Morales, Alfonso v. Jones, Arthur

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-1463

ALFONSO MORALES and

DAVID KOLATSKI,

Plaintiffs-Appellees,

v.

ARTHUR JONES, MONICA RAY,

and CITY OF MILWAUKEE,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00-C-618—David R. Herndon, Judge.

____________

ARGUED JANUARY 11, 2007—DECIDED JULY 17, 2007

____________

Before BAUER, FLAUM, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. The Milwaukee Police Depart-

ment employed David Kolatski and Alfonso Morales as

police officers in its Vice Control Division (“VCD”).

Kolatski and Morales were reassigned to street patrol

duties after informing an Assistant District Attorney

about allegations that Police Chief Arthur Jones and

Deputy Chief Monica Ray had harbored the Deputy

Chief ’s brother, who was wanted on felony warrants.

Kolatski and Morales brought suit under 42 U.S.C. § 1983,

alleging that Jones and Ray violated their First Amend-

ment rights. After a four-day trial, a jury returned a

2 No. 06-1463

verdict for Morales and Kolatski, awarding them compen-

satory and punitive damages. Jones and Ray filed a

motion for judgment as a matter of law, which the district

court denied. Jones and Ray appeal from that denial. For

the following reasons, we reverse the district court’s

judgment.

I. BACKGROUND

On March 22, 1998, Lieutenant Edward Liebrecht

received a phone call from a landlord complaining that

one of his tenants, Vincent Ray, was altering his property

to make it suitable for selling drugs. The landlord in-

formed Liebrecht that he knew Vincent Ray was Deputy

Chief Ray’s brother because of his rental application.

Liebrecht spoke about the complaint with Chief Jones, who

told Liebrecht to investigate the matter immediately.

Liebrecht subsequently notified Deputy Chief Ray of the

call. She confirmed that Vincent Ray was her brother and

that he was a heroin addict. She also told Liebrecht that

her brother might be wanted on warrants.

Liebrecht assigned the case to Morales and Detective

Joseph Link. Morales ran a warrants check on Vincent Ray

and discovered that he was wanted on two felony war-

rants. Link and Morales then met with Vincent Ray’s

landlord who showed them the altered property and

informed them that he had asked Ray to vacate the

premises. After speaking with Ray’s landlord, the officers

drove to each of the addresses Ray provided in his rental

application in an attempt to locate him or his car.

Liebrecht’s shift ended at 3 p.m. that day, and Lieuten-

ant James Shepard relieved him. Before the end of his

shift, Liebrecht called Chief Jones to update him on the

investigation. At 4 p.m. the landlord informed Morales

and Link that Vincent Ray had called him. The landlord

No. 06-1463 3

also told the officers that he had set up a meeting with

Ray to return his security deposit at 5 p.m. the following

day, March 23. The landlord also provided the detectives

with the phone number from which Ray called. The

detectives planned on arresting Ray at this meeting.

Shepard instructed Link to write a report detailing

the investigation. Link included the landlord’s allega-

tions, his and Morales’ efforts to locate Ray, the names,

addresses, and phone numbers from Ray’s rental applica-

tion, Ray’s outstanding warrants, and the detectives’ plans

to arrest him on March 23 at 5 p.m.

On March 23, 1998, Link and Morales attempted to

arrest Ray at the scheduled meeting with his landlord, but

Ray did not show up. Ray set up two more meetings to

get his security deposit, and both times the detectives

informed Shepard that they planned to arrest him. How-

ever, Ray failed to appear at those meetings as well.

On April 6, 1998, the landlord called Morales and told

him that Ray was working on his car around the 3000

block of West Burleigh Street. Morales informed Link, but

Link was executing a search warrant in another investi-

gation. Morales decided not to inform Shepard about the

tip because the three previous meetings had fallen

through. Instead, he asked Kolatski to help him arrest

Ray. Morales and Kolatski arrested Ray on two felony

warrants. The detectives found a knife, marijuana, and

three rocks of cocaine in Ray’s car. The detectives took

him to the police administration building and then made

arrangements to meet Link.

Morales and Kolatski met Link at Gold Rush Chicken to

pick up dinner. After ordering dinner at the counter,

Morales went to the restroom. Kolatski and Link stayed

at the counter discussing the details of Ray’s arrest,

although they did not use his name. Kolatski told Link

that “he had a bad feeling about the situation.” Gold Rush

4 No. 06-1463

Chicken’s owner, John Mullarkey, who was a friend of

Deputy Chief Ray, overheard the conversation and asked

Kolatski, “what did you do, throw the Chief in jail?”

Kolatski said no. Mullarkey then asked whether they

had thrown Deputy Chief Ray in jail. Kolatski again said

no and explained that they had arrested the relative of a

higher ranking department member. Mullarkey told the

detectives that two weeks earlier he delivered food to

Deputy Chief Ray’s house and that Chief Jones was

there when a man came out of a back room. Mullarkey

explained that had he not been in the presence of two

police officers, he would have been worried that the man

might rob him. Link and Kolatski asked Mullarkey to

describe the individual. Mullarkey identified him as a

black man with a dark complexion and a tattoo on his

upper body. Mullarkey also said that Deputy Chief Ray

introduced him as her brother.

Morales returned from the restroom. After leaving the

restaurant, Kolatski told Morales about Mullarkey’s story.

The three detectives agreed that the allegations were

serious because, if true, the Chief and Deputy Chief had

harbored a felon.

After returning to the police administration building,

Link told Lieutenant Habeck, the on-duty supervisor, that

Vincent Ray had been arrested. Habeck informed Deputy

Chief Ray that her brother was in custody. Link, Kolatski,

and Morales listened to a phone call between Habeck

and Deputy Chief Ray, in which the Deputy Chief asked

what address Vincent Ray gave the officers when they

arrested him. When Habeck said that Ray had provided

Deputy Chief Ray’s address, she instructed Habeck not to

include that address on the arrest report. Habeck relayed

the instruction not to list Deputy Chief Ray’s name or

No. 06-1463 5

address on Vincent’s arrest or pedigree reports to Link.1

Link refused to falsify the reports and included Deputy

Chief Ray’s name but simply listed her address as “County

of Milwaukee.”

On the evening of April 6, 1998, Morales reviewed

Vincent Ray’s arrest reports, made copies of them, and

filed them with his supervisor, leaving the reports on his

desk for the evening. The next morning, Morales returned

to take the reports to the District Attorney’s (“D.A.”) office,

and discovered that the first page of the pedigree report,

listing Deputy Chief Ray’s name, was missing. Morales

searched for the missing report, did not locate it, and

decided to proceed to the D.A.’s office anyway.

Morales met with Assistant D.A. John Chisholm and

provided him with a synopsis of Ray’s arrest and the

possible charges. Chisholm asked Morales why the first

page of the pedigree report was missing. Morales said

that to the best of his knowledge the page had been

ordered not to include any information related to Deputy

Chief Ray and that he had pages two and three of the

report, but did not know where page one was located.

Chisholm inquired further, and Morales told him about

the investigation and Ray’s arrest. Morales also told

Chisholm that he and Link had notified Shepard on three

separate occasions of arranged meetings to arrest Vincent

Ray, but that all three meetings fell through. Morales

then recounted Mullarkey’s conversation with Kolatski

and Link, as well as Deputy Chief Ray’s instructions to

leave her information out of the arrest reports. Morales

told Chisholm that he believed that prior to Ray’s arrest,

someone had known Vincent Ray’s location and informed

1

A pedigree report is a report that lists an arrestee’s name, age,

gender, physical description, race, family members, home ad-

dress and phone number, among other information.

6 No. 06-1463

Ray to avoid meeting with the landlord to receive his

security deposit.

Chisholm met with Deputy District Attorney Jon Reddin

and relayed Morales’ information. Reddin instructed

Chisholm to interview Mullarkey. Chisholm and another

investigator spoke with Mullarkey who confirmed that

he told Kolatski and Link about his delivery to Deputy

Chief Ray, but was now certain that the delivery occurred

in January 1998. Mullarkey stated that one of his em-

ployees made a delivery to Deputy Chief Ray’s home

within the past two weeks and provided the employee’s

name.

On April 8, 1998, Link and Morales met with Chisholm

and Reddin. Chisholm and Reddin spoke to Link who

confirmed that Habeck instructed him to omit Deputy

Chief Ray’s name and address from the pedigree report,

but that he refused to do so. Link verified his discussion

with Mullarkey as well.

Link and Morales reported the D.A.’s investigation to

Liebrecht. Liebrecht informed a superior who met with

Chief Jones, Deputy Chief Ray, and Link. Deputy Chief

Ray then met with Morales to discuss the D.A.’s investiga-

tion.

During the same day, Chisholm went back to

Mullarkey’s restaurant and discovered that Mullarkey

had made food deliveries on March 19 and 23, 1998,

though he had previously denied making any food deliver-

ies since January 1998. In addition, another investigator

interviewed the driver who delivered food to Deputy Chief

Ray’s home on March 28th. The driver denied seeing a

male at Deputy Chief Ray’s residence. Additionally,

Chisholm discovered that there were no food deliveries

on March 29, and all of the April food delivery receipts

were off premises at Mullarkey’s home. As a result, the

D.A.’s office concluded that Mullarkey’s allegations against

Chief Jones and Deputy Chief Ray were false.

No. 06-1463 7

On April 17, 1998, Chief Jones transferred Kolatski

from VCD to District No. 1 night-shift patrol duty. No

one in the police department explained why Kolatski was

transferred, and he was performing well at the time. On

December 8, Link and Morales gave depositions in

Kuchenreuther v. Jones, a case in which Chief Jones was

accused of transferring a police officer in violation of the

officer’s First Amendment rights. During Morales’ deposi-

tion, he testified about the Mullarkey information and

opined that Kolatski was transferred as a result of events

connected with Vincent Ray’s arrest. Within days of the

December 8 depositions, Chief Jones reassigned Link to

the VCD’s prostitution section. Nearly two months

later, on January 22, 1999, Chief Jones transferred

Morales to District No. 6 night-shift patrol duty.

On May 20, 2000, Morales and Kolatski filed a complaint

in the Eastern District of Wisconsin under 42 U.S.C.

§ 1983, alleging that Chief Jones and Deputy Chief Ray

violated their First Amendment rights by transferring

them to patrol duties. The defendants filed a motion for

judgment on the pleadings, which the district court denied.

After the close of discovery, the defendants filed a motion

for summary judgment. The district court also denied that

motion. On November 19, 2005, after a four-day trial, the

jury returned a special verdict in the plaintiffs’ favor. The

jury awarded both plaintiffs $20,000 in compensatory

damages and $65,000 in punitive damages, finding that

the defendants’ actions were wilful, wanton and malicious.

On December 6, 2005, the defendants filed motions for

judgment as a matter of law. On February 1, 2006,

the district court denied those motions and granted the

plaintiffs’ motions for attorneys’ fees and costs. The

defendants now appeal.

8 No. 06-1463

II. DISCUSSION

The defendants argue that the district court erred by

not granting them judgment as a matter of law because

Kolatski’s and Morales’ speech was not protected by the

First Amendment. This Court reviews de novo the district

court’s denial of a motion for judgment as a matter of law.

LaFollette v. Savage, 63 F.3d 540, 543-44 (7th Cir. 1995).

The defendants argue that their actions did not vio-

late the plaintiffs’ First Amendment rights because the

plaintiffs’ speech was made pursuant to their official

duties. The Supreme Court has made clear that public

employees do not surrender all of their First Amendment

rights by reason of their employment. Rather, the First

Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of

public concern. See, e.g., Rankin v. McPherson, 483 U.S.

378 (1987); Connick v. Myers, 461 U.S. 138 (1983);

Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will

County, Ill., 391 U.S. 563 (1968). The Supreme Court

recently clarified, however, that “when public employees

make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amend-

ment purposes, and the Constitution does not insulate

their communications from employer discipline.” Garcetti

v. Ceballos, __ U.S. __, 126 S.Ct. 1951, 1960 (2006).2

In Garcetti, the Court evaluated the First Amendment

claims of a deputy district attorney (Ceballos). Believing

that a search warrant affidavit contained misrepresenta-

tions, Ceballos wrote two memoranda recommending

the dismissal of pending charges. Id. at 1955-56. He was

2

The district court ruled in this case on February 1, 2006. The

Supreme Court decided Garcetti on May 30, 2006. As a result, the

district court did not have the opportunity to consider Garcetti

in its analysis.

No. 06-1463 9

later transferred from his calendar deputy position to a

trial deputy position and assigned to work at another

location. Id. at 1956. He sued under § 1983, alleging

retaliation for his speech. Focusing on the “citizen” prong

of the First Amendment analysis, the Court determined

that Ceballos “wrote his disposition memo because that

is part of what he, as a calendar deputy, was employed to

do.” Id. at 1960. Because his expression was “pursuant to”

his official duties, he was not speaking as a citizen for

First Amendment purposes. Id. The Court stated,

“[r]estricting speech that owes its existence to a public

employee’s professional responsibilities does not in-

fringe any liberties the employee might have enjoyed as

a private citizen. It simply reflects the exercise of em-

ployer control over what the employer itself has com-

missioned or created.” Id.

In light of Garcetti, the crux of our inquiry is whether

Morales’ and Kolatski’s speech was made pursuant to

their official duties. Because both parties in Garcetti

agreed that Ceballos’ speech was made pursuant to his

official duties, the Court “had no occasion to articulate a

comprehensive framework for defining the scope of an

employee’s duties in cases where there is room for

serious debate.” 126 S.Ct. at 1961. Lower courts, includ-

ing this one, have applied Garcetti in an attempt to

define the scope of an employee’s duties. See Haynes v. City

of Circleville, Ohio, 474 F.3d 357 (6th Cir. 2007); Mayer v.

Monroe County Cmty. Sch. Corp., 474 F.3d 477 (7th Cir.

2007); Green v. Bd. of County Comm’rs, 05-6297, 2007 WL

4210 (10th Cir. Jan. 2, 2007); Freitag v. Ayers, 468 F.3d

528 (9th Cir. 2006); Battle v. Bd. of Regents for the State of

Ga, 468 F.3d 755 (11th Cir. 2006); Mills v. City of Evans-

ville, 452 F.3d 646 (7th Cir. 2006).

Those courts have followed the Supreme Court’s gen-

eral guidance that “the inquiry is a practical one” and

10 No. 06-1463

should focus on “the duties an employee actually is ex-

pected to perform.” Id. at 1962. For example, in Battle, the

plaintiff was the financial aid counselor at Fort Valley

State University. Her job required her to verify the

completion and accuracy of student files as well as report

any perceived fraudulent activity. 468 F.3d at 758. The

plaintiff reviewed several student files, discovering

that her supervisor had been falsifying information and

awarding financial aid to ineligible recipients. The plain-

tiff spoke to the supervisor, the University president, and

finally to the University’s Vice-President of Student

Affairs. Shortly after her final meeting, the University

decided not to renew the plaintiff ’s contract. The Eleventh

Circuit held that because the plaintiff ’s specific job re-

sponsibilities included ensuring the accuracy and com-

pleteness of student files and reporting any mismanage-

ment or fraud, her speech was made pursuant to her

official employment responsibilities. The court also noted

that Department of Education Guidelines require all

financial aid workers to report suspected fraud. Id. at 761.

Lower courts have also been careful to recognize that,

under Garcetti, “public employees retain the prospect of

constitutional protection for their contributions to the

civic discourse.” 126 S.Ct. at 1960. In Freitag, the plaintiff,

a corrections officer, was sexually harassed by several

inmates at the Pelican Bay State Prison. She complained

to her supervisors that her documentation of the in-

cidents was denied or thrown away. After she complained

to her state senator and the State Office of the Inspector

General, the prison warden terminated her. The Ninth

Circuit held that the plaintiff ’s “right to complain both to

an elected public official and to an independent state

agency is guaranteed to any citizen in a democratic society

regardless of his status as a public employee.” 468 F.3d at

545. The court stated that “it was certainly not part of her

official tasks to complain to the [s]enator or the IG about

No. 06-1463 11

the state’s failure to perform its duties properly . . . .

Rather, it was [the plaintiff ’s] responsibility as a citizen

to expose such official malfeasance to broader scrutiny.” Id.

The plaintiffs first contend that their statements were

not a part of their official duties because they learned of

Mullarkey’s unfounded allegations after they arrested

Ray. Yet the plaintiffs admit that their duties included

“processing arrests through [the] District Attorney’s

office, requesting [the] [D]istrict [A]ttorney’s office for

advice on certain methods to utilize on investigations, and

completing it through the court system, whether it be a

trial or through guilty pleas.” Therefore, by their own

admission, the plaintiffs’ official duties did not end when

they arrested Ray.

Second, the plaintiffs maintain that their speech was

not made pursuant to their official duties because Chief

Jones ended his own internal investigation into whether

Kolatski disclosed confidential information to Mullarkey.

Chief Jones reasoned that because the arrest had al-

ready taken place, the detectives’ discussion with

Mullarkey did not pose a threat to the investigation. The

plaintiffs argue that this demonstrates that their official

duties concluded as soon as they arrested Vincent Ray. As

explained above, however, the plaintiffs concede that

their duties continue after a suspect’s arrest. Moreover,

Chief Jones’ investigation does not bear on whether the

plaintiffs’ speech was made pursuant to their official

duties.

Finally, Kolatski and Morales argue that their speech

was not made pursuant to their official duties because

they were unsure about how to handle Mullarkey’s allega-

tions. However, the plaintiffs’ confusion about which

course of conduct to take in dealing with Mullarkey’s

allegations does not indicate that they were not acting

pursuant to their official duties as police officers.

12 No. 06-1463

After reviewing the record, we conclude that Kolatski’s

speech was not protected under the First Amendment

because it was made pursuant to his official duties.

Kolatski told Morales about Mullarkey’s allegations

because Morales recruited Kolatski to assist him in

arresting Ray. As a result, Kolatski had a duty to

apprise Morales of any information pertinent to the

investigation. Consequently, the judgment in favor of

Kolatski must be reversed.

As for Morales, his conversation with A.D.A. Chisholm

was made pursuant to his official duties because he met

with Chisholm in his capacity as a VCD officer. They met

to discuss Vincent Ray’s arrest and review the arrest

report. It was Morales’ duty to assist Chisholm in the

proper presentation of charges by providing him with the

arrest reports and details of his investigation. Morales

informed Chisholm of Mullarkey’s allegations against

Chief Jones and Deputy Chief Ray in response to Chis-

holm’s inquiry into the pedigree report’s missing page.

Morales did not meet with Chisholm on his own time to

report information that was unconnected to anything

he was working on. Indeed, Morales’s speech concerned

a case that he was assigned to investigate. Furthermore,

the Milwaukee Police Department requires officers to

report all potential crimes.3 By informing A.D.A. Chisholm

of the allegations against Chief Jones and Deputy Chief

Ray, Morales was performing that duty as well. Accord-

ingly, his conversation with A.D.A. Chisholm is not

protected under the First Amendment after Garcetti.

Morales’ December 8 deposition testimony is a differ-

ent story. In his deposition, Morales testified about

3

The dissent emphasizes the fact that Morales testified that he

had the discretion whether or not to investigate Mullarkey’s

allegations. However, when Morales chose to exercise that

discretion he did so pursuant to his job duties.

No. 06-1463 13

Mullarkey’s allegations, his conversation with A.D.A.

Chisholm, and his opinion that Kolatski was transferred

because they had reported the allegations against the

Chief and Deputy Chief. Being deposed in a civil suit

pursuant to a subpoena was unquestionably not one of

Morales’ job duties because it was not part of what he

was employed to do. Nonetheless, Morales testified about

speech he made pursuant to his official duties and we must

determine whether that fact renders his deposition

unprotected. We hold that it does not.

The purpose of Garcetti was to allow government employ-

ers greater influence over speech that owes it existence to

a public employee’s professional responsibilities and that

is damaging to the government’s capacity to conduct public

business. 126 S.Ct. at 1958 (“Government employers . . .

need a significant degree of control over their employees’

words and actions . . . .”). Here, because the substance of

Morales’ speech is the same, it poses the same threat to

the MPD regardless of whether it is said to A.D.A. Chis-

holm or in a deposition. We recognize the oddity of a

constitutional ruling in which speech said to one individual

may be protected under the First Amendment, while

precisely the same speech said to another individual is not

protected. Indeed, this is exactly the concern that Justice

Stevens voiced in his dissent in Garcetti: “[I]t is senseless

to let constitutional protection for exactly the same words

hinge on whether they fall within a job description.” 126

S.Ct. at 1963. Despite Justice Stevens’ admonishment,

Garcetti established just such a framework, and we are

obliged to apply it. As a result, although we hold that

Morales’ conversation with Chisholm was unprotected

speech, his deposition testimony was protected.

Thus, we are faced with a difficult situation because

Morales presented the jury with evidence of both his

protected and unprotected speech. We do not know

14 No. 06-1463

whether the jury found that Chief Jones and Deputy

Chief Ray retaliated against Morales solely on the basis

of protected speech, unprotected speech, or a combination

of both.4 Because of our uncertainty, we remand to the

district court for a new trial on Morales’ claims.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district

court’s ruling denying the defendants’ motion for judg-

ment as a matter of law with regard to Kolatski, and we

REMAND for a new trial on Morales’ claims.

ROVNER, Circuit Judge, concurring in part and dissent-

ing in part. A jury found that these officers were reas-

signed to undesirable posts in retaliation for their

speech. After Garcetti, the first question we must answer

4

The dissent contends that “it is highly unlikely that the jury

relied” on Morales’ conversation with A.D.A. Chisholm as the

cause of Morales’ demotion. The dissent relies solely on timing,

stating that Morales was transferred “shortly” after his Decem-

ber 8 deposition testimony. In fact, Morales was transferred

almost two months after he gave his deposition testimony.

Moreover, the trial transcript reveals that the focus of Kolatski’s

and Morales’ testimony dealt with the Ray investigation and

Morales’ conversation with A.D.A. Chisholm, not Morales’

deposition testimony. In short, we cannot determine which

speech the jury relied upon to find that the defendants re-

taliated against Morales.

No. 06-1463 15

is whether the speech at issue was “made pursuant to the

employee’s official duties.” Garcetti, 126 S. Ct. at 1955. But

before we answer that question, we must discern exactly

what speech is at issue. Green v. Board of County Comm’s,

472 F.3d 794, 799 (10th Cir. 2007) (as a starting point

in a Garcetti analysis, the court must determine what

speech and conduct are at issue). As the majority notes,

the speech at issue for Detective Kolatski was his con-

versation with Officer Link and Mr. Mullarkey in the Gold

Rush restaurant, and his subsequent conversation with

Lieutenant Morales on the way back to the police station

after picking up dinner.1 These discussions both occurred

on a single day in April 1998. In each instance of speech,

Detective Kolatski was either investigating a possible

crime or conveying information about a possible crime to

other officers who were more intimately involved in the

investigation and arrest of Vincent Ray. The defendants

demoted Detective Kolatski only a few days later and a

jury found that the demotion was retaliation for his

speech. Because I agree that Detective Kolatski’s speech

was made pursuant to his official duties, I concur in the

majority’s holding that his speech was not protected by

the First Amendment. The Supreme Court remarked

that “[e]xposing governmental inefficiency and misconduct

is a matter of considerable significance.” Garcetti, 126

S. Ct. at 1962. Detective Kolatski was performing his job

admirably at the time of these events, and although his

demotion for truthfully reporting allegations of misconduct

may be morally repugnant, after Garcetti it does not offend

the First Amendment. In Garcetti, after all, the Court

wished to avoid a rule that would mandate “judicial

1

At the time of the events at issue here, Detective Kolatski and

Lieutenant Morales both held the rank of police officer. They

received their respective promotions prior to the time of trial

and I will use their more current designations here.

16 No. 06-1463

oversight of communications between and among gov-

ernment employees and their superiors in the course of

official business.” 126 S. Ct. at 1961.

The case of Lt. Morales is another story. The speech at

issue for Lt. Morales consisted primarily of his discussions

with the district attorney’s office and the deposition he

gave many months later in an unrelated civil case. We

review de novo the district court’s denial of the defendants’

motion for judgment as a matter of law. Erickson v.

Wisconsin Dept. of Corr., 469 F.3d 600, 601 (7th Cir. 2006);

Davis v. Wisconsin Dept. of Corr. 445 F.3d 971, 975 (7th

Cir. 2006); Byrd v. Illinois Dept. of Pub. Health, 423 F.3d

696, 712 (7th Cir. 2005). In conducting that review, we

must view the facts in the light most favorable to Lt.

Morales, the party opposing the motion, and we must

disregard all evidence favorable to the moving parties

that the jury was not required to believe. Erickson, 469

F.3d at 601; Davis, 445 F.3d at 975. We may overturn a

jury verdict in favor of Lt. Morales only if no reasonable

jury could have found for him. Erickson, 469 F.3d at 601;

Davis, 445 F.3d at 975. See also Byrd, 423 F.3d at 712 (in

reviewing a district court’s decision to deny a Rule 50

motion, we must review all of the evidence in the record,

drawing all reasonable inferences in favor of the non-

moving party, and assure that the jury was presented

with a legally sufficient basis to support the verdict).

Recall that Lt. Morales’s discussions with the district

attorney’s office arose when he attempted to deliver

Vincent Ray’s incomplete arrest report to that office. The

arrest report was missing the first page of the so-called

“pedigree report” that identified the Deputy Chief of Police,

Monica Ray, as Vincent Ray’s sister and listed her address

as Milwaukee County. The evidence at trial demonstrated

that this rather vague address was due to Monica Ray’s

directive not to list her name or address on the report and

to change Ray’s address to that of “a fucking light pole” if

No. 06-1463 17

necessary. R. 145, at 723. The officers who were attempt-

ing to comply with the directive of the Deputy Chief

while simultaneously trying to avoid filing a false report

decided that “Milwaukee County” was a specific enough

address for both Ray and the light pole. R. 145, at 727. All

of Lt. Morales’s comments about the Chief and Deputy

Chief to the district attorney came in response to questions

about the missing page of the pedigree report. At the time,

Lt. Morales was on duty, delivering a report he was obliged

to deliver, and assisting the district attorney in Vincent

Ray’s prosecution. However, as Lt. Morales testified,

although he was obliged to deliver the report and assist in

Ray’s prosecution, he was not obliged to report his suspi-

cions about why the report page was missing. R. 144, at

628, 641, 646. In disclosing his suspicions, he went beyond

his work duties.

The majority relies in large part on an assumption that

Lt. Morales was obliged under department policy to

report all potential crimes and thus was speaking pursu-

ant to his job duties when he reported possible miscon-

duct by the Chief and Deputy Chief to the district attor-

ney. But Lt. Morales testified that, although that was

the department rule, in practice, he had considerable

discretion in determining whether to report or pursue

investigation of a potential crime. See R. 143, at 500-03. At

trial, Lt. Morales was asked, “In the course of conducting

an investigation, what kind of discretion do you as a

police officer have to do the investigation? In other

words, if you come upon information, what discretion do

you have to even investigate?” He answered, “I have

discretion not to investigate it.” R. 143, at 501-02. Lt.

Morales also testified that he is “not duty bound” to

investigate when he receives information about potential

wrongdoing. R. 143, at 502. Rather, he has the discretion

to weigh the facts at hand, and in light of other investiga-

tions he is conducting, may elect not to pursue the infor-

18 No. 06-1463

mation further. R. 143, at 502-03. Thus, when he saw that

Vincent Ray failed to show up for three scheduled meet-

ings that had been reported to commanding officers, when

he learned about Mr. Mullarkey’s allegations that the

Chief and Deputy Chief had been present with Vincent Ray

at a time they both knew he was wanted on warrants, and

when he heard the Deputy Chief ’s directive to keep her

name and address off the pedigree report, he was not

obliged to report his suspicion that the missing report

page was related to these events. In short, he had the

“option to ignore it.” R. 144, at 549. See also R. 144, at 551

(“Again, I had the discretion. I could have ignored all of

this.”). In fact, he testified that, as a police officer, he could

not do anything with this information or his suspicions:

I couldn’t do anything with it. I’m a police officer at

that time. The allegations are against the third person

in command and the Chief of Police. I had to give it

to someone outside of the police department.

R. 144, at 547. The Chief himself testified that he was

unsure what he would have done if he had been in Lt.

Morales’s position, where someone had told him the Chief

of Police had possibly been involved in criminal activity:

[W]hat would I do? I don’t know. I ask myself that.

Would I go back and tell somebody within the police

department? No.

I think if the officer felt that that was the place that he

needed to reveal any information he had, the District

Attorney’s Office was an appropriate place for it to

happen. The District Attorney has investigators that

have arrest powers that they could send out to investi-

gate. Obviously, the District Attorney, the Deputies,

can do some investigation themselves or inquiries

themselves.

R. 143, at 365.

The Garcetti majority was not faced with the situation

No. 06-1463 19

we have here and admittedly gave us no “comprehensive

framework for defining the scope of an employee’s duties

in cases where there is room for serious debate.” Garcetti,

126 S. Ct. at 1961. The Court did offer some hints on how

this analysis should be performed. The Court instructed

that “[t]he proper inquiry is a practical one.” Garcetti, 126

S. Ct. at 1961. The Court rejected the notion that we

were limited to job descriptions in determining the

nature of official duties because “[f]ormal job descriptions

often bear little resemblance to the duties an employee

actually is expected to perform, and the listing of a given

task in an employee’s written job description is neither

necessary nor sufficient to demonstrate that conducting

the task is within the scope of the employee’s professional

duties for First Amendment purposes.” Garcetti, 126 S. Ct.

at 1962. Such appears to be the case here where the

departmental rule differed from the manner in which the

officers actually performed their duties. Because the

evidence that the jury was entitled to believe on this point

contradicts the majority’s assumption, I would not rely

on Lt. Morales’s supposed duty to report all potential

wrongdoing in determining whether this speech was

protected by the First Amendment.

There are other hints in Garcetti that help dictate the

analysis here. The Court was concerned, for example, that

“[o]fficial communications have official consequences,” and

that “[s]upervisors must ensure that their employees’

official communications are accurate, demonstrate

sound judgment, and promote the employer’s mission.”

Garcetti, 126 S. Ct. at 1960. The Court opined that employ-

ees may receive protection for expressions made at

work rather than publicly, and that it also is not

dispositive that the speech concerns the subject matter of

the plaintiff ’s job. 126 S. Ct. at 1959. In Garcetti, the Court

found that the significant factor was that Cebellos’ memo

20 No. 06-1463

was written pursuant to his official duties:

Restricting speech that owes its existence to a public

employee’s professional responsibilities does not

infringe any liberties the employee might have enjoyed

as a private citizen. It simply reflects the exercise of

employer control over what the employer itself has

commissioned or created.

Garcetti, 126 S. Ct. at 1960. The Court noted that Cebellos

did not act as a citizen when he conducted his daily

professional activities; rather when “he went to work and

performed the tasks he was paid to perform, Cebellos

acted as a government employee.” 126 S. Ct. at 1960. The

Court also characterized Cebellos’s memo as the “work

product” of a government employee. The Court com-

mented that government employees who make public

statements outside the course of performing their duties

retain First Amendment protection because that is the

kind of activity engaged in by persons who do not work

for the government. Thus, a letter to a local newspaper

is protected as is a discussion of politics with a co-worker.

Garcetti, 126 S. Ct. at 1961.

We must consider, then, whether Lt. Morales’s comments

to the district attorney constitute “work product,” whether

his words owed their existence to his professional responsi-

bilities, whether it is speech that his employer commis-

sioned or created, or whether it is the kind of activity

engaged in by persons who do not work for the govern-

ment. Lt. Morales certainly became aware of the facts that

he reported and formed the opinions that he expressed

because of his work in investigating and arresting Vincent

Ray. But for his job duties, Lt. Morales would not have

known that Vincent Ray failed to show up for three

meetings that had been reported up the chain of command;

he would not have been aware of Mr. Mullarkey’s allega-

tions; he would not have been privy to Monica Ray’s

No. 06-1463 21

directive to keep her name and address off the pedigree

report. The fact that his speech concerned the subject

matter of his employment is not dispositive, though,

because in Garcetti, the Court reaffirmed the principle that

the First Amendment protects some speech related to the

speaker’s job, at least in part because front line workers

like teachers (as was the case in Pickering) or police

officers (as we have here) are, as a class, most likely to

have informed and definite opinions about matters of

public concern related to their jobs. Garcetti, 126 S. Ct. at

1959 (citing Givhan v. Western Line Consol. Sch. Dist., 439

U.S. 410 (1979), and Pickering v. Board of Educ. of Twp.

High Sch. Dist. 205, Will County, Ill., 391 U.S. 563 (1968)).

When he spoke to the district attorney, Lt. Morales was on

duty and responding to questions about papers he was

obliged to present to the state’s attorney as part of his

official job duties. However, because Lt. Morales was not

required, as a practical matter, to report these allegations,

this is a close case under Garcetti. The information that Lt.

Morales conveyed was work product only in the sense that

he learned the information while at work. But the work he

was paid to perform that day, to paraphrase Garcetti, was

the prosecution of Vincent Ray. Both government employ-

ees and persons who do not work for the government may

report possible wrongdoing or crimes by government

officials. In this case, reporting possible wrongdoing was

beyond the scope of Lt. Morales’s required job duties.

Construing the facts in favor of Lt. Morales, he may have

begun his conversation with the district attorney as a

police officer, but when he went beyond his obligations

as a police officer and decided to disclose his suspicions

about the Chief and Deputy Chief, he was speaking to the

district attorney as a witness to public corruption, in the

same fashion any citizen who witnessed suspicious con-

duct by a government official might speak. See Freitag v.

Ayers, 468 F.3d 528, 545 (9th Cir. 2006), cert. denied, 127

22 No. 06-1463

S. Ct. 1918 (2007) (where it was not part of jail guard’s

official tasks to complain to a senator or inspector general

about the failure of jail officials to respond to charges of

sexual harassment at the jail, the guard was speaking as

a citizen when she exposed official malfeasance to broader

scrutiny and thus her speech was protected by the First

Amendment). In Garcetti, the Supreme Court noted that

“when a public employee speaks pursuant to employment

responsibilities . . . there is no relevant analogue to

speech by citizens who are not government employees.” 126

S. Ct. at 1961. In this case, unlike Garcetti, there is

a relevant analogue to speech by citizens who are not

public employees. Any citizen may report suspicions of

public corruption to the district attorney’s office, which, as

I noted above, had the ability and the authority to investi-

gate allegations of wrongdoing at the highest levels of the

police department. A reasonable jury could find, and

I would find, on balance, that Lt. Morales spoke as a

private citizen when he conveyed his suspicions to the

district attorney and his speech was therefore protected

by the First Amendment.

But even if the discussions with the district attorney

were unprotected, I am not convinced that the jury found

those discussions to be the sole, or even the primary,

motivating factor in the defendants’ retaliation. In fact,

it is highly unlikely that the jury relied on those stale

conversations as the cause of Lt. Morales’s demotion. The

discussions with the district attorney occurred in April

1998 and no action was taken against Lt. Morales until

approximately nine months later, shortly after he gave

a deposition in an unrelated civil case. Approximately

seven months after Lt. Morales met with the district

attorney, in December 1998, he and Officer Link gave

depositions in the case of Kuchenreuther v. Jones. In

Kuchenreuther, another officer sued Chief Jones for

retaliating against her for exercising her First Amend-

No. 06-1463 23

ment rights. At his deposition, Lt. Morales testified about

the Mullarkey incident and stated that he believed Detec-

tive Kolatski was transferred as a result of events con-

nected with the arrest of Vincent Ray and the aftermath of

the Mullarkey allegations. Lt. Morales was transferred

approximately six weeks after that deposition. Officer

Link, who was not a plaintiff here, also was transferred

(albeit temporarily) to a considerably less desirable

position shortly after the depositions.

The key question, then, is whether that deposition

testimony was given pursuant to Lt. Morales’s official

duties. The district court found that Lt. Morales’s deposi-

tion could not be tied to any of his required duties as a

police officer. The majority does not address that finding

by the district court and thus does not address whether

and to what extent we should defer to the district court’s

fact-finding. Even assuming that we need not defer to the

district court at all, though, I would find, as the majority

has found, that Lt. Morales’s deposition was given as a

citizen and not pursuant to official duties.

The defendants make no attempt to demonstrate that

testifying at a civil deposition for a co-worker’s lawsuit

was part of Lt. Morales’s job duties. Nor could they. There

is nothing in the record below to suggest that the deposi-

tion testimony was work that Lt. Morales was expected to

perform as part of his formal or informal job duties, that

it was conducted pursuant to his job duties or at his

employer’s behest, that it was work product of the police

department, that it was official speech, or that it was

one of the tasks he was paid to perform. Although the

subject matter of the deposition related to information Lt.

Morales learned on his job, his testimony owed its exis-

tence not to his job but rather to a subpoena in a lawsuit.

See Fairley v. Fermaint, 482 F.3d 897, 902 (7th Cir. 2007).

In Fairley, county jail guards brought § 1983 claims

against the county sheriff and other guard personnel,

24 No. 06-1463

claiming they were harassed for exercising their First

Amendment right to speak out against abuse of prison

inmates. 482 F.3d at 899. The defendants sought to

invoke Garcetti for the proposition that the plaintiffs’

speech in the workplace is not protected by the First

Amendment. We noted that, under the plaintiffs’ theory,

the “defendants reacted adversely to two kinds of speech:

not only statements made as part of their duties at work

(the kind of speech to which Garcetti applies) but also to

testimony that plaintiffs gave in inmates’ suits.” Fairley,

482 F.3d at 902. Because “[a]ssistance to prisoners and

their lawyers in litigation is not part of a guard’s official

duties,” we needed to determine what part of the defen-

dants’ retaliation could be traced to the plaintiffs’ litigation

activity as opposed to events at work. 482 F.3d at 902.

Fairley applies directly to the circumstances we have here,

where it was not part of Lt. Morales’s job duties to

assist his fellow officer in her suit against the Chief.

Because they cannot demonstrate that the deposition

was given pursuant to Lt. Morales’s job duties, the defen-

dants rely entirely on an argument that deposition testi-

mony about unprotected speech does not constitute

protected speech. Unlike the majority, I would find that

the underlying speech was protected but I will assume

for the sake of argument that it was not. The defendants

rely on Morris v. Crow, 142 F.3d 1379 (11th Cir. 1998), and

Kirby v. City of Elizabeth City, N.C., 388 F.3d 440 (4th

Cir. 2004), for the proposition that Lt. Morales’s deposi-

tion testimony was unprotected speech. Neither of these

cases supports the defendants’ position. Morris was an

employee of the sheriff ’s department who was called upon

to investigate an accident in which an unmarked sheriff ’s

car, en route to an emergency call, collided with a citizen’s

vehicle, killing the citizen. Morris investigated the accident

and wrote an official report where he concluded that the

officer driving the unmarked squad car was traveling more

No. 06-1463 25

than 130 mph in a 50 mph zone without using his blue

warning lights, in contravention of department policy.

After Morris filed that report, the citizen’s personal

representative brought a wrongful death suit against the

sheriff ’s department and Morris was deposed in connection

with that suit. At the deposition, he reiterated the allega-

tions of his report and opined that if the officer had been

traveling the posted speed limit, there was a great possibil-

ity the accident would not have occurred. Morris, 142 F.3d

at 1381.

The appeals court found that the accident report was

generated pursuant to Morris’s official and customary

duties. In that respect, the court appeared to have antici-

pated Garcetti. But the court then distinguished Morris’s

case from two others that closely resemble the facts we

have here in Lt. Morales’s case. See Morris, 142 F.3d at

1382, citing Fikes v. City of Daphne, Tex., 79 F.3d 1079

(11th Cir. 1996), and Warnock v. Pecos County, 116 F.3d

776 (5th Cir. 1997). In Fikes, an officer who had no obliga-

tion to do so reported two instances of misconduct by

fellow officers. In that case, the Morris court found, the

plaintiff was not speaking pursuant to work duties but

was trying to bring to light actual or potential wrongdoing

on the part of government officials. In Warnock, a county

auditor reported a number of violations of law or fiscal

improprieties committed by county officials to her superi-

ors and to appropriate law enforcement officers. Although

Warnock generated her report in the normal course of her

duties as an auditor, the Morris court distinguished her

case because the plaintiff ’s purpose was to raise issues of

public concern. Morris, on the other hand, wrote his report

not to bring to light any wrongdoing but rather to accu-

rately report an accident in the course of his employment.

The court found that Morris’s deposition could not “be

characterized as an attempt to make public comment on

sheriff ’s office policies and procedures, the internal

26 No. 06-1463

workings of the department, the quality of its employees or

upon any issue at all.” Morris, 142 F.3d at 1382. The

Morris court thus concluded that the “mere fact that

Morris’s statements were made in the context of a civil

deposition cannot transform them into constitutionally

protected speech.” 142 F.3d at 1383. Like Fikes, Lt.

Morales was not obliged to report possible wrongdoing by

the Chief and Deputy Chief. And like both Fikes and

Warnock, Lt. Morales was attempting to bring to light

issues of public concern. When read in whole, the Morris

court found that Morris’s accident report was unprotected

because it was an official report made in the normal course

of his duties, and his deposition was unprotected because

he was not attempting to bring to light matters of public

concern. It is thus difficult to see how Morris helps the

cause of the defendants in the instant case where Lt.

Morales was not obliged to report the wrongdoing and was

in fact trying to bring to light a matter of grave public

concern. Under Morris, a pre-Garcetti case, Lt. Morales’s

speech would be protected because he had no work-

related duty to speak and he was motivated by a desire

to bring to light possible government corruption. I note,

however, that the Morris court’s use of the speaker’s

motive as a factor that overrides the citizen/employee

distinction cannot survive Garcetti. In sum, Morris does

not aid the defendants’ cause, and I also believe that

Morris, at least in part, is no longer good law.

As for Kirby, another pre-Garcetti case on which the

defendants rely, the issue was not whether the plaintiff

police officer was speaking as a citizen but rather whether

his speech addressed a matter of public concern. Kirby, 388

F.3d at 446-47. Kirby testified at a hearing before a City

Personnel Appeals Committee regarding a grievance filed

by a fellow officer. That officer had been disciplined for

damaging his police car by failing to properly maintain it.

Kirby testified about the maintenance history of the fellow

No. 06-1463 27

officer’s car and provided an opinion about the mainte-

nance and driving habits of that officer. 388 F.3d at 443.

The court found that Kirby’s speech did not involve a

matter of public concern but rather related only to the

interests of the officers involved. Moreover, the court

found, the fact that Kirby’s testimony was given in a public

hearing did not transform it into a matter of public

concern. No one could argue in the instant case that

allegations of wrongdoing against the two highest ranking

members of the Milwaukee Police Department did not

touch on a matter of public concern. Kirby is irrelevant

to the issue before this court. See also Green v. Barrett,

2007 WL 754634 (11th Cir. Mar. 14, 2007).2

Because I would find that Lt. Morales’s speech was

protected in its entirety by the First Amendment, I will

briefly address the question of qualified immunity. I say

briefly because it should be obvious to anyone and cer-

tainly to the Chief and Deputy Chief of Police that it is

illegal to retaliate against a person for reporting a possible

crime or for testifying under oath in a deposition as part

of a judicial proceeding. In the federal system, we call such

retaliation “witness tampering” or “obstruction of justice,”

and these principles were established long before the

2

In that case, a jailer was called to testify pursuant to her

official duties, at the behest of her employer, in the normal

course of work. The court found that the jailer’s testimony was

therefore not protected by the First Amendment. Her testimony

was her work that day. Lt. Morales was not called to testify

pursuant to his official duties. He had no work-related obliga-

tion to testify. There is no evidence in the record indicating that

Lt. Morales testified at that deposition at the behest of the Chief

or Deputy Chief. And, finally, there is no evidence that the

deposition was given in the normal course of Lt. Morales’s work.

On the contrary, he was essentially testifying as a witness in a

civil lawsuit unrelated to his duties as a police officer.

28 No. 06-1463

events in this case. See Fairley, 482 F.3d at 902. As we

noted in Fairley, “no public official could think the con-

duct proper.” Id. I would therefore find that the defen-

dants were not entitled to qualified immunity. For the

same reason, I would not disturb the award of punitive

damages.

If, as the majority finds, Lt. Morales’s discussion with

the district attorney was not protected, I would still affirm

the judgment rather than grant a new trial. First, given

that the demotions of both Lt. Morales and Officer Link

came hot on the heels of their depositions, it is reason-

able to assume that the jury found that the defendants

demoted Lt. Morales because of his recent deposition and

not because of a conversation he had with the district

attorney some nine months earlier. As I noted above, we

may overturn a jury verdict in favor of Lt. Morales only

if no reasonable jury could have found for him. Erickson,

469 F.3d at 601; Davis, 445 F.3d at 975. A reasonable

jury could and did find in favor of Lt. Morales and I would

affirm that judgment.

Second, the majority’s decision to remand Lt. Morales’s

case for a new trial gives the defendants a gift for which

they did not ask. In their request for relief on appeal, the

defendants asked that we reverse the decision of the trial

court and hold as a matter of law that all of the relevant

speech is not protected by the First Amendment. In the

alternative, the defendants asked that we find that they

are entitled to qualified immunity. And finally, if we

determined that the speech was protected and that they

were not entitled to qualified immunity, the defendants

asked that we reverse the award of punitive damages. At

no time in the appeal did the defendants request a new

trial. At no time did they argue that they would be entitled

to a new trial if the jury was presented with evidence of

both protected and unprotected speech. The majority states

that we do not know whether the jury found the retaliation

No. 06-1463 29

was due to protected speech, unprotected speech or a

combination of both. Even if the majority is correct that

some of the speech was unprotected, that uncertainty is

irrelevant. Having failed to make such an argument, the

defendants waived any claim for a new trial on that basis.

See Kramer v. Banc of Am. Sec. LLC, 355 F.3d 961, 964 n.1

(7th Cir. 2004) (the absence of any supporting authority or

development of an argument constitutes a waiver on

appeal); Hildebrandt v. Illinois Dep’t of Natural Res., 347

F.3d 1014, 1025 n.6 (7th Cir. 2003) (when a party presents

no argument in its brief with respect to a particular claim,

any arguments with respect to that claim are waived);

Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir.

2003) (holding that claims not argued on appeal are

abandoned, and collecting cases). The defendants took an

all or nothing approach in their appeal of the judgment in

favor of Lt. Morales; they are entitled to nothing. For these

reasons, I concur in the judgment with respect to Detective

Kolatski and respectfully dissent from the judgment with

respect to Lt. Morales.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-17-07