Petition for Writ of Certiorari — Morales v. Jones (No. 07-556)

Supreme Court. U.S.

FILED ,

07-556 0CT 24 2007

OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

ALFONSO MORALES and

DAVID KOLATSKI,

Petitioners,

Vv.

ARTHUR JONES, MONICA RAY

and CITY OF MILWAUKEE,

Respondents.

| On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

William R. Rettko

Counsel of Record for Petitioners

Rettko Law Offices, S.C.

15430 W. Capitol Drive, Suite 200

Brookfield. WI 53005-2621

(262) 7838-7200

QUESTION PRESENTED FOR REVIEW

Whether the speech of Morales and/or

Kolatski was made pursuant to the official duties

of their public employment as police officers with

the Milwaukee Police Department’s Vice Control

Division?

PARTIES TO PROCEEDING

The petitioners are Alfonso Morales and

David Kolatski.

The respondents are Arthur L. Jones,

Monica Ray and City of Milwaukee.

RULE 29.6 STATEMENT

Alfonso Morales and David Kolatski are the

full names of the petitioners. Morales and Kolatski

are individuals and not a corporation, as was

identified in the disclosure statement filed with

the Seventh Circuit Court of Appeals on

September 14, 2006 in Appellate Court No. 06-

1463.

i

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

PARTIES TO PROCEEDING

OPINIONS BELOW

STATEMENT ON THE BASIS FOR

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

ARGUMENT SUPPORTING ALLOWANCE OF

SHOE WEEE cin incisninninadaaae 23

I. The lower courts need this Court to

articulate a more comprehensive framework

for defining the scope of an employee’s

duties for First Amendment protection. ....23

A. Why Moralas’ speech is protected by

E:T oe RINE TE: PW De 28

B. Why Kolatski’s speech is protected by

tf. Seam tela Oe. yiaiedscbianea tempi aatdadptabas a3

CAFE G Re PORE aa ite nnnevictadhccaratuateaediaiciadamaod 37

APPENDIX

United States Court of Appeals for the Seventh

Circuit Opinion dated July 17, 2007

United States District Court fur the Eastern

District of Wisconsin’ Decision Denying

Defendants’ Motion After Verdict dated February

United States District Court for the Eastern

District of Wisconsin Decision Denying

Defendants’ Motion for Summary Judgment dated

March 29, 2004

United States District Court for the Eastern

District of Wisconsin Decision Denying

Defendants’ Motion to Dismiss dated September 7,

United States Court of Appeals for the Seventh

Circuit Order denying Petitioners’ Petition for

Rehearing and Rehearing En Banc dated August

ee oe ee App. 101

United States Court of Appeals for the Seventh

Circuit Order denying Respondents’ Petition ‘or

Rehearing and Rehearing En Banc dated August

De 0G ee oe ee eee eee App. 102

Vv

TABLE OF AUTHORITIES

Cases

Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684,

75 L.Ed.2d 708 (1983)

Delgado v. Jones,

282 F.3d 511 (7th Cir. 2002)

Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006),

cert denied, --- U.S. ---, 127 S.Ct. 1918,

167 L.Ed.2d 567 (2007)

Garcetti v. Ceballos, --- U.S. ---, 126 S.Ct. 1951,

164 L.Ed.2d 689 (2006) passim

Givhan v. Western Line Consol. Sch. Dist.,

439 U.S. 410, 99 S.Ct. 693,

58 L.Ed.2d 619 (1979)

Morales v. Jones,

494 F.3d 590 (7th Cir. 2007) passim

Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205,

Will County, Ill., 391 U.S. 563,

88 S.Ct. 1731, 20 L.Ed. 2d 811 (1968)......... 22. 31

Piggee v. Carl Sandburg College,

464 F.3d 667 (7th Cir. 2006)

v1

Rankin v. McPherson, 483 U.S. 378,

107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)

Spiegla v. Hull, 481 F.3d 961 (7th Cir. 2007)

Other Authorities

28 U.S.C. § 1254(1)

42 U.S.C. § 1983

U.S. CONST. amend. I

OPINIONS BELOW FOR WRIT OF

CERTIORARI

The Opinion of the United States Court of

Appeals for the Seventh Circuit dated July 17,

2007 is published at Morales v. Jones, 494 F.3d

590 (7th Cir. 2007). (App. 1-36). The United States

Court of Appeals for the Seventh Circuit also

issued orders denying the petitioners’ and

respondents’ respective petitions for rehearing and

rehearing en banc on August 17, 2007 which were

unpublished orders. (App. 101-102). Judge David

R. Herndon issued an unpublished decision on

February 1, 2006 denying the defendants’ motion

after verdict. (App. 37-63). In addition, Judge J.P.

Stadtmueller issued unpublished decisions on

March 29, 2004 denying respondenis’ motion for

summary judgment (App. 64-91), and on

September 7, 2001 denying respondents’ motion to

dismiss. (App. 92-100).

STATEMENT ON THE BASIS FOR

JURISDICTION

The United States Court of Appeals for the

Seventh Circuit issued its opinion on July 17,

2007. (App. 1-36). On August 17, 2007, the United

States Court of Appeals for the Seventh Circuit

denied the petitioners’ and respondents’ respective

petitions for rehearing and rehearing en banc.

(App. 101-102). The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

2

CONSTY "TIONAL AND STATUTORY

Pix. VISIONS INVOLVED

Congress shall make no law respecting an

establishment of religion, or prohibiting free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

government for a redress of grievances. U-S.

CONST. amend. I.

Every person who, under color or any

statute, ordinance, regulation, custom, or usage, or

any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory

relief was unavailable. For the purposes of this

section, any Act or Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia. 42 U.S.C.

§ 1983.

3

STATEMENT OF THE CASE

The Petitioners, Alfonso Morales (“Morales”)

and David Kolatski (“Kolatski’) were members of

the Milwaukee Police Department’s Vice Control

Division (“VCD”).

The primary mission of VCD is to arrest

people involved in drug transactions or drug

possession. (R.143:453; R.146:920). Police officers

are assigned to VCD based on their ability to work

in an undercover capacity to make drug buys.

(R.143:347, 453; R.146:919-20).

VCD is an extremely desirable assignment

for police officers who desire a career in

investigations. (R.143:455). The advantage of

being assigned as a police officer in VCD over a

uniform police officer assignment included:

working in plain clothes, having discretion to

pursue investigations as opposed to responding

from dispatcher assignment to _ dispatcher

assignment, having a chance to get involved in

investigations, and having the ability to start an

investigation and to work through the

investigation to its finish. (R.145:703-706). All of

these opportunities help officers develop

investigative skills that uniform officers do not

get. (Id.)

When Kolatski was assigned to VCD as a

police officer, he viewed it as a step up in his

career. (R.146:947). Morales viewed his

assignment to VCD as a coveted position, as a

4

stepping stone to learn investigative skills to move

up the ranks. (R.143:499).

While assigned to VCD as a police officer,

Morales mirrored a_ detective in drug

investigations from start to finish and was

involved in drug surveillance, the recovery of

evidence, the execution of search warrants, and

processing his cases through the District

Attorney’s Office to a guilty plea or jury trial.

(R.143:499-500).

On March 22, 1998, Lt. Edward Liebrecht

(“Liebrecht”) received a phone call trom a landlord

complaining that one of his tenants, Vincent Ray,

was altering his property to secure it for selling

drugs. (App. 2). The landlord informed Liebrecht

that he knew Vincent Ray was Deputy Chief

Monica Ray’s brother based on his rental

application. ([d.) Liebrecht spoke to Chief Jones

about the complaint because the Chief wanted to

be made aware of all matters that would come to

the attention of the media, and the Deputy Chief's

brother selling drugs was such a matter. (App. 2;

R.142:282). Chief Jones told Liebrecht to

investigate the matter immediately. (App. 2).

Liebrecht then notified Deputy Chief Ray of this

complaint. (Jd.) Deputy Chief Ray confirmed

Vincent Ray was her brother, and that he was a

heroine addict. dd.; R.141:136-37; R.146:868). In

addition, Deputy Chief Ray told Liebrecht that her

brother may be wanted on warrants. (App. 2).

5

Liebrecht assigned the Vincent Ray case to

Detective Joseph Link (“Link”) and Morales, and

informed Deputy Chief Ray that Link and Morales

were assigned to the Vincent Ray investigation.

(Id.; R.141:140; R.146:869). Morales ran a wanted

check and learned Vincent Ray was wanted on two

felony warrants. (App. 2-3). Liebrecht then

instructed Morales and Link to meet with the

complaining landlord. (R.143:505).

Morales and Link met with the landlord.

(App. 3). The landlord explained that he told

Vincent Ray to vacate the premises and showed

Morales and Link how the property was altered.

(Id.) Morales and Link then drove to the addresses

provided to the landlord on his rental application

in an attempt to locate Ray. (Id.)

At about 3 p.m. to 4 p.m., a shift change

occurred causing Liebrecht to be relieved by Lt.

James Shepard. (App. 3). Before Liebrecht left for

the day, he called Chief Jones to update him on

the Vincent Ray investigation. (Id.) By this time,

Link and Morales drove by the addresses provided

in Vincent Ray’s application, but could not locate

Ray or his vehicle. (R.145:711-12). As such, Link

and Morales resumed their normal business

activity. (R.145:712).

Then at about 4 p.m., the landlord called

Morales and Link to inform them that he received

a phone call from Vincent Ray. (App. 3). The

landlord also told them he was meeting Vincent

Ray at 5 p.m. on March 23, 1998. (Id.) In addition,

6

the landlord provided Link and Morales with a

phone number from which Vincent Ray called. (Id.)

Link and Morales planned to arrest Vincent Ray

at this meeting. (Id.)

Lt. Shepard instructed Link to write a

report detailing their investigation. (Id.) Link

completed this report detailing every allegation

made by the landlord, all names, addresses and

phone numbers provided by Vincent Ray, all of

their efforts to locate Ray, Ray’s wanted status,

and their plans to arrest Ray on March 28, 1998 at

5 p.m. (id.) This report was then forwarded to the

Night Deputy Inspector who by department policy

was to provide the report to the Assistant Chief

who was to provide the report to Chief Jones the

next morning. (R.125:Ex.17; R.142:278-81;

R.144:648-50, 653).

On March 23, 1998, Morales and Link

attempted to arrest Vincent Ray at the scheduled

meeting, but Vincent Ray did not appear. (App. 3).

After March 23, 1998, Vincent Ray contacted the

landlord two more times for the return of his

security deposit, and on each occasion Morales

notified Lt. Shepard of these planned meetings,

but Vincent Ray failed to show. (App. 3-4).

Then on April 6, 1998, Morales received

another call from the landlord and was told

Vincent Ray was working on his vehicle around

the 3000 block of West Burleigh Street. (Id., at 4).

Morales then informed Link, but learned Link was

leaving to execute a search warrant in a different

5

investigation. (Id.) Morales decided not to inform

Lt. Shepard of this tip because the three previous

meetings had fallen through after notifying

Shepard. (App. 4; R.143:512). Instead, Morales

asked Kolatski if he wanted to get into trouble.

(R.143:512; R.146:948-49). More _ specifically,

Morales asked Kolatski if he would help arrest

Vincent Ray. (R.143:512).

At that point, Kolatski knew Morales and

Link were given the assignment to arrest Vincent

Ray, that Vincent Ray was the Deputy Chief's

brother, had two outstanding felony warrants, and

that Morales and Link were frustrated in trying to

arrest Ray, as over the last two weeks Ray made

appointments he failed to keep. (R.146:949). In

addition, Kolatski knew Morales and _ Link

informed Shepard of these meetings prior to the

meeting times. (R.146:950). Yet, Kolatski who was

not required to help, decided to help Morales

arrest Ray. (R.143:514; R.146:951).

Morales and Kolatski arrested Vincent Ray

on two felony warrants. (App. 4). When Vincent

Ray was arrested, a knife was found in his car,

together with marijuana and three rocks of

cocaine. (R.143:514-15; R.125:Ex.6, at p. 1-2).

Vincent Ray was immediately conveyed to the

Police Administration Building (“PAB”) while

Morales and Kolatski made arrangements to meet

with Link at the site of the search warrant Link

was helping execute because it was Link’s

responsibility to question Ray on the possible drug

operation, cocaine, marijuana and knife found in

8

Ray’s car. (R.143:515; R.145:718-19). Morales and

Kolatski then picked Link up and on the way back

to the PAB, stopped at Gold Rush Chicken to get

dinner. (R.143:515-16; R.145:719; R.146:955-56).

After ordering dinner at the counter,

Morales went to the restroor:. (App. 4). Kolatski

and Link remained at the counter where Kolatski

without using Vincent Ray’s name informed Link

of the details of Ray’s arrest. (Id.). Kolatski told

Link it was nice working with him because “he had

a bad feeling about the situation.” (App. 4;

R.146:957). At that time, the owner of Gold Rush

Chicken, John Muliarkey (“Mullarkey”), who was

friends of Deputy Chief Ray, asked Kolatski, “what

did you do, throw the Chief in jail?” (Id.) Kolatski

responded, “No.” (Jd.) Mullarkey then asked if he

had thrown Deputy Chief Ray in jail. (Id.) Kolatski

again said no, and explained they arrested a

relative of a higher ranking department member.

(Id.) Mullarkey then said two weeks earlier he

made a food delivery to Deputy Chief Ray’s house,

and Chief Jones was there when a man came out

of the back room. (Id., at 4-5). Mullarkey explained

this would have caused him concern about being

robbed had he not been in the presence of two

police officers. (Id., at 5).

Link then asked Mullarkey to describe the

man. (Id.) Mullarkey identified him as a dark

complected African American male with tattoos on

his upper body, and added that Deputy Chief Ray

introduced him as her brother. (I]d.)

9

Morales returned from the restroom and

they all left for the PAB. (Id.) On the way to the

PAB, Kolatski told Morales about Mullarkey’s

story. (Id.) Link, Morales and Kolatski agreed the

allegations were serious because if true, Deputy

Chief Ray and Chief Jones had harbored a felon.

(Id.)

At this time, Kolatski was worried, wasn’t

sure what to do and wanted somebody’s opinion on

what needed to be done. (R.146:960-61). Morales

had the same concerns, but did nothing because

the allegations were not the focus of their

investigation which was the arrest of Vincent Ray.

(R.143:518-19). As such, Morales did not feel any

obligation to pass the Mullarkey information to

anyone. (R.143:519).

From the squad, Detective Link notified Lt.

Habeck, the on-duty supervisor at VCD that

Vincent Ray was arrested. (R.146:916). Habeck

then informed Deputy Chief Ray that her brother

was arrested. (R.145:670). When Morales, Link

and Kolatski arrived at the PAB VCD office, they

learned Habeck told Deputy Chief Ray her brother

was in custody. (R.146:961-62). Then they

observed Habeck receive a cal! from Deputy Chief

Ray. (R.146:962).

Habeck then wanted to know what address

Vincent Ray gave, as that was the purpose of

Deputy Chief Ray’s phone call to him. (R.146:962).

Link gave Habeck that address. (R.146:962). When

Deputy Chief Ray learned that Vincent Ray

10

provided her address as his address, she

instructed Habeck not to put that address on the

arrest report as it was her address — not Vincent’s.

(R.141:151).

Habeck then relayed the Deputy Chief's

instruction to Link to not list the Deputy Chief's

name or address on the arrest report or pedigree

report. (App. 5). Habeck then emphasized the

Deputy Chief didn’t care what address was used

for Vincent, as they could use a “fucking” light pole

so long as it was not her address. (R.145:723). Link

refused to falsify any report. (App. 6). Both

Morales and Kolatski observed Lt. Habeck and

Link’s conversation on the listing of Vincent Ray’s

address. (R.143:520; R.146:962-63). Link

completed the arrest report by including Deputy

Chief Ray’s name and listing her address as

Milwaukee. (App. 6).

Before leaving work on April 6, 1998,

Morales reviewed the Vincent Ray arrest reports,

made copies of them, and filed them with his

supervisor. (Id.) Morales then left the arrest

reports on his desk, and went home shortly after

midnight. (Id.; R.143:530-31).

The next morning Morales returned to take

the reports to the District Attorney’s Office

(“D.A.”), and discovered that the first page of the

pedigree report listing Deputy Chief Ray’s name

was missing. (App. 6). Morales searched VCD for

the missing report, did not locate it, and decided to

proceed to the D.A.’s office anyway. (Id.)

Morales met with Assistant D.A. John

Chisholm (“Chisholm”) and provided him with a

synopsis of Vincent Ray’s arrest and the possible

charges. (Id.) Morales then provided Chisholm

with the arrest reports. (Id.) Chisholm asked

Morales why the first page of the pedigree report

was missing. (Id.) Morales said to the best of his

knowledge that particular page had been ordered

not to include any information related to Deputy

Chief Ray, and that he had pages two and three of

the report, but did not know where page one was

located. (Id.)

Chisholm then asked Morales what was

going on. (R.145:797). Morales had concerns about

answering Chisholm’s question 1s he felt the

answer would not benefit his career. (R.144:550-

51). Further, Morales knew there was a MPD rule

to report potential crimes, but knew he could

ignore reporting this information because if he

ignored the situation, no one would have known

about it. (R.144:549-51). Additionally, Morales

thought he could simply tell Chisholm he

misplaced the report, and then get Vincent Ray to

sign another report without violating any MPD

rule. (R.144:641, 644). Yet, Morales decided to

convey his concerns to Chisholm about what

transpired on the Vincent Ray case from beginning

to end as things were adding up, and because as a

police officer, he could not act on the information

as the allegations were against the Chief of Police

and Deputy Chief who was the third highest

ranking person in the MPD. (R.144:546-47).

12

Further, Morales knew that Chisholm as a

prosecutor would know how to handle the

situation as it concerned potential misconduct.

(R.144:547). In this regard, the D.A.’s Office had

investigators and arrest authority. (R.143:365).

Morales explained to Chisholm that he and

Link were instructed by Liebrecht to investigate

Vincent Ray, that everyone up the chain of

command including the Chief knew Vincent Ray

was wanted on felony warrants, they were

instructed by the Chief to make Vincent Ray a

priority arrest and to notify Lt. Shepard of any

turn in events, they notified Lt. Shepard on three

separate occasions of arranged meetings to arrest

Vincent Ray, and all three meetings fell through.

(App. 6-7; R.144:546). Morales then stated these

events just raised suspicions. (R.144:546-47). Then

Kolatski and Link got information from Mullarkey

that he observed Chief Jones and Deputy Chief

Ray with Vincent Ray at Deputy Chief Ray’s home

within the previous two weeks, and _ then

considering that Habeck was instructed by Deputy

Chief Ray to leave her information out of the

arrest reports taken together with Link’s response

to those instructions, and the fact that portion of

the report with Deputy Chief Ray’s information

was now missing was more than suspicious and

should be looked into. (App. 7; R.144:547;

R.145:797-98). Morales further added that Link

and Kolatski had suspicions as did he as to what

was going on. (App. 7; R.144:548). However, it was

now Morales’ belief that some misconduct occurred

as he felt someone knew where Vincent Ray was,

13

and had informed Vincent Ray to avoid meeting

with the landlord to receive his security deposit

back. (App. 7; R.144:548-49).

Chisholm took this information up his chain

of command to Deputy District Attorney Jon

Reddin. (App. 7; R.145:799-800). Morales was then

informed to come back on April 8, 1998 with Link,

and but for Link, to avoid talking to anyone about

this matter. (R.144:550-51). Chisholm and

Investigator Budde were then ordered by Deputy

District Attorney Reddin to interview Mullarkey.

(App. 7). Chisholm and Budde learned from

Mullarkey that he told Kolatski about his delivery

to Deputy Chief Ray’s house, but he was now

certain the delivery occurred in January 1998. (1d.)

Mullarkey stated he did not want to get Monica

Ray in trouble or betray her friendship.

(R.145:856; R.125:Ex.13, Ex. 14). However,

Mullarkey offered that one of his delivery persons

made a delivery to Deputy Chief Ray’s home

within the past two weeks, and provided that

person’s name. (App. 7).

On April 8, 1998, Link and Morales met

with Chisholm and Reddin. (Id.) Link confirmed

the instructions he was given by Habeck to omit

Deputy Chief Ray’s name and address from the

pedigree report. (Iid.) In addition, Link confirmed

he refused to do so. (Id.) Link further confirmed

the information Mullarkey had given. (Id.)

At the end of this meeting, Link informed

Deputy D.A. Reddin that he wanted a secrecy

14

order as he was duty bound to inform his

supervisor that an _ outside agency was

investigating a MPD member. (R.143:553-54;

R.145:731). However, Reddin would not swear

them to secrecy. (R.143:553-54; R.145:731-32).

Upon returning to the MPD, Link and

Morales reported the D.A.’s investigation to Lt.

Liebrecht. (App. 7). From there, Liebrecht and

Link went to VCD Captain Sucik to explain that

the D.A.’s Office was conducting an investigation

into Deputy Chief Ray and Chief Jones on

implications they were present with a wanted

felon. (App. 7; R.145:732-33).

Captain Sucik called Deputy Chief Ray to

request a meeting. (R.143:462). When Deputy

Chief Ray received this call, she was meeting with

the MPD’s public information person who told her

they were getting calls from the media that the

Deputy Chiefs brother was arrested, and that the

D.A. was investigating her for harboring him.

(R.141:153). Nonetheless, Deputy Chief Ray,

Captain Sucik, Link and the public information

director met in Deputy Chief Ray’s office.

(R.141:154).

This meeting started out with Captain Sucik

informing Deputy Chief Ray of what he knew, and

then Deputy Chief Ray asking Link for further

explanation. (R.145:734). Link explained what he

knew. (R.145:734; R.125:Ex.8).

15

Deputy Chief Ray then called Morales to her

office for further explanation. (R.141:153-54).

Morales informed Deputy Chief Ray that the D.A.

may be conducting an investigation into her and

Chief Jones because of information Kolatski and

Link received from Mullarkey in which Mullarkey

described seeing Vincent Ray and Chief Jones

together at her residence within the last two

weeks. (R.143:462; R.144:554; R.145:735-36). In

addition, Morales explained that the D.A. was told

their investigation into Vincent Ray was going on

for about three weeks, and there was a concern

about the Chief and Deputy Chief's knowledge as

to Vincent Ray’s wanted status. (R.141:156-58;

R.144:554-55). At that point, Deputy Chief Ray

expressed concern about the D.A.’s investigation.

(R.143:492). The Deputy Chief then explained that

she did not understand why the D.A. was

conducting this investigation, she wasn’t aware

that her brother was wanted on warrants, the

D.A.’s investigation was racist and she was

contacting her attorney. (R.141:160-67; R.144:555).

Deputy Chief Ray then called Chief Jones

and informed him of what she learned. (R.141:160-

61). In doing so, the Deputy Chief told Chief Jones

the D.A. asked the officers not to say anything to

them as they wanted to investigate Mullarkey’s

allegations. (R.141:161).

Deputy Chief Ray contacted her attorney

and explained everything she learned about the

D.A.’s investigation. (R.141:166). In doing so, she

explained the investigation was racist because if

16

this had been a white chief and a black delivery

man she doubted the investigation would have

risen to the level it was at. (R.141:166-67). The

Deputy Chief's attorney then went to meet with

Mullarkey who the attorney knew. (R.141:168). It

was after this meeting that Deputy Chief Ray and

her attorney met. (R.142:265).

During that same day, Chisholm and

Investigator Budde went back to Mullarkey’s

restaurant and discovered that Mullarkey had

made food deliveries on March 19 and 23, 1998,

though he previously denied making any food

deliveries since January 1998. (App. 7). In

addition, Investigator Budde located a receipt for a

food delivery conducted by one of Mullarkey’s

delivery drivers to the Deputy Chiefs mother’s

residence on March 28, 1998 and interviewed that

driver who denied seeing a male at the Deputy

Chiefs residence. (Id.) Additionally, it was

discovered that the April food delivery receipts

were off premises at Mullarkey’s home. (Id.)

After receiving Deputy Chief Ray’s call,

Chief Jones called D.A. E. Michael McCann and

learned there was no investigation, but his office

felt they had to at least look into Mullarkey’s

complaint. (R.141:170-71). Chief Jones learned

that several deputy district attorneys were coming

over to meet with him and Deputy Chief Ray to

discuss this matter. (R.141:171).

Chief Jones met with Deputy Inspector

Schunk who was in charge of the MPD’s Internal

17

Affairs Division to discuss an _ internal

investigation to find out if confidential information

had been disclosed to Mullarkey by MPD officers

as it was his understanding the VCD had been

conducting a narcotics investigation into Vincent

Ray. (R.125:Ex. 11; R.142:296-97; R.143:355, 420,

422). Chief Jones concluded this because if Vincent

Ray had just been arrested for warrants, the

Warrant Squad could have made that arrest.

(R.142:296). Moreover, Jones made this conclusion

because he understood Vincent Ray was involved

in illegal acts involving narcotics and there was

evidence he had fortified his residence as a drug

house. (R.143:355). As a result, Chief Jones

wanted to find out if anything from the narcotics

investigation into Vincent Ray was discussed with

Mullarkey. (R.142:296-97; R.143:355).

Chief Jones told Schunk he learned the

D.A.’s office was investigating Deputy Chief Ray

for harboring a felon, her brother. (R.143:423;

R.125:Ex.11). Chief Jones then told Schunk he

learned a couple of weeks earlier there were

allegations the Deputy Chief's brother was dealing

drugs. (Id.) Chief Jones then said that Vincent Ray

was arrested, and the involved officers in this

investigation were at a chicken restaurant on 27th

and North talking when the owner stated he

delivered chicken to the Ray residence when a

man with tattoos answered the door and Chief

Jones was standing behind him. (Jd.) Chief Jones

then told Schunk he had been to the Ray home,

but doesn’t reca]] a man with tattoos, nor being

there when chicken was delivered. (Id.) Schunk

18

then learned from Chief Jones that two deputy

district attorneys were coming over to the Chief's

office to investigate, that Deputy Chief Ray had an

attorney, and that Chief Jones wanted those police

officers investigated for discussing police business

at the restaurant. (Id.) Chief Jones may have

provided the officers’ names at that time, but

Schunk did not make note of it. (R.143:424).

When the two deputy district attorneys

arrived at Chief Jones’ office, Chief Jones, Deputy

Chief Ray and her attorney met with them.

(R.141:169, 171-72). It was at this meeting the

Chief and Deputy Chief believed Mullarkey’s story

had fallen apart, and the investigation was

completed. (R.141:172).

However, on April 14, 1998, Deputy Chief

Ray was visited by a reporter asking why Vincent

Ray was shown a picture of Chief Jones by the

district attorney. (R.141:172-73). Deputy Chief Ray

then called Chief Jones to inform him a reporter

was asking her why the District Attorney’s Office

was showing the Chief's picture to Vincent Ray.

(R.141:173).

Chief Jones was concerned when he learned

the D.A. was showing a convicted felon his photo.

(R.142:303). Chief Jones considered this

development as against the D.A.’s assurance there

was no investigation and thought about the

audacity of the D.A. to further some investigation

by showing his picture to a felon. (R.142:304).

19

Chief Jones called Deputy D.A. Reddin at

Reddin’s home. (R.143:403; R.125:Ex.3). Reddin

immediately recognized from the Chief's tone of

voice that he was angry. (R.143:403; R.125:Ex. 3).

Chief Jones asked Reddin why he would question

Vincent Ray about the Chief's relationship with

Deputy Chief Ray. (R.143:404; R.125:Ex.3). Reddin

responded that he asked Vincent Ray questions

about the allegation Chief Jones and Deputy Chief

Ray were with Vincent at a time he was wanted.

(Id.) Reddin explained if these allegations were

true, and the Chief knew Vincent was wanted,

that would have been a felony. (Id.) In addition,

Reddin explained these allegations warranted an

investigation because if they were true, the Chief

of Police would be guilty of a felony. (R.143:404-05,

407-08).

Prior to this call on April 14, 1998, Chief

Jones requested that Deputy Inspector Schunk

contact Mullarkey to question him about what the

officers had said, who brought the topic of Vincent

Ray and Deputy Chief Ray up, how Mullarkey

became involved in the conversation, and to find

out how loud the officers were speaking for

Mullarkey to overhear their’ conversation.

(R.143:425). Then on April 17, 1998, Schunk

interviewed Mullarkey who provided him with the

description of the three officers detailing them as:

a white male wearing a jacket with the word

“Narcotics” on the back of it; another white male

with a beard/goatee wearing a coverall with an

MPD patch on the left shoulder; and a Hispanic

male wearing a blue nylon jacket. (R.143:427, 443-

20

44). Following this interview, Schunk briefed Chief

Jones on Mullarkey’s information. (R.143:427, 429,

444). At that time, Schunk had a good idea who

the involved officers were that relayed the

Mullarkey allegations to the District Attorney.

(R.143:429, 449).

On that same day, Kolatski was transferred

from VCD to District No. 1 nightshift patrol duty.

(App. 8). No one in the department explained why

Kolatski was transferred and confirmed he was

performing well at the time. (Id.)

On May 15, 1998, Chief Jones informed

Deputy Inspector Schunk to suspend the internal

investigation with a finding of no wrongdoing for

any officer involved in the Mullarkey situation.

(R.143:430, 450). Chief Jones made this

determination because there was no additional

investigation on the part of the officers into

Vincent Ray’s drug dealing. (R.143:362-64). As

such, Chief Jones felt that once Vincent Ray was

arrested on warrants, any conversation with

Mullarkey would not have jeopardized any ongoing

VCD investigation as there was no additional

investigation into Vincent’s drug dealing. (I[d.)

Then in the fall of 1998, Kolatski gave a

deposition in the case Kuchenreuther v. Jones.

(R.142:183). Following this deposition, the City

Attorney called Deputy Chief Ray and wanted to

know why Kolatski was transferred, as Kolatski

had alluded he was transferred out of VCD.

(R.142:184).

On December 8, 1998, Link and Morales

were deposed in Kuchenreuther v. Jones, a case in

which Chief Jones was accused of transferring a

police officer in violation of the officer’s First

Amendment rights. (App. 8). During Morales’

deposition, he testified about the Mullarkey

information and opined that Kolatski was

transferred as a result of events connected with

the Vincent Ray arrest and the Mullarkey

information. (Id.)

Within days of the December 8, 1998

depositions, Chief Jones reassigned Link to the

VCD’s prostitution section and was not reassigned

to the VCD narcotics section until about a week in

advance of Morales’ transfer to nightshift patrol

duty. (Id.; R.145:702, 743-44). Link testified at his

deposition that the least favorable assignment he

ever had in the MPD was the VCD’s prostitution

section. (R.145:700).

Morales’ transfer to District No. 6 nightshift

patrol duty occurred on January 22, 1999.

(R.125:Ex.5). No one in the department could

explain why Morales was transferred as he was an

excellent officer performing at a high level.

(R.143:472-473; R.144:656; R.145:679-80;

R.146:890-91).

Chief Jones admitted the City Attorney kept

him appraised of the status of the Kuchenreuther

case as he was a party defendant in that case.

(R.143:388-89).

On May 20, 2000, Morales and Kolatski filed

a Complaint in the Eastern District of Wisconsin

under 42 U.S.C. § 1983, alleging that Chief Jones

and Deputy Chief Ray violated their First

Amendment rights by transferring them to patrol

duties. (App. 8). The defendants filed a motion for

judgment on the pleadings which was denied. (1d.)

At the close of discovery, defendants filed a motion

for summary judgment which was denied. (Id.) A

four-day jury trial occurred and on November 19,

2005, a jury returned a verdict in favor of the

plaintiffs awarding each plaintiff $20,000 in

compensatory damages and $65,000 in punitive

damages. (Id.)

On December 6, 2005, defendants filed

motions for judgment as a matter of law. (Id.) On

February 1, 2006, the district court denied those

motions and granted the plaintiffs’ motion for

attorney fees and costs. (Id.) The defendants then

appealed, and on July 17, 2007, the United States

Court of Appeals for the Seventh Circuit reversed

the district court’s ruling denying the defendants’

motion for judgment as a matter of law with

regard to Kolatski, and remanding for a new trial

on Morales’ claim. Morales v. Jones, 494 F.3d 590

(7th Cir. 2007). Morales and Kolatski as well as

defendants filed Petitions for Rehearing and

Rehearing En Banc which were denied by the

Seventh Circuit on August 17, 2007. Morales and

Kolatski now bring this Petition for a Writ of

Certiorari.

23

ARGUMENT SUPPORTING

ALLOWANCE OF THE WRIT

The lower courts need this Court to

articulate a more comprehensive

framework for defining the scope of an

employee’s duties for First Amendment

protection.

This Court recently held that “when public

employees make statements pursuant to their

official duties, the employees are not speaking as

citizens for First Amendment purposes, and the

Constitution does not insulate their

communications from employer discipline.”

Garcetti v. Ceballos, --- U.S. ---, 126 S.Ct. 1951,

1960, 164 L.Ed.2d 689 (2006). However, this Court

has also made it clear that, “public employees do

not surrender all of their First Amendment rights

by reason of their employment. Rather, the First

Amendment protects a public employee’s right, in

certain circumstances, to speak as a citizen

addressing matters of public concern.” Morales v.

Jones, 494 F.3d 590, 595 (7th Cir. 2007), See e.g.,

Rankin v. McPherson, 483 U.S. 378, 107 S.Ct.

2891, 97 L.Ed.2d 315 (1987); Connick v. Mvers,

461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708

(1983); Pickering v. Bd. of Ed. of Twp. High Sch.

Dist. 205, Will County, [l., 391 U.S. 563, 88 S.Ct.

1731, 20 L.Ed. 2d 811 (1968).

As such, this Court emphasized in Garcetti

that if the public employee’s expression was made

“pursuant to” their “official duties,” the employee

24

was not speaking as a citizen for First Amendment

purposes. Morales, 494 F.3d at 596. In making this

ruling, this Court stated, “[rjestricting speech that

owes its existence to a public employee’s

professional responsibilities does not infringe any

liberties the employee might have enjoyed as a

private citizen. It simply reflects the exercise of

employer control over what the employer itself has

commissioned or created.” Id., citing Garcetti, 126

S.Ct. at 1960.

In reaching this holding, this Court provided

general guidance as to what speech might qualify

as being made “pursuant to” a public employee’s

“official duties.” Morales, 494 F.3d at 596, citing

Garcetti, 126 S.Ct. at 1962. The court’s general

guidance stated that, “the inquiry is a practical

one and should focus on the duties an employee is

actually expected to perform.” Id. Further, this

Court specifically rejected the notion that job

descriptions were a determining factor. Morales,

494 F.3d at 601, citing Garcetti, 126 S.Ct. at 1962.

As such, this Court specifically stated that, “the

listing of a given task in an employee’s written job

description is neither necessary nor sufficient to

demonstrate that conducting the task is within the

scope of the employee’s professional duties for

First Amendment purposes.” Id.

However, this Court “had no occasion to

articulate a comprehensive framework for defining

the scope of an employee’s duties in cases where

there is room for serious debate.” Morales, 494

F.3d at 596, 601; citing Garcetti, 126 S.Ct. at 1961.

25

This case is just such a case. Morales, 494 F.3d at

596, 601.

The speech at issue in this petition involves

Officer Morales’ discussions with the District

Attorney’s Office “(“D.A.”) in which he explained

his suspicions of Police Chief Arthur Jones and

Deputy Chief Monica Ray’s acts of harboring the

Deputy Chief's brother, Vincent Ray, who was

known to be wanted on felony warrants and who

was under investigation by the Milwaukee Police

Department’s (“MPD”) Vice Control Division

(“VCD”) for selling and being in possession of

illegal narcotics. Morales, 494 F.3d at 599.! In

addition, this petition involves the speech of

Officer Kolatski in converging with Mullarkey and

Detective Link at Gold Rush Chicken in which

Mullarkey provided Kolatski with information that

he delivered food to the Deputy Chiefs home

during the time period of the VCD investigation of

Vincent Ray, and observed the Chief and Deputy

Chief with Vincent Ray, and Kolatski’s subsequent

conversations with Morales about these

allegations. Morales, 494 F.3d at 599.

1 Also at issue before the Seventh Circuit was Officer Morales’

speech during a deposition he gave on December 8, 1998 under

subpoena in an unrelated civil case involving an allegation by

another MPD officer that the Chief retaliated against her in

violation of First Amendment speech rights. In this deposition,

Morales testified about the Mullarkey allegations, his

conversation with the D.A., and his opinions that Kolatski was

transferred in retaliation for reporting their suspicions to the

D.A. Morales, 494 F.3d at 598, 603-05. However, this petition

does not raise any issues regarding that speech as the Seventh

Circuit declared that speech to be outside of Officer Morales’

official duty, and therefore, was protected speech. Id.

The Seventh Circuit found that Morales’

conversation with the D.A. was made pursuant to

his official duties because the speech occurred

when Morales was reviewing the Vincent Ray

arrest report as part of his officia] duty to assist

the D.A. in prosecuting Vincent Ray, and because

the MPD had a rule for its officers to report all

potential crimes. Morales, 494 F.3d at 597-98. As

for Kolatski, the Seventh Circuit determined that

his speech was pursuant to his official duties, as he

was recruited by Morales to assist in the arrest of

Vincent Ray, and the information provided by

Kolatski to Morales was nothing more than

providing information pertinent to the Vincent Ray

case. Id., at 597, 599. However, in reaching this

decision, Justice Rovner noted:

The Supreme Court remarked that

“(e]xposing governmental inefficiency

and misconduct is a matter of

considerable significance.” Garcetti,

126 S.Ct. at 1962. Detective Kolatski

was performing his job admirably at

the time of these events, and

although his demotion for truthfully

reporting allegations of misconduct

may be morally repugnant, after

Garcetti it does not offend the First

Amendment. In Garcetti, after all,

the Court wished to avoid a rule that

would mandate “judicial oversight of

communications between and among

government employees and their

27

superiors in the course of official

business.” 126 S.Ct. at 1961.

Id., at 599.

For the reasons set forth as follows, the

Garcetti holding does not make the speech at issue

as being made pursuant to official duties. This

Court’s further articulation of framework defining

the scope of an employee’s duties is needed because

it is this Court and not the Seventh Circuit that

should be deciding that framework. In addition,

this is not a mere employee grievance involving

employees being punished by the employer for

doing an act created or commissioned by the

employer. Rather, this is a case involving

employees disclosing the potential acts of criminal

misconduct of their department heads to an

independent agency for an _ independent

investigation of the alleged acts of misconduct.

Moreover, this Court’s review of this case is needed

because the Seventh Circuit’s decision may all but

shut the door on First Amendment protection for

public employees who speak about the potential

misconduct of high ranking public officials within

their agency when that information is learned by

the public employee while performing their official

duties even though those official duties have no

connection with the reporting of the potential

misconduct to the appropriate authorities.

28

A. Why Moralas’ speech is protected

by Garcetti.

Morales’ discussion regarding his suspicions

of the Chief and Deputy Chief’s potential acts of

misconduct occurred when he was delivering the

Vincent Ray arrest reports to the D.A. Morales,

494 F.3d at 600. Morales was obliged by his official

duty to deliver these reports to the D.A. as it was

his official duty to assist and help the D.A. in the

prosecution of Vincent Ray for felony warrants and

involvement in the selling and possession of illegal

narcotics. Id. In addition, Morales’ suspicions

about the Chief and Deputy Chiefs potential acts

of misconduct came in response to the D.A.’s

questions of Morales about the missing page of the

pedigree report for Vincent Ray. Id.

The Majority considered these facts and

found that Morales was on duty, assisting the D.A.

in a case he was assigned and complying with a

MPD rule to report all potential crimes when this

conversation occurred. Id., at 598. As such, the

Majority found Morales was acting pursuant to his

official duties. In contrast, Justice Rovner found

that Morales was not obligated to report his

suspicions about why the first page of the pedigree

report that connected Deputy Chief Ray to Vincent

Ray and provided their address was missing

because that went beyond his work duties. Id.

Justice Rovner’s reasoning finds support in

Garcetti and requires this Court’s declaration of

such.

29

First, any determination that the MPD’s

rules to report all potential crime converts

Morales’ decision to report his suspicions of the

Chief and Deputy Chief's potential misconduct to

the D.A. is not supported by Garcetti. This is

because this Court generally stated that job

descriptions were not a determining factor nor was

the listing of a task a determining factor in

deciding if the speech was made pursuant to an

official duty. Garcetti, 126 S.Ct. at 1962. Rather,

“the inquiry is a practical one” focusing on “the

duties an employee actually is expected to

perform.” Id. The record supports that despite the

MPD rule, Morales had considerable discretion in

determining what he investigated or didn't

investigate, and that he was not obligated in

practice to report these allegations. Morales, 494

F.3d at 600. Yet, despite the fact this was not a

duty the employee was expected to perform, the

Majority held that when Morales chose to report

his suspicions, he did so pursuant to his job duties.

Id., at 598. In other words, a rule that by practice

provides the officer discretion in reporting and/or

investigating potential crime makes any use of

that discretion an “official duty.” Such a position

was previously rejected by the Seventh Circuit in

Delgado v. Jones, 282 F.3d 511, 519 (7th Cir.

2002). More specifically, it was found that to

declare this rule as making an officer duty bound

to report all potential crimes “[swept] much too

broadly.” Id. Rather, the considerable discretion

the officer had to divulge this information, and the

method chosen to divulge the information “went

far beyond some rote, routine discharge of an

30

assigned duty.” Id. However, since Garcetti, the

Seventh Circuit has declared that the term,

“official duty” is much broader than the Seventh

Circuit’s prior focus on “core” job functions that

focused on rote, routine discharges of assigned

duties because “official duties” include expressions

made pursuant to official responsibilities. Spiegla

v. Hull, 481 F.3d 961, 966 (7th Cir. 2007). This

change in precedent goes well beyond the dictates

and contradicts Garcetti which focused on a

practical inquiry looking at the duties an employee

is expected to perform. Garcetti, 126 S.Ct. 1962.

Such reasoning applied to the facts presented

would require more than an general rule that is

not followed in practice to make the reporting of all

potential crime an “official duty.”

In addition, Morales could not have been

acting “pursuant to” his “official duty’ when he

reported his suspicions to the D.A. even though he

was at the D.A.’s office as part of his official duty

when the declaration was made. This is because

Morales could not act on these allegations, as he

was a police officer and the allegations were made

against the highest and third highest ranking

individuals in the MPD. Morales, 494 F.3d at 600.

A fact the Chief also verified. Id., at 601. As such,

the fact Morales’ speech occurred while on duty

and was based on information he learned while on

duty does not mean the speech was commissioned

or created by the employer. Id., at 602.

This Court affirmed in Garcetti that,

31

[T]he fact that his speech concerned

the subject matter of his employment

is not dispositive, though, because in

Garcetti, the Court reaffirmed the

principle that the First Amendment

protects some speech related to the

speaker’s job, at least in part because

front line workers like . . . police

officers . .. are, as a class, most

likely to have informed and definite

opinions about matters of public

concern related to their jobs.

Morales, 494 F.3d at 602, citing Garcetti,

126 S.Ct., at 1959, citing Givhan v. Western Line

Consol. Sch. Dist., 439 U.S. 410, 99 S.Ct. 693, 58

L.Ed.2d 619 (1979), and Pickering, 391 U.S. 563,

88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

However, this Court also noted that

“lolfficial communications have official

consequences, and that “[s]upervisors must

ensure that their employees’ official

communications are accurate, demonstrate sound

judgment, and promote the employer’s mission.”

Morales, 494 F.3d at 601, citing Garcetti, 126 S.Ct.

1960. Therefore, it must be determined whether

the speech owed its existence to the employee's

professional responsibilities because the employer

commissioned or created it as opposed to whether

the speech was the kind of activity engaged in by

persons who do not work for government. Morales,

494 F.3d at 602.

32

In using this analysis, Justice Rovner noted

Morales’ speech to the D.A. is a “close case” under

Garcetti because even though this speech occurred

on duty, and was in response to questions about a

report he was obligated to present, the work he

was paid to perform was the prosecution of Vincent

Ray, not to act as a witness in disclosing

information about potential public corruption. Id.

As such, even though Morales started his

conversation with the D.A. within his job duties,

he went beyond his obligations as a police officer

when he decided to disclose his suspicions about

the Chief and Deputy Chief because in doing so, he

acted as a witness to public corruption in the same

fashion any citizen who witnessed suspicious

conduct by a government official might speak. Id.

In this regard, both government employees and

persons who do not work for government may

report possible wrongdoing or crimes’ by

government officials, and any citizen may report

suspicions of public corruption to the D.A. just as

Morales did. Id., at 602-03. As this Court stated in

Garcetti, “when a _ public employee’ speaks

pursuant to employment responsibilities . . . there

is no relevant analogue to speech by citizens who

are not government employees.” Id., at 602-03,

citing Garcetti, 126 S.Ct. at 1961. At least one

other Circuit found likewise when it found that it

was not part of a jail guard’s official task to report

sexual harassment to a senator and inspector

general about a jail official’s failure to respond to

charges of sexual harassment because she was

speaking as a citizen to expose official malfeasance

33

to broader scrutiny which went beyond her job

duties to report sexual harassment in the jail to

jail officials. Freitag v. Ayers, 468 F.3d 528, 545

(9th Cir. 2006), cert denied, --- U.S. ---, 127 S.Ct.

1918, 167 L.Ed.2d 567 (2007). In this regard, the

Ninth Circuit further stated that the “right to

complain both to an elected public official and to

an independent state agency is guaranteed to any

citizen in a democratic society regardless of his

status as a public employee.” Id. Yet, if this Court

does not review this case to provide guidance by

articulating a more comprehensive framework for

defining the scope of an employee’s duties for First

Amendment protection, the Ninth Circuit’s holding

would guarantee an employee the right to

complain to an independent agency about sexual

harassment, but the Seventh Circuit’s holding

would deny public employees the right to provide

information to an independent state agency about

potential criminal activity of the employee’s

department heads. Such a conflict needs to be

corrected by this Court.

B. Why Kolatski’s speech is

protected by Garcetti.

Kolatski’s assigned duty at the time he had

discussions with Mullarkey and later with Morales

about Mullarkey’s allegations was to assist in the

arrest of Vincent Ray. His conversation with

Mullarkey occurred because he was speaking with

Detective Link about the details of Vincent Ray’s

arrest, but his conversation with Mullarkey had no

relevance or contribution to the arrest of Vincent

34

Ray. Likewise, the relaying of the Mullarkey

information to Morales had no relevance or

contribution to Morales’ assist to the D.A. in

prosecuting Vincent Ray for felony warrants and

Ray’s involvement in selling/possession of illegal

narcotics.

As a VCD officer, Kolatski could not

investigate the Chief and/or Deputy Chief, but was

paid to perform narcotic investigations. Morales,

494 F.3d at 600; (R.143:453; R.146:920). Simply

put, Kolatski could not within the scope of his

employment to act on the Mullarkey allegations.

Morales, 494 F.3d at 600. As such, under Garcetti,

Kolatski’s speech was not “work product” as it was

not speech that he was paid to perform, but was

speech resulting from the kind of activity engaged

in by persons who did not work for government, as

both government employees and persons who do

not work for the government may report possible

wrongdoing or crimes by government officials. Id.,

at 601-02. Therefore, when Kolatski spoke to

Mullarkey and learned of Mullarkey’s allegations

and then provided those allegations to Morales, he

did so beyond his obligations as a police officer

assigned to the VCD and acted as any citizen who

had information regarding the suspicious conduct

of a government official.

This conclusion fits squarely with this

Court’s dictates in Garcetti which stated that the

First Amendment protects some speech made at

work and related to the subject matter of the

plaintiffs job. Garcetti, 126 S.Ct. at 1959. This is

35

just such a case in which Kolatski’s speech

occurred at work and arose from the subject

matter of his work. Namely, his conversations

would never have occurred but for his work in

assisting Morales to arrest Vincent Ray. An assist

that required Kolatski to provide the details of

that arrest to Link. However, it was not Kolatski’s

duty to discover or investigate the potential

criminal misconduct of the Chief and/or Deputy

Chief. As an officer in the VCD, Kolatski was

assigned to assist in and investigate cases

involving the selling or possessing of illegal

narcotics. A fact Morales made clear in his

testimony when he said that when Kolatski

informed him of Mullarkey’s allegations, he was

under no obligation to act on the Mullarkey

information as the focus of his assigned duty was

to arrest Vincent Ray. (R.143:518-19). Simply put,

Kolatski was not being paid to listen to

Mullarkey’s allegations, and those allegations

being relayed to Morales would not be “work

product” that would qualify as an act done

pursuant to official duties.”

As such, much like the jailer in Freitag,

Kolatski had the right to disclose this information

to an officer who would report the information to

the D.A. much like every public employee has the

right to complain both to an elected public official

and to an independent state agency regardless of

their status as a public employee. Freitag, 468

F.3d at 545. This Court’s decisions have sought

both to promote the individual and _ societal

interests that are served when employees speak as

36

citizens on matters of public concern and to respect

the needs of government employees attempting to

perform their public functions. Piggee v. Carl

Sandburg College, 464 F.3d 667, 670 (7th Cir.

2006), citing Connick v. Myers, 461 U.S. 138, 154,

103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Kolatski’s

action to relay the Mullarkey allegations about the

Chief and Deputy Chief's potential misconduct of

harboring the Deputy Chiefs brother who was a

known felon easily falls on the side of promoting

individual and societal interest as opposed to

stiflng the government employer with a

constitutionalized employee grievance. Connick,

461 U.S. at 154. “Certainly, a communication by a

law enforcement officer that contains information

essential to a complete and objective investigation

of serious criminal activity is ‘content’ that

implicates public concern.” Delgado, 282 F.3d at

517-18. This is especially so when it deals with the

potential malfeasance of high ranking officials

within a police department because the Seventh

Circuit's ruling in Morales will hopelessly

compromise the reporting of that potential

malfeasance as the reporting public employee

could be retaliated against for communicating

factual details of that potential malfeasance to

other independent state agencies for investigation.

This holding could only help to insulate those high

ranking government officials who act as kings or

queens to create a self governing kingdom. This is

directly against the dictates of this Court that has

protected the employee and public in disclosing

such potential malfeasance. Garcetti, 126 S.Ct. at

1959.

Kolatski and Morales’ duties did not

encompass the reporting of potential misconduct of

the Chief and Deputy Chief to members within the

MPD as they were employed by the MPD to

investigate illegal narcotic cases and to help

prosecute those cases, let alone reporting that to

the D.A. who was a separate governmental agency

that had no employment authority over them. The

application of Garcetti prohibiting the reporting of

these potential criminal acts outside of their job

duties was not intended nor supported by this

Court. As such, it is time for this Court to now

define the scope of an employee’s duties as the

Seventh Circuit and other circuits need this

clarification to decide close cases such as this case.

CONCLUSION

For all of the foregoing reasons, the

petitioners, Alfonso Morales and David Kolatski,

respectfully request that this Court grant their

Petition for a Writ of Certiorari.

Respectfully submitted,

William R. Rettko

Counsel of Record

Rettko Law Offices, S.C.

15430 W. Capitol Drive, #200

Brookfield, WI 53005

(262) 783-7200

App. 1

In the

United States Court of Appeals

for the Seventh Circuit

No. 06-1463

ALFONSO MORALES and

DAVID KOLATSKI,

Plaintiffs-Appellees,

U.

ARTHUR JONES, MONICA Ray,

and City OF MILWAUKEE,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Wisconsin

No. 00-C-618 — David R. Herndon, Judge.

ARGUED JANUARY 11, 2007 — DECIDED JULY 17, 2007

Before BAUER, FLAUM, and ROvNER, Circuit

Judges.

FLAUM, Circuit Judge. The Milwaukee Police

Department employed David Kolatski and Alfonso

Morales as police officers in its Vice Control Division

(“VCD”). Kolatski and Morales were reassigned to

street patrol duties after informing an Assistant

District Attorney about allegations that Police Chief

App. 2

Arthur Jones and Deputy Chief Monica Ray had

harbored the Deputy Chief’s brother, who was

wanted on felony warrants. Kolatski and Morales

brought suit under 42 U.S.C. § 1983, alleging that

Jones and Ray violated their First Amendment

rights. After a four-day trial, a jury returned a verdict

for Morales and Kolatski, awarding them compensa-

tory and punitive damages. Jones and Ray filed a

motion for judgment as a matter of law, which the

district court denied. Jones and Ray appeal from that

denial. For the following reasons, we reverse the

district court’s judgment.

I. BACKGROUND

On March 22, 1998, Lieutenant Edward Lie-

brecht received a phone call from a landlord com-

plaining that one of his tenants, Vincent Ray, was

altering his property to make it suitable for selling

drugs. The landlord informed Liebrecht that he knew

Vincent Ray was Deputy Chief Ray’s brother because

of his rental application. Liebrecht spoke about the

complaint with Chief Jones, who told Liebrecht to

investigate the matter immediately. Liebrecht subse-

quently notified Deputy Chief Ray of the call. She

confirmed that Vincent Ray was her brother and that

he was a heroin addict. She also told Liebrecht that

her brother might be wanted on warrants.

Liebrecht assigned the case to Morales and

Detective Joseph Link. Morales ran a warrants check

on Vincent Ray and discovered that he was wanted on

App. 3

two felony warrants. Link and Morales then met with

Vincent Ray’s landlord who showed them the altered

property and informed them that he had asked Ray to

vacate the premises. After speaking with Ray’s land-

lord, the officers drove to each of the addresses Ray

provided in his rental application in an attempt to

locate him or his car.

Liebrecht’s shift ended at 3 p.m. that day, and

Lieutenant James Shepard relieved him. Before the

end of his shift, Liebrecht called Chief Jones to up-

date him on the investigation. At 4 p.m. the landlord

informed Morales and Link that Vincent Ray had

called him. The landlord also told the officers that he

had set up a meeting with Ray to return his security

deposit at 5 p.m. the following day, March 23. The

landlord also provided the detectives with the phone

number from which Ray called. The detectives

planned on arresting Ray at this meeting.

Shepard instructed Link to write a report detail-

ing the investigation. Link included the landlord’s

allegations, his and Morales’ efforts to locate Ray, the

names, addresses, and phone numbers from Ray’s

rental application, Ray’s outstanding warrants, and

the detectives’ plans to arrest him on March 23 at 5

p.m.

On March 23, 1998, Link and Morales attempted

to arrest Ray at the scheduled meeting with his

landlord, but Ray did not show up. Ray set up two

more meetings to get his security deposit, and both

times the detectives informed Shepard that they

App. 4

planned to arrest him. However, Ray failed to appear

at those meetings as well.

On April 6, 1998, the landlord called Morales and

told him that Ray was working on his car around the

3000 block of West Burleigh Street. Morales informed

Link, but Link was executing a search warrant in

another investigation. Morales decided not to inform

Shepard about the tip because the three previous

meetings had fallen through. Instead, he asked

Kolatski to help him arrest Ray. Morales and Kolatski

arrested Ray on two felony warrants. The detectives

found a knife, marijuana, and three rocks of cocaine

in Ray’s car. The detectives took him to the police

administration building and then made arrange-

ments to meet Link.

Morales and Kolatski met Link at Gold Rush

Chicken to pick up dinner. After ordering dinner at

the counter, Morales went to the restroom. Kolatski

and Link stayed at the counter discussing the details

of Ray’s arrest, although they did not use his name.

Kolatski told Link that “he had a bad feeling about

the situation.” Gold Rush Chicken’s owner, John

Mullarkey, who was a friend of Deputy Chief Ray,

overheard the conversation and asked Kolatski,

“what did you do, throw the Chief in jail?” Kolatski

said no. Mullarkey then asked whether they had

thrown Deputy Chief Ray in jail. Kolatski again said

no and explained that they had arrested the relative

of a higher ranking department member. Mullarkey

told the detectives that two weeks earlier he deliv-

ered food to Deputy Chief Ray’s house and that Chief

App. 5

Jones was there when a man came out of a back

room. Mullarkey explained that had he not been in

the presence of two police officers, he would have

been worried that the man might rob him. Link and

Kolatski asked Mullarkey to describe the individual.

Mullarkey identified him as a black man with a dark

complexion and a tattoo on his upper body. Mullarkey

also said that Deputy Chief Ray introduced him as

her brother.

Morales returned from the restroom. After leav-

ing the restaurant, Kolatski told Morales about

Mullarkey’s story. The three detectives agreed that

the allegations were serious because, if true, the

Chief and Deputy Chief had harbored a felon.

After returning to the police administration

building, Link told Lieutenant Habeck, the on-duty

supervisor, that Vincent Ray had been arrested.

Habeck informed Deputy Chief Ray that her brother

was in custody. Link, Kolatski, and Morales listened

to a phone call between Habeck and Deputy Chief

Ray, in which the Deputy Chief asked what address

Vincent Ray gave the officers when they arrested

him. When Habeck said that Ray had provided Dep-

uty Chief Ray’s address, she instructed Habeck not to

include that address on the arrest report. Habeck

relayed the instruction not to list Deputy Chief Ray’s

name or address on Vincent's arrest or pedigree

App. 6

reports to Link.’ Link refused to falsify the reports

and included Deputy Chief Ray’s name but simply

listed her address as “County of Milwaukee.”

On the evening of April 6, 1998, Morales re-

viewed Vincent Ray’s arrest reports, made copies of

them, and filed them with his supervisor, leaving the

reports on his desk for the evening. The next morn-

ing, Morales returned to take the reports to the

District Attorney’s (“D.A.”) office, and discovered that

the first page of the pedigree report, listing Deputy

Chief Ray’s name, was missing. Morales searched for

the missing report, did not locate it, and decided to

proceed to the D.A.’s office anyway.

Morales met with Assistant D.A. John Chisholm

and provided him with a synopsis of Ray’s arrest and

the possible charges. Chisholm asked Morales why

the first page of the pedigree report was missing.

Morales said that to the best of his knowledge the

page had been ordered not to include any information

related to Deputy Chief Ray and that he had pages

two and three of the report, but did not know where

page one was located.

Chisholm inquired further, and Morales told him

about the investigation and Ray’s arrest. Morales also

told Chisholm that he and Link had notified Shepard

on three separate occasions of arranged meetings to

' A pedigree report is a report that lists an arrestee’s name,

age, gender, physical description, race, family members, home

address and phone number, among other information.

App. 7

arrest Vincent Ray, but that all three meetings fell

through. Morales then recounted Mullarkey’s conver-

sation with Kolatski and Link, as well as Deputy

Chief Ray’s instructions to leave her information out

of the arrest reports. Morales told Chisholm that he

believed that prior to Ray’s arrest, someone had

known Vincent Ray’s location and informed Ray to

avoid meeting with the landlord to receive his secu-

rity deposit.

Chisholm met with Deputy District Attorney Jon

Reddin and relayed Morales’ information. Reddin

instructed Chisholm to interview Mullarkey. Chis-

holm and another investigator spoke with Mullarkey

who confirmed that he told Kolatski and Link about

his delivery to Deputy Chief Ray, but was now certain

that the delivery occurred in January 1998. Mullar-

key stated that one of his employees made a delivery

to Deputy Chief Ray’s home within the past two

weeks and provided the employee’s name.

On April 8, 1998, Link and Morales met with

Chisholm and Reddin. Chisholm and Reddin spoke to

Link who confirmed that Habeck instructed him to

omit Deputy Chief Ray’s name and address from the

pedigree report, but that he refused to do so. Link

verified his discussion with Mullarkey as well.

Link and Morales reported the D.A.’s investiga-

tion to Liebrecht. Liebrecht informed a superior who

met with Chief Jones, Deputy Chief Ray, and Link.

Deputy Chief Ray then met with Morales to discuss

the D.A.’s investigation.

App. 8

During the same day, Chisholm went back to

Mullarkey’s restaurant and discovered that Mullar-

key had made food deliveries on March 19 and 23,

1998, though he had previously denied making any

food deliveries since January 1998. In addition,

another investigator interviewed the driver who

delivered food to Deputy Chief Ray’s home on March

28th. The driver denied seeing a male at Deputy

Chief Ray’s residence. Additionally, Chisholm discov-

ered that there were no food deliveries on March 29,

and all of the April food delivery receipts were off

premises at Mullarkey’s home. As a result, the D.A.’s

office concluded that Mullarkey’s allegations against

Chief Jones and Deputy Chief Ray were false.

On April 17, 1998, Chief Jones transferred Kolat-

ski from VCD to District No. 1 night-shift patrol duty.

No one in the police department explained why

Kolatski was transferred, and he was performing well

at the time. On December 8, Link and Morales gave

depositions in Kuchenreuther v. Jones, a case in

which Chief Jones was accused of transferring a

police officer in violation of the officer’s First Amend-

ment rights. During Morales’ deposition, he testified

about the Mullarkey information and opined that

Kolatski was transferred as a result of events con-

nected with Vincent Ray’s arrest. Within days of the

December 8 depositions, Chief Jones reassigned Link

to the VCD’s prostitution section. Nearly two months

later, on January 22, 1999, Chief Jones transferred

Morales to District No. 6 night-shift patrol duty.

App. 9

On May 20, 2000, Morales and Kolatski filed a

complaint in the Eastern District of Wisconsin under

42 U.S.C. § 1983, alleging that Chief Jones and

Deputy Chief Ray violated their First Amendment

rights by transferring them to patrol duties. The

defendants filed a motion for judgment on the plead-

ings, which the district court denied. After the close of

discovery, the defendants filed a motion for summary

judgment. The district court also denied that motion.

On November 19, 2005, after a four-day trial, the jury

returned a special verdict in the plaintiffs’ favor. The

jury awarded both plaintiffs $20,000 in compensatory

damages and $65,000 in punitive damages, finding

that the defendants’ actions were wilful, wanton and

malicious. On December 6, 2005, the defendants filed

motions for judgment as a matter of law. On February

1, 2006, the district court denied those motions and

granted the plaintiffs’ motions for attorneys’ fees and

costs. The defendants now appeal.

II. DISCUSSION

The defendants argue that the district court

erred by not granting them judgment as a matter of

law because Kolatski’s and Morales’ speech was not

protected by the First Amendment. This Court re-

views de novo the district court’s denial of a motion

for judgment as a matter of law. LaFollette v. Savage,

63 F.3d 540, 543-44 (7th Cir. 1995).

The defendants argue that their actions did not

violate the plaintiffs’ First Amendment rights because

App. 10

the plaintiffs’ speech was made pursuant to their

official duties. The Supreme Court has made clear

that public employees do not surrender all of their

First Amendment rights by reason of their employ-

ment. Rather, the First Amendment protects a public

employee’s right, in certain circumstances, to speak

as a citizen addressing matters of public concern. See,

e.g., Rankin v. McPherson, 483 U.S. 378 (1987);

Connick v. Myers, 461 U.S. 138 (1983); Pickering uv.

Bd. of Ed. of Twp. High Sch. Dist. 205, Will County,

Iil., 391 U.S. 563 (1968). The Supreme Court recently

clarified, however, that “when public employees make

statements pursuant to their official duties, the

employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not

insulate their communications from employer disci-

pline.” Garcetti v. Ceballos, __ U.S. __, 126 S.Ct.

1951, 1960 (2006).’

In Garcetti, the Court evaluated the First

Amendment claims of a deputy district attorney

(Ceballos). Believing that a search warrant affidavit

contained misrepresentations, Ceballos wrote two

memoranda recommending the dismissal of pending

charges. Jd. at 1955-56. He was later transferred

from his calendar deputy position to a trial deputy

position and assigned to work at another location. /d.

* The district court ruled in this case on February 1, 2006.

The Supreme Court decided Garcetti on May 30, 2006. As a

result, the district court did not have the opportunity to consider

Garcetti in its analysis.

App. 11

at 1956. He sued under § 1983, alleging retaliation

for his speech. Focusing on the “citizen” prong of the

First Amendment analysis, the Court determined

that Ceballos “wrote his disposition memo because

that is part of what he, as a calendar deputy, was

employed to do.” Jd. at 1960. Because his expression

was “pursuant to” his official duties, he was not

speaking as a citizen for First Amendment purposes.

Id. The Court stated, “[rJestricting speech that owes

its existence to a public employee’s professional

responsibilities does not infringe any liberties the

employee might have enjoyed as a private citizen. It

simply reflects the exercise of employer control over

what the employer itself has commissioned or cre-

ated.” Id.

In light of Garcetti, the crux of our inquiry is

whether Morales’ and Kolatski’s speech was made

pursuant to their official duties. Because both parties

in Garcetti agreed that Ceballos’ speech was made

pursuant to his official duties, the Court “had no

occasion to articulate a comprehensive framework for

defining the scope of an employee’s duties in cases

where there is room for serious debate.” 126 S.Ct. at

1961. Lower courts, including this one, have applied

Garcetti in an attempt to define the scope of an em-

ployee’s duties. See Haynes v. City of Circleville, Ohio,

474 F.3d 357 (6th Cir. 2007); Mayer v. Monroe County

Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007); Green

v. Bd. of County Comm'rs, 05-6297, 2007 WL 4210

(10th Cir. Jan. 2, 2007); Freitag v. Ayers, 468 F.3d 528

(9th Cir. 2006); Battle v. Bd. of Regents for the State of

App. 12

Ga., 468 F.3d 755 (11th Cir. 2006); Mills v. City of

Evansville, 452 F.3d 646 (7th Cir. 2006).

Those courts have followed the Supreme Court’s

general guidance that “the inquiry is a practical one”

and should focus on “the duties an employee actually

is expected to perform.” Jd. at 1962. For example, in

Battle, the plaintiff was the financial aid counselor at

Fort Valley State University. Her job required her to

verify the completion and accuracy of student files as

well as report any perceived fraudulent activity.

468 F.3d at 758. The plaintiff reviewed several stu-

dent files, discovering that her supervisor had been

falsifying information and awarding financial aid to

ineligible recipients. The plaintiff spoke to the super-

visor, the University president, and finally to

the University’s Vice-President of Student Affairs.

Shortly after her final meeting, the University

decided not to renew the plaintiff's contract. The

Eleventh Circuit held that because the plaintiff’s

specific job responsibilities included ensuring the

accuracy and completeness of student files and re-

porting any mismanagement or fraud, her speech was

made pursuant to her official employment responsi-

bilities. The court also noted that Department of

Education Guidelines require all financial aid work-

ers to report suspected fraud. /d. at 761.

Lower courts have also been careful to recognize

that, under Garcetti, “public employees retain the

prospect of constitutional protection for their contri-

butions to the civic discourse.” 126 S.Ct. at 1960.

In Freitag, the plaintiff, a corrections officer, was

App. 13

sexually harassed by several inmates at the Pelican

Bay State Prison. She complained to her supervisors

that her documentation of the incidents was denied or

thrown away. After she complained to her state

senator and the State Office of the Inspector General,

the prison warden terminated her. The Ninth Circuit

held that the plaintiff’s “right to complain both to an

elected public official and to an independent state

agency is guaranteed to any citizen in a democratic

society regardless of his status as a public employee.”

468 F.3d at 545. The court stated that “it was cer-

tainly not part of her official tasks to complain to the

[s]enator or the IG about the state’s failure to perform

its duties properly. ... Rather, it was [the plaintiff’s)

responsibility as a citizen to expose such official

malfeasance to broader scrutiny.” Jd.

The plaintiffs first contend that their statements

were not a part of their official duties because they

learned of Mullarkey’s unfounded allegations after

they arrested Ray. Yet the plaintiffs admit that their

duties included “processing arrests through [the]

District Attorney’s office, requesting [the] [Dlistrict

[A]ttorney’s office for advice on certain methods to

utilize on investigations, and completing it through

the court system, whether it be a trial or through

guilty pleas.” Therefore, by their own admission, the

plaintiffs’ official duties did not end when they ar-

rested Ray.

Second, the plaintiffs maintain that their speech

was not made pursuant to their official duties because

Chief Jones ended his own internal investigation into

App. 14

whether Kolatski disclosed confidential information

to Mullarkey. Chief Jones reasoned that because the

arrest had already taken place, the detectives’ discus-

sion with Mullarkey did not pose a threat to the

investigation. The plaintiffs argue that this demon-

strates that their official duties concluded as soon as

they arrested Vincent Ray. As explained above, how-

ever, the plaintiffs concede that their duties continue

after a suspect’s arrest. Moreover, Chief Jones’ inves-

tigation does not bear on whether the plaintiffs’

speech was made pursuant to their official duties.

Finally, Kolatski and Morales argue that their

speech was not made pursuant to their official duties

because they were unsure about how to handle Mul-

larkey’s allegations. However, the plaintiffs’ confusion

about which course of conduct to take in dealing with

Mullarkey’s allegations does not indicate that they

were not acting pursuant to their official duties as

police officers.

After reviewing the record, we conclude that

Kolatski’s speech was not protected under the First

Amendment because it was made pursuant to his

official duties. Kolatski told Morales about Mullar-

key’s allegations because Morales recruited Kolatski

to assist him in arresting Ray. As a result, Kolatski

had a duty to apprise Morales of any information

pertinent to the investigation. Consequently, the

judgment in favor of Kolatski must be reversed.

As for Morales, his conversation with A.D.A.

Chisholm was made pursuant to his official duties

App. 15

because he met with Chisholm in his capacity as a

VCD officer. They met to discuss Vincent Ray’s arrest

and review the arrest report. It was Morales’ duty to

assist Chisholm in the proper presentation of charges

by providing him with the arrest reports and details

of his investigation. Morales informed Chisholm of

Mullarkey’s allegations against Chief Jones and

Deputy Chief Ray in response to Chisholm’s inquiry

into the pedigree report’s missing page. Morales did

not meet with Chisholm on his own time to report

information that was unconnected to anything he was

working on. Indeed, Morales’s speech concerned a

case that he was assigned to investigate. Further-

more, the Milwaukee Police Department requires

officers to report all potential crimes.’ By informing

A.D.A. Chisholm of the allegations against Chief

Jones and Deputy Chief Ray, Morales was performing

that duty as well. Accordingly, his conversation with

A.D.A. Chisholm is not protected under the First

Amendment after Garcetti.

Morales’ December 8 deposition testimony is a

different story. In his deposition, Morales testified

about Mullarkey’s allegations, his conversation with

A.D.A. Chisholm, and his opinion that Kolatski was

transferred because they had reported the allegations

against the Chief and Deputy Chief. Being deposed in

’ The dissent emphasizes the fact that Morales testified

that he had the discretion whether or not to investigate Mullar-

key’s allegations. However, when Morales chose to exercise that

discretion he did so pursuant to his job duties.

App. 16

a civil suit pursuant to a subpoena was unquestiona-

bly not one of Morales’ job duties because it was not

part of what he was employed to do. Nonetheless,

Morales testified about speech he made pursuant to

his official duties and we must determine whether

that fact renders his deposition unprotected. We hold

that it does not.

The purpose of Garcetti was to allow government

employers greater influence over speech that owes

it existence to a public employee’s professional re-

sponsibilities and that is damaging to the govern-

ment’s capacity to conduct public business. 126 S.Ct.

at 1958 (“Government employers ... need a signifi-

cant degree of control over their employees’ words and

actions....”). Here, because the substance of

Morales’ speech is the same, it poses the same threat

to the MPD regardless of whether it is said to A.D.A.

Chisholm or in a deposition. We recognize the oddity

of a constitutional ruling in which speech said to one

individual may be protected under the First Amend-

ment, while precisely the same speech said to another

individual is not protected. Indeed, this is exactly the

concern that Justice Stevens voiced in his dissent in

Garcetti: “(I]t is senseless to let constitutional protec-

tion for exactly the same words hinge on whether

they fall within a job description.” 126 S.Ct. at 1963.

Despite Justice Stevens’ admonishment, Garcetti

established just such a framework, and we are

obliged to apply it. As a result, although we hold that

Morales’ conversation with Chisholm was unprotected

speech, his deposition testimony was protected.

App. 17

Thus, we are faced with a difficult situation

because Morales presented the jury with evidence of

both his protected and unprotected speech. We do not

know whether the jury found that Chief Jones and

Deputy Chief Ray retaliated against Morales solely

on the basis of protected speech, unprotected speech,

or a combination of both.’ Because of our uncertainty,

we remand to the district court for a new trial on

Morales’ claims.

III. CONCLUSION

For the foregoing reasons, we REVERSE the dis-

trict court’s ruling denying the defendants’ motion for

judgment as a matter of law with regard to Kolatski,

and we REMAND for a new trial on Morales’ claims.

* The dissent contends that “it is highly unlikely that the

jury relied” on Morales’ conversation with A.D.A. Chisholm as

the cause of Morales’ demotion. The dissent relies solely on

timing, stating that Morales was transferred “shortly” after his

December 8 deposition testimony. In fact, Morales was trans-

ferred almost two months after he gave his deposition testimony.

Moreover, the trial transcript reveals that the focus of Kolatski’s

and Morales’ testimony dealt with the Ray investigation and

Morales’ conversation with A.D.A. Chisholm, not Morales’

deposition testimony. In short, we cannot determine which

speech the jury relied upon to find that the defendants retali-

ated against Morales.

App. 18

ROVNER, Circuit Judge, concurring in part and

dissenting in part. A jury found that these officers

were reassigned to undesirable posts in retaliation for

their speech. After Garcetti, the first question we

must answer is whether the speech at issue was

“made pursuant to the employee's official duties.”

Garcetti, 126 S.Ct. at 1955. But before we answer

that question, we must discern exactly what speech is

at issue. Green v. Board of County Comm’s, 472 F.3d

794, 799 (10th Cir. 2007) (as a starting point in a

Garcetti analysis, the court must determine what

speech and conduct are at issue). As the majority

notes, the speech at issue for Detective Kolatski was

his conversation with Officer Link and Mr. Mullarkey

in the Gold Rush restaurant, and his subsequent

conversation with Lieutenant Morales on the way

back to the police station after picking up dinner.’

These discussions both occurred on a single day in

April 1998. In each instance of speech, Detective

Kolatski was either investigating a possible crime or

conveying information about a possible crime to other

officers who were more intimately involved in the

investigation and arrest of Vincent Ray. The defen-

dants demoted Detective Kolatski only a few days

later and a jury found that the demotion was retalia-

tion for his speech. Because I agree that Detective

Kolatski’s speech was made pursuant to his official

' At the time of the events at issue here, Detective Kolatski

and Lieutenant Morales both held the rank of police officer.

They received their respective promotions prior to the time of

trial and I will use their more current designations here.

App. 19

duties, I concur in the majority’s holding that his

speech was not protected by the First Amendment.

The Supreme Court remarked that “[e]xposing gov-

ernmental inefficiency and misconduct is a matter of

considerable significance.” Garcetti, 126 S.Ct. at

1962. Detective Kolatski was performing his job

admirably at the time of these events, and although

his demotion for truthfully reporting allegations of

misconduct may be morally repugnant, after Garcetti

it does not offend the First Amendment. In Garcetti,

after all, the Court wished to avoid a rule that would

mandate “judicial oversight of communications be-

tween and among government employees and their

superiors in the course of official business.” 126 S. Ct.

at 1961.

The case of Lt. Morales is another story. The

speech at issue for Lt. Morales consisted primarily of

his discussions with the district attorney’s office and

the deposition he gave many months later in an

unrelated civil case. We review de novo the district

court’s denial of the defendants’ motion for judgment

as a matter of law. Erickson v. Wisconsin Dept. of

Corr, 469 F.3d 600, 601 (7th Cir. 2006); Davis v.

Wisconsin Dept. of Corr. 445 F.3d 971, 975 (7th Cir.

2006); Byrd v. Illinois Dept. of Pub. Health, 423 F.3d

696, 712 (7th Cir. 2005). In conducting that review,

we must view the facts in the light most favorable to

Lt. Morales, the party opposing the motion, and we

must disregard all evidence favorable to the moving

parties that the jury was not required to believe.

Erickson, 469 F.3d at 601; Davis, 445 F.3d at 975. We

App. 20

may overturn a jury verdict in favor of Lt. Morales

only if no reasonable jury could have found for him.

Erickson, 469 F.3d at 601; Davis, 445 F.3d at 975. See

also Byrd, 423 F.3d at 712 (in reviewing a district

court’s decision to deny a Rule 50 motion, we must

review all of the evidence in the record, drawing all

reasonable inferences in favor of the nonmoving

party, and assure that the jury was presented with a

legally sufficient basis to support the verdict).

Recall that Lt. Morales’s discussions with the

district attorney’s office arose when he attempted to

deliver Vincent Ray’s incomplete arrest report to that

office. The arrest report was missing the first page of

the so-called “pedigree report” that identified the

Deputy Chief of Police, Monica Ray, as Vincent Ray’s

sister and listed her address as Milwaukee County.

The evidence at trial demonstrated that this rather

vague address was due to Monica Ray’s directive not

to list her name or address on the report and to

change Ray’s address to that of “a fucking light pole”

if necessary. R. 145, at 723. The officers who were

attempting to comply with the directive of the Deputy

Chief while simultaneously trying to avoid filing a

false report decided that “Milwaukee County” was a

specific enough address for both Ray and the light

pole. R. 145, at 727. All of Lt. Morales’s comments

about the Chief and Deputy Chief to the district

attorney came in response to questions about the

missing page of the pedigree report. At the time, Lt.

Morales was on duty, delivering a report he was

obliged to deliver, and assisting the district attorney

App. 21

in Vincent Ray’s prosecution. However, as Lt. Morales

testified, although he was obliged to deliver the

report and assist in Ray’s prosecution, he was not

obliged to report his suspicions about why the report

page was missing. R. 144, at 628, 641, 646. In disclos-

ing his suspicions, he went beyond his work duties.

The majority relies in large part on an assump-

tion that Lt. Morales was obliged under department

policy to report all potential crimes and thus was

speaking pursuant to his job duties when he reported

possible misconduct by the Chief and Deputy Chief to

the district attorney. But Lt. Morales testified that,

although that was the department rule, in practice,

he had considerable discretion in determining

whether to report or pursue investigation of a poten-

tial crime. See R. 143, at 500-03. At trial, Lt. Morales

was asked, “In the course of conducting an investiga-

tion, what kind of discretion do you as a police officer

have to do the investigation? In other words, if you

come upon information, what discretion do you have

to even investigate?” He answered, “I have discretion

not to investigate it.” R. 143, at 501-02. Lt. Morales

also testified that he is “not duty bound” to investi-

gate when he receives information about potential

wrongdoing. R. 143, at 502. Rather, he has the discre-

tion to weigh the facts at hand, and in light of other

investigations he is conducting, may elect not to

pursue the information further. R. 143, at 502-03.

Thus, when he saw that Vincent Ray failed to show

up for three scheduled meetings that had been re-

ported to commanding officers, when he learned

App. 22

about Mr. Mullarkey’s allegations that the Chief and

Deputy Chief had been present with Vincent Ray at a

time they both knew he was wanted on warrants, and

when he heard the Deputy Chief’s directive to keep

her name and address off the pedigree report, he was

not obliged to report his suspicion that the missing

report page was related to these events. In short, he

had the “option to ignore it.” R. 144, at 549. See also

R. 144, at 551 (“Again, I had the discretion. I could

have ignored all of this.”). In fact, he testified that, as

a police officer, he could not do anything with this

information or his suspicions:

I couldn’t do anything with it. I’m a police of-

ficer at that time. The allegations are

against the third person in command and the

Chief of Police. I had to give it to someone

outside of the police department.

R. 144, at 547. The Chief himself testified that he was

unsure what he would have done if he had been in Lt.

Morales’s position, where someone had told him the

Chief of Police had possibly been involved in criminal

activity:

[Wihat would I do? I don’t know. I ask myself

that. Would I go back and tell somebody

within the police department? No.

I think if the officer felt that that was the

place that he needed to reveal any informa-

tion he had, the District Attorney’s Office

was an appropriate place for it to happen.

The District Attorney has investigators that

have arrest powers that they could send out

App. 23

to investigate. Obviously, the District Attor-

ney, the Deputies, can do some investigation

themselves or inquiries themselves.

R. 143, at 365.

The Garcetti majority was not faced with the

situation we have here and admittedly gave us no

“comprehensive framework for defining the scope of

an employee's duties in cases where there is room for

serious debate.” Garcetti, 126 S.Ct. at 1961. The

Court did offer some hints on how this analysis

should be performed. The Court instructed that “[t]he

proper inquiry is a practical one.” Garcetti, 126 S. Ct.

at 1961. The Court rejected the notion that we were

limited to job descriptions in determining the nature

of official] duties because “[fJormal job descriptions

often bear little resemblance to the duties an em-

ployee actually is expected to perform, and the listing

of a given task in an employee’s written job descrip-

tion is neither necessary nor sufficient to demonstrate

that conducting the task is within the scope of the

employee's professional duties for First Amendment

purposes.” Garcetti, 126 S. Ct. at 1962. Such appears

to be the case here where the departmental rule

differed from the manner in which the officers actu-

ally performed their duties. Because the evidence

that the jury was entitled to believe on this point

contradicts the majority’s assumption, I would not

rely on Lt. Morales’s supposed duty to report all

potential wrongdoing in determining whether this

speech was protected by the First Amendment.

App. 24

There are other hints in Garcetti that help dic-

tate the analysis here. The Court was concerned, for

example, that “[o]fficial communications have official

consequences,” and that “[s]upervisors must ensure

that their employees’ official communications are

accurate, demonstrate sound judgment, and promote

the employer’s mission.” Garcetti, 126 S. Ct. at 1960.

The Court opined that employees may receive protec-

tion for expressions made at work rather than pub-

licly, and that it also is not dispositive that the speech

concerns the subject matter of the plaintiff’s job. 126

S. Ct. at 1959. In Garcetti, the Court found that the

significant factor was that Ceballos’ memo was writ-

ten pursuant to his official duties:

Restricting speech that owes its existence to

a public employee’s professional responsibili-

ties does not infringe any liberties the em-

ployee might have enjoyed as a private

citizen. It simply reflects the exercise of em-

ployer control over what the employer itself

has commissioned or created.

Garcetti, 126 S.Ct. at 1960. The Court noted that

Ceballos did not act as a citizen when he conducted

his daily professional activities; rather when “he went

to work and performed the tasks he was paid to

perform, Ceballos acted as a government employee.”

126 S.Ct. at 1960. The Court also characterized

Ceballos’s memo as the “work product” of a govern-

ment employee. The Court commented that govern-

ment employees who make public statements outside

the course of performing their duties retain First

App. 25

Amendment protection because that is the kind of

activity engaged in by persons who do not work for

the government. Thus, a letter to a local newspaper is

protected as is a discussion of politics with a co-

worker. Garcetti, 126 S. Ct. at 1961.

We must consider, then, whether Lt. Morales’s

comments to the district attorney constitute “work

product,” whether his words owed their existence to

his professional responsibilities, whether it is speech

that his employer commissioned or created, or

whether it is the kind of activity engaged in by per-

sons who do not work for the government. Lt. Morales

certainly became aware of the facts that he reported

and formed the opinions that he expressed because of

his work in investigating and arresting Vincent Ray.

But for his job duties, Lt. Morales would not have

known that Vincent Ray failed to show up for three

meetings that had been reported up the chain of

command; he would not have been aware of Mr.

Mullarkey’s allegations; he would not have been privy

to Monica Ray’s directive to keep her name and

address off the pedigree report. The fact that his

speech concerned the subject matter of his employ-

ment is not dispositive, though, because in Garcetti,

the Court reaffirmed the principle that the First

Amendment protects some speech related to the

speaker’s job, at least in part because front line

workers like teachers (as was the case in Pickering)

or police officers (as we have here) are, as a class,

most likely to have informed and definite opinions

about matters of public concern related to their jobs.

App. 26

Garcetti, 126 S. Ct. at 1959 (citing Givhan v. Western

Line Consol. Sch. Dist., 439 U.S. 410 (1979), and

Pickering v. Board of Educ. of Twp. High Sch. vist.

205, Will County, Ill., 391 U.S. 563 (1968)). When he

spoke to the district attorney, Lt. Morales was on

duty and responding to questions about papers he

was obliged to present to the state’s attorney as part

of his official job duties. However, because Lt.

Morales was not required, as a practical matter, to

report these allegations, this is a close case under

Garcetti. The information that Lt. Morales conveyed

was work product only in the sense that he learned

the information while at work. But the work he was

paid to perform that day, to paraphrase Garcetti, was

the prosecution of Vincent Ray. Both government

employees and persons who do not work for the

government may report possible wrongdoing or

crimes by government officials. In this case, reporting

possible wrongdoing was beyond the scope of Lt.

Morales’s required job duties.

Construing the facts in favor of Lt. Morales, he

may have begun his conversation with the district

attorney as a police officer, but when he went beyond

his obligations as a police officer and decided to

disclose his suspicions about the Chief and Deputy

Chief, he was speaking to the district attorney as a

witness to public corruption, in the same fashion any

citizen who witnessed suspicious conduct by a gov-

ernment official might speak. See Freitag v. Ayers,

468 F.3d 528, 545 (9th Cir. 2006), cert. denied, 127

S.Ct. 1918 (2007) (where it was not part of jail

App. 27

guard’s official tasks to complain to a senator or

inspector general about the failure of jail officials to

respond to charges of sexual harassment at the jail,

the guard was speaking as a citizen when she ex-

posed official malfeasance to broader scrutiny and

thus her speech was protected by the First Amend-

ment). In Garcetti, the Supreme Court noted that

“when a public employee speaks pursuant to em-

ployment responsibilities ... there is no relevant

analogue to speech by citizens who are not govern-

ment employees.” 126 S.Ct. at 1961. In this case,

unlike Garcetti, there is a relevant analogue to speech

by citizens who are not public employees. Any citizen

may report suspicions of public corruption to the

district attorney’s office, which, as I noted above, had

the ability and the authority to investigate allega-

tions of wrongdoing at the highest levels of the police

department. A reasonable jury could find, and I would

find, on balance, that Lt. Morales spoke as a private

citizen when he conveyed his suspicions to the district

attorney and his speech was therefore protected by

the First Amendment.

But even if the discussions with the district

attorney were unprotected, I am not convinced that

the jury found those discussions to be the sole, or

even the primary, motivating factor in the defendants’

retaliation. In fact, it is highly unlikely that the jury

relied on those stale conversations as the cause of Lt.

Morales’s demotion. The discussions with the district

attorney occurred in April 1998 and no action was

taken against Lt. Morales until approximately nine

App. 28

months later, shortly after he gave a deposition in an

unrelated civil case. Approximately seven months

after Lt. Morales met with the district attorney, in

December 1998, he and Officer Link gave depositions

in the case of Kuchenreuther v. Jones. In Kuchen-

reuther, another officer sued Chief Jones for retaliat-

ing against her for exercising her First Amendment

rights. At his deposition, Lt. Morales testified about

the Mullarkey incident and stated that he believed

Detective Kolatski was transferred as a result of

events connected with the arrest of Vincent Ray and

the aftermath of the Mullarkey allegations. Lt.

Morales was transferred approximately six weeks

after that deposition. Officer Link, who was not a

plaintiff here, also was transferred (albeit temporar-

ily) to a considerably less desirable position shortly

after the depositions.

The key question, then, is whether that deposi-

tion testimony was given pursuant to Lt. Morales’s

official duties. The district court found that Lt.

Morales’s deposition could not be tied to any of his

required duties as a police officer. The majority does

not address that finding by the district court and thus

does not address whether and to what extent we

should defer to the district court’s fact-finding. Even

assuming that we need not defer to the district court

at all, though, I would find, as the majority has

found, that Lt. Morales’s deposition was given as a

citizen and not pursuant to official duties.

The defendants make no attempt to demonstrate

that testifying at a civil deposition for a co-worker’s

App. 29

lawsuit was part of Lt. Morales’s job duties. Nor could

they. There is nothing in the record below to suggest

that the deposition testimony was work that Lt.

Morales was expected to perform as part of his formal

or informal job duties, that it was conducted pursuant

to his job duties or at his employer’s behest, that it

was work product of the police department, that it

was official speech, or that it was one of the tasks he

was paid to perform. Although the subject matter of

the deposition related to information Lt. Morales

learned on his job, his testimony owed its existence

not to his job but rather to a subpoena in a lawsuit.

See Fairley v. Fermaint, 482 F.3d 897, 902 (7th Cir.

2007). In Fairley, county jail guards brought § 1983

claims against the county sheriff and other guard

personnel, claiming they were harassed for exercising

their First Amendment right to speak out against

abuse of prison inmates. 482 F.3d at 899. The defen-

dants sought to invoke Garcetti for the proposition

that the plaintiffs’ speech in the workplace is not

protected by the First Amendment. We noted that,

under the plaintiffs’ theory, the “defendants reacted

adversely to two kinds of speech: not only statements

made as part of their duties at work (the kind of

speech to which Garcetti applies) but also to testi-

mony that plaintiffs gave in inmates’ suits.” Fairley,

482 F.3d at 902. Because “[alssistance to prisoners

and their lawyers in litigation is not part of a guard’s

official duties,” we needed to determine what part of

the defendants’ retaliation could be traced to the

plaintiffs’ litigation activity as opposed to events at

work. 482 F.3d at 902. Fairley applies directly to the

App. 30

circumstances we have here, where it was not part of

Lt. Morales’s job duties to assist his fellow officer in

her suit against the Chief.

Because they cannot demonstrate that the depo-

sition was given pursuant to Lt. Morales’s job duties,

the defendants rely entirely on an argument that

deposition testimony about unprotected speech does

not constitute protected speech. Unlike the majority, I

would find that the underlying speech was protected

but I will assume for the sake of argument that it was

not. The defendants rely on Morris v. Crow, 142 F.3d

1379 (11th Cir. 1998), and Kirby v. City of Elizabeth

City, N.C., 388 F.3d 440 (4th Cir. 2004), for the propo-

sition that Lt. Morales’s deposition testimony was

unprotected speech. Neither of these cases supports

the defendants’ position. Morris was an employee of

the sheriff’s department who was called upon to

investigate an accident in which an unmarked sher-

iff’s car, en route to an emergency call, collided with a

citizen’s vehicle, killing the citizen. Morris investi-

gated the accident and wrote an official report where

he concluded that the efficer driving the unmarked

squad car was traveling more than 130 mph in a 50

mph zone without using his blue warning lights, in

contravention of department policy. After Morris filed

that report, the citizen’s personal representative

brought a wrongful death suit against the sheriff’s

department and Morris was deposed in connection

with that suit. At the deposition, he reiterated the

allegations of his report and opined that if the officer

had been traveling the posted speed limit, there was

App. 31

a great possibility the accident would not have oc-

curred. Morris, 142 F.3d at 1381.

The appeals court found that the accident report

was generated pursuant to Morris’s official and

customary duties. In that respect, the court appeared

to have anticipated Garcetti. But the court then

distinguished Morris’s case from two others that

closely resemble the facts we have here in Lt.

Morales’s case. See Morris, 142 F.3d at 1382, citing

Fikes v. City of Daphne, Tex., 79 F.3d 1079 (11th Cir.

1996), and Warnock v. Pecos County, 116 F.3d 776 (5th

Cir. 1997). In Fikes, an officer who had no obligation

to do so reported two instances of misconduct by

fellow officers. In that case, the Morris court found,

the plaintiff was not speaking pursuant to work

duties but was trying to bring to light actual or

potential wrongdoing on the part of government

officials. In Warnock, a county auditor reported a

number of violations of law or fiscal improprieties

committed by county officials to her superiors and to

appropriate law enforcement officers. Although

Warnock generated her report in the normal course of

her duties as an auditor, the Morris court distin-

guished her case because the plaintiff’s purpose was

to raise issues of public concern. Morris, on the other

hand, wrote his report not to bring to light any

wrongdoing but rather to accurately report an acci-

dent in the course of his employment. The court found

that Morris’s deposition could not “be characterized

as an attempt to make public comment on sheriff’s

office policies and procedures, the internal workings

App. 32

of the department, the quality of its employees or

upon any issue at all.” Morris, 142 F.3d at 1382. The

Morris court thus concluded that the “mere fact that

Morris’s statements were made in the context of a

civil deposition cannot transform them into constitu-

tionally protected speech.” 142 F.3d at 1383. Like

Fikes, Lt. Morales was not obliged to report possible

wrongdoing by the Chief and Deputy Chief. And like

both Fikes and Warnock, Lt. Morales was attempting

to bring to light issues of public concern. When read

in whole, the Morris court found that Morris’s acci-

dent report was unprotected because it was an official

report made in the normal course of his duties, and

his deposition was unprotected because he was not

attempting to bring to light matters of public concern.

It is thus difficult to see how Morris helps the cause

of the defendants in the instant case where Lt.

Morales was not obliged to report the wrongdoing and

was in fact trying to bring to light a matter of grave

public concern. Under Morris, a pre-Garcetti case, Lt.

Morales’s speech would be protected because he had

no work-related duty to speak and he was motivated

by a desire to bring to light possible government

corruption. I note, however, that the Morris court’s

use of the speaker’s motive as a factor that overrides

the citizen/employee distinction cannot survive Gar-

cetti. In sum, Morris does not aid the defendants’

cause, and I also believe that Morris, at least in part,

is no longer good law.

As for Kirby, another pre-Garcetti case on which

the defendants rely, the issue was not whether the

App. 33

plaintiff police officer was speaking as a citizen but

rather whether his speech addressed a matter of

public concern. Kirby, 388 F.3d at 446-47. Kirby

testified at a hearing before a City Personnel Appeals

Committee regarding a grievance filed by a fellow

officer. That officer had been disciplined for damaging

his police car by failing to properly maintain it. Kirby

testified about the maintenance history of the fellow

officer’s car and provided an opinion about the main-

tenance and driving habits of that officer. 388 F.3d at

443. The court found that Kirby’s speech did not

involve a matter of public concern but rather related

only to the interests of the officers involved. More-

over, the court found, the fact that Kirby’s testimony

was given in a public hearing did not transform it

into a matter of public concern. No one could argue in

the instant case that allegations of wrongdoing

against the two highest ranking members of the

Milwaukee Police Department did not touch on a

matter of public concern. Kirby is irrelevant to the

issue before this court. See also Green v. Barrett, 207

WL 754634 (11th Cir. Mar. 14, 2007).”

* In that case, a jailer was called to testify pursuant to her

official duties, at the behest of her employer, in the normal

course of work. The court found that the jailer’s testimony was

therefore not protected by the First Amendment. Her testimony

was her work that day. Lt. Morales was not called to testify

pursuant to his official duties. He had no work-related obligation

to testify. There is no evidence in the record indicating that Lt.

Morales testified at that deposition at the behest of the Chief or

Deputy Chief. And, finally, there is no evidence that the deposi-

tion was given in the normal course of Lt. Morales’s work. On

(Continued on following page)

App. 34

Because I would find that Lt. Morales’s speech

was protected in its entirety by the First Amendment,

I will briefly address the question of qualified immu-

nity. I say briefly because it should be obvious to

anyone and certainly to the Chief and Deputy Chief of

Police that it is illegal to retaliate against a person

for reporting a possible crime or for testifying under

oath in a deposition as part of a judicial proceeding.

In the federal system, we call such retaliation “wit-

ness tampering” or “obstruction of justice,” and these

principles were established long before the events in

this case. See Fairley, 482 F.3d at 902. As we noted in

Fairley, “no public official could think the conduct

proper.” /d. I would therefore find that the defendants

were not entitled to qualified immunity. For the same

reason, I would not disturb the award of punitive

damages.

If, as the majority finds, Lt. Morales’s discussion

with the district attorney was not protected, I would

still affirm the judgment rather than grant a new

trial. First, given that the demotions of both Lt.

Morales and Officer Link came hot on the heels of

their depositions, it is reasonable to assume that the

jury found that the defendants demoted Lt. Morales

because of his recent deposition and not because of a

conversation he had with the district attorney some

nine months earlier. As I noted above, we may over-

turn a jury verdict in favor of Lt. Morales only if no

the contrary, he was essentially testifying as a witness in a civil

lawsuit unrelated to his duties as a police officer.

App. 35

reasonable jury could have found for him. Erickson,

469 F.3d at 601; Davis, 445 F.3d at 975. A reasonable

jury could and did find in favor of Lt. Morales and I

would affirm that judgment.

Second, the majority’s decision to remand Lt.

Morales’s case for a new trial gives the defendants a

gift for which they did not ask. In their request for

relief on appeal, the defendants asked that we re-

verse the decision of the trial court and hold as a

matter of law that all of the relevant speech is not

protected by the First Amendment. In the alternative,

the defendants asked that we find that they are

entitled to qualified immunity. And finally, if we

determined that the speech was protected and that

they were not entitled to qualified immunity, the

defendants asked that we reverse the award of puni-

tive damages. At no time in the appeal did the defen-

dants request a new trial. At no time did they argue

that they would be entitled to a new trial if the jury

was presented with evidence of both protected and.

unprotected speech. The majority states that we do

not know whether the jury found the retaliation was

due to protected speech, unprotected speech or a

combination of both. Even if the majority is correct

that some of the speech was unprotected, that uncer-

tainty is irrelevant. Having failed to make such an

argument, the defendants waived any claim for a new

trial on that basis. See Kramer v. Banc of Am. Sec.

LLC, 355 F.3d 961, 964 n.1 (7th Cir. 2004) (the ab-

sence of any supporting authority or development

of an argument constitutes a waiver on appeal);

App. 36

Hildebrandt v. Illinois Dep't of Natural Res., 347 F.3d

1014, 1025 n.6 (7th Cir. 2003) (when a party presents

no argument in its brief with respect to a particular

claim, any arguments with respect to that claim are

waived); Palmer v. Marion County, 327 F.3d 588, 597-

98 (7th Cir. 2003) (holding that claims not argued on

appeal are abandoned, and collecting cases). The

defendants took an all or nothing approach in their

appeal of the judgment in favor of Lt. Morales; they

are entitled to nothing. For these reasons, I concur in

the judgment with respect to Detective Kolatski and

respectfully dissent from the judgment with respect

to Lt. Morales.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 37

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

ALFONSO MORALES and

DAVID KOLATSKI,

Plaintiffs,

Vv.

POLICE CHIEF ARTHUR JONES,

and DEPUTY MONICA RAY,

Defendants. No. 00-CV-0618-DRH

MEMORANDUM and ORDER

(Filed Feb. 1, 2006)

HERNDON, District Judge:

I. Introduction and Background

Pending before the Court are Defendants’ mo-

tions for judgment as a matter of law, for new trial

and for amended judgment (Doc. 130) and Plaintiffs’

motion for attorney’s fees and costs (Doc. 126). Based

on the pleadings, the applicable law and the follow-

ing, the Court denies Defendants’ motions and grants

in part and denies in part Plaintiffs’ motion.

Back in May 2000, Alfonso Morales and David

Kolatski, former police officers with the City of Mil-

waukee Police Department, filed suit against Chief

Arthur L. Jones, Deputy Chief Monica Ray and

the City of Milwaukee for violations of their First

Amendment Rights (Doc. 1).

App. 38

On January 18, 2005, after a four day trial, the

jury returned a special verdict in favor of Plaintiffs

Alfonso Morales and David Kolatski and against

Defendants Chief Arthur L. Jones and Deputy Chief

Monica Ray (Doc. 120). The jury awarded both

Morales and Kolatski $20,000 in compensatory dam-

ages and $65,000 in punitive damages. The Clerk of

the Court entered judgment reflecting the same on

November 21, 2005 (Doc. 121).

II. Defendants’ Motions

When entertaining a motion for judgment as a

matter of law, the court should review all of the

evidence in the record. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 150

(2000). In doing so, the court must draw al] infer-

ences in favor of the nonmoving party, here Morales

and Kolatski. Id.; Gustafson v. Jones, 290 F.3d 895,

906 (7th Cir. 2002). The court may not make credi-

bility determinations or reweigh the evidence; it must

disregard all evidence favorable to the moving party

that the jury is not required to believe. Reeves, 530

U.S. at 150-51. “That is, the court should give cre-

dence to the evidence favoring the nonmovant as well

as that evidence supporting the moving party that is

uncontradicted and unimpeached, at least to the

extent that that evidence comes from disinterested

witnesses.” Reeves, 530 U.S. at 151 (internal quote

marks omitted). The Court must be particularly

careful in employment discrimination cases to avoid

suppianting its view of the credibility or weight of the

App. 39

evidence for that of the jury. Hybert v. Hearst Corp.,

900 F.2d 1050, 1054 (7th Cir. 1990). See also

Tuohey v. Chicago Park Dist., 148 F.3d 735, 740

(7th Cir. 1998) (noting we are particularly care-

ful in employment discrimination cases not to

substitute our own view of credibility or weight

of the evidence for that of the jury). This is

because employment discrimination cases often

involve sensitive and difficult issues of fact, and

plaintiffs often have only circumstantial evidence on

which to rely. Hybert, 900 F.2d at 1054.

A district court may grant judgment as a matter

of law where “there is no legally sufficient evidentiary

basis for a reasonable jury to find for” the prevailing

party. Honaker v. Smith, 256 F.3d 477, 484 (7th

Cir. 2001). The court may set aside the jury’s verdict

and enter judgment as a matter of law only when,

without resolving conflicts in the testimony or other-

wise considering the weight of the evidence, the

evidence is such that a reasonable jury could reach

only one conclusion. Lane v. Hardee’s Food Sys-

tems, Inc., 184 F.3d 705, 706-07 (7th Cir. 1999);

Klunk v. County of St. Joseph, 170 F.3d 772, 775

(7th Cir. 1999); see generally Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250-51 (1986) (same

standard applies for summary judgment and

judgment as a matter of law). The evidence in

support of the verdict must be substantial. Honaker,

256 F.3d at 484. In ruling on a motion for new trial,

the court rmwst determine whether “the verdict is

against tive weight of the evidence ... the damages

App. 40

are excessive, or ... for other reasons, the trial was

not fair to the party moving.” General Foam Fabri-

cators, Inc. v. Tenneco Chemicals, Inc., 695 F.2d

281, 288 (7th Cir. 1982).

A. Judgment in favor of Morales and

against Chief Jones

Defendants argue that Morales’ Judgment

against Chief Jones must be reversed as there was

insufficient evidence on the issue of causation. Chief

Jones claims that he did not know of Morales’ disclo-

sure to the District Attorney’s office which started the

investigation into Chief Jones and Deputy Chief Ray.

Further, Chief Jones argues that he had no knowl-

edge of Morales’ December 8, 1998 deposition and

that based on the case law the length of time from

April 8, 1998 to Morales’ transfer on January 22,

1999 is too long of a period to connect his retaliatory

motive to the transfer.

Based on the record, the Court finds that Morales

presented legally sufficient evidence for a reasonable

jury to find that Chief Jones knew of Morales’ disclo-

sure to the District Attorney’s office which started the

investigation into Chief Jones and Deputy Chief Ray

for harboring a wanted felon, Vincent Ray, and that

Chief Jones did know of Morales’ December 8, 1998

deposition. As of March 22, 1998, both Chief Jones

and Deputy Chief Ray knew about Morales and

Detective Link’s efforts to investigate an allegation

that Vincent Ray was fortifying an apartment and

App. 41

selling drugs from there. Lt. Edward Liebrecht testi-

fied that after he received a complaint by the apart-

ment’s owner that Vincent Ray was selling drugs

from an apartment, he assigned Link and Morales to

investigate the complaint. Furthermore, Link testi-

fied that he and Morales were ordered by Lt. James

Shepard to drop every investigation they were con-

ducting and make the Vincent Ray investigation their

top priority pursuant to orders from the “Chief.” Link

also testified that Lt. Shepard ordered him to put

together a “Matter Of” report detailing every aspect

of their investigation into Vincent Ray and to provide

Lt. Shepard with the report who would then forward

the information up the chain of command to Chief

Jones. Lt. Shepard testified that he forwarded Detec-

tive Link’s Matter Of report up the chain of command

to Chief Jones on Sunday, March 22, 1998. Moreover,

Morales and Detective Link testified that every time

between March 22, 1998 and April 6, 1998 that the

received a lead on where Vincent Ray was they would

report the lead to their supervisor and that Vincent

Ray would be absent at the planned meetings.

Moreover, there is evidence that on April 6, 1998,

the date of Vincent Ray’s arrest, Morales, Detective

Link and Kolatski all spoke to Lt. Habeck who was in

direct communication with Deputy Chief Ray about

the arrest of her brother. Further on April 8, 1998,

Morales was summoned to a meeting with Deputy

’ The Matter Of report was Exhibit 1 at trial.

App. 42

Chief Ray, Captain Sucik, and Detective Link. At this

meeting, Deputy Chief Ray questioned Morales as to

the following areas: (1) how the District Attorney’s

investigation as to herself and Chief Jones began; (2)

what information was given to the District Attorney’s

office; and (3) how Morales got that information.

Specifically, Morales told Chief Deputy Ray that

Kolatski learned from the owner of the Gold Rush

Chicken restaurant that he saw Deputy Chief Ray,

Vincent Ray and Chief Jones at Deputy Chief Ray’s

home when he delivered chicken to her house.

Morales also told Deputy Chief Ray that he informed

the District Attorney that she ordered Lt. Habeck on

the evening of April 6, 1998 to keep her name out of

all arrest reports; and that if Vincent Ray gave the

same address as her address that his address should

be changed to any other address even if that meant

changing it to a “f------ street pole.” Morales also told

Chief Deputy Ray that on the morning of April 7,

1998 when he delivered the arrest reports to the

District Attorney, the Assistant District Attorney

noticed that the pedigree reports were missing and

began asking questions about the reports where-

abouts. Morales then informed Deputy Chief Ray that

after he told the Assistant District Attorney the above

information the Assistant District Attorney became

concerned. Morales then told Deputy Chief Ray that

based on all of those allegations, the District Attor-

ney’s office began an investigation into Deputy Chief

Ray and Chief Jones for oven harboring a

known felon, Vincent Ray.

App. 43

Also during this meeting, Deputy Chief Ray

notified everyone present that she was going to

contact her attorney and Chief Jones about these

allegations. Deputy Chief Ray testified that she told

Chief Jones about all that she learned at this meet-

ing. In addition, Chief Jones testified that he had a

conversation with Deputy Chief Ray and that he

knew that the District Attorney’s office was going to

conduct interviews of himself and Deputy Chief Ray

that same day.

The evidence also reveals that Deputy Inspector

Schunk, the head of Internal Affairs, met with Chief

Jones on April 8, 1998. Chief Jones told Deputy

Inspector Schunk that Deputy Chief Ray’s brother

was arrested and that the officers involved were at a

chicken restaurant where the owner stated that he

delivered chicken to Deputy Chief Ray’s home, that a

man with a tattoo answered the door and that Chief

Jones was standing behind him. An April 8, 1998

memo written by Deputy Inspector Schunk states the

same. Deputy Inspector Schunk testified that Chief

Jones wanted him to begin an investigation into the

officers for discussing business at the chicken restau-

rant. Deputy Inspector Schunk also testified that

when he had the meeting with Chief Jones, he

thought that they both knew who the involved offi-

cers were. Furthermore, on April 17, 1998, Deputy

Inspector Schunk interviewed Mullarkey, the chicken

restaurant owner, who gave descriptions of Kolatski,

Link and Morales.

App. 44

The evidence also demonstrates that on April 14,

1998, Deputy District Attorney Reddin received a call

from Chief Jones in the early evening. During this

conversation, Chief Jones expressed that he was

upset because the District Attorney’s office had made

inquiries as to whether Chief Jones was at Chief

Deputy Ray’s house at a time when Vincent Ray was

there and wanted on outstanding warrants. Subse-

quently, on April 17, 1998, Kolatski was transferred

from the Vice Control Division to night shift district

patrol duty.

The evidence also shows that Chief Jones was

aware of Morales’ December 8, 1998 deposition in the

Kuchenreuther case. Deputy Chief Ray stated that a

City Attorney asked her why Kolatski was trans-

ferred from Vice Control. Similarly, Kolatskl testified

during his Kuchenreuther deposition that he believed

that he was transferred in retaliation for events

surrounding the Vincent Ray arrest. Also, during

Detective Link’s December 8, 1998 deposition in the

Kuchenreuther case, Detective Link testified that he

thought that Kolatski was transferred in retaliation

for events relating to the Vincent Ray arrest

Further, the evidence shows that Morales’ Janu-

ary 22, 1999 transfer happened unexpectedly and

that there was no documentation setting forth any

legitimate reason for the transfer. Morales was on the

Vice Control entry team which was a specialized unit

within the Vice Control Division that required the

department to make extensive payments for the

extensive training. Further, Morales is a Spanish

App. 45

speaking officer whose usefulness to the Vice Control

Division in its war on drugs was an essential ele-

ment. Further, the evidence shows that Morales was

performing his duties well at the time of the transfer.

Deputy Chief Ray testified that Morales was

transferred because of a reconfiguration of the Vice

Control Division, because he placed high on a detec-

tive’s test and he would have been ultimately trans-

ferred in any event. However, Captain Sucik and Lt.

Liebrecht both testified that although reconfiguration

of the Vice Control Division was being discussed in

the latter part of 1998 and the early part of 1999,

there was never any discussion that any officer

within the division would be transferred out of the

division. In fact, these officers testified that the

reconfiguration would require additional officers to be

assigned to the Vice Control Division. Furthermore,

Chief Jones testified that he had no explanation or

knew of no reason for why Morales was transferred

on January 22, 1999. Not one witness testified that

they had knowledge of any person ever being trans-

ferred out of Vice Control Division as a police officer

because they ranked high on a detective’s test and

would be transferred in a short time in any event.

Additionally, the record shows that Chief Jones

was upset with the District Attorney’s investigation.

The record demonstrates that based on Detective

Link’s assignment to the Prostitution Unit within

days of his December 8, 1998 deposition, an assign-

ment that Detective Link stated was the worst

assignment he had within the Milwaukee Police

App. 46

Department, together with Kolatski’s prior transfer

and Chief Jones’ prior agitation regarding the District

Attorney’s investigation, there is enough evidence for

a reasonable jury to find that Chief Jones was angry

enough to transfer Morales based on the conversa-

tions Morales had with the District Attorney’s office

and his December 8, 1998 deposition in the Kuchen-

reuther case. Thus, the Court denies Defendants’

motion as to this request.

B. Judgment in favor of Kolatski and

against Chief Jones

Defendants also argue that Kolatski’s Judgment

against Chief Jones must be reversed as there is

insufficient evidence to sustain the verdict. Chief

Jones argues that he had no knowledge of Kolatski’s

involvement with the chicken man. Based on the

record, the Court finds that Kolatski presented

legally sufficient evidence for a reasonable jury to

find that Chief Jones knew of Kolatski’s involvement

in providing information concerning the chicken

delivery made to Deputy Chief Ray’s home wherein

Chief Jones, Deputy Chief Ray and Vincent Ray were

all present.

The evidence reveals that on April 8, 1998,

Morales specifically told Deputy Chief Ray that it was

Kolatski who learned from the owner of Gold Rush

Chicken that a couple of weeks earlier he delivered

chicken to Deputy Chief Ray’s home and at that time

Chief Jones and Vincent Ray were also present.

App. 47

Thereafter, Deputy Chief Ray called Chief Jones on

April 8, 1998 and told him about all the Information

given to the District Attorney’s office. She also told

him how the information was learned and who pro-

vided the information. That same day, Chief Jones

met with Deputy Inspector Schunk to initiate an

Internal Affairs Division investigation because Dep-

uty Chief Ray’s brother had been arrested and the

officers involved had a conversation with the owner of

a chicken restaurant who informed the officers that

when he delivered chicken to Deputy Chief Ray’s

home Chief Jones, Deputy Chief Ray and a man

meeting Vincent Ray’s description was there. Also,

Chief Jones testified that there was a possibility that

the names of the officers were mentioned in his

meeting with Deputy Inspector Schunk, but he did

not know for sure. While Schunk testified that in this

meeting with Chief Jones «n April 8, 1998, he thought

that they both knew who the officers were. Moreover,

the arrest report of Vincent Ray, Trial Exhibit 6, lists

Kolatski as the assisting office to the arresting officer

Morales.

In addition, the record shows that on April 17,

1998, Kolatski’s transfer date, Schunk interviewed

the owner of the chicken restaurant who gave de-

scriptions of the three officers. These descriptions

were similar to those of Kolatski, Link and Morales.

Schunk verified this in his testimony.

Furthermore, the evidence demonstrates that

Kolatski’s transfer was unexpected, that there was no

legitimate reason for the transfer, that there was no

App. 48

documentation explaining his transfer, that he was

performing his job well and that his usefulness to the

unit was not completed. In addition, Captain Sucik

testified that he knew of no reason for why Kolatski

was transferred and that had it been his decision

Kolatski would have remained a member of the

Vice Contro! Division. Lts. Liebrecht, Habeck, and

Shepard testified to the same. In fact, Chief Jones

stated that he knew of no reason why Kolatski was

transferred on April 17, 1998.

Deputy Chief Ray was the only person to testify

as to why Kolatski was transferred. Deputy Chief Ray

testified that after conversing with Chief Jones she

decided to transfer Kolatski because Kolatski and

Deputy Chief Ray’s administrative assistant had an

argument over the use of the administrative assis-

tant’s phone. Deputy Chief Ray admitted that she did

not investigate the facts surrounding the phone

incident. Deputy Inspector Schunk testified that

under these facts an officer/employee would not be

transferred. Also, Captain Sucik testified that he

knew about the incident with the phone; that he told

Kolatski not to use the phone anymore and that one

incident would not have resulted in Kolatski’s trans-

fer. Similarly, Lts. Liebrecht, Habeck and Shepard all

testified that this incident would not have resulted in

a transfer. Moreover, Sucik, Liebrecht, Habeck, and

Shepard all described Kolatski’s use of the phone as

proper protocol for members of the Vice Control

Division.

App. 49

Based on the evidence a reasonable jury could

have found that Chief Jones would have been moti-

vated to transfer Kolatski based on the information

he learned from the owner of the chicken restaurant

which Morales supplied to the District Attorney. In

fact, Deputy District Attorney Reddin testified that

Jones was quite upset over the investigation into

himself based on the chicken owners’s allegations.

Thus, the Court denies Defendants’ motion as to

Kolatski’s judgment against Jones.

C. Judgment in favor of Morales and

against Deputy Chief Ray

Defendants also argue that the verdict in favor of

Morales and against Deputy Chief Ray should be set

aside as supported by insufficient evidence. Specifi-

cally, that the statements that Morales made to

Deputy Chief Ray happened approximately nine

months before his January 22, 1999 transfer and that

she did not know of his December 8, 1998 deposition.

As stated supra, the evidence establishes that

Deputy Chief Ray informed Chief Jones about all the

information concerning her brother’s arrest and who

provided it to the District Attorney’s office. In fact,

Deputy Chief Ray was so concerned that she hired a

personal attorney who went with her to be inter-

viewed by the District Attorney. The evidence also

revealed that Deputy Chief Ray admitted she was

asked by a City Attorney following the Kolatski

deposition on December 8, 1998 as to why Kolatski

App. 50

was transferred from the Vice Control Division.

Moreover, it is possible that a reasonable jury did not

believe Deputy Chief Ray’s explanation as to why

Morales was transferred. Based on the evidence, a

reasonable jury could have found that Deputy Chief

Ray knew of Morales’ December 8, 1998 deposition

and had a hand in causing Morales to be transferred

on January 22, 1999. Thus, the Court denies Defen-

dants’ motion as to this issue.

D. Judgment in favor of Kolatski and

against Deputy Chief Ray

Defendants argue that the verdict in favor of

Kolatski and against Deputy Chief Ray cannot stand.

In particular, Defendants contend that Deputy Chief

Ray did not know that it was Kolatski who learned of

the chicken restaurant owner’s allegations or that he

provided the information to Morales.

As stated previously, the evidence shows that on

April 8, 1998, Morales was summoned to a meeting

with Deputy Chief Ray. In that meeting Morales

testified that Deputy Chief Ray questioned him

regarding what information was given to the District

Attorney, how that information was learned, and

what the District Attorney’s office was going to do

with that information. In response to the questions,

Morales informed Deputy Chief Ray that Kolatski

was the person who learned of the chicken restaurant

owner’s allegations that he had delivered chicken to

her house and at that time her, Chief Jones and

App. 51

Vincent Ray were present. Moreover, it is possible

that a reasonable jury did not believe Deputy Chief

Ray’s explanation as to why Kolatski was transferred.

Based on the evidence, a reasonable jury could have

found that Deputy Chief Ray knew that Kolatski

talked to the chicken restaurant owner. Therefore,

the Court denies Defendants’ motion as to this issue.

E. Qualified Immunity

Next, Defendants argue that they are entitled to

judgment as a matter of law because Plaintiffs’

speech was not protected, therefore, they are entitled

to qualified immunity. Specifically, Defendants main-

tain that the Plaintiffs’ speech is not protected as

these incidents were required job duties or casual

chit-chat. The Court does not agree.

The Supreme Court has held that the speech of a

government employee warrants First Amendment

protection if that speech “addresses a matter of public

concern.” Connick v. Myers, 461 U.S. 138, 147

(1982). Whether the employee’s speech constitutes

public concern must be determined “by the content,

form, and context of a given statement, as revealed by

the record as a whole.” Id. at 147-48. The Seventh

Circuit has determined that the content of the speech

is the most important. See Campbell v. Towse, 99

F.3d 820, 827 (7th Cir. 1996); Glass v. Dachel, 2

F.3d 733, 740 (7th Cir. 1993).

App. 52

The Court must also seek “a balance between the

interests of the [employee], as a citizen, in comment-

ing upon matters of public concern and the interest of

the State, as an employer, in promoting the efficiency

of public service.” Connick, 461 U.S. at 142 (quot-

ing Pickering v. Board of Education, 391 U.S.

563, 568 (1968)). “In terms of content, this court has

determined that police protection and public safety

are generally a matter of public concern.” Delgado v.

Jones, 282 F.3d 511, 517 (7th Cir. 2002) (citing

Auriemma v. Rice, 910 F.2d 1449, 1460 (7th Cir.

1990) (en banc) (“It would be difficult to find a

matter of greater public concern in a large

metropolitan area than police protection and

public safety.”); Glass, 2 F.3d at 741 (“Obviously,

speech that focuses on police departments (and

ultimately police protection and public safety)

involve matters of great public concern.”).

Here, the Court finds that Kolatski’s relaying of

information to Morales concerning the chicken res-

taurant owner’s allegations that there was a possibil-

ity that Chief Jones and Deputy Chief Ray were in

the presence of a known felon and thereby harboring

that known felon was protected speech. It was a

matter of public concern; it was a communication by a

law enforcement officer that contained information

essential to a complete and objective investigation of

serious criminal activity which is consider to be

“content” that implicates public concern. This speech

was also information regarding potential] misconduct

on behalf of Chief Jones and Deputy Chief Ray for

App. 53

harboring a known felon which is a violation of state

law, serious in nature and directed at the heads of the

Milwaukee Police Department. See Spiegla v. Hull,

371 F.3d 928, 937 (7th Cir. 2004) (“Unscrupulous

public employees may find ways to exploit the

resources and opportunities available to them

through their offices. Perhaps the public’s best

protection against these few wayward indi-

viduals is the insider who is willing to speak up

and shed light on her colleagues’ improprieties.

Recognizing the “whistleblower’s” important

role, our cases have consistently held that

speech alleging government corruption and

malfeasance is of public concern in its sub-

stance) (citations omitted). Similarly, the Court

finds that Morales’ informing the District Attorney’s

office of the allegations is protected for the same

reasons. Additionally, Morales’ testimony in his

December 8, 1998 as to why Kolatski was transferred

is an opinion that cannot be tied to any required duty

of his position as a police officer and, thus, that

speech is protected as well. Moreover, the Court finds

that Kolatski’s statements to Link and Morales were

not idle chit-chat. In fact, these statements concern

allegations that potentially implicated Chief Jones

and Deputy Chief Ray in criminal activity and the

fact that Chief Jones and Deputy Chief Ray were the

heads of the Milwaukee Police Department made that

speech a matter of public concern.

Additionally, Kolatski’s speech to Morales about

the chicken restaurant owner is protected speech and

App. 54

not part of required job duties. It had no usefulness in

Vincent Ray’s prosecution but it was volunteered

information needed for a complete investigation into

the potential serious criminal misconduct of Defen-

dants.

Furthermore, as the Seventh Circuit stated in

Delgado, 282 F.3d at 520, a qualified immunity

analysis involves whether the law was “clearly estab-

lished” at the time of the alleged violation. “In

Gustafson, this court observed, “It has been well

established for many years in this Circuit that a

public employer may not retaliate against an em-

ployee who exercises his First Amendment speech

rights, including in particular retaliation through a

transfer to a less desirable position.” 117 F.3d at

1020.... Although the defendants argue that Gon-

zalez somehow altered the First Amendment land-

scape in this Circuit, the alleged retaliation against

Delgado occurred about eight months before our

decision in Gonzalez, eliminating any possibility of

reliance.” Jd. Thus, the same applies to the case at

bar. Defendants’ reliance on Garcetti v. Ceballos

and Gonzalez v. Chicago is irrelevant. The retalia-

tion against Morales and Kolatski occurred approxi-

mately two years in advance of the Gonzalez

decision and over six years in advance of a decision

that has yet to be decided by the Supreme Court in

Garcetti v. Ceballos. Therefore, the Court finds that

Defendants are not entitled to qualified immunity.

Accordingly, the Court denies Defendants’ motion

based on qualified immunity.

App. 55

F. Compensatory Damages

Defendants contend that the compensatory

damages awarded to each of the Plaintiffs are exces-

sive. Defendants contend that there is no evidence

that either Morales or Kolatski had been subjected to

public statements by either Jones or Ray regarding

their transfers. Further, Defendants contend that

Plaintiffs did not substantiate their emotional dis-

tress. The Court does not agree.

The Court may grant Defendants a new trial

based on the excessiveness of the jury’s award only if

the award is “monstrously excessive” or the award

has no rational connection to the evidence, indicating

that the award was “merely a product of the jury’s

fevered imaginings or personal vendettas.” EEOC v.

AIC Sec. Investigations, Lid., 55 F.8d 1276, 1285

(7th Cir. 1995); accord Kapelanski v. Johnson,

390 F.3d 525, 532 (7th Cir. 2004); DeBiasio uv.

Illinois Central Railroad, 52 F.3d 678, 687 (7th

Cir. 1995). A remittitur rather than a new trial may

be more appropriate when a party seeks to establish

the need for a new trial based on the size of the

verdict. See Davis v. Consolidated Rail Corp., 788

F.2d 1260, 1263 (7th Cir. 1986) (“Only in an un-

usual case will a court order a new trial on

liability because of an error in assessing dam-

ages or in apportioning them among multiple

defendants.”).

Here, the Court finds that Defendants have not

shown that the awards are monstrously excessive or

App. 56

that the awards have no rational connection to the

evidence. Defendants’ argument ignores testimony

regarding Plaintiffs’ mental anguish, anxiety, sleep-

lessness, stress, marital hardship and loss of self

esteem. These factors combined can establish the loss

each Plaintiff suffered from which a jury could gauge

the personal indignity suffered as a result of Defen-

dants’ actions. Further, the jury could arrive at an

estimation of each of the Plaintiffs’ loss, by comparing

the circumstances of their lives before and after the

transfers. The $20,000 award is also not excessive in

comparison to awards in similar cases. For example,

in Gustafson v. Jones, 290 F.3d at 899, a case very

similar to this one, an award of $10,000 in compensa-

tory damages and $180,000 in punitive damages was

upheld. See also EEOC v. AIC Security Investiga-

tions, Ltd., 55 F.8d 1276, 1286 (7th Cir. 1995)

(“Comparability of awards must be adjusted for

the changing value of money over time.”). Be-

cause the Court finds that the compensatory damages

awarded to Plaintiffs had a rational connection to the

evidence and were not excessive, the Court denies

Defendants’ request for a new trial or remittur on the

issue of compensatory damages.

G. Punitive Damages

Defendants also argue that the Court should set

aside the jury’s award of punitive damages because

there was not clearly established law prohibiting the

transfer of any employee based on statements the

employee might make as part of their regular job

App. 57

duties. Defendants also argue that the awards are

excessive. Additonally, Defendants contend that there

was no evidence of public condemnation of either of

the Plaintiffs by either of the Defendants; there was

no evidence of any efforts to terminate or suspend

either of the Plaintiffs; and there was no evidence of

any other actions by either of the Defendants against

either of the Plaintiffs other than the transfers. The

Court rejects Defendants’ arguments.

The Supreme Court directed courts reviewing

punitive damage awards to consider three guides: (1)

the degree of reprehensibility of the conduct; (2) the

disparity between the actual harm suffered and the

punitive damage award; and (3) the difference be-

tween the punitive damages awarded and penalties

imposed in similar cases. BMW of North America uv.

Gore, 517 U.S. 559, 575 (1996). The Supreme Court

has recognized that there are limits on acceptable

punitive damage awards and that “in practice, few

awards exceeding a single-digit ratio between puni-

tive and compensatory damages, to a significant

degree, will satisfy due process.” State Farm Mut.

Auto. Ins. Co. v. Campell, 123 S.Ct. 1513, 1524

(2003).

As to the established law argument, the Court

finds that as of 1998, the Defendants knew that they

were violating a clearly established right when they

transferred Plaintiffs for their speech which resulted

in the District Attorney’s investigation into the De-

fendants’ potential misconduct for harboring a felon.

It was established by 1998 that to transfer employees

App. 58

in retaliation for their speech to less desirable as-

signments was in violation of the First Amendment.

See Gustafson v. Jones, 117 F.3d 1015, 1020 (7th

Cir. 1997).

In this case, the jury awarded plaintiffs punitive

damages of $65,000, with compensatory damages of

$20,000. In 2002, in a similar case, the Seventh

Circuit did not disturb punitive damages «f $180,000

and compensatory damages in the amount of $10,000.

See Gustafson, 290 F.3d at 899. Gustafson was the

first case in which Defendant Jones was found to

have retaliatorily transferred police officers in viola-

tion of their amendment rights. The Plaintiffs in

the case at bar received considerably less punitive

damages than the Plaintiffs in Gustafson. Further,

Plaintiffs point out that the ratio of punitive damages

to compensatory damages is 3.5 to 1. Plaintiffs claim,

and the Court agrees that the “modest ration of

punitive damages awarded by the jury clearly falls

within the single-digit multipliers, in accord with the

tradition of double and treble damages, allowed by

the Supreme Court.” Campell, 123 S.Ct. at 1524.

Accordingly, the Court will uphold the jury’s award of

punitive damages and deny Defendants’ motion as to

the punitive damages.

H. Verdict Form as to Punitive Damages

Lastly, Defendants argue that over their objec-

tion, the Court erroneously provided the jury with a

verdict form that was phrased in a manner of asking

App. 59

the jury whether it would award a certain sum to

each plaintiff, rather than assessing punitive dam-

ages against each of the individual defendants. Be-

cause the Court is upholding the jury verdict in all

respects, the Court denies this request.

III. Plaintiffs’ Motion for Attorney’s Fees and

Costs

Plaintiffs’ counsel moves for attorney’s fees and

costs in this matter. In particular, Plaintiffs’ counsel

moves for attorney hours of 479.80 at $350 per hour

rate for himself and paralegal hours of 162.30 at $120

per hour rate for his paralegal arguing that these

amounts are reasonable as they reflect the prevailing

market rates. In all, Plaintiffs request reimburse-

ment of $187,406 for all attorney and paralegal fees

as incurred through this motion, together with ex-

penses of $7,398.93 for a total of $194,804.93. Defen-

dants respond that the hours claimed are excessive as

are the hourly rates claimed. Defendants contend

that the reasonable loadstar fees and costs should be

394.1 attorney hours at $187 per hour: $73,696.70

plus $7,398.98 in costs. Defendants also contend that

if paralegal services are included it should be 120.5

hours at $75 per hour: $9,037.50. Based on the follow-

ing the Court grants in part and denies in part Plain-

tiffs’ request for fees and costs. Specifically, the Court

finds that the hours are not excessive and that Plain-

tiffs’ counsel is entitled to $200 per hour and his

paralegal is entitled to $75 per hour.

App. 60

In federal court, a prevailing party is entitled to

recover “costs other than attorneys’ fees ... as of

course.” Fed.R.Civ.P. 54(d). Under 42 U.S.C. § 1988,

a prevailing party in a § 1983 action may also recover

“a reasonable attorney’s fee as part of the costs.”

Courts use the well-known “lodestar” method to

determine a reasonable amount of fees. E.g., People

Who Care v. Rockford Bd. of Educ., 90 F.3d 1307,

1310 (7th Cir. 1996); Hensley v. Eckerhart, 461

U.S. 424, 433-37, (1983). Under this method, the

court first determines the “lodestar” by multiplying

the hours reasonably expended on the case by a

reasonable hourly rate. People Who Care, 90 F.3d

at 1310. The court may then adjust this award based

on various factors, see id. at 1310 n. 1, the “most

critical” of which is the degree of success obtained by

the movant, Hensley, 461 U.S. at 436. The movant

bears the initial burden of documenting its fees to the

satisfaction of the court; once it has done so, those

fees are presumptively appropriate unless challenged

by the opposing party. Tomazzoli v. Sheedy, 804

F.2d 93, 96 (7th Cir. 1986).

Looking at the documents supplied by Plaintiffs’

counsel as to the hours, the Court finds that they are

reasonable. The Court finds that the hours Plaintiffs’

counsel spent on preparing for depositions are fair as

two of the depositions were of Jones and Ray and the

other was Dale Schunk, the commander of the Inter-

nal Affairs Division; these are crucial] witnesses to

Plaintiffs’ case. The Court also finds that the parale-

gals attendance at the depositions to be appropriate

App. 61

as Plaintiffs’ counsel is a solo practitioner. Next,

Defendants object to Plaintiffs’ counsel’s 45.2 hours

summarizing the depositions arguing that this is

paralegal work and should be billed at that rate. The

Court does not agree with Defendants’ position as it is

not illogical or unheard of for a solo practitioner to

summarize depositions. Further, the Court concludes

that the hours Plaintiffs’ counsel expended to respond

to the summary judgment motion to be reasonable as

the proposed finding of facts were 49 pages and the

response brief was 29 pages. Because the Defendants

have not demonstrated that Plaintiffs’ counsel’s hours

need to be reduced, the Court finds that the hours

presented by Plaintiffs’ counsel and his paralegal are

reasonable.

Next, the Court must address whether Plaintiffs’

counsel’s requests for $350 per hour for his services

and $120 per hour for paralegal services are reason-

able. Defendants object to these rates and urge the

Court that $187 per hour for Plaintiffs’ counsel’s

services and $75 per hour for paralegal services are

reasonable. Based on the pleadings submitted by the

parties, the Court finds that Plaintiffs’ counsel does

not make his case for $350 per hour for his services

nor for$120 per hour for his paralegal’s services and

finds that an appropriate market rate per hour is

$200 for his services and $75 for the paralegal’s

services.

Here, there was neither a fee contract nor an

agreement submitted. Further, Plaintiffs’ counsel’s

affidavit establishes that his hourly rates are $150

App. 62

per hour for labor and labor related work for the

Wisconsin Professional Police Association and the

Milwaukee Police Supervisor’s Organization. His

affidavit also shows that his hourly rate is $200 “for

various plaintiff litigation and business transactions.”

He does not attest to ever charging or receiving $350

per hour in any matter. The request for $350 per hour

is not supported by either Plaintiffs’ counsel’s billing

practices or by the attorney affidavits he submitted:

(1) Walter Kelly and (2) John Fuchs.’ Both affidavits

suggest an amount of $250 per hour as a reasonable

amount for Plaintiffs’ counsel. However, the affidavits

doe not describe $250 as the prevailing rate. On the

other hand, Defendants have submitted a survey for

the Economics of Law section of the Wisconsin Bar.

The May 2005 survey obtained data from the Mil-

waukee area broken down by practice area. The 2005

survey revealed that rates between $120 per hour to

$250 per hour for similar work. Only two of the eight

responses indicated $250 an hour. The median hourly

rate is $177. Taking into consideration the John-

son/Hensley factors, the Court finds that a reduction

in th® hourly rates requested by Plaintiffs’ counsel is

appropriate. The same applies to the paralegals rate

per hour. A 2005 survey of Wisconsin firms reveals

that the median market rate for legal assistant

* Kelly’s affidavit states: “..., I have formed the conclusion

that in the Milwaukee area, a practitioner with qualifications

and experience similar to Attorney Rettko would charge in the

range of $250 per hour to $350 per hour for representation in

cases of this sort.” (Kelly Affidavit, p. 2, J 4).

App. 63

billing rate~ ‘s $75 per hour, regardless of experience.

Thus, the ~+ irt finds that a reasonable hourly rate

for Plaintiffs’ counsel is $200 per hour and that a

reasonable hourly rate for the paralegal is $75 per

hour.

Thus, the fee award will reflect (1) $95,960.00 for

work billed by Plaintiffs’ counsel (479.8 hours multi-

plied by $200); (2) $12,172.50 for work billed by the

paralegal (162.30 hours multiplied by $75) and (3)

$7,398.93 in costs. Accordingly, Plaintiffs are entitled

to an award of attorney’s fees and costs pursuant to

42 U.S.C. § 1988 in the amount of $115,531.43

($95,960.00 + $12,172.50 + $7,398.93).

IV. Conclusion

Accordingly, the Court DENIES Defendants’

motions for judgment as a matter of law, for new trial

and for amendment of judgment (Doc. 130). Further,

the Court GRANTS in part and DENIES in part

Plaintiffs’ motion for attorney’s fees and costs (Doc.

126). The Court AWARDS Plaintiffs $115,531.43 in

attorney’s fees and costs.

IT IS SO ORDERED.

Signed this lst day of February. 2006.

/s/ David RHerndon oe

United States District Judge

re -

oy

x

App. 64

UNITED STATES DISTRICT

EASTERN DISTRICT OF WISCONSIN

ALFONSO MORALES,

DAVID KOLATSKI,

Plaintiffs,

Vv.

POLICE CHIEF ARTHUR Case No. 00-C-618

JONES, DEPUTY CHIEF

MONICA RAY, CITY OF

MILWAUKEE,

Defendants.

ORDER

(Filed Mar. 29, 2004)

Plaintiffs Alfonso Morales and David Kolatski

bring this action pursuant to 42 U.S.C. § 1983 against

the named defendants alleging the defendants trans-

ferred them to less desirable positions within the

Milwaukee Police Department (“MPD”) in retaliation

for engaging in speech protected by the First and \

Fourteenth Amendments. The defendants have

moved for summary judgment pursuant to Fed. R.

Civ. P. 56. The matter is fully briefed, and the court

will now address the plaintiffs’ claims.

FACTUAL BACKGROUND

This case is very fact-intensive. The following is

but only a summary of the relevant facts in the light

App. 65

most favorable to the plaintiffs. Kolatski began his

career as a Milwaukee police officer in November

1988. In September 1996, he was transferred to the

Vice Control Division, which is an elite police unit

within the MPD. Kolatski viewed his transfer to the

Vice Control Division from general patrol duty as a

merit-based transfer and viewed his assignment in

the Vice Control Division as a coveted position. While

he was in the Vice Control Division, Kolatski was an

aggressive, productive, and exceptional police officer.

Morales began his career as a Milwaukee Police

Officer in 1993. In May 1997, Morales was trans-

ferred to the Vice Control Division. Like Kolatski,

Morales considered his transfer to the Vice Control

Division from patrol duty as a promotion and viewed

it as a coveted position. While he was in the Vice

Control Division, Morales also was an aggressive,

productive, and exceptional police officer.

Members of the Vice Control Division would tend

to view an unrequested transfer from the division as

a negative occurrence. Members are transferred

against their will when they are not productive, have

poor investigative skills, do not personally fit in with

other personnel in the Vice Control Division, or have

an internal rules violation investigation pending

against them that justifies their transfer. In these

situations transfer is the last resort. Supervisors

made efforts to work with Vice Control Division

members and identify areas of improvement before

any transfers occurred.

App. 66

Members of the Vice Control Division are not

usually transferred out of the division when they are

promoted to detective or lieutenant, and it is not

common for members to be transferred out of the

division while they are awaiting promotion to detec-

tive or lieutenant. It is also uncommon for members

of the Vice Control Division to be transferred during

the middle of a major investigation. There is no set

amount of time a person could be a member of the

Vice Control Division, and productive members of the

division have stayed in the division for decades.

The Vice Control Division was reconfigured in

early 1999. The reconfiguration plan was designed to

expand the division and get more personnel. The plan

was to keep the people already assigned to the divi-

sion within the division. There was no plan to trans-

fer people out of the division because they had been

there too long.

Defendant Arthur Jones was the MPD Chief at

all times relevant to this lawsuit. He makes the

ultimate decision to transfer any member from the

Vice Control Division. However, he usually relies on

recommendations for transfer from his deputy chiefs.

Defendant Monica Ray was the MPD Deputy Chief in

charge of supervising the Vice Control Division at all

times relevant to this lawsuit. Deputy Chief Ray

makes recommendations for transfers from the Vice

Control Division whenever her captains or lieuten-

ants recommend it or whenever she thinks it is in the

best interests of the MPD.

App. 67

In October 1997, Deputy Chief Ray’s administra-

tive assistant confronted Kolatski about using her

desk and telephone in the course of performing his

duties as a member of the Vice Control Division. The

confrontation became heated. Kolatski did not violate

any MPD rules when he used her desk and telephone

because any member of the Vice Control Division

could use any telephone or computer in the open

office space. The only telephones off limits to any

member of the Vice Control Division were the tele-

phones of Deputy Chief Ray and Captain Ray Sucik,

who had private offices. Kolatski was never disci-

plined for use of the desk.

On March 22, 1998, a call came into the Vice

Control Division from a Milwaukee landlord who

reported that one of his tenants, Vincent Ray, was

fortifying his apartment and using it as a “drug

house.” The person who took the call, Lieutenant

Liebrecht, notified Deputy Chief Ray because Vincent

Ray was her brother. Deputy Chief Ray told Liebrecht

to get officers on the investigation right away and

look into whether Vincent Ray had any outstanding

warrants for his arrest.

Liebrecht assigned Morales and Detective Joseph

Link to the case. Morales and Link were advised that

Deputy Chief Ray knew about the investigation and

she suggested a warrant check be done on Vincent

Ray. Morales and Link ran a warrant check and con-

firmed Vincent Ray had outstanding warrants. They

then left the Vice Control Division and met with the

landlord. Morales, Link, and the landlord concocted a

App. 68

scheme whereby the landlord would call Vincent Ray

and request that he meet him on his property, osten-

sibly to settle an ongoing dispute about a security

deposit, but with the actual intention of giving

Morales and Link an opportunity to arrest him. They

planned to execute the scheme the following day. At

the end of Link’s shift on March 22, 1998, he briefed

his supervising lieutenant on everything that had

transpired with the investigation and completed a

“Matter Of” report detailing the facts of the investi-

gation. The “Matter Of” report mentioned the fact

that Vincent Ray had outstanding warrants.

The scheme with the landlord did not go as

planned, and Morales and Link spent the n2xt two

weeks searching for Vincent Ray. On April 6, 1998,

the landlord called Morales and told him he spotted

Vincent Ray’s vehicle. Morales and Kolatski went to

the place where Vincent Ray’s vehicle was spotted

and waited for an opportunity to make the arrest.

After some time, they saw Vincent Ray getting into

his vehicle, and they conducted a traffic stop and

placed him under arrest. Once the arrest was made,

Morales and Kolatski arranged a meeting with Link

to discuss Vincent Ray’s arrest and subsequent inter-

rogation.

Before heading back to the Vice Control] Division,

Morales, Kolatski, and Link decided to stop at Gold

R

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