The opinion
Case: 23-40321 Document: 116-1 Page: 1 Date Filed: 05/30/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-40321
FILED
May 30, 2024
____________
Lyle W. Cayce
Terry Bevill, Clerk
Plaintiff—Appellee,
versus
James Wheeler, Former Wood County District Attorney; Jeffrey
Fletcher; Thomas Castloo, Wood County Sheriff; David
Dobbs, City of Quitman Mayor,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CV-406
______________________________
Before King, Ho, and Engelhardt, Circuit Judges.
King, Circuit Judge:
In 2017, Plaintiff-Appellee Terry Bevill, then a Captain of the
Quitman Police Department, signed an affidavit in support of a motion to
transfer venue that was filed in a pending criminal proceeding against his
friend and former colleague, David McGee. Following an investigation,
Quitman Mayor David Dobbs, having concluded that Bevill’s voluntary
submission of his affidavit violated two Quitman Police Department policies,
decided to terminate Bevill’s employment. Bevill filed suit pursuant to 42
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U.S.C. § 1983, asserting a First Amendment retaliation claim against Dobbs.
Bevill further alleged that Dobbs, State District Judge Jeffrey Fletcher, Wood
County District Attorney James Wheeler, and Wood County Sheriff Tom
Castloo conspired to terminate his employment in retaliation for his speech.
This interlocutory appeal is the second one in this matter. In the first
appeal, this court affirmed the district court’s denial of the Rule 12(b)(6)
motions to dismiss that Sheriff Castloo, DA Wheeler, and Judge Fletcher
filed asserting qualified immunity. See Bevill v. Fletcher, 26 F.4th 270 (5th Cir.
2022) [hereinafter Bevill I]. Two years later, this court is now tasked with
reviewing the district court’s denial of Defendants-Appellants’ motions for
summary judgment. We AFFIRM.
I.
A.
In 2017, during Bevill’s employment with the Quitman Police
Department (“QPD”), David McGee was arrested and charged with
facilitating and/or permitting the escape of an inmate and tampering with
government records while he was employed as an administrator at Wood
County Jail. Fearing that he could not receive a fair trial in Wood County,
McGee asked Bevill, his friend, to sign an affidavit in support of a motion to
transfer venue.
Bevill claims that he shared McGee’s concerns about receiving a fair
trial. According to Bevill’s complaint, McGee’s status as a jailer working for
the Wood County Sheriff’s Department generated pretrial publicity locally
and drew the ire of newly elected Sheriff Castloo, who had told Bevill that he
hoped McGee would be convicted and put “under the jail” for a long time.
Furthermore, based on his personal knowledge and an article published by
the Kilgore News Herald detailing Judge Fletcher’s first 100 days in office,
Bevill also believed that Sheriff Castloo had a close relationship with DA
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Wheeler, who was prosecuting the case against McGee, and Fletcher, who
was the presiding judge.
On June 2, 2017, Bevill signed an affidavit on McGee’s behalf
providing two reasons for why McGee’s motion to transfer venue should be
granted: (1) pretrial publicity; and (2) alleged personal relationships between
Sheriff Castloo, DA Wheeler, and Judge Fletcher. In relevant part, Bevill
attested:
I believe it will not be possible for DAVID MCGEE to get a fair
and impartial trial in Wood County, Texas due to the pre-trial
publicity involved in this case and the personal relationship
between the Sheriff, the District Attorney, and the Presiding
Judge in this matter. I am very familiar with the close
relationships between these influential persons, and DAVID
MCGEE will be greatly prejudiced by having a trial in Wood
County.
It is not possible for DAVID MCGEE to obtain a fair
and impartial trial in Wood County, Texas because there is a
dangerous combination against Defendant instigated by
influential persons that a fair and impartial trail [sic] cannot be
obtained.
Bevill’s affidavit sent a spark through the local community. A few
hours after the affidavit was filed, DA Wheeler circulated the document to
Sheriff Castloo via text message. Castloo testified that the affidavit angered
him, as he viewed it as an attack on his integrity. He forwarded the affidavit
to Quitman City Administrator/Secretary Greg Hollen with the message,
“Here it is . . .” to which Hollen immediately replied, “Wow and our
librarian even motorized [sic] it.”
While McGee’s motion to transfer venue was pending, Judge Fletcher
and DA Wheeler purportedly met with Wood County DA Investigator Jerry
Hirsch to discuss Bevill’s affidavit. According to Hirsch, Fletcher stated that
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he intended to charge Bevill with perjury, and that Bevill would not receive a
“free pass” for writing it.
DA Wheeler also discussed Bevill’s affidavit with Mayor Dobbs.
During their meeting, Wheeler purportedly explained that the affidavit
would hurt “[Wheeler’s] future legal career” and “hurt him financially.”
Wheeler also showed Dobbs a video of Bevill from a drug bust that occurred
decades ago, which Dobbs interpreted as Wheeler’s effort to “tie that video
evidence to the fact that Captain Bevill was a dirty cop.” Judge Fletcher was
not in attendance at this meeting. But, in a journal entry dated June 5, 2017,
he wrote:
Must be doing a good job in the 402nd. . . . In something I have
never seen or heard of . . . a Quitman Police Captain named
Terry Bevill signed an affidavit stating that me, the Sheriff
(Tom Castloo), and the DA (Jim Wheeler) are in a “dangerous
conspiracy” and our close personal relationship prevents a
former jail captain (David McGee) from getting a fair trial.
Completely baseless and a total pile of crap. QPD is about to be
terminated as a department due to the scurrilous insubordination by
a police officer.
(emphasis added).
On June 8, 2017, QPD Chief Kelly Cole was summoned to a meeting
with Mayor Dobbs, Administrator/Secretary Greg Hollen, and Quitman City
Attorney Jim McLeroy. Cole was presented with the affidavit, as well as
paperwork to place Bevill on administrative leave. That same day, Bevill was
placed on administrative leave pending an investigation into allegations of
violations of QPD and City policies.
Following the City’s investigation, Mayor Dobbs presented Chief
Cole with termination forms for Bevill. Cole understood that “a decision had
been made” regarding Bevill’s termination, and that in this circumstance he
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was stripped of his traditional decision-making authority over disciplinary
decisions. Bevill was officially discharged on June 21, 2017. Mayor Dobbs
confirmed that Bevill was terminated because of the substance of his affidavit,
though he contends that the City’s decision to terminate him was made
“solely in reliance on advice of counsel.” Namely, the City determined that
Bevill had violated QPD policies which prohibit employees from “making or
negotiating any compromise or arrangement for any criminal or person to
escape the penalty of law,” “seek[ing] to obtain any continuance of any trial
in court out of friendship for the defendant, or otherwise interfer[ing] with
the courts of justice,” and “discredit[ing] the peace officer profession or
their employing agency.”
Furthermore, in brief written comments provided to the Texas
Workforce Commission in July 2017 as part of Bevill’s unemployment
benefits proceeding, Administrator/Secretary Hollen indicated that Bevill
was terminated for making allegations of illegal activity that were “not true,”
and that “even the district attorney said he would not take anymore cases
from the City.”
McGee was ultimately found guilty after trial. At the trial’s
conclusion, Judge Fletcher issued a warrant for Bevill’s arrest on the ground
that he had committed aggravated perjury. Bevill’s case remained pending
for sixteen months, and he eventually was no-billed on the charges.
B.
In June 2019, Bevill brought suit against the City of Quitman, Texas,
Sheriff Castloo, Mayor Dobbs, DA Wheeler, Judge Fletcher, and Wood
County, Texas under 42 U.S.C. §§ 1983 and 1985(2). Bevill alleged that
Mayor Dobbs directly retaliated against him for exercising his First
Amendment rights. He further alleged that Dobbs, Sheriff Castloo, DA
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Wheeler, and Judge Fletcher conspired to commit First Amendment
retaliation against him.
Castloo, Wheeler, and Fletcher filed motions to dismiss, raising the
defense of qualified immunity and arguing that Bevill failed to allege
sufficient facts supporting a conspiracy. The district court denied their
motions in part. See Bevill v. City of Quitman, No. 4:19-CV-406, 2020 WL
1065430 (E.D. Tex. Mar. 5, 2020). These defendants appealed the district
court’s order denying their motions to dismiss on the basis of qualified
immunity, and we affirmed. See Bevill I, 26 F.4th at 272–73.
Addressing the viability of Bevill’s First Amendment claim, we held
that Bevill spoke “as a private citizen, not a public employee” when he
submitted his affidavit. Id. at 278. We further held that Bevill’s interest in his
speech outweighed the government’s interest in the efficient provision of
public services. Id. at 279 n.4. Accordingly, we concluded that Bevill
“plausibly averred a deprivation of his First Amendment rights.” Id. at 279.
We further held that the defendants were not entitled to qualified immunity,
reasoning that our en banc decision in Kinney v. Weaver, 367 F.3d 337 (5th Cir.
2004), “clearly establishe[d] the right of a plaintiff to be free from
governmental officials’ exerting their power or influence over a third-party
employer to cause the plaintiff to be terminated for exercising his First
Amendment rights.” Bevill I, 26 F.4th at 282–83. Finally, we determined that
Bevill had adequately averred a conspiracy claim, i.e., he pleaded sufficient
facts to raise a reasonable expectation that discovery would reveal evidence
of an illegal agreement. Id. at 284.
On December 20, 2022, Defendants Sheriff Castloo, Judge Fletcher,
DA Wheeler, and Mayor Dobbs filed motions for summary judgment.
Despite their previously unsuccessful efforts on appeal, the individual
Defendants, referencing the parties’ evidentiary submissions and the
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undisputed facts of the case, asserted: (1) there is insufficient evidence of a
conspiracy among them to terminate Bevill in retaliation for his affidavit; and
(2) qualified immunity applies to Bevill’s claims. In tandem with these
efforts, Mayor Dobbs, for the first time in this case, claimed qualified
immunity with respect to Bevill’s claims against him for First Amendment
retaliation and conspiracy to commit First Amendment retaliation. And DA
Wheeler additionally argued that he, as a prosecutor, is entitled to pretrial
dismissal on grounds of absolute immunity.
The district court disagreed with Defendants. The court first held that
the record supports the conclusion that Bevill’s First Amendment rights
were violated. The district court went on to find that there is sufficient
evidence for a jury to “infer that the individual Defendants reached an
agreement, expressly or tacitly, that Bevill should be fired for filing his
affidavit.” Consistent with this court’s prior holding in Bevill I, the district
court further held that Bevill’s constitutional rights were clearly established.
Finally, the district court held that DA Wheeler is not entitled to
prosecutorial immunity. This appeal followed.
II.
We begin with jurisdiction and our standard of review. Each
Defendant-Appellant asserted the affirmative defense of qualified immunity
in his respective motion for summary judgment. The doctrine of qualified
immunity “shields public officials sued in their individual capacities ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 328
(5th Cir. 2020) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To
prevail against a good faith assertion of qualified immunity, a plaintiff must
satisfy a two-pronged test. First, the plaintiff must show that “the official
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violated a statutory or constitutional right.” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011). Second, the plaintiff must show that “the right was ‘clearly
established’ at the time of the challenged conduct.” Id. (quoting Harlow, 457
U.S. at 818).
The qualified immunity doctrine impacts the scope of this court’s
appellate jurisdiction in this case. Although “the denial of a motion for
summary judgment based upon qualified immunity is a collateral order
capable of immediate review, . . . [o]ur jurisdiction is significantly limited, . . .
for it extends to such appeals only ‘to the extent that [the denial of summary
judgment] turns on an issue of law.’” Kinney, 367 F.3d at 346 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). 1 At this interlocutory juncture,
this court “cannot challenge the district court’s assessments regarding the
sufficiency of the evidence—that is, the question whether there is enough
evidence in the record for a jury to conclude that certain facts are true.” Cole
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1
As the Supreme Court in Ashcroft v. Iqbal explained:
Though determining whether there is a genuine issue of material fact at
summary judgment is a question of law, it is a legal question that sits near
the law-fact divide. Or as we said in Johnson, it is a “fact-related” legal
inquiry. To conduct it, a court of appeals may be required to consult a
“vast pretrial record, with numerous conflicting affidavits, depositions,
and other discovery materials.” That process generally involves matters
more within a district court’s ken and may replicate inefficiently questions
that will arise on appeal following final judgment. Finding those concerns
predominant, Johnson held that the collateral orders that are “final” . . .
turn on “abstract,” rather than “fact-based,” issues of law.
556 U.S. 662, 674 (2009) (citation sentences omitted) (quoting Johnson v. Jones, 515 U.S.
304, 314, 316–17 (1995)).
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v. Carson, 935 F.3d 444, 452 (5th Cir. 2019) (en banc) (quoting Trent v. Wade,
776 F.3d 368, 376 (5th Cir. 2015)).
On appeal, several Defendants-Appellants contend that Bevill has
produced insufficient summary judgment evidence that a conspiracy to
terminate him existed. Bevill claims that this is a sufficiency-of-the-evidence
determination that we lack interlocutory appellate jurisdiction to review.
Defendants-Appellants offer a different view. They note that while we lack
jurisdiction at this juncture to review the genuineness of the factual disputes
the district court identified, we have jurisdiction to review their materiality.
Cunningham v. Castloo, 983 F.3d 185, 190 (5th Cir. 2020). Defendants-
Appellants contend that they are challenging the legal significance of the facts
disputed by the parties, and that even if we take as true Bevill’s version of the
facts, those facts are insufficient to support a conspiracy claim as a matter of
law.
“The distinction between permissible ‘materiality’ review and
impermissible ‘genuineness’ review can be hazy in practice.” Buehler v.
Dear, 27 F.4th 969, 979 (5th Cir. 2022). For instance, in Rodriguez v. Neeley,
169 F.3d 220, 222 (5th Cir. 1999), we held in an interlocutory appeal that,
“[g]iving plaintiffs all inferences from the summary judgment record,” a
trier of fact could not reasonably conclude that there was a conspiracy to
deprive the plaintiffs of their constitutional rights. 2 However, in Kinney v.
_____________________
2
It is worth noting that in Rodriguez, we emphasized that there was evidence supporting
the conclusion that the defendants engaged in a “coordinated plan” to engage in a sting
operation targeting aliens on probation, but that there was insufficient evidence to
reasonably conclude that this plan targeted the plaintiffs, who were bystanders that were
detained as a result of the sting. 169 F.3d at 222. Thus, Rodriguez can be understood as
focusing on the materiality of the disputed evidence rather than its sufficiency. In other
words, the evidence sufficiently indicated that a coordinated plan among the defendants
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Weaver, 367 F.3d at 346–49, we squarely addressed the jurisdictional issue
disputed by the parties, and our decision there supports Bevill’s contention
that we lack jurisdiction to consider Defendants-Appellants’ sufficiency-of-
the-evidence arguments.
Because there is arguably some support for Defendants-Appellants’
view of our interlocutory jurisdiction—e.g., Rodriguez—our decision in
Kinney is worth reviewing in detail. Kinney, like the case at bar, was an
interlocutory appeal of an order denying summary judgment that involved
claims of First Amendment retaliation and conspiracy. 367 F.3d at 340.
Addressing our jurisdiction on interlocutory appeal, we clarified:
Whenever the district court denies an official’s motion for
summary judgment predicated upon qualified immunity, the
district court can be thought of as making two distinct
determinations, even if only implicitly. First, the district court
decides that a certain course of conduct would, as a matter of
law, be objectively unreasonable in light of clearly established
law. Second, the court decides that a genuine issue of fact exists
regarding whether the defendant(s) did, in fact, engage in such
conduct. According to the Supreme Court, as well as our own
precedents, we lack jurisdiction to review conclusions of the
second type on interlocutory appeal. Stated differently, in an
interlocutory appeal we cannot challenge the district court’s
assessments regarding the sufficiency of the evidence—that is,
the question whether there is enough evidence in the record for
a jury to conclude that certain facts are true.
We do, however, have jurisdiction to . . . review the first
type of determination, the purely legal question whether a given
_____________________
existed, but the objective of that coordinated plan was not to deprive the plaintiffs of their
constitutional rights.
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course of conduct would be objectively unreasonable in light of
clearly established law.
Id. at 346–47 (internal citations omitted).
Then, addressing the proper standard of review, we acknowledged
that “[w]here factual disputes exist in an interlocutory appeal asserting
qualified immunity, we accept the plaintiffs’ version of the facts as true.” Id.
at 348. We then set forth at length the relevant factual disputes, “together
with the district court’s concomitant assessment of what facts [were]
supported by the plaintiffs’ summary judgment evidence.” Id. For instance,
we had to accept the following sufficiency-of-the-evidence conclusions from
the district court:
There is ample evidence in the record for a jury to conclude
that the defendants conspired to deter the plaintiffs from
testifying in court by boycotting their business. . . .
Plaintiffs’ evidence reflects a dogged determination by the
defendants to rid Kilgore College of the plaintiffs as instructors
in retaliation for speaking out about excessive force by police
officers.
Id. at 349 (internal citations omitted).
Later in the opinion, we acknowledged that “[m]uch of the argument
in the district court concerned the issue of whether the plaintiffs adduced
sufficient evidence of a conspiracy.” Id. at 351. However, “[t]he district
court’s determination that there was sufficient evidence of a conspiracy [was]
not at issue in th[e] interlocutory appeal.” Id.
Since Kinney, this court has repeatedly held that whether a certain
defendant is implicated in a conspiracy is a fact issue that we cannot review
on an interlocutory appeal reviewing the denial of qualified immunity. For
instance, in Hill v. Gressert, 705 F. App’x 219, 221 (5th Cir. 2017), we
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determined that we lacked interlocutory jurisdiction to address the district
court’s finding, as a matter of fact, that two defendants were implicated in a
third defendant’s misconduct that we had previously determined amounted
to a violation of the plaintiff’s clearly established constitutional rights. In
Morales v. Cardenas, No. 22-50836, 2023 WL 6442593, at *3 (5th Cir. Oct. 3,
2023), we addressed a defendant’s argument that “he [was] entitled to
summary judgment because the evidence the district court cited d[id] not
permit an inference that he entered into a conspiracy . . . to deprive [the
plaintiff] of his civil rights.” We determined that this defendant’s
“arguments only challenge[d] the genuineness of the factual dispute,” and
that we lacked interlocutory jurisdiction “to consider [his] arguments
regarding the genuineness of the district court’s factual determinations.” Id.
Accordingly, Defendants-Appellants’ jurisdictional arguments are
foreclosed by Kinney and its progeny. 3 After reviewing the summary
judgment evidence, the district court concluded that “the jury could infer
that the individual Defendants reached an agreement, expressly or tacitly,
that Bevill should be fired for filing his affidavit.” Under Kinney, we lack
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3
Cf. Pfannstiel v. City of Marion, 918 F.2d 1178, 1188 (5th Cir. 1990) (“Our jurisdiction on
this special interlocutory appeal is limited to the officers’ entitlement to claim [qualified]
immunity. Extending our examination past the actions which were alleged to have harmed
the plaintiffs to inquire into motive, actual intent, or agreement to harm would be improper.”
(emphasis added)); Vakilian v. Shaw, 335 F.3d 509, 519 (6th Cir. 2003) (“On appeal, Shaw
argues that Vakilian has failed to put forth sufficient evidence to support a factual finding
that a conspiracy existed and that he was motivated by discriminatory animus. Because this
is an interlocutory appeal based on qualified immunity, we cannot consider whether
Vakilian’s evidence is sufficient to present a genuine issue for trial as to the underlying
factual elements of his claim.”); Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798,
806–08 (8th Cir. 2010) (“We lack [interlocutory] jurisdiction over the Officials’ arguments
that Heartland adduced insufficient evidence to demonstrate various Officials participated
in a conspiracy to harass and intimidate HCA. These fact-intensive arguments amount to
nothing more than prohibited ‘I didn’t do it!’ defenses.”).
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jurisdiction to consider Defendants-Appellants’ arguments that there is
insufficient evidence for a jury to conclude that they did, in fact, reach such
an agreement. Kinney, 367 F.3d at 346–47. Thus, our task in this appeal is
limited to determining whether such an agreement would be objectively
unreasonable in light of clearly established law. See id. at 346. For this inquiry,
our standard of review is de novo. Id. at 349. And, we must view the evidence
in the light most favorable to Bevill and draw all reasonable inferences in his
favor. See Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754
F.3d 272, 276 (5th Cir. 2014).
III.
Conspiracy claims asserted under § 1983 require plaintiffs to prove
“(1) the existence of a conspiracy involving state action and (2) a deprivation
of civil rights in furtherance of the conspiracy by a party to the conspiracy.”
Armstrong v. Ashley, 60 F.4th 262, 280 (5th Cir. 2023) (quoting Pfannstiel,
918 F.2d at 1187). Because a conspiracy claim is not actionable if there is no
deprivation of the asserted civil right, Shaw v. Villanueva, 918 F.3d 414, 419
(5th Cir. 2019), Defendants-Appellants’ arguments regarding the viability of
Bevill’s First Amendment claim lie at the heart of this interlocutory appeal.
To establish his First Amendment retaliatory-discharge claim, Bevill
must show that “(1) he suffered an adverse employment decision, (2) he
spoke as a citizen on a matter of public concern, (3) his interest in the speech
outweighs the government’s interest in the efficient provision of public
services, and (4) the protected speech motivated the adverse employment
action.” Bevill I, 26 F.4th at 276. The first and fourth elements of the claim
are not at issue on appeal; it is undisputed that Bevill suffered an adverse
employment action by being fired, and that he was fired because of his
affidavit. However, notwithstanding this court’s prior consideration of these
issues, albeit on motions to dismiss, Defendants-Appellants maintain that
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Bevill cannot satisfy the second and third elements of his claim.
A.
We begin by addressing the second element—whether Bevill spoke as
a citizen on a matter of public concern. As we explained in Gibson v.
Kilpatrick, 838 F.3d 476, 481–82 (5th Cir. 2016), addressing this issue
requires two separate inquiries. First, with respect to the speech at issue,
Bevill must show that he spoke as a citizen and not as an employee. See id. at
481. If he spoke as a citizen, Bevill then must show that his speech “raised a
matter of public concern.” See id. at 482.
In this appeal, Defendants-Appellants in their opening briefs do not
substantively dispute that Bevill spoke as a citizen when he filed his affidavit.
We held that Bevill spoke as a citizen in Bevill I, and we agree with the district
court that “[t]he facts that informed the [district court’s] and [the previous
panel’s] analysis have not meaningfully changed after discovery.” 4
However, Mayor Dobbs and DA Wheeler contend that, with respect
to the second element of a retaliatory-discharge claim, this court in Bevill I
addressed only whether Bevill spoke as a citizen, rather than as an employee;
we did not also decide whether his speech raised a matter of public concern.
Relatedly, the district court’s March 5, 2020, opinion, addressing the
motions to dismiss, indicated that there “d[id] not appear to be any
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4
DA Wheeler attempts to relitigate the citizen-versus-employee issue in his reply brief,
primarily by arguing that Bevill’s affidavit had “significant implications” for QPD and the
City of Quitman. In Bevill I, we explained that a person speaks as a public employee when
he or she makes a statement “pursuant to [his or her] official duties.” 26 F.4th at 276
(quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Wheeler’s arguments regarding
the implications of Bevill’s speech are better addressed by the third element of Bevill’s First
Amendment retaliatory-discharge claim, discussed below, which requires weighing Bevill’s
interest in his speech against the government’s interest in the efficient provision of public
services.
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meaningful dispute between the parties as to whether [Bevill’s] statements
implicated a matter of public concern,” so the court did not address that
prong of the analysis. Accordingly, our focus in this appeal with respect to
the second element of Bevill’s retaliatory-discharge claim is addressing
whether Bevill’s affidavit raised a matter of public concern.
Speech raises a matter of public concern “when it can ‘be fairly
considered as relating to any matter of political, social, or other concern to
the community,’ or when it ‘is a subject of legitimate 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)). “The inquiry turns on the ‘content, form, and context’ of the
speech.” Id. (quoting Connick v. Myers, 461 U.S. 138, 147–48 (1983)).
Defendants-Appellants argue that summary judgment evidence has
established that Bevill’s speech was predominately motivated by his personal
interests, that is, helping his friend, rather than matters generally considered
important or interesting by the public, i.e., exposing bias or wrongdoing in
Wood County criminal proceedings. In short, as the district court concluded,
Defendants-Appellants’ argument “boils down to a simple proposition:
Bevill’s speech cannot be constitutionally protected . . . because he was
interested in his friend’s criminal case.”
The district court was not persuaded by Defendants-Appellants,
reasoning that when “the speech in question merely touches on an element
of personal concern in the broader context of a matter of public concern, . . .
a court is not precluded from concluding that an employee’s speech as a
whole addresses a matter of public concern.” Salge v. Edna Indep. Sch. Dist.,
411 F.3d 178, 186 (5th Cir. 2005). Specifically, the district court emphasized
that “while Bevill certainly spoke at his friend’s invitation, he also spoke
because he personally believed that Wheeler, Castloo, and Fletcher could not
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discharge their public duties in a faithful way.”
Our cases show that when an employee’s speech is “mixed” such
that it involves matters of both private and public concern, including mixed
“motives,” we still employ the “balancing test” approach that is used to
evaluate the factors of content, context, and form. See, e.g., Graziosi v. City of
Greenville, 775 F.3d 731, 737–41 (5th Cir. 2015); Gibson, 838 F.3d at 487;
Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 825–26 (5th Cir. 2007);
Modica v. Taylor, 465 F.3d 174, 180–81 (5th Cir. 2006); Chavez v. Brownsville
Indep. Sch. Dist., 135 F. App’x 664, 669–73 (5th Cir. 2005); Salge, 411 F.3d at
186; Markos v. City of Atlanta, 364 F.3d 567, 570–74 (5th Cir. 2004); Teague
v. City of Flower Mound, 179 F.3d 377, 382–83 (5th Cir. 1999). In other words,
the mixed nature of the speech is simply an aspect to weigh and consider in
each case. See Markos, 364 F.3d at 572 (rejecting the proposition that
“motivation is the new litmus test for the matter of public concern analysis,
displacing the [content, context, and form] factors”). We address the factors
of content, context, and form in turn.
Beginning with content, we note that “[i]t is well established that
speech exposing or otherwise addressing malfeasance, corruption or breach
of the public trust . . . touches upon matters of public concern.” Graziosi, 775
F.3d at 738; Lane, 573 U.S. at 241 (“The content of Lane’s testimony—
corruption in a public program and misuse of state funds—obviously involves
a matter of significant public concern.”); Garcetti, 547 U.S. at 425
(“Exposing governmental inefficiency and misconduct is a matter of
considerable significance.”). Given the undeniable importance of a fair trial,
as reflected in multiple provisions of the Constitution, in addition to the
additional costs and inefficiencies suffered when convictions and sentences
must be set aside or redone simply because of procedural deficiencies that
could have been remedied at the outset, the public’s interest in the content
of Bevill’s affidavit cannot reasonably be contested.
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While we acknowledge Defendants-Appellants’ point that Bevill’s
affidavit addresses only “the concern that McGee may not receive a fair
trial,” and not “public corruption on a widespread scale,” we have held that
a public employee’s speech drawing attention to one instance of
governmental misconduct can be protected by the First Amendment. See,
e.g., Markos, 364 F.3d at 569, 574 (holding that a police sergeant’s speech
about the cover-up of a potential excessive-force incident raised a matter of
public concern). Furthermore, even if Bevill was motivated in part by a desire
to help his friend, his speech nevertheless addressed a “subject undoubtedly
of public concern.” See id. Indeed, the fact that someone raising an issue of
governmental misconduct also had a personal interest in redressing that
misconduct hardly is surprising, nor is it disqualifying for the purpose of
asserting First Amendment protections. See id. (“[T]he fact that . . . [the
plaintiff’s] motivations were partially private is not enough to remove this
speech from the realm of public concern.”).
Moving on to form and context, the fact that Bevill’s speech was in
the form of sworn testimony—an affidavit—weighs decisively in favor of his
speech being protected. See Lane, 573 U.S. at 241 (“Unlike speech in other
contexts, testimony under oath has the formality and gravity necessary to
remind the witness that his or her statements will be the basis for official
governmental action, action that often affects the rights and liberties of
others.” (quoting United States v. Alvarez, 567 U.S. 709, 721 (2012) (plurality
opinion))); Kinney, 367 F.3d at 367 n.35 (5th Cir. 2004) (collecting cases)
(“Testimony in judicial proceedings ‘is inherently of public concern.’”
(quoting Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1578 (5th
Cir. 1989))). The context of Bevill’s testimony also is significant, given that
his affidavit was submitted in support of a motion filed into the public record
of a well-publicized felony criminal proceeding, involving multiple counts of
varying criminal acts by an officer entrusted with the custody of prisoners.
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These facts fortify the district court’s conclusion that Bevill spoke on a
matter of public concern.
Accordingly, we agree with the district court that Bevill spoke as a
citizen on a matter of public concern. Many of Defendants-Appellants’
arguments on this issue ask this court to draw adverse inferences about
Bevill’s subjective motivations in filing his affidavit. For instance, Mayor
Dobbs argues that because Bevill did not advise any City official in advance
of his intent to sign an affidavit, or make any effort to convey his allegations
of corruption to anyone other than McGee’s attorney, Bevill intended to
keep the matter private and was not concerned with exposing corruption. We
cannot draw such inferences, and iterate that, at this stage, we must credit
Bevill’s testimony that he truly believed McGee would not receive a fair trial.
Furthermore, Bevill’s deposition testimony indicates that he knew his
affidavit would be public information. Viewing the evidence in the light most
favorable to him, Bevill’s personal interest in helping his friend does not
outweigh the factors that clearly weigh in favor of a determination that Bevill
spoke on a matter of public concern—namely, that Bevill provided sworn
testimony, in the context of a well-publicized judicial proceeding, that raised
an issue of potential governmental misconduct affecting a criminal
defendant’s right to a fair trial. See Lane, 573 U.S. at 241. 5
_____________________
5
We briefly note that we agree with the district court’s disposition of two of Defendants-
Appellants’ additional arguments related to this element of Bevill’s retaliatory-discharge
claim. First, we agree with the district court that Bevill’s speech being in the form of
opinion testimony does not change the nature of his speech. See Kinney, 367 F.3d at 341–
42 (holding that police instructors testified on a matter of public concern when they gave
opinion testimony that Kerrville Police Department officers had used excessive force and
that the Kerrville Police Department failed to implement proper policies). Second, the
district court correctly rejected Defendants-Appellants’ assertion that Bevill’s speech did
not address a matter of public concern simply because it violated QPD policies. See Salge,
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B.
We next turn to the third element of Bevill’s First Amendment
retaliatory-discharge claim, which requires us to determine whether Bevill’s
interest in his speech outweighed the government’s interest in the efficient
provision of public services. Bevill I, 26 F.4th at 276. The Pickering balancing
test undertaken by courts to address this element of a First Amendment
retaliatory-discharge claim seeks to “promote the individual and societal
interests that are served when employees speak as citizens on matters of
public concern and to respect the needs of government employers attempting
to perform their important public functions.” Garcetti, 547 U.S. at 420
(emphasis added) (discussing Pickering v. Bd. of Ed. of Twp. High Sch. Dist.
205, 391 U.S. 563, 568–69 (1968)). “So long as employees are speaking as
citizens about matters of public concern, they must face only those speech
restrictions that are necessary for their employers to operate efficiently and
effectively.” Id. at 419. The Supreme Court has previously recognized as
pertinent considerations “whether the statement impairs discipline by
superiors or harmony among co-workers, has a detrimental impact on close
working relationships for which personal loyalty and confidence are
necessary, or impedes the performance of the speaker’s duties or interferes
with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S.
378, 388 (1987).
In considering Defendants-Appellants’ motions for summary
judgment, the district court, as it previously had, determined that Bevill’s
interest in his speech regarding potential malfeasance in Texas’s criminal
justice system outweighed the government’s interest, particularly relative to
_____________________
411 F.3d at 185 (“Whether the speech in question violates an employer’s policy has no
relevance to whether the subject matter of the speech is on a matter of public concern.”).
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only hypothetical, unrealized adverse consequences of Bevill’s affidavit. In
Bevill I, this court reached the same conclusion. Specifically, we noted:
[O]ur conclusion that Bevill has shown that his interest in the
affidavit outweighs the government’s interest is further
buttressed by the realization that Defendants raise
hypothetical, not actual, effects of Bevill’s speech on the ability
of Quitman to provide public services. But “[r]eal, not
imagined, disruption is required.” See Branton v. City of Dallas,
272 F.3d 730, 741 (5th Cir. 2001) (quoting McKinley v. City of
Eloy, 705 F.2d 1110, 1115 (9th Cir. 1983)). Regardless, if
Defendants had identified actual effects, Fifth Circuit
precedent indicates that testimony about potential malfeasance
in Texas’s criminal justice system “outweigh[s] the
government’s interest in efficiency.” See Breaux v. City of
Garland, 205 F.3d 150, 157 n.10 (5th Cir. 2000).
Bevill I, 26 F.4th at 279 n.4.
In the present appeal, we see little reason to disturb this prior holding.
DA Wheeler is the only Defendant-Appellant who attempts to substantively
relitigate this issue, and he again raises only hypothetical harms, including
“bring[ing] discredit upon the City and tarnish[ing] the image of the City and
City Police Department by creating the appearance of ties to this type of
unlawful behavior.” 6 Wheeler further alleges that Bevill’s affidavit could
“jeopardize prosecutions of future criminal cases in Wood County” by
requiring the prosecution to disclose, pursuant to Brady v. Maryland, 373
U.S. 83 (1963), Bevill’s affidavit “for any trial involving the prosecution of a
criminal defendant where Bevill’s testimony, or potentially any Quitman
police officer, [would be] required in light of the fact that this testimony was
_____________________
6
Notably, Mayor Dobbs, despite having not been a party to the prior appeal, and despite
being the person who decided to terminate Bevill’s employment, does not address the third
element of Bevill’s First Amendment retaliatory-discharge claim.
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made by the Captain of its Police Department.”
DA Wheeler fails to provide evidence that would justify reaching a
different outcome at summary judgment than at the motion to dismiss stage.
As noted above, we concluded in Bevill I that, even “if Defendants had
identified actual effects, Fifth Circuit precedent indicates that testimony
about potential malfeasance in Texas’s criminal justice system ‘outweigh[s]
the government’s interest in efficiency.’” 26 F.4th at 279 n.4 (quoting
Breaux, 205 F.3d at 157 n.10). In any event, however, Wheeler’s arguments
are too speculative to hold at summary judgment that the government’s
interests outweighed Bevill’s interest in his speech. For instance, it is not
evident that any uncertainty regarding the City’s official position, or that of
the police chief or the remainder of the police department, could not be
clarified and addressed as warranted. As we noted in Kinney, “[d]isruption is
always possible, but to give deference to unfounded predictions of harm
would allow the government arbitrarily to punish speech under the guise of
preempting disruption.” 367 F.3d at 364. Thus, at summary judgment, these
predictions of harm do not convince us that the Pickering calculus weighs in
DA Wheeler’s favor. See id. at 364–65 (holding that genuine disputes of
material fact regarding the government’s concerns with disruption caused by
the plaintiffs’ speech precluded summary judgment).
* * *
On this instant record, Bevill has borne his summary judgment burden
relative to establishing that he suffered a deprivation of his First Amendment
rights. We next turn to the second step of our qualified immunity analysis,
and ask whether it would have been apparent to reasonable officials holding
Defendants-Appellants’ positions at the time of the alleged violation that
Defendants-Appellants’ conduct violated the First Amendment.
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C.
As noted above, once an official asserts the defense of qualified
immunity, the plaintiff must show that “(1) the official violated a statutory or
constitutional right, and (2) the right was ‘clearly established’ at the time.”
Bevill I, 26 F.4th at 275 (citing Benfield v. Magee, 945 F.3d 333, 337 (5th Cir.
2019)). A defendant “cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite that any reasonable
official in the defendant’s shoes would have understood that he was violating
it.” Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). “It is not necessary, of
course, that ‘the very action in question has previously been held unlawful.’”
Ziglar v. Abbasi, 582 U.S. 120, 151 (2017) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). But, “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at
741.
In this appeal, Mayor Dobbs argues that the district court erred in
determining that, at the time of Bevill’s termination, there was clearly
established law indicating that terminating the employment of a similarly
situated individual acting under similar circumstances would violate that
individual’s First Amendment rights. According to Dobbs, the relevant
circumstances involve a police captain knowingly violating a departmental
procedure—by voluntarily signing an affidavit without regard for the
truthfulness of the sworn statements contained therein—to assist a friend in
obtaining a continuance of a criminal trial date. We agree with the district
court that Bevill is not required to point to a case with such rigid factual
analogies, and that existing precedent provided sufficient notice to Dobbs
that a public employee’s opinion testimony alleging governmental
misconduct, made as a citizen in a judicial proceeding, is protected speech.
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As the district court explained, this court held in Kinney that it was
clearly established that “[t]estimony in judicial proceedings is inherently of
public concern.” 367 F.3d at 367 n.35 (internal quotation omitted) (collecting
cases); see also Miles v. Beckworth, 455 F. App’x 500, 505 (5th Cir. 2011)
(“Prior cases . . . have established that testimony in judicial proceedings are
inherently of public concern for First Amendment purposes.”). We further
noted, in Kinney, that “it is well-established in the jurisprudence of both the
Supreme Court and this court that official misconduct is of great First
Amendment significance.” 367 F.3d at 369. Considering these principles,
plus our prior holding in Bevill I that Kinney is sufficiently factually similar to
the case at bar to clearly establish Bevill’s First Amendment rights, we find
that Mayor Dobbs had “fair warning” that terminating Bevill for providing
opinion testimony alleging official misconduct in a judicial proceeding would
violate Bevill’s First Amendment rights. See Kinney, 367 F.3d at 350 (quoting
Hope v. Pelzer, 536 U.S. 730, 740 (2002)).
Turning to Bevill’s conspiracy claim, which applies to all Defendants-
Appellants in this appeal, we note that in Bevill I, we addressed Bevill’s
conspiracy claim against Judge Fletcher, Sheriff Castloo, and DA Wheeler,
and, in affirming the denial of their motions to dismiss, held that Kinney
“clearly establishes the right of a plaintiff to be free from governmental
officials’ exerting their power or influence over a third-party employer to
cause the plaintiff to be terminated for exercising his First Amendment
rights.” Bevill I, 26 F.4th at 282–83. In its subsequent order denying
Defendants-Appellants’ motions for summary judgment, the district court,
considering the evidence in the light most favorable to Bevill, concluded that
sufficient evidence exists for a jury to conclude that Defendants-Appellants
did, in fact, influence Bevill’s employer—QPD—to terminate him.
As discussed above, we lack jurisdiction on interlocutory appeal to
review this sufficiency-of-the-evidence assessment. Considering that (1) this
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court already substantively addressed whether an agreement to terminate
Bevill would constitute a violation of his clearly established constitutional
rights, and (2) the district court determined that there is a genuine dispute of
material fact regarding whether such an agreement, in fact, existed, we
reaffirm our holding in Bevill I that Defendants-Appellants are not entitled to
qualified immunity on Bevill’s conspiracy claim.
Two additional points regarding Bevill’s First Amendment
retaliatory-discharge claim, however, are worth addressing. First, several
Defendants-Appellants point to the district court’s conclusion, in its order
denying summary judgment, that “[h]ow, and to what extent, an employee’s
personal interest plays a role in the [second element’s] public-concern
analysis is not quite clear under Fifth Circuit precedent.” Drawing on this
language, Defendants-Appellants claim that it was error for the district court
to aver that there is no clear-cut, precise approach to determining whether
any given speech raises a matter of public concern, but then conclude that the
law on this issue was clearly established.
As discussed above, our public-concern analyses consistently employ
a balancing test that evaluates the factors of content, context, and form. Our
cases discussing “mixed motives” do the same, though how a speaker’s
personal motives affect the factors of content, context, and form may vary on
a case-by-case basis. While it is true that there is a “lack of precision inherent
in such a fact-intensive and holistic analysis,” Chavez, 135 F. App’x at 673, it
does not follow that a plaintiff’s First Amendment right that implicates a
public-concern analysis can never be clearly established. We agree with the
district court that pre-June 2017 case law addressing the public concern
inherent in allegations of official misconduct and testimony in judicial
proceedings clearly established Bevill’s First Amendment rights,
notwithstanding the fact that our analytical process in reaching public-
concern holdings is fact-intensive and holistic.
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Second, and finally, we stress that we are holding that Defendants-
Appellants are not entitled to qualified immunity at the summary judgment
stage, where all evidence and disputed issues of material fact must be viewed
in the light most favorable to Bevill. Importantly, we are not granting
summary judgment for Bevill. Thus, for disputed issues remaining to be
decided at trial, after the presentation of the evidence, the jury, or, where
appropriate, the court, may find some or all of the evidence and/or arguments
presented by one or more of the Defendants convincing. But at this stage, we
hold that Bevill has satisfactorily supported his First Amendment retaliatory-
discharge and conspiracy claims to overcome Defendants-Appellants’
defenses of qualified immunity at summary judgment.
D.
We finally address DA Wheeler’s contention that the district court
erred in concluding that Wheeler did not establish his entitlement to the
absolute prosecutorial immunity recognized by the Supreme Court, in Imbler
v. Pachtman, 424 U.S. 409, 430 (1976), from civil suits seeking damages
under § 1983. As an initial matter, prosecutors are not entitled to immunity
simply based on their title; instead, courts look to the “‘functional nature of
the activities’ of which the plaintiff complains.” McGruder v. Necaise, 733
F.2d 1146, 1148 (5th Cir. 1984) (quoting Imbler, 424 U.S. at 430). It is the
prosecutor’s burden to establish that the at-issue activities are protected by
prosecutorial immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993).
This functional approach “distinguishes between investigatory actions and
advocatory ones, with only the latter due absolute immunity.” Wearry v.
Foster, 33 F.4th 260, 266 (5th Cir. 2022). “At its core, the advocatory
function is one that is ‘intimately associated with the judicial phase of the
criminal process.’” Id. (quoting Imbler, 424 U.S. at 430). “This includes a
prosecutor’s decision on which witnesses to call and what other evidence to
present, and an out-of-court effort to control the presentation of a witness’s
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testimony.” Mowbray v. Cameron County, 274 F.3d 269, 276–77 (5th Cir.
2001) (cleaned up). And it also includes the decision to pursue—or not
pursue—criminal charges. Oliver v. Collins, 904 F.2d 278, 281 (5th Cir.
1990).
On appeal, DA Wheeler argues that “the singular basis of Bevill’s
claim against Wheeler is that Wheeler had threatened to stop prosecuting
cases involving the City of Quitman.” And, regardless of whether the
motivation behind that decision was retaliatory, Wheeler maintains that the
conduct about which Bevill complains—deciding which cases he would or
would not prosecute—falls squarely within the prosecutorial discretion
protected by absolute immunity. Wheeler cites several cases from other
circuits to support his claim that prosecutorial immunity applies to blanket
decisions not to prosecute cases generally. See, e.g., Roe v. City & County of
San Francisco, 109 F.3d 578, 584 (9th Cir. 1997) (holding that prosecutors
were entitled to absolute immunity for deciding not to prosecute an officer’s
cases); Harrington v. Almy, 977 F.2d 37, 40 (1st Cir. 1992) (holding that a
prosecutor’s refusal to prosecute cases brought by a particular officer fell
within the scope of prosecutorial immunity); San Agustin v. El Paso County,
No. 18-CV-02646-MEH, 2019 WL 4059167, at *16 (D. Colo. Aug. 28, 2019)
(holding that a prosecutor’s decision to “refus[e] to use Plaintiff as a trial
witness” was entitled to prosecutorial immunity).
These cases, however, are distinguishable from the case at bar.
Namely, the cases cited by DA Wheeler involve a prosecutor’s actual decision
to not prosecute cases brought by certain officers or call those officers as
witnesses. Such decisions are based on “delicate issues of witness
credibility,” Harrington, 977 F.2d at 41, that “fall[] entirely within a
prosecutor’s judicial function regardless of whether one case or a line of cases
is at issue,” Roe, 109 F.3d at 584. Viewing the evidence in Bevill’s favor, it is
difficult to see how threatening to categorically not prosecute a particular
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city’s cases implicates the issues of witness credibility that were present in
the cases DA Wheeler cites.
We find instructive the Second Circuit’s discussion of prosecutorial
immunity in Doe v. Phillips, 81 F.3d 1204 (2d Cir. 1996). In Doe, the court
acknowledged the general principle that prosecutors have absolute immunity
for decisions to prosecute or forgo prosecution. Id. at 1209–10. Still, the court
noted that this principle has limitations: A prosecutor could not, for instance,
couple a threat of prosecution with demands for bribes or sexual favors. Id. at
1210. Accordingly, the court established a principle that a prosecutor cannot
couple the threat of a prosecutorial decision with a demand that a certain
condition be met, if he “has acted without any colorable claim of authority to
impose the condition in question.” Id. (internal quotation omitted).
This principle applies here. While DA Wheeler may assert
prosecutorial immunity in his decisions to prosecute or forgo prosecution
generally, this immunity does not cover his alleged act of wielding his
prosecutorial authority as a threat to influence a public employment decision
over which he had no lawful authority. Such a threat cannot reasonably be
considered “intimately associated with the judicial phase of the criminal
process.” Imbler, 424 U.S. at 430. 7 We agree with the district court that DA
Wheeler is not shielded by absolute prosecutorial immunity.
_____________________
7
Wheeler also cites his purported concern with the impact of Bevill’s affidavit on his
disclosure obligations as evidence that he acted at all times pursuant to his duty as a
prosecutor. We reiterate that the district court found that there is sufficient evidence for a
jury to conclude that Defendants-Appellants reached an agreement to terminate Bevill, a
finding that we are bound to abide by on interlocutory appeal. Plus, Wheeler’s claim that
he met with Mayor Dobbs out of concern for his prosecutorial duties is not clearly
corroborated by Dobbs himself, who testified that Wheeler called the meeting to express
his anger about the affidavit harming his career and financial future, and to make it known
that Bevill had been hired over his objections. At bottom, the parties’ dispute over
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IV.
In Bevill I, we held that (1) Bevill’s complaint stated a colorable First
Amendment claim, (2) Bevill’s First Amendment rights were clearly
established, and (3) Bevill adequately averred that Defendants-Appellants
had an agreement to violate his constitutional rights. 26 F.4th at 279, 283–
84. The summary judgment evidence, when viewed in a light most favorable
to Bevill, continues to support the conclusion that Bevill suffered a violation
of his clearly established constitutional rights. Furthermore, at this
interlocutory juncture, we lack jurisdiction to address the district court’s
holding that there is a genuine dispute of material fact regarding whether
Defendants-Appellants reached an agreement to terminate Bevill. For the
foregoing reasons, the order of the district court denying Defendants-
Appellants’ motions for summary judgment is AFFIRMED.
_____________________
Wheeler’s subjective intentions—i.e., legitimate concern over prosecutorial duties versus
retaliatory animus—is an issue for the jury to decide.
28