Gary T. Mitchell v. Bernie C. Thompson

FLAUM, Circuit Judge.

Gary Mitchell (“Plaintiff’) alleged that Kankakee County, Bernie Thompson (the County Sheriff) and Edward Jackson (Thompson’s Chief Deputy), violated numerous constitutional and statutory guarantees by demoting him in retaliation for his refusal to actively support Thompson’s 1990 reelection. Defendants Thompson and Jackson filed a motion to dismiss Plaintiffs suit based on qualified immunity. The district court denied the motion. Thompson and Jackson here appeal. We reverse and remand this case with instructions to dismiss Plaintiffs suit against the defendants.

I. Background

In early 1986 Plaintiff was serving as a Kankakee County deputy under the Republican sheriff, and was promoted to sergeant in July of that year. In November 1986 the Republican Sheriff lost the sheriffs election to Thompson, the Democratic candidate. Following Thompson’s election, Plaintiff received two further promotions, first to chief of investigative services, and then, several months later, to Chief Deputy for Kankakee *426 County. Apparently, Plaintiff served Sheriff Thompson satisfactorily, at least until early December 1989 when Thompson announced his bid for reelection. It was then that Thompson actively solicited Plaintiffs personal support, and that of his staff, for the campaign. Plaintiff refused both to support Thompson and to allow those under his supervision to participate in the campaign during office hours. Thompson then demoted Plaintiff to Third-Watch Supervisor. In response, Plaintiff sued alleging violations of his First Amendment and Fourteenth Amendment rights. Thompson and Jackson claimed qualified immunity, and thus moved to dismiss Plaintiffs suit. Contrary to the magistrate judge’s recommendation, the district court denied defendants’ motion. Thompson and Jackson appealed. For the purposes of this appeal we assume that Plaintiffs demotion was in retaliation for his non-support of Thompson’s reelection bid.

II. Analysis

The issue here presented is one which we are all too familiar — whether a public official is entitled to qualified immunity from a civil suit because the law was not clearly established at the time of his alleged misconduct. In their appeal, Thompson and Jackson argue that they are entitled to qualified immunity. We agree.

Over the past year this court has had occasion to decide a substantial number of qualified immunity cases. 1 Thus, as we recently stated in Anderson, 16 F.3d at 221, we will refrain from generally adding to that already encyclopedic volume of law. Here let it suffice for us to say that qualified immunity shields, from civil liability, government officials who perform discretionary functions so long as their conduct does not violate a law clearly established at the time of their alleged misconduct. Id., citing Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1992); see also Donovan, 17 F.3d at 947. Among this circuit’s qualified immunity cases, we previously have had the opportunity to consider how qualified immunity might apply to a county sheriff accused of political patronage. See Heideman v. Wirsing, 7 F.3d 659 (7th Cir. 1993); Dimmig v. Wahl, 983 F.2d 86 (7th Cir.1993); Upton v. Thompson, 930 . F.2d 1209 (7th Cir.1991).

In Upton , a newly elected sheriff sacked a freshly hired deputy who had actively campaigned for the incumbent. 930 F.2d at 1210. The deputy subsequently sued alleging that the sheriff had violated the First Amendment. While assuming the truthfulness of the plaintiffs allegation, the Upton court granted summary judgment for the sheriff based on qualified immunity. Id. The reason given for this holding was that, as of 1986, the law did not clearly forbid a sheriff from firing one of his deputies for purely political motives. Id. Furthermore, the Supreme Court has taught in Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), as understood in this circuit, see Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.1985), cert. denied, 474 U.S. 946 , 106 S.Ct. 313 , 88 L.Ed.2d 289 (1985), that a sheriff may continue to use bare political considerations in determining who will serve as one of his deputies. Upton, 930 F.2d at 1218. Since Upton this circuit has considered the limits of a county sheriffs ability to fire his deputies for political reasons. See Heideman v. Wirsing, 7 F.3d 659 (7th Cir.1993); Dimmig v. Wahl, 983 F.2d 86 (7th Cir.1993). In Heideman , we heard the appeal of a deputy who alleged that he had been wrongfully terminated for his political speech during the sheriffs election campaign. In granting the sheriff qualified immunity we again stated that “[a] sheriff may use political considerations when determining who will serve as a deputy sheriff.” 7 F.3d at 664 , citing Upton, 930 F.2d at 1218. In Dimmig , we actually expanded Upton somewhat by holding that a new deputy may be discharged merely for failing to support, rather than actively opposing, the incumbent sheriffs re *427 election bid. Dimmig, 983 F.2d at 87 . Upton, Heideman, and Dimmig pose a steep obstacle to Plaintiffs suit.

For support, Plaintiff cites the Supreme Court’s holding in Rutan v. Republican Party of Illinois, 497 U.S. 62 , 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990), 2 claiming that it clearly forbids Thompson’s political demotion of Plaintiff, thus foreclosing Thompson’s and Jackson’s claim of qualified immunity. We disagree. While creating an exception to the patronage rules for low-level employees, Rutan does little if anything to strengthen Plaintiffs position. See Heideman, 7 F.3d at 662 , discussing Rutan, 497 U.S. at 74 , 110 S.Ct. at 2736 . On the contrary, Rutan , decided only six months before Thompson’s alleged misconduct, may have moderately complicated this area of the law, so as to actually weaken Plaintiffs argument that this law was clearly established. See Upton, 930 F.2d at 1217 (stating that Rutan “has recently complicated the patronage question”).

Therefore, from the holdings presented in Upton, Dimmig and Heideman , we conclude that as of November 1990 the law did not clearly forbid Thompson from either firing a deputy, or taking the lesser step of demoting one, for political purposes. Thompson could reasonably have believed that the position of trust and authority occupied by Plaintiff, as the chief deputy, actually made Plaintiff more susceptible than a regular deputy to the demands of political patronage. Thompson and Jackson are thus entitled to qualified immunity for their conduct relating to Plaintiff, and accordingly, the district court should have granted Thompson’s and Jackson’s motion to dismiss. 3

III. Conclusion

For the foregoing reasons we reverse the district court and remand this case with the instructions that Plaintiffs suit should be dismissed with prejudice.

Reversed and Remanded.

. A Westlaw search revealed that in 1993 the Seventh Circuit decided forty-four cases dealing with the issues of qualified immunity. See Anderson v. Holmes, 16 F.3d 219 , 221 n. 4 (7th Cir.1994). For a more extensive discussion of qualified immunity see Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994).

. The Supreme Court in Rutan forbid patronage based employment practices over low-level employees. 497 U.S. at 71-73 , 110 S.Ct. 2735 -36. The court stated that such practices violated these employees' First Amendment guarantees. Id.

. We have not, of course, reached the merits in this case. Whether today the Sheriffs conduct should be adjudged unconstitutional is not a matter we need to address here. We can demur to the dissent's point that Upton and its progeny may be distinguished. Judge Wood's policy argument alone does not clearly establish retroactively the laudable proposition of law which he advances. Under the prevailing precedent, unless the law is clearly established at the time of the challenged conduct, a defendant is entitled to qualified immunity.