The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13020
Non-Argument Calendar
____________________
WARREN DARLOW,
Plaintiff-Appellee,
versus
FRANK BABINECK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-13020
D.C. Docket No. 0:21-cv-60083-RAR
____________________
Before ROSENBAUM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Frank Babinec, the City Manager of Coral Springs, appeals
the district court’s denial of qualified immunity from Warren Dar-
low’s claim of First Amendment retaliation under 42 U.S.C. § 1983.
On appeal, Babinec argues that the district court erred in denying
his motion to dismiss because Darlow failed to state a viable claim.
He also argues that the court erred in denying him qualified im-
munity because it was not clearly established that Darlow’s speech
touched on a matter of public concern.
Darlow brought suit under 42 U.S.C. § 1983 against Babinec
and the City of Coral Springs after he was fired by Babinec for post-
ing a meme of George Floyd with pink skin on his Facebook page.
He alleged in his complaint that Babinec terminated his employ-
ment solely as a result of the post. Babinec and the City filed a
motion to dismiss, arguing that the complaint failed to state a via-
ble claim and that Babinec was entitled to qualified immunity.
They argued that Darlow had not spoken on a matter of public
concern and even if he had, the Pickering 1 balancing test required
dismissal. The district court granted the motion in part, dismissing
1 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1986).
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the claim against the City but denied it as to Babinec. The court
held that Darlow sufficiently pled that he spoke as a private citizen
and that his speech involved a matter of public concern. However,
the next part of the Pickering test involved balancing the em-
ployee’s free speech interest against the interest of the government
in promoting the efficiency of the public services it performs,
which required more information than was in the record to re-
solve. Thus it held that it was premature to decide the issue. Ba-
binec expressly declines to challenge the district court’s ruling that
deferred the Pickering balancing issue to the summary judgment
stage. Accordingly, we, like the district court, express no opinion
on the Pickering balance. Therefore, the sole issue we address on
appeal is whether the district court erred in failing to dismiss Dar-
low’s complaint for failure to plausibly allege that Darlow’s speech
involved a matter of public concern.
We review de novo whether a complaint sufficiently alleges
a constitutional violation and a district court’s denial of qualified
immunity. Carollo v. Boria, 833 F.3d 1322, 1328 (11th Cir. 2016).
“In reviewing a complaint, we accept all well-pleaded factual alle-
gations as true and construe the facts in the light most favorable to
the plaintiff.” Id.
Federal Rule of Civil Procedure 8(a)(2) requires pleadings to
contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” While detailed factual allegations are
not required, a pleading that offers “labels and conclusions or a for-
mulaic recitation of the elements of a cause of action will not do.”
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4 Opinion of the Court 21-13020
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omit-
ted). To survive a Rule 12(b)(6) motion to dismiss, a complaint
must allege sufficient facts to state a claim that is plausible on its
face. Id. To be facially plausible, the plaintiff must plead facts that
allow the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id.
A public employee may not be discharged in retaliation for
speech protected under the First Amendment. Bryson v. City of
Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). To sustain a claim
of retaliation for engaging in protected speech, the employee must
show that (1) his speech is on a matter of public concern; (2) his
speech interest outweighs the employer’s interest in prohibiting
the speech to promote the efficiency of its public services; and
(3) the speech played a substantial role in the employer’s decision
to discharge the employee. Battle v. Bd. of Regents for Ga., 468
F.3d 755, 759-60 (11th Cir. 2006). An employee’s speech receives
constitutional protection only if the employee spoke as a citizen on
a matter of public concern. Id. at 760.
The First Amendment reflects “a profound national com-
mitment to the principle that debate on public issues should be un-
inhibited, robust, and wide-open.” N.Y. Times v. Sullivan, 376 U.S.
254, 270 (1964). Accordingly, “speech on public issues occupies the
highest rung of the hierarchy of First Amendment values, and is
entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145
(1983). Speech involves matters of public concern “when it can ‘be
fairly considered as relating to any matter of political, social, or
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21-13020 Opinion of the Court 5
other concern to the community,’ or when it ‘is a subject of legiti-
mate news interest; that is, a subject of general interest and of value
and concern to the public.’” Lane v. Franks, 573 U.S. 228, 241 (2014)
(quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). Whether an
employee’s speech involves a matter of public concern is deter-
mined by analyzing the speech’s content, form, and context. Id. at
147-48. The arguably inappropriate or controversial nature of the
speech at issue is not relevant to the question of whether that
speech involves a matter of public concern. Rankin v. McPherson,
483 U.S. 378, 387 (1987).
In the event the speech is protected, a balancing test applies
to weigh the employee’s free speech interest against the interest of
the government in promoting the efficiency of the public services
it performs. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205,
391 U.S. 563, 568 (1986). If the employee’s interest outweighs the
government’s interest, the court must then determine whether the
speech played a substantial part in the government’s decision to
discharge the employee. Fikes v. City of Daphne, 79 F.3d 1079,
1084 (11th Cir. 1996). If it did, the court must determine whether
the government has shown that it would have made the same em-
ployment decision regardless of the protected conduct. Id. at 1085.
As noted above, we do not address the Pickering balancing issue in
this appeal.
Government officials performing discretionary functions are
entitled to qualified immunity if their conduct does not violate
“clearly established statutory or constitutional rights of which a
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6 Opinion of the Court 21-13020
reasonable person would have known.” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (citation omitted). Accordingly, to determine
whether qualified immunity applies, a court should determine
whether the facts alleged by the plaintiff established a violation of
a constitutional right, and, if so, whether that right was clearly es-
tablished at the time of the alleged misconduct. Saucier v. Katz,
533 U.S. 194, 201 (2001). Once the plaintiff has established his com-
plaint pleads a plausible claim that the defendant violated his rights,
he must then show that those rights were clearly established at the
time the alleged violation occurred. See Gaines v. Wardynski, 871
F.3d 1203, 1208 (11th Cir. 2017).
Qualified immunity applies if a reasonable person could
have believed that his act complied with federal law. Dartland v.
Metro. Dade Cnty., 866 F.2d 1321, 1323 (11th Cir. 1989). When we
consider whether the law clearly established the relevant conduct
as a constitutional violation at the time that defendants engaged in
the challenged acts, we look for “fair warning” to officers that the
conduct at issue violated a constitutional right. Coffin v. Brandau,
642 F.3d 999, 1013 (11th Cir. 2011) (citations and quotation marks
omitted). “Fair warning” comes in the form of binding caselaw
from the Supreme Court, the Eleventh Circuit, or the highest court
of the state that “make[s] it obvious to all reasonable government
actors, in the defendant's place, that what he is doing violates a fed-
eral law.” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th
Cir. 2000) (citation omitted).
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21-13020 Opinion of the Court 7
A plaintiff may demonstrate in any one of three ways that a
defendant had “fair warning” that the right he violated was clearly
established. Loftus v. Clark–Moore, 690 F.3d 1200, 1204 (11th Cir.
2012) (citation and internal quotation marks omitted). First, a plain-
tiff may point to binding precedent that is materially similar. Id.
This method requires us to consider “whether the factual scenario
that the official faced is fairly distinguishable from the circum-
stances facing a government official in a previous case.” Id. (citation
and internal quotation marks omitted).
Second, a plaintiff may invoke a “broader, clearly established
principle” that he asserts “should control the novel facts [of the]
situation.” Id. at 1204–05 (citation and internal quotation marks
omitted). Because “fair warning” is the driving force behind a de-
termination that a right has been clearly established, when a plain-
tiff proceeds in this way, he must show that caselaw demonstrated
the principle with “obvious clarity . . . so that every objectively rea-
sonable government official facing the circumstances would know
that the official’s conduct did violate federal law when the official
acted.” Id. at 1205 (citation and internal quotation marks omitted).
The violation of a right may also fall into this category when “[t]he
reasoning, though not the holding of prior cases, . . . send[s] the
same message to reasonable officers in novel factual situations.”
Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)
(citation and internal quotation marks omitted).
Finally, a right is “clearly established” when the defendant's
conduct “lies so obviously at the very core of what the [relevant
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8 Opinion of the Court 21-13020
constitutional provision] prohibits that the unlawfulness of the
conduct was readily apparent to the official, notwithstanding the
lack of case law.” Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir.
2012).
In Rankin v. McPherson, 483 U.S. 378 (1987), the Supreme
Court addressed the issue of what constitutes a matter of public
concern. There, the fired employee had commented on the assas-
sination attempt of the President. The Court stated that “it plainly
dealt with a matter of public concern,” pointing out that the com-
ment was made after the announcement of the attempt. 483 U.S.
at 387. This Court has also held that speech concerning racial mat-
ters can involve matters of public concern. See, e.g., Belyew v.
Coosa Cnty. Bd. of Educ., 998 F.2d 925, 927-28 (11th Cir. 1993)
(holding that speech constituted a matter of public concern when
a black teacher’s employment was not renewed because she advo-
cated at a PTA meeting in a recently integrated high school that
students should be informed during Black History Month of con-
tributions of Black Americans); see also Leonard v. City of Colum-
bus, 705 F.2d 1299 (11th Cir. 1983).
Darlow plausibly alleged a violation of his First Amendment
free speech rights. His complaint plausibly alleged that he spoke as
a citizen on a matter of public concern when it alleged that his em-
ployment was terminated because of a post he made to a private
social media group commenting on the state of politics following
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21-13020 Opinion of the Court 9
the death of George Floyd. 2 Like the assassination attempt on the
president, it is clear that the death of George Floyd and the result-
ing events were matters of public concern because at the time of
the post, they were being discussed extensively in the news. See
Rankin, 483 U.S. at 387. We cannot conclude that Darlow’s meme
of George Floyd with pink skin is anything other than commentary
on the racial issues raised by the George Floyd incident. We con-
clude that it is a matter of obvious clarity from binding caselaw,
see, e.g., Rankin, 483 U.S. at 387, and Belyew, 998 F.2d at 927-28,
that Darlow’s speech involves a matter of public concern. Because
he only challenged the court’s determination of the first Pickering
step (i.e., the public concern step), and we agree with the district
court in that regard, the decision of the district court is affirmed.
For foregoing reasons, the judgment of the district court that
Darlow’s speech involves a matter of public concern and that Ba-
binec is not entitled to qualified immunity with respect to this issue
is
AFFIRMED.
2 As conceded by Babinec, the fact that the venue of Darlow’s speech was a
private Facebook post does not affect its status as speech on a matter of public
concern. See O’Laughlin v. Palm Beach Cnty., 30 F.4th 1045, 1052 (11th Cir.
2022) (“[T]he law is well-settled that a public employee does not forfeit his
free-speech rights simply because he chooses to communicate privately rather
than publicly,” relying upon a 1979 Supreme Court decision and several Elev-
enth Circuit decisions decided well before the incidents in this case).