Vose, Ronald v. Kliment, Donald

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1792

RONALD VOSE,

Plaintiff-Appellee,

v.

DONALD KLIMENT, Chief of Police of

the City of Springfield, in his individual

capacity, and WILLIAM ROUSE, Deputy

Chief of Police of the City of

Springfield, in his individual capacity,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 06 C 3022—Jeanne E. Scott, Judge.

____________

ARGUED SEPTEMBER 27, 2007—DECIDED OCTOBER 26, 2007

____________

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

BAUER, Circuit Judge. Defendants-Appellants Donald

Kliment and William Rouse appeal from the district

court’s denial of their Motion to Dismiss on the basis of

qualified immunity. They assert that they are entitled to

qualified immunity against Plaintiff-Appellee Ronald

Vose’s § 1983 claims which allege violations of Vose’s

First Amendment free speech rights. Vose argues that

his speech was protected, and therefore Kliment and

2 No. 07-1792

Rouse’s retaliation in response to that speech violated

his constitutional rights. The district court determined

that Vose’s speaking out about fellow police officer mis-

conduct was not part of his job duties, and thus was

protected speech that was clearly established before the

events of this case. Based on this, the district court held

that Kliment and Rouse were not entitled to qualified

immunity. We disagree with the district court’s conclu-

sion that Vose’s speech was constitutionally protected, and

therefore reverse its denial of qualified immunity to

Kliment and Rouse.

I. Background

In 2004, Vose was a police sergeant in the narcotics unit

of the City of Springfield Police Department and had

been with the Department for more than 26 years, in-

cluding over 13 years in the narcotics unit. At that time,

Donald Kliment was the Chief of Police of the City of

Springfield, and William Rouse was the Deputy Chief

of Police in charge of the investigations unit. As a sergeant

in the narcotics unit, Vose supervised the narcotics

unit and reported directly to Lieutenant David Dodson,

who in turn reported to Rouse.

While working in the narcotics unit, Vose learned that

detectives in the major case unit were using alleged drug

investigations as a means to gather evidence by searching

garbage from specific residences or locations in order to

have a lawful basis to obtain search warrants for those

locations. This search technique is called a “trash rip.”

Vose was worried that the trash rips could compromise

ongoing drug investigations being conducted by his unit,

and he was also concerned with the lack of coordination

between the narcotics unit and the major case unit. Vose

reviewed various applications for search warrants made

by the major case unit and discovered that the major

No. 07-1792 3

case unit detectives were not following City of Springfield

Police Department procedures for obtaining search war-

rants, that the detectives were violating laws applicable

to the search warrant process, and that the detectives

filed false or misleading affidavits with the courts in

support of the search warrants. Vose also learned that

search warrants were being obtained by major case unit

detectives by claiming that the warrants were for the

purposes of obtaining information on drug investigations;

in fact, no such drug investigations were undertaken by

the narcotics unit. Vose brought these concerns to the

attention of his supervisors, including Rouse and Kliment

during the summer or early fall of 2004. Vose also voiced

his concerns about the detectives’ apparent misconduct

at Department meetings during the fall of 2004. To Vose’s

knowledge, neither Kliment nor Rouse had taken any

action on his complaints.

On November 16, 2004, Vose told Rouse that some of the

detectives from the major case unit were scheduled to

testify at a criminal trial and that there may be a problem

with their testimony. Rouse told Vose to attend the trial

and report back to him. At the trial, Vose learned that

documents possessed by the Springfield Police Depart-

ment had not been turned over to the defense, as required

by law. One of the detectives at the trial confronted Vose

and accused him of working for the defendant. Vose

reported back to Rouse what he had learned and the

accusation made by the major case unit detective. Approxi-

mately two weeks later, Vose was served with an internal

affairs complaint related to the incident at the trial. In

December 2004, Rouse sent Vose a letter ordering him to

report in writing about the alleged misconduct of the

major case unit detectives, which Vose received immedi-

ately before he was scheduled for an approved vacation

leave. Vose advised Rouse and Kliment that he would

respond upon his return on January 3, 2005.

4 No. 07-1792

On February 14, 2005, Vose told Rouse that due to the

sensitive nature of his written report on the detectives’

alleged misconduct, which included criticism of Rouse’s

inaction, he would deliver the written report directly to

Kliment. Vose delivered the report on March 2, 2005.

Around that time, two newspaper articles were pub-

lished regarding the alleged misconduct and perjury by

the major case unit detectives.

Between the summer of 2004 and March 2, 2005, Rouse

began interfering with the operations of the narcotics

unit by revising work schedules and assigning another

sergeant to the narcotics unit, which resulted in action

taken by the narcotics unit without the supervision of

Vose.

On April 12, 2005, Vose met with Kliment, Rouse, and

two other police officers. Kliment told Vose to either “get

along” with the detectives and supervisors about whom

Vose had voiced concern or to request a transfer out of

the narcotics unit to the patrol division. Vose was ap-

parently instructed to make that decision and to report

it to Kliment on Friday, April 15, 2005.1 Worried that

Kliment and Rouse were going to cover up his com-

plaints about the misconduct, Vose met with the Mayor

of the City of Springfield on April 14, 2005 to discuss his

concerns.

At 4:50 pm on April 15, 2005, Vose delivered a memoran-

dum to Kliment with his decision to transfer out of the

narcotics division, noting that he considered the transfer

1

The complaint is unclear as to exactly what Vose was re-

quired to present to Kliment on Friday, April 15, 2005. Based on

Vose’s presentation of a memorandum with his decision on

Kliment’s ultimatum, we reasonably infer that he was in-

structed to document his decision in writing to Kliment on that

date.

No. 07-1792 5

to be involuntary. Four days later, Rouse issued a written

reprimand to Vose for delivering his memorandum to

Kliment later than ordered. Rouse ordered Vose to sign the

reprimand, and on April 25, 2005, Vose sent another

memorandum to Kliment contesting the reprimand.

Pursuant to Kliment’s directive, Rouse advised Vose that

he would be transferred from the narcotics unit to the

patrol division effective May 1, 2005. On May 14, 2005,

Vose was issued a written reprimand arising out of the

incident at the trial in November 2004.2

Three days after Vose delivered his decision to involun-

tarily transfer to the patrol division to Kliment, Vose

found two empty boxes with his name on them outside his

office, insinuating that Vose was to be “sent packing.”

After Vose transferred to the patrol division, a command

officer advised other Springfield police officers that Vose’s

“career in [the criminal investigation division] is history”

and that Vose had “burned his bridges.” Vose felt forced

to resign from the Springfield Police Department, and

did so on January 19, 2006.

On February 1, 2006, Vose filed a complaint in the

district court alleging violations of his constitutional

rights. Specifically, Vose alleged that his First Amend-

ment rights were violated when Kliment and Rouse

retaliated against him for voicing his concerns about the

conduct of the major case unit detectives. Vose claimed

that Kliment and Rouse retaliated against him through

the written reprimands, the interference with his role as

supervisor of the narcotics unit operations, and the

demotion to the patrol division. Kliment and Rouse moved

to dismiss the case, asserting that they were entitled to

2

Vose was subjected to an internal affairs interrogation on

February 23, 2005 regarding the November 2004 confrontation

with the detective at trial.

6 No. 07-1792

qualified immunity against Vose’s claims because the

applicable law on the rights of government employees to

speak out was not clearly established at the time of the

events. Kliment and Rouse hinged this argument on the

fact that the United States Supreme Court clarified and

narrowed the applicable law in Garcetti v. Ceballos, ___

U.S. ___, 126 S.Ct. 1951 (2006), which was decided after

the alleged violation in this case. On March 8, 2007, the

district court denied their motion, finding that Vose’s

right to speak out on matters relating to police miscon-

duct without being subjected to retaliatory employment

actions was clearly established before the events of this

case, and that Garcetti did not affect nor create this

right. Therefore, the district court held that Kliment and

Rouse were not entitled to qualified immunity against

Vose’s claims. Kliment and Rouse now appeal that deter-

mination, and additionally argue that Vose did not have

a constitutionally protected right to speak.

II. Discussion

On appeal, Kliment and Rouse present two arguments

in support of their position that they are entitled to

qualified immunity. First, they assert that Vose’s speech

was not constitutionally protected. Secondly, they claim

that the rights Vose alleges were violated were not

clearly established at the time of the relevant events.

To determine whether an official is entitled to qualified

immunity, we look to two issues. First, taken in the light

most favorable to the plaintiff, the facts must show

the official violated a constitutional right. Finsel v.

Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003) (citing

Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). Second, we

look to see if the right was clearly established at the

time of the alleged violation. Finsel, 326 F.3d at 906 (cit-

ing Doyle v. Camelot Care Centers, Inc., 305 F.3d 603,

616 (7th Cir. 2002)).

No. 07-1792 7

We review the district court’s ruling on a motion to

dismiss de novo. Sigsworth v. City of Aurora, 487 F.3d 506,

508 (7th Cir. 2007); Chi. Dist. Council of Carpenters

Welfare Fund v. Caremark, Inc., 474 F.3d 463, 471 (7th

Cir. 2007). We accept all well-pleaded factual allegations

in the complaint as true and construe all reasonable

factual inferences in favor of the plaintiff. Sigsworth, 487

F.3d at 508.

We begin our inquiry with whether Kliment and Rouse

violated Vose’s constitutional right to free speech. Kliment

and Rouse argue that Vose’s speech was not constitu-

tionally protected because Vose was speaking pursuant

to his official duties as the supervisor of the narcotics

unit, and not as a citizen. Vose argues that he spoke as

a citizen in reporting the alleged misconduct to Kliment

and Rouse, because he discovered the alleged misconduct

in an independent investigation that was not part of

his duties, and that the detectives were not under his

supervision and were in a separate police unit.

The First Amendment protects a public employee’s

right to speak as a citizen addressing matters of public

concern under certain circumstances. Garcetti v. Ceballos,

___ U.S. at __, 126 S.Ct. at 1957 (2006); see, e.g., Connick

v. Myers, 461 U.S. 138, 147-48 (1983); Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968). “[W]hen public em-

ployees make statements pursuant to their official duties,

the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.”

Garcetti, ___ U.S. at ___-, 126 S.Ct. at 1960. Determining

the official duties of a public employee requires a practical

inquiry into what duties the employee is expected to

perform, and is not limited to the formal job description.

See id. at 1962-63 (explaining that formal job descriptions

rarely resemble the actual duties of an employee for

First Amendment purposes).

8 No. 07-1792

We focus our analysis exclusively on the initial oral

statements made by Vose to Kliment and Rouse because

all other speech regarded the same alleged misconduct

and most of it was pursuant to direct orders of Rouse

and Kliment. While Vose alleged that newspaper articles

were published on the alleged misconduct, he did not

allege in his complaint that he spoke to the newspapers.

Instead, it appears that Vose included this information

to bolster his position that the alleged misconduct is a

matter of public concern. We accept that police miscon-

duct is a matter of public concern, but as this analysis

illustrates, that is no longer the initial inquiry on First

Amendment retaliation claims. See Garcetti, ___ U.S. at

___, 126 S.Ct. at 1958 (“The first [inquiry] requires deter-

mining whether the employee spoke as a citizen on a

matter of public concern.”) (emphasis added).

Furthermore, we acknowledge that Vose has pleaded

that he had a discussion with the Mayor of Springfield

and that he believes Kliment was aware of this discus-

sion. However, taking the facts in the light most favor-

able to Vose, we cannot find that Vose’s discussion with

the Mayor on April 14, 2005 was a motivating factor for

the retaliation.3 See Mt. Healthy City Sch. Dist. Bd. Educ.

v. Doyle, 429 U.S. 274, 287 (1977) (employee must show

that his conduct was constitutionally protected and was

a “substantial” or “motivating” factor in the retaliation);

see also Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.

2006) (“To make out a prima facie case of first amend-

ment retaliation, a public employee must present evid-

ence that: (1) his speech was constitutionally protected,

(2) he has suffered a deprivation likely to deter free

speech, and (3) his speech was at least a motivating

factor in the employer’s action.”). Vose contends that the

3

Nor does Vose assert this argument.

No. 07-1792 9

retaliation took four forms: (1) the interference with Vose’s

control over operations of the narcotics unit; (2) the

written reprimand for late submission of Vose’s response

to the ultimatum to transfer or “get along”; (3) the demo-

tion to the patrol division; and (4) the written reprimand

regarding the trial incident. While the meeting with

the Mayor took place on April 14, 2005, the alleged

retaliatory act of interference began sometime between

the summer of 2004 and March of 2005.

Likewise, the ultimatum to “get along” or transfer to the

patrol division was given on April 12, 2004. The written

reprimand for the trial incident was issued after the

meeting with the Mayor, but an internal affairs complaint

regarding this incident was filed on November 30, 2004. As

such, it would simply appear to be a natural sequence

of events: that the written reprimand followed the com-

plaint filing and the interrogation process described by

Vose’s complaint.

Lastly, although Vose received a written reprimand for

allegedly turning in a late memorandum, he had already

requested (albeit forced) the transfer to the patrol division,

and Vose contested the reprimand. Vose does not allege

any further retaliatory action taken based on an alleged

tardiness of his memorandum or his decision to contest

the written reprimand. See Massey, 457 F.3d at 716

(employee must suffer a deprivation). Therefore, we can-

not reasonably infer that the alleged retaliation was

motivated by Vose’s meeting with the Mayor.

Vose’s initial statements regarding the alleged miscon-

duct of the detectives in the major case unit were pursuant

to his official duties as supervisor of the narcotics unit.

Vose’s complaint states that Vose learned of the major

case unit detectives’ trash rips when he was working in the

narcotics unit, and that based on learning of the trash rips,

he reviewed various applications for search warrants made

10 No. 07-1792

by the major case unit detectives because he was con-

cerned about “the possibility of these trash rips [compro-

mising] ongoing investigations being conducted by his unit”

and “the lack of coordination between the activities of the

major case unit and the narcotics unit.”

While Vose contends that his official duties as supervisor

of the narcotics unit did not include responsibility for

investigating potential misconduct of officers in another

unit, this argument fails to consider his own admitted

interests in the investigation: that the alleged miscon-

duct could directly affect his narcotics unit. As a supervi-

sor of the narcotics unit, it can hardly be said that Vose

did not have a duty to make sure his unit’s investiga-

tions were not compromised by some outside influence, or

that Vose did not have a duty to coordinate his unit’s

work with other related units in the police department.

Vose may have gone above and beyond his routine duties

by investigating and reporting suspected misconduct in

another police unit, but that does not mean that he

spoke as a citizen and not as a public employee. “Th[e]

focus on ‘core’ job functions is too narrow after Garcetti,

which asked only whether an ‘employee’s expressions

[were] made pursuant to official responsibilities.’ ” Spiegla

v. Hull, 481 F.3d 961, 966 (7th Cir. 2007) (quoting Garcetti,

___ U.S. at ___, 126 S.Ct. at 1961). Because Vose was

responsible for the operations of the narcotics unit, his

speech regarding alleged misconduct that may affect

his unit was made pursuant to his official responsibilities,

and not as a private citizen, despite not having explicit

responsibility for the detectives involved or the search

warrants at issue.

Vose seeks to distinguish three post-Garcetti Seventh

Circuit cases in arguing that he spoke as a citizen, and not

as a public employee. First, in Mills v. City of Evansville,

452 F.3d 646 (7th Cir. 2006), an on-duty sergeant criticized

her superior’s plan to reduce the number of officers under

No. 07-1792 11

her supervision. The Mills Court held that the sergeant’s

criticism was not the speech of a citizen because her

speech was her “contributi[on] to the formation and

execution of official policy.” 452 F.3d at 648.

Vose asserts that his speech, unlike the sergeant’s

speech in Mills, was not a criticism of official policy, but

instead was speech designed to expose the wrongdoings

of officers beyond his control, and therefore Vose spoke

as a citizen, not a public employee. Vose misses the point.

It is not the negative or policy-oriented content of the

speech that is the focus of the inquiry post-Garcetti; it is

whether the speech was pursuant to his official duties or

whether the expression was that of a private citizen.

Garcetti, ___ U.S. at ___, 126 S.Ct. at 1959-60.

Next, Vose argues that his case is distinguishable from

Spiegla v. Hull, 481 F.3d 961 (7th Cir. 2007). In Spiegla,

a corrections officer responsible for maintaining prison

security reported a breach of a prison security policy by

another prison employee to her superior. 481 F.3d at 962-

63. The Spiegla Court held that the corrections officer

was speaking pursuant to her official duties—not as a

citizen—when she reported the security policy breach

because ensuring compliance with prison security policy

was part of what she was employed to do. Id. at 965-66.

Vose asserts that Spiegla differs because the correc-

tions officer was responsible for prison security, which

is what her speech addressed, but Vose was not responsi-

ble for policing the major case unit detectives. This

distinction fails as well, since Vose was employed to

oversee the narcotics unit’s investigations, which Vose

himself stated could have been compromised by the alleged

misconduct of the major case unit detectives. Like the

corrections officer, Vose was merely doing his job when he

reported to his superiors his suspicions of the detectives’

misconduct. A public employee’s more general responsi-

12 No. 07-1792

bilities are not beyond the scope of official duties for

First Amendment purposes. See Garcetti, ___ U.S. at ___,

126 S.Ct. at 1961; Spiegla, 481 F.3d at 966.

Finally, Vose attempts to distinguish Sigsworth v. City

of Aurora, 487 F.3d 506 (7th Cir. 2007). Sigsworth in-

volved a police investigator working on a multi-jurisdic-

tional task force investigating gang and drug activity. 487

F.3d at 508. Sigsworth, the police investigator, suspected

that certain task force members were tipping off the

targets in a task force drug raid, and reported this con-

cern to his supervisors. Id. This Court found that

Sigsworth “was merely doing what was expected of him” as

a member of the task force with supervisory responsibili-

ties and pursuant to task force policy, and therefore his

speech was not entitled to First Amendment protection.

Id. at 511.

Vose claims that the voluntary and independent nature

of his investigation into the suspected wrongdoings of the

major case unit detectives was not expected of him as a

supervisor in the narcotics unit, which distinguishes

him from Sigsworth. Again, Vose ignores his own state-

ments that his independent investigation stemmed from

his concerns about how the detectives’ misconduct might

affect his work in the narcotics unit. Ensuring the law-

ful operations of narcotics investigations was clearly

expected of Vose.

In his final argument, Vose asserts that Garcetti was

a narrow decision limited to the facts of the case.4 Vose

4

Garcetti involved a deputy district attorney who alleged that

he was subjected to employment retaliation for writing a

disposition memorandum in which he recommended dismissal of

a case on the grounds of government misconduct. The Supreme

Court held that the deputy district attorney’s memorandum was

(continued...)

No. 07-1792 13

asks us to interpret the holding in Garcetti to mean that

only speech pursuant to a public employee’s ordinary

daily job duties are unprotected by the First Amend-

ment. Such a reading, Vose claims, will foster the free

flow of ideas as constitutionally guaranteed by the First

Amendment. We decline to read beyond the text of Garcetti

since we consider the Garcetti standard of “official duties”

to be clear enough. While Vose may have gone beyond his

ordinary daily job duties in reporting the suspected

misconduct outside his unit, it was not beyond his offi-

cial duty as a sergeant of the narcotics unit to ensure the

security and propriety of the narcotics unit’s operations.

For the reasons stated, we find that Vose’s speech, albeit

an honorable attempt to correct alleged wrongdoing, was

not protected by the First Amendment. Kliment and

Rouse are entitled to qualified immunity. Because no

constitutional right was violated, Vose’s complaint fails

to state a claim under § 1983.

III. Conclusion

We REVERSE the district court’s holding that Kliment

and Rouse were not entitled to qualified immunity.

4

(...continued)

work product created while performing his official duties, and

therefore was not entitled to First Amendment protection. See

generally Garcetti, ___ U.S. ___, 126 S.Ct. 1951.

14 No. 07-1792

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-26-07