Thomas Noon v. Mayor John Smedley

United States Court of Appeals

For the Eighth Circuit

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No. 22-3668

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Thomas Noon; Christopher Skidmore; Candice Skidmore

Plaintiffs - Appellees

v.

City of Platte Woods, Missouri

Defendant

Mayor John Smedley; Chief of Police Jim Kerns

Defendants - Appellants

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Appeal from United States District Court

for the Western District of Missouri

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Submitted: December 13, 2023

Filed: March 4, 2024

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Before SMITH, Chief Judge, GRUENDER and GRASZ, Circuit Judges.

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GRASZ, Circuit Judge.

Former Platte Woods, Missouri, police officers Thomas Noon and

Christopher Skidmore (collectively, “the Officers”) were terminated from their jobs

after they submitted a letter to Platte Woods Mayor John Smedley and the city’s

Board of Aldermen containing various grievances about the police chief, James

Kerns. The officers sued Smedley and Kerns, alleging First Amendment retaliation

under 42 U.S.C. § 1983. Smedley and Kerns moved for summary judgment based

on qualified immunity, and the district court denied their motion. Smedley and

Kerns now bring this interlocutory appeal. We affirm.1

I.

Noon and Skidmore were officers with the Platte Woods, Missouri Police

Department (the “Department”). Over the course of their employment, the Officers

raised several concerns about Kerns’s performance as Chief of Police. Skidmore

notified Kerns that Department vehicles were not operating properly and radar

equipment gave false readings. Noon also raised concerns about personnel issues

and Kerns’s use of Department time to conduct personal business. The Officers

claim Kerns failed to address any of these concerns.

On September 9, 2019, frustrated with the Department’s management, Noon

met with Kerns. During this meeting, Noon encouraged Kerns to resign as Chief of

Police and handed Kerns a pre-drafted resignation letter. Kerns did not resign.

The Officers decided to take further action. On September 12, 2019, they sent

a document (the “Complaint Packet”) outlining their concerns about the Department

to Smedley and the Platte Woods Board of Aldermen. The Complaint Packet was

sent anonymously, and it included a list of complaints about Kerns’s leadership,

which “led to chronic, systemic and significant issues within the Department.” The

Complaint Packet also included a copy of the Department’s standard operating

procedures and noted “over 180 violations” and “a supplemental document with

numerous other examples of specific public safety concerns or simply things that

1

The Honorable Stephen R. Bough, United States District Judge for the

Western District of Missouri.

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discourage officers.” The document concluded by stating, “it is our belief that our

oath of office to serve the community requires this action.”

By mid-November, an investigation into the Complaint Packet’s allegations

had yet to commence. This prompted Noon and Skidmore to inform Smedley they

had authored the document. Following this admission, in late November 2019,

Skidmore’s job duties changed so that he was no longer able to assign shifts.

On December 4, 2019, a local newspaper wrote about the Complaint Packet’s

allegations. Two days later, Kerns learned someone anonymously sent an email

containing the allegations to the Ararat Shriners organization, of which Kerns was a

member. Kerns reached out to Smedley, claiming Noon or Skidmore may have been

involved in the leak. Noon and Skidmore wrote to Smedley again on January 7,

2020, expressing their disappointment that the investigation was closed without

either of them being interviewed. In January 2020, both the Officers were removed

from the Department’s schedule, and by March 2020, they both had been fired.

The Officers brought this lawsuit in state court, alleging Smedley and Kerns

violated the First and Fourteenth Amendments by retaliating against them for

reporting concerns about the Department. Smedley and Kerns removed the case to

federal court and moved for summary judgment, claiming they were entitled to

qualified immunity. The district court denied the motion and found there was a

genuine dispute of material fact as to whether Smedley and Kerns violated the

Officers’ First Amendment rights. Smedley and Kerns now appeal.

II.

Ordinarily, we review only final decisions of district courts. See 28 U.S.C.

§ 1291. But “a district court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final decision’ within the meaning

of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v.

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Forsyth, 472 U.S. 511, 530 (1985). We review de novo a denial of summary

judgment on the grounds of qualified immunity. Stoner v. Watlingten, 735 F.3d 799,

802 (8th Cir. 2013). Thus, in resolving questions of law related to the denial of

qualified immunity, we review only whether the Officers’ version of the facts is

sufficient to overcome qualified immunity. See Plumhoff v. Rickard, 572 U.S. 765,

768 (2014); Scott v. Harris, 550 U.S. 372, 377–78 (2007); Fed. R. Civ. P. 56(a)

(“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”).

A.

Smedley and Kerns claim they are entitled to qualified immunity. As with

every qualified immunity analysis, we are tasked with a two-part inquiry to

determine (1) whether a constitutional violation occurred, and (2) whether the right

in question was clearly established at the time of the violation. Nord v. Walsh Cnty.,

757 F.3d 734, 738 (8th Cir. 2014). The district court determined the Officers created

a genuine dispute of material fact as to whether Smedley and Kerns violated their

First Amendment rights, and therefore Smedley and Kerns were not entitled to

qualified immunity. We agree.

Our first inquiry is whether the Officers established a First Amendment

violation. To succeed on their First Amendment retaliation claim, the Officers must

prove (1) they engaged in protected activity, (2) Smedley and Kerns took an adverse

employment action against them, and (3) the protected speech was a “substantial or

motivating factor” in that decision to take the adverse employment action. Henry

v. Johnson, 950 F.3d 1005, 1011 (8th Cir. 2020) (quoting Davenport v. Univ. of Ark.

Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009)). On appeal, Smedley and Kerns

do not contest whether the Officers suffered an adverse employment action or the

causal connection between the two events. Thus, our analysis will focus on the first

element—whether the Officers engaged in protected activity.

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A public employee engages in protected activity only if the employee “spoke

as a citizen on a matter of public concern.” Hemminghaus v. Missouri, 756 F.3d

1100, 1110 (8th Cir. 2014) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

We review this as a question of law. See Buehrle v. City of O’Fallon, 695 F.3d 807,

812 (8th Cir. 2012). If the speech “owes its existence to a public employee’s

professional responsibilities[,]” it is not made as a private citizen. Garcetti, 547 U.S.

at 411.

In this case, the Officers’ speech, taken in the light most favorable to them,

was made outside their regular duties as police officers. The record reveals only a

few of the Officers’ duties.2 Noon was responsible for patrol, responding to calls,

rotation of on-call officers, equipment management, assisting on-duty officers, and

emergency management. Skidmore’s duties included assigning shifts to other

officers and vehicle maintenance. As the district court recognized, there are

obviously a number of grievances in the Complaint Packet that do not relate to these

duties. For example, there is no evidence it was within the Officers’ job duties to

report Kerns’s allegedly corrupt billing practices. Or that they had an obligation to

voice their concerns with Kerns’s alleged dissemination of explicit images or alleged

bias in favor of the Ararat Shriners organization. The Officers claim they had no

2

As noted above, the Complaint Packet concluded by stating, “it is our belief

that our oath of office to serve the community requires this action.” Smedley and

Kerns claim this admission demonstrates the Officers were acting pursuant to their

official duties when they submitted their grievances. Although Noon and Skidmore

acknowledged making these statements, they did not discuss the contents of the oath,

and they claim the oath did not require them to submit the Complaint Packet.

Because the contents of the oath are not in the record, we cannot, viewing the facts

in the light most favorable to the Officers, conclude the oath required the Officers to

submit the Complaint Packet. Without knowing the contents of the oath, we cannot

say otherwise.

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obligation as employees to report these issues. Because Smedley and Kerns fail to

muster any evidence to the contrary, we agree.

We also agree with the district court’s assessment that the Officers’ speech

was a matter of public concern. 3 The issues raised in the Complaint Packet largely

concerned the integrity of the Department and its leadership. The Complaint Packet

included concerns about corruption, financial mismanagement, and investigative

failures. Such allegations are related to institutional integrity—an important

governmental function. See Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1117

(8th Cir. 1997) (When the speech in question “involves a matter of political, social

or other concern to the community [it] is of public concern.”); Belk v. City of Eldon,

228 F.3d 872, 878 (8th Cir. 2000) (“Speech that criticizes a public employer in his

capacity as a public official . . . addresses matters of public concern.”).

Because the Officers spoke as citizens on matters of public concern, the

Officers have a possible First Amendment retaliation claim. But this does not end

our analysis. We must then resolve whether Smedley and Kerns have produced

“evidence to indicate the[ir] speech had an adverse impact on the efficiency of [the

Department’s] operations.” Lindsey v. City of Orrick, 491 F.3d 892, 900 (8th Cir.

2007). If there is evidence of disruption, an analysis under the so-called Pickering

balancing test is necessary. Hemminghaus, 756 F.3d at 1111 (referring to Pickering

v. Bd. of Educ., 391 U.S. 563, 568 (1968)). This is also a question of law for the

court. See Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993). Here,

the district court found Smedley and Kerns made the threshold showing of disruption

to trigger the Pickering balancing test. We agree.

“To trigger the Pickering balancing test, a public employer must, with

specificity, demonstrate the speech at issue created workplace disharmony, impeded

the plaintiff’s performance or impaired working relationships.” Lindsey, 491 F.3d

3

Smedley and Kerns do not dispute that portions of the Officers’ speech were

of public concern.

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at 900. In this case, the record shows there were some instances of workplace

disharmony and relational discord. For example, the same day the Complaint Packet

was submitted, a fellow Department officer texted Noon saying, “Do you have any

updates on this [Kerns] thing . . . I really don’t care what the resolution is [because]

at this point I am the only one tending to the day-to-day operations of the department

while the rest of you play whatever game you’re playing.” Moreover, Skidmore

testified that after the Complaint Packet’s submission, he noticed relationships

deteriorating among officers. Based on these facts, the consequences of the Officers’

actions were sufficient evidence of disruption, requiring us to conduct an analysis

under the Pickering balancing test.

Under Pickering, we must decide whether the Officers’ statements were “‘of

such public and social importance as to override [the Department’s] substantial

interest in maintaining’ the efficiency and reputation of the workplace, given the

nature of the office . . . .” Nord, 757 F.3d at 743 (quoting Crain v. Bd. of Police

Comm’rs of Metro. Police Dep’t of City of St. Louis, 920 F.2d 1402, 1411 (8th Cir.

1990)). To make this determination, the court considers the following factors:

(1) the need for harmony in the work place; (2) whether the

government’s responsibilities require a close working relationship; (3)

the time, manner, and place of the speech; (4) the context in which the

dispute arose; (5) the degree of public interest in the speech; and (6)

whether the speech impeded the employee’s ability to perform his or

her duties.

Anzaldua v. Northeast Ambulance & Fire Prot. Dist., 793 F.3d 822, 835 (8th Cir.

2015).

The Department “has a significant government interest in regulating the

speech activities of its officers in order ‘to promote efficiency, foster loyalty and

obedience to superior officers, maintain morale, and instill public confidence in the

law enforcement institution.’” Hughes v. Whitmer, 714 F.2d 1407, 1419 (8th Cir.

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1983) (quoting Gasparinetti v. Kerr, 568 F.2d 311, 315–16 (3d Cir. 1977)). But we

have also recognized that “an employee’s first amendment interest is entitled to more

weight where he is acting as a whistle-blower exposing government corruption.” Id.

at 1423. Thus, a “first amendment balancing test cannot be controlled by a finding

that disruption has occurred where such disruption occurs because a public employee

blows the whistle on the corruption of public officials.” Id. See also Atcherson v.

Siebenmann, 605 F.2d 1058, 1063 (8th Cir. 1979) (“[T]he creation of disharmony

cannot be so feared as to silence the critic who would inform the public of this

misbehavior by public officials.”) (quoting Atcherson v. Siebenmann, 458 F. Supp.

526, 539 (S.D. Iowa 1978)). As the Fifth Circuit stated, “it would be absurd to hold

that the First Amendment generally authorizes corrupt officials to punish

subordinates who blow the whistle simply because their speech somewhat disrupted

the office.” Porter v. Califano, 592 F.2d 770, 773–74 (5th Cir. 1979).

Although Smedley and Kerns offer evidence evincing some interoffice

disharmony, it is not enough to overcome the Officers’ First Amendment interest.

Here, the Complaint Packet alleges, among many other things, financial

mismanagement, workplace misconduct, and serious investigative failures. The

public would certainly be interested in these issues. Moreover, there is no evidence

that the Officers were unable to perform their job duties after submitting the

Complaint Packet, and this is not an “extreme situation[],” where “the employee

unduly breached confidentiality or disrupted intimate working relationships.” Id. at

774. These circumstances negate any interests weighing in favor of Smedley and

Kerns. Thus, we conclude the Pickering factors weigh in favor of the Officers.

B.

Our next determination is whether the Officers’ “First Amendment right was

clearly established such that a reasonable official would have known firing [them]

was unlawful.” Lindsey, 491 F.3d at 901. We conclude Smedley and Kerns had fair

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notice their alleged adverse actions were unlawful. 4 We have held “no right is more

clearly established than freedom of speech [and] . . . speech alleging illegal

misconduct by public officials occupies the ‘highest rung of First Amendment

hierarchy.’” Hall v. Mo. Highway & Transp. Comm’n, 235 F.3d 1065, 1068 (8th

Cir. 2000) (quoting Sexton v. Martin, 210 F.3d 905, 913 (8th Cir. 2000)). See also

Belk, 228 F.3d at 882 (“It is clearly established that a State may not discharge an

employee on a basis that infringes that employee’s constitutionally protected interest

in freedom of speech.”) (quoting Rankin v. McPherson, 483 U.S. 378, 383 (1987)).

Further, in Sexton, we held it “clearly established that the disclosure of potential

illegal conduct of public officials was a matter of public concern.” 210 F.3d at 911.

And in Lindsey, we held speech by a city employee was protected by the First

Amendment because it “amounts to straightforward criticism of the Council’s

sunshine law compliance.” 491 F.3d at 899. Thus, Smedley and Kerns cannot

reasonably say they did not understand terminating the Officers for engaging in

protected speech violated the Officers’ First Amendment rights. After all, “a

reasonably competent public official should know the law governing his conduct.”

Sexton, 210 F.3d at 910. The Officers’ First Amendment right to be free from

retaliation for protected speech was clearly established.

III.

For the reasons stated above, Smedley and Kerns are not entitled to qualified

immunity. We affirm the district court.

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4

Smedley and Kerns argue this case is distinguishable from our precedent

because the Officers stated their complaints were made pursuant to their “oath of

office.” However, as previously noted, a material fact question remains as to the

contents of that oath. Accordingly, construing the facts in the light most favorable

to the Officers, we cannot determine as a matter of law that the Officers’ references

to their “oath of office” provide a basis for distinguishing this case from our prior

decisions.

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