The opinion
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-3179
D.C. No. 91-10121-MMP
GEORGE JOHNSON,
Plaintiff,
SYLVIA HILL, RAYMOND GRIFFIN,
Plaintiffs-Appellees,
versus
WAYLAND CLIFTON,
Defendant-Appellant,
CITY OF GAINESVILLE,
Defendant.
No. 94-3180
D.C. No. 91-10145-MMP
EUGENE ROSS,
Plaintiff-Appellee,
versus
WAYLAND CLIFTON,
Defendant-Appellant,
CITY OF GAINESVILLE,
Defendant,
GEORGE JOHNSON,
Respondent.
No. 94-3184
D.C. No. 91-10118-MMP
SYLVIA HILL,
Plaintiff-Appellee,
versus
WAYLAND CLIFTON, individually and as the
Chief of Police and agent for the City of
Gainesville,
Defendant-Appellant,
CITY OF GAINESVILLE,
Defendant.
Appeals from the United States District Court
for the Northern District of Florida
(January 26, 1996)
Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior
Circuit Judge.
FAY, Senior Circuit Judge:
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This appeal arises from the District Court's denial of
qualified immunity and denial of summary judgment to Wayland
Clifton, Jr., the Police Chief for the City of Gainesville.
Three former police officers, Sylvia Hill, Eugene Ross, and
Raymond Griffin, brought suit against Clifton, alleging that they
were disciplined for testifying about Clifton before a grand
jury. Because Clifton is entitled to qualified immunity, we
reverse.
I. BACKGROUND
Hill, Ross, and Griffin worked together in Internal Affairs
at the Gainesville Police Department. Hill was the Unit
Commander; Ross was Hill's immediate supervisor, while Griffin
reported to Hill. Hill, Ross, and Griffin allege that Internal
Affairs began an investigation of alleged misconduct by a group
within the police department called Hallucinations 2000, and gave
proper notice to the City Manager that Clifton might be involved;
in response to this investigation, Clifton transferred the
plaintiffs from Internal Affairs; after an audit of Internal
Affairs revealed no wrongdoing, Clifton stated that the
investigation was concluded and nothing would come of it; Clifton
offered to transfer the plaintiffs to any position within the
department that they desired; State Attorney Len Register then
contacted Hill and asked who he should subpoena to enable the
grand jury to make a decision as to whether the police department
should be investigated regarding Hallucinations 2000; the
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plaintiffs testified before the grand jury regarding
Hallucinations 2000; in retaliation for the grand jury testimony,
Clifton re-opened the investigation into Internal Affairs and
then disciplined the plaintiffs.
Clifton denies that he retaliated against the plaintiffs for
their testimony before the grand jury. He claims that the
plaintiffs initiated a secret investigation without notifying the
City Manager; that he was not involved in any way with
Hallucinations 2000 and that the group turned out to be innocuous
in any event; that the grand jury and the independent
investigator concluded that he had done nothing wrong; that an
audit of Internal Affairs showed that investigative files were
missing, some cases had not been completed, some investigations
were untimely or unauthorized, and certain direct orders had been
ignored; that in response to that misconduct he disciplined the
plaintiffs; and that the plaintiffs had only gone to the grand
jury in order to gain leverage over him and prevent the deserved
discipline rather than out of any public concern about possible
corruption.
It is undisputed that Hill was told in April of 1991, prior
to any allegations or investigation concerning Hallucinations
2000, that she would be transferred from Internal Affairs; that
in early April she was transferred; that in early April Ross and
Griffin were "locked out" of Internal Affairs so that an audit
could be conducted; that the audit was concluded in June; that in
July Clifton offered to transfer Hill to any position within the
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police department (except Internal Affairs) if that was the end
of the matter; that the plaintiffs went to the grand jury anyway;
that after the plaintiffs went to the grand jury, the audit
findings were reviewed and misconduct charges were filed.
Hill, Ross, and Griffin brought suit against Clifton and the
City of Gainesville. The District Court granted summary judgment
to the City on all charges, but denied Clifton's motion for
summary judgment based on qualified immunity. Clifton
immediately appealed the denial of qualified immunity.
II. STANDARD OF REVIEW
We review de novo a District Court's ruling that a public
official's conduct violated clearly established law so that the
official is not entitled to qualified immunity. Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985).
Summary judgment is proper if the pleadings, depositions,
and affidavits show that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a
matter of law. Celotex Corporation v. Catrett, 477 U.S. 317, 322
(1986). The evidence must be viewed in the light most favorable
to the non-moving party. Augusta Iron and Steel Works, Inc. v.
Employers Insurance of Wausau, 835 F.2d 855, 856 (11th Cir.
1988).
III. ANALYSIS
A. Jurisdiction: Johnson v. Jones
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Public officials are entitled to qualified immunity from
"liability for civil damages insofar as their conduct does not
violate clearly established ... rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A public official may immediately appeal a denial of qualified
immunity where the disputed issue involves whether or not the
defendant's conduct constitutes a violation of clearly established
law. Mitchell, 472 U.S. at 528. The public official may appeal
such a decision because it is considered a final, collateral order
regarding qualified immunity. Id. at 528.
In Johnson v. Jones, 115 S.Ct. 2152 (1995), the Supreme Court
further addressed the law of summary judgment in the context of
qualified immunity. The issue in Johnson was whether there was any
evidence in the record to support the District Court's ruling that
a reasonable fact finder could find that the public officials were
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involved in the plaintiff's beating. Id. at 2153-54. The
defendants admitted that such a beating was unconstitutional and
violated clearly established law; they only argued that the
District Court had erred when it found a genuine issue of material
fact in regard to their involvement in the unconstitutional
conduct. Id. 2154. The Supreme Court held that such a ruling by
the District Court could not be appealed as a final, collateral
order. Id. at 2156-58.
It seems clear to us that the Supreme Court was not changing
1
Or phrased another way, whether there was enough evidence
to create a genuine issue of material fact as to whether the
public officials were involved in the beating.
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the well-established law of qualified immunity in the context of
summary judgment, just elaborating on it. When faced with a motion
for summary judgment based on qualified immunity, the District
Court must determine whether there is a genuine issue of material
fact as to whether the defendant committed conduct that violated
clearly established law. This analysis can be broken down into two
parts. First, what was the official's conduct, based on the
pleadings, depositions, and affidavits, when viewed in the light
most favorable to the non-moving party? Second, could a reasonable
public official have believed that such conduct was lawful based on
clearly established law?
The resolution of the second issue constitutes a final,
collateral order. Mitchell at 528. A ruling on such an issue is
immediately appealable. Id. When such a ruling is appealable, the
first issue -- the factual issue -- may be addressed by an
appellate court because it is a part of the core qualified immunity
analysis. See Anderson v. Creighton, 483 U.S. 635, 641 (1987).
However, if only the first issue is appealed, namely what conduct
the defendant engaged in based on the evidence viewed in the light
most favorable to the plaintiff, and not the second issue, namely
whether that conduct violated clearly established law, then the
appellate court has no jurisdiction to hear the case. See Johnson,
115 S.Ct. at 2159. The first issue -- the factual issue -- can
only be heard because it is a necessary part of the core qualified
immunity analysis, the resolution of which constitutes a final,
collateral order; when the core qualified immunity issue is not
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appealed, then the factual issue may not be either. Id.
When the core qualified immunity issue is raised on appeal,
the appellate court has two options regarding how to deal with the
factual issue. "When faced with an argument that the district
court mistakenly identified clearly established law, the court of
appeals can simply take, as given, the facts that the district
court assumed when it denied summary judgment for that (purely
legal) reason." Id. at 2159. Or, the court of appeals can conduct
its own review of the record in the light most favorable to the
nonmoving party. First, the appellate court may have to do so
because the trial court failed to state the facts it assumed. Id.
Second, the appellate court can do so because such a determination
is part of the core qualified immunity analysis, as discussed
above. See Anderson, 483 U.S. at 641. Third, even if such a
determination were not part of the core qualified immunity
analysis, it would be "inextricably intertwined" with that analysis
and within the appellate court's pendent jurisdiction. Swint v.
Chambers, 115 S.Ct. 1203, 1209 (1995). See also Johnson, 115 S.Ct.
at 2159. Of course, if there is any evidence in the record to
support the District Court's ruling that there was a genuine issue
of material fact as to whether the official actually engaged in the
conduct that violated clearly established law, the District Court's
factual ruling will not be disturbed. See Celotex, 477 U.S. at
322.
B. Qualified Immunity
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In the qualified immunity context, the plaintiffs have the
burden of proving that a reasonable public official would not have
believed that his actions were lawful, in light of clearly
established law. Anderson, 483 U.S. at 641. Clifton argues both
that the District Court wrongly applied the clearly established law
to the facts it found and that the record does not support some of
the facts the District Court found, even when viewed in the light
most favorable to the plaintiffs.
1. The Factual Issue
Even when viewing the record in the light most favorable to
the plaintiffs, there is no genuine dispute regarding the following
material facts: 1) while the plaintiffs were still in Internal
Affairs, Clifton told Hill that he was not happy with some of the
work product coming out of Internal Affairs; 2) Clifton transferred
the plaintiffs out of Internal Affairs prior to the point at which
they testified before the grand jury; 3) Clifton, in consultation
with City Manager White, ordered an audit of Internal Affairs prior
to the plaintiffs testifying before the grand jury; 4) the
plaintiffs knew they were being investigated; 5) the plaintiffs
went to the grand jury after they knew they were being
investigated; 6) the plaintiffs would likely be in a better
employment position if the grand jury indicted Clifton.2
2
It is true that Clifton had offered at least Hill the
chance to be transferred anywhere she wanted other than Internal
Affairs. However, Hill wanted to be transferred back into
Internal Affairs, and neither she nor the other plaintiffs
reached any agreement with Clifton. The only chance for the
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2. Clearly Established Law
A government employer may not retaliate against a public
employee for engaging in protected speech. Bryson v. City of
Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). Where the public
employer denies that the employee was disciplined in violation of
that employee's first amendment rights, the court engages in a
four-stage analysis: 1) the employee's speech must involve a matter
of public concern in order for it to be protected, 2) the
employee's first amendment interests must outweigh the public
employer's interest in efficiency (the Pickering3 balancing test),
3) the employee must have been disciplined, in substantial part,
because of the protected speech, and 4) the public employer must
not be able to prove by a preponderance of the evidence that it
would have disciplined the employee even without the protected
speech. Bryson, 888 F.2d at 1565-66.
Whether a statement involves a matter of public concern is a
question of law for the judge, who must consider the purpose of the
employee's speech by analyzing "the content, form, and context" of
the statement. Id. See also Ferrara, 781 F.2d 1508, 1513 (11th
Cir. 1986). If the relevant speech was motivated by personal
concerns instead of public concerns then it is not protected by the
First Amendment in this context. Connick v. Myers, 461 U.S. 138,
147-48 (1983). The issue here is not whether the employee is
plaintiffs to receive what they wanted, then, was through a grand
jury indictment or report.
3
Pickering v. Board of Education, 391 U.S. 563 (1998).
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entitled to make the statement, but rather whether the employee is
entitled to retain employment and avoid discipline after making the
statement. The Supreme Court has decided that only statements
motivated by public concern deserve such protection because
otherwise every criticism of a public official and every employment
dispute would "plant the seed of a constitutional case." Id. at
149. "[G]overnment officials should enjoy wide latitude in
managing their offices, without intrusive oversight by the
judiciary in the name of the First Amendment." Id. at 146.
Furthermore, even if the employee's speech touches upon a
matter of public concern, a Pickering balancing must be conducted
to determine whether the government office was justified in
discharging the employee. Connick, 461 U.S. at 149. A public
official is entitled to qualified immunity, except in "the
extraordinary case where the Pickering balancing would lead to the
inevitable conclusion that the discharge of the employee was
unlawful." Dartland v. Metropolitan Dade County, 866 F.2d 1321,
1323 (11th Cir. 1989).
In Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993), an employee
was fired after complaining about sexual harassment. This Court
concluded that her statement regarding sexual harassment did not
involve a matter of public concern because, even though sexual
harassment is a matter of "important social interest," the purpose
of the statement was not to raise issues of public concern, but
rather to further her own "entirely rational self-interest." Id.
at 755.
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In the instant case, possible police corruption is obviously
a matter of important social interest; however, in this qualified
immunity context, we must focus on what Clifton knew. Even when
viewing the evidence in the light most favorable to the plaintiffs,
it is clear that Clifton knew the plaintiffs went to the grand jury
after they knew they were being investigated, and hoped to gain
from a grand jury indictment or report. It is obvious to us that
Clifton viewed their actions as intended to put pressure on him to
prevent him from following through with the investigation which had
already commenced and which led to the ultimate discipline. In
light of the information available to Clifton, we cannot conclude
that clearly established law told him that the plaintiffs' grand
jury testimony was a matter of public concern rather than personal
gain. We know of no case which might have clearly told Clifton
that he could not take the disciplinary action indicated by an
investigation which was initiated before he even knew about the
allegedly protected speech, and in circumstances where the public
concern implication was doubtful. Thus, we conclude that Clifton
is entitled to qualified immunity.
IV. CONCLUSION
Applying the analysis required by Supreme Court precedent, we
conclude that Clifton's conduct did not violate clearly established
law and so he is entitled to the protection provided by qualified
immunity. We vacate the order of the District Court and remand
with instructions that summary judgment be entered in favor of the
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appellant.
VACATED and REMANDED with instructions.
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