speech supports the same conclusion.

Although we have held that speech need not be addressed

to the general public to be protected, see Delgado, 282 F.3d

at 518, choosing a form of speech routinely used for intra-

office communications may suggest that the employee did

not set out to speak as a citizen. In Gonzalez v. City of

Chicago, we considered the discharge of Gerardo Gonzalez,

a newly recruited police officer who formerly served as a

civilian employee of the Chicago Police Department’s Office

of Professional Standards investigating and writing reports

on police misconduct. 239 F.3d at 940. Gonzalez alleged

that he received poor job evaluations in retaliation for

several negative reports he had written about police officers

who later became his coworkers. In concluding that Gonza-

lez’s earlier work activities did not constitute protected

speech, we emphasized that he had written the reports

“merely as an employee.” Id. at 941. “The form of his speech

(routine official reports),” we concluded, “indicate[d] that

Gonzalez did not speak ‘as a citizen’ on a matter of public

concern.” Id. Similarly, Schad made an informal telephone

call to provide another officer with information typically

shared between officers. The form of Schad’s speech does not

distinguish it from everyday employment-related communi-

cations or indicate that Schad was speaking as a citizen

rather than as an employee.

Finally, we turn to the context of the speech, considering

Schad’s motive for speaking and the circumstances in which

he spoke. See Spiegla, 371 F.3d at 938. In Gonzalez, the fact

that the employee’s reports were written “pursuant to

duties of the job” indicated to us that he had not spoken as

a citizen. 239 F.3d at 941. In this case, Schad called Knight

in the context of the MPD’s efforts to locate and arrest

Rivera. Schad admits that he was “doing his job,” and that

his speech “was meant to complete the Warrant Squad’s

main mission for that shift which was to arrest Rivera.”

Nevertheless, he emphasizes that “there is no indication

No. 04-3396 11

that he was discharging an assigned duty.” The district

court also relied on the fact that Lieutenant Jessup did not

expressly assign to Schad the task of calling Knight, and

that it took some initiative on Schad’s part to call Knight

directly.

This distinction has no significance in the context of this

case. A police officer’s job entails the use of judgment and

discretion in performing his or her duties. Demonstrating

initiative in carrying out one’s responsibilities does not

transform ordinary employment speech into speech on a

matter of public concern. Gonzalez used discretion in com-

pleting his reports on police misconduct, but the reports

were not protected because he wrote them “merely as an

employee.” Gonzalez, 239 F.3d at 941. Like Gonzalez, Schad

acted entirely in his employment capacity. Whether Chief

Jones was more concerned about officer safety or his own

image, the result is the same. There is no evidence that

Schad’s motivation for calling Knight was anything other

than that of an officer engaged in the performance of his

everyday duties, and no evidence that the circumstances in

which Schad spoke differed in any way from the ordinary

internal operations of the police department. Thus, like its

content and form, the context of Schad’s speech indicates

that it was not that of a citizen addressing a matter of

public concern.

Furthermore, Schad and Chief Jones both wanted the safe

arrest of Rivera and disagreed, if at all, only as to how this

goal should be accomplished. Schad’s speech, however, did

not concern this disagreement. He did not comment on the

merits of his decision to call Knight directly, nor did he

suggest that the chief was wrong to prefer that the Tactical

Enforcement Unit make the arrest. Rather, Schad merely

made a judgment call in the course of his work, something

police officers do daily. Schad’s position, followed to its

logical conclusion, would require us to find that almost

everything said in the course of police work is constitution-

12 No. 04-3396

ally protected and that a chief of police can never treat

adversely an officer he believes used poor judgment. The

Constitution does not require this result and it is not the

province of federal courts to interfere with a police chief’s

everyday tactical decisions in this way. Cf. Kuchenreuther,

221 F.3d at 974-75.

In reaching the opposite conclusion, the district court’s

relied on Delgado v. Jones, 282 F.3d 511 (7th Cir. 2002).

There, we considered a report by police officer Octavio

Delgado, in which he stated that there was evidence that a

relative of a public official frequented a drug house and that

the chief of police was a close personal friend of that public

official. Delgado, 282 F.3d at 513-15. Delgado sued for First

Amendment retaliation when the chief of police transferred

him to a less desirable assignment in retaliation for his

report. Id. at 515. We distinguished the case from Gonzalez,

noting that while Delgado’s job required that he report

information about suspected crimes, he went further by

including in his report “additional facts” that called into

question “the department’s ability to conduct an objective

investigation.” Id. at 519 (emphasis in original). Unlike

Gonzalez, Delgado went beyond his normal job responsibili-

ties by acting as a concerned citizen in disclosing informa-

tion relevant to whether the police chief could perform his

job effectively under the circumstances. Schad, by contrast,

added nothing to the information that he passed along to

Officer Knight as a matter of course. He merely carried out,

without comment, a typical aspect of his job as a police

officer. The district court’s reliance on Delgado was mis-

placed.

III. Conclusion

The content, form, and context of Schad’s speech indicate

that he did not speak as a citizen on a matter of public

No. 04-3396 13

concern. We hold, therefore, that the speech was not con-

stitutionally protected and that Jones did not violate

Schad’s First Amendment rights. Accordingly, we REVERSE

the district court’s order denying defendants’ motion for

summary judgment and REMAND for proceedings consistent

with this opinion.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-15-05