The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-30415
Summary Calendar
_______________
MICHAEL R. LIKER
and
GARY SAMPSON, SR.,
Plaintiffs-Appellees,
VERSUS
JOHNNY MARINO,
Sheriff of St. Charles Parish,
ROBERT DALE,
and
JULES TARULLO,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(93-1201-M)
_________________________
January 31, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
I.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Michael Liker and Gary Sampson, Sr., filed this civil rights
action against defendants-appellants Sheriff Marino and Deputy
Sheriffs Dale and Tarullo of St. Charles Parish. The defendants
appeal the denial of their summary judgment motion based upon
qualified immunity.
The factual allegations of the complaint may be summarized as
follows: Liker and Sampson were hired as deputies in 1990 and 1978,
respectively. In April 1992, the defendants subjected them to
false arrest and imprisonment and unlawful searches and seizures
and then caused them to be indicted for armed robbery, conspiracy,
extortion, and malfeasance. The defendants also suspended them
without pay, denial renewal of their deputies’ commissions, and
suspended their employee benefits. They did so based upon
Sampson’s being a black man and in retaliation for “personal
political benefits” of the plaintiffs, which violated their First
Amendment rights.
The evidence shows that Liker and Sampson were accused of
stopping Vietnamese motorists for speeding and then demanding cash
payments on the spot to avoid receiving citations. In 1994, in
connection with the accusations, Liker pled guilty to one count of
malfeasance in office, and a jury convicted Sampson of extortion.
The parties consented to proceed before a magistrate judge.
In February 1995, the defendants moved for summary judgment on the
basis of qualified immunity. They observed that the plaintiffs,
since they had filed their complaint, had been criminally convicted
for their misconduct against Vietnamese motorists and do not argue
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that any stages of the criminal proceedings against them——the
arrest, incarceration, and indictment——were unlawful. As to the
allegations of illegal employment actions, the defendants main-
tained that they were entitled to qualified immunity.
In response to the summary judgment motion, the plaintiffs
explicitly “abandon[ed] all claims except that of retaliatory
arrest . . . and discharge.” They admitted that they had been
convicted of crimes for “shaking down” Vietnamese motorists. They
asserted that other officers also had engaged in the illegal
shakedowns but had not been charged with any wrongdoing. In an
affidavit, they explained that they were open supporters of
Marino’s opponent in the sheriff’s race.
The magistrate judge ordered the plaintiffs to file affidavits
from persons with personal knowledge of facts showing that other
officers had engaged in the illegal activity. Then, without
waiting for the plaintiffs to comply with his order, the magistrate
judge denied the summary judgment motion with a one-sentence
explanation: “There are contested issues of material fact as to
whether plaintiffs would not have been arrested and terminated from
employment ‘but for’ their support of the Sheriff’s political
opponent.”
In a motion for reconsideration, the defendants stated,
“[W]hat the plaintiffs are arguing is that they have some sort of
bizarre immunity from prosecution because they are political
opponents of the sheriff.” Relying upon the analytical framework
prescribed in Mt. Healthy School Dist. Bd. of Educ. v. Doyle, 429
3
U.S. 274 (1977), they contended that the plaintiffs’ criminal acts
were legitimate, nonpretextual grounds for termination.
The court denied the reconsideration motion, observing only
that the plaintiffs alleged that they had been singled out for
retaliation and termination because they had supported Marino’s
opponent. Citing Matherne v. Wilson 851 F.2d 752 (5th Cir. 1988),
and not addressing the case authority cited by the defendants, the
magistrate judge found that their right not to be singled out for
such retaliation was clearly established.1
II.
An order denying a summary judgment motion based upon a
qualified immunity defense is immediately appealable under the
collateral order doctrine to the extent that it turns on an issue
of law. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The
plaintiffs concede that they can point to no case establishing that
a sheriff cannot, on the basis of their political support,
selectively prosecute deputies for criminal activity. There being
no clearly established right, the defendants are entitled to
qualified immunity. This is a perfectly sensible result, for the
plaintiffs in fact were convicted of the serious offenses for which
1
Matherne involved a fired St. Charles Parish deputy sheriff who had
campaigned for the opponent of Marino’s predecessor. The deputy sued under
§ 1983 for violation of his First Amendment rights. 851 F.2d at 755. The
sheriff argued that he was entitled to qualified immunity. Id. Although the
court found that the sheriff was entitled to qualified immunity in his individual
capacity, the court affirmed a jury verdict in favor of the deputy against the
sheriff in his official capacity, finding that, where the deputy’s political
activities did not impair his professional judgment, the sheriff’s termination
of him violated his First Amendment rights. Id. at 757-58, 761. The deputy in
Matherne was not alleged to have engaged in any criminal wrongdoing.
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they were prosecuted. There is no issue of material fact, as the
“issue” of whether the plaintiffs would have been fired but for
their political support is immaterial in the absence of a clearly
established right.
The order denying summary judgment is REVERSED, and judgment
is RENDERED for defendants.
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