United States Court of Appeals,
Eleventh Circuit.
No. 94-8992.
Athel B. COOPER, Plaintiff-Appellant, Cross-Appellee,
v.
William E. SMITH, Individually and in his official capacity as Sheriff of Camden County, Georgia, Defendant-Appellee, Cross- Appellant.
July 26, 1996.
Appeals from the United States District Court for the Southern District of Georgia. (No. CV293-70), Anthony A. Alaimo, Judge.
Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
ANDERSON, Circuit Judge:
In 1993 appellant/cross-appellee Athel B. Cooper ("Cooper")
filed the instant 42 U.S.C. § 1983 action against
appellee/cross-appellant William E. Smith ("Smith"). Smith is the
Sheriff of Camden County, Georgia, and Cooper was one of his
deputies. Cooper alleges that Smith refused to renew his
commission as a deputy because Cooper cooperated with the Georgia
Bureau of Investigation (GBI) during their investigation into
corruption at the Camden County Sheriff's Department. The district
court granted in part and denied in part Smith's motion for summary
judgment on qualified immunity grounds. This appeal followed.
Facts
"In reviewing the district court's denial of summary
judgment, we—in most qualified-immunity interlocutory
appeals—accept the facts which the district court assumed for
purposes of its decision about whether the applicable law was clearly established." Ratliff v. DeKalb County, Georgia, 62 F.3d
338, 340 (11th Cir.1995) (citing Johnson v. Jones, --- U.S. ----,
----, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995)); see also
Dolihite v. Maughon by and through Videon, 74 F.3d 1027, 1033 n. 3
(11th Cir.1996) (explaining that the appellate court might
ordinarily simply accept the district court's identification of
each appellant's actions and knowledge for purposes of comparison
with clearly established law); Johnson v. Clifton, 74 F.3d 1087,
1091 (11th Cir.1996), petition for certiorari filed 64 USLW 3742
(Apr. 25, 1996) (NO. 95-1743).
The following are the relevant facts assumed by the district
court:
In 1991 or 1992, the [Georgia Bureau of Investigation ("GBI") ] began an investigation of alleged corruption in the Camden County Sheriff's Department. In July of 1992, Cooper and his wife ... gave information to the GBI which they believed would be kept confidential. The Coopers' conversations with the GBI took place at the Coopers' home. According to the Coopers, Smith and others in the Department found out about the Coopers' cooperation with the GBI. After the Coopers spoke to the GBI, the Camden County Grand Jury returned an indictment against Smith. Smith was reelected as Sheriff of Camden County soon after his indictment.1 Following Smith's reelection, Cooper began to hear rumors that he would no longer have a job when Smith's new term began in 1993.
Seeking clarification of his job situation, Cooper wrote a letter to Major Charles A. Easterling ..., the Acting Chief Deputy of the Department, on November 24, 1992. In Easterling's response, dated December 9, 1992, he declined to give Cooper a promotion or assurances of job security. On December 17, 1992, Cooper wrote to Smith in response to Easterling's letter ... [detailing his discontent with matters within the Department]. 1 The indictment against Smith was later dismissed. 1 Cooper v. Smith, 855 F.Supp. 1276, 1277 (S.D.Ga.1994). On
1 The judgment of the district court as reflected in this published opinion was modified in a subsequent order dated August December 29, 1992, Smith told Cooper that his commission as deputy
sheriff would not be renewed for the following year.
Cooper filed the instant suit, alleging that he had been
dismissed in retaliation for exercising his right to free speech in
violation of the First Amendment to the United States
Constitution.2 The district court granted Smith's motion for
summary judgment in part and denied it in part. As to the First
Amendment claim against Smith in his individual capacity, the
district court held that Smith was entitled to qualified immunity
with respect to Cooper's speech contained in the December 17, 1992,
letter. However, the district court held that Smith was not
entitled to qualified immunity with respect to Cooper's speech in
cooperating with the GBI. Cooper v. Smith, No. CV293-70, slip op.
at 12 (S.D.Ga. Aug. 4, 1994).
Cooper appeals the district court's grant of summary judgment
with respect to the speech contained in the December 17, 1992,
letter. The district court's ruling on this issue is not a final
order. FED.R.CIV.P. 54(b); Winfrey v. School Bd. of Dade County,
Fla., 59 F.3d 155, 157 (11th Cir.1995) (In the absence of
certification by the district court, "a partial disposition of a
multiclaim or multiparty action does not qualify as a final
4, 1994. 2 Cooper also asserted an equal protection claim. The district court granted defendant's motion for summary judgment and dismissed Cooper's equal protection claim. Cooper does not challenge that ruling in this appeal. In addition, in the district court Smith sought summary judgment with respect to Cooper's claim against him in his official capacity. The district court declined to address Smith's argument in this regard. Smith does not challenge this ruling on appeal, and thus we do not address it. judgment [under § 1291] and is ordinarily an unappealable
interlocutory order.") (internal quotations omitted). Assuming
arguendo that we have pendent jurisdiction, we decline to exercise
it. Smith cross-appeals, challenging the district court's denial
of qualified immunity with respect to Cooper's speech in
cooperating with the GBI. This denial of qualified immunity is
immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 105
S.Ct. 2806, 86 L.Ed.2d 411 (1985). We affirm this ruling.
Discussion
The appealable issue in this case is whether a public
official who terminates an employee for cooperating with law
enforcement investigators is entitled to qualified immunity.3
"[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
2740, 73 L.Ed.2d 396 (1982). That Smith was performing a
discretionary function when he refused to renew Cooper's commission
is not in dispute. For Cooper to pierce the qualified immunity
protecting Smith, he must show that Smith violated one of Cooper's
3 The district court determined that Cooper had adduced sufficient evidence to create a jury question as to whether Cooper's speech in cooperating with the GBI caused Smith to terminate him. Cooper v. Smith, CV293-70, slip op. at 14 (S.D.Ga. Aug. 4, 1994). To the extent that Smith challenges that determination on appeal, we decline to address Smith's argument, which amounts to an evidentiary sufficiency issue not itself immediately appealable. See Johnson v. Jones, --- U.S. at ----, 115 S.Ct. at 2156; Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.1996); Dolihite, 74 F.3d at 1033 n. 3; Johnson v. Clifton, 74 F.3d at 1091. "clearly established" rights under federal law. Id.
It must be kept in mind that the sweep of qualified immunity
is necessarily broad. It protects "all but the plainly incompetent
or those who knowingly violate the law." Malley v. Briggs, 475
U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). The
policy considerations driving such a rule are straightforward:
government officials exercising their official discretion in the
discharge of their duties cannot live in constant fear of lawsuit,
with the concomitant costs to public servant and society. Such
fear will stymie the work of government and will "dampen the ardor
of all but the most resolute, or the most irresponsible [public
officials], in the unflinching discharge of their duties." Harlow,
457 U.S. at 814, 102 S.Ct. at 2736 (quoting Gregoire v. Biddle, 177
F.2d 579, 581 (2nd Cir.1949)). The doctrine of qualified immunity
was created to "avoid excessive disruption of government and permit
the resolution of many insubstantial claims on summary judgment."
Id. at 818, 102 S.Ct. at 2738.
At the same time, qualified immunity is not an impenetrable
shield, because of which all manner of constitutional violations by
public officers must be tolerated. "When government officials
abuse their offices, "action[s] for damages may offer the only
realistic avenue for vindication of constitutional guarantees.' "
Anderson, 483 U.S. at 638, 107 S.Ct. at 3038 (quoting Harlow, 457
U.S. at 814, 102 S.Ct. at 2736). In an effort to balance these
competing concerns, the Supreme Court has devised an objective test
for evaluating official conduct. "[W]hether an official protected
by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the
"objective legal reasonableness' of the action assessed in light of
the legal rules that were "clearly established' at the time it was
taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034,
3038, 97 L.Ed.2d 523 (1987) (internal citations omitted).
Cooper argues that Smith refused to renew his commission
because he cooperated with the GBI in their corruption
investigation. We must determine whether Cooper had a clearly
established right under the First Amendment to speak with the GBI.
If we find that such a right was clearly established, then Smith is
stripped of the protection that qualified immunity affords, insofar
as Cooper's speech in cooperating with the GBI caused Smith's
adverse employment action.
"It is clearly established that a State may not discharge an
employee on a basis that infringes that employee's constitutionally
protected interest in freedom of speech." Rankin v. McPherson, 483
U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987).
Nonetheless, the First Amendment does not protect all speech by
public employees. In Pickering v. Board of Education, 391 U.S.
563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court
outlined the balancing test through which public employee free
speech claims are to be evaluated. This test is designed to
balance the interest of the employee in commenting on matters of
public concern against the interest of the employer in the
efficient delivery of public services. Id. at 568, 88 S.Ct. at
1734-35. "Because no bright-line standard puts the reasonable
public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case
where Pickering balancing would lead to the inevitable conclusion
that the discharge of the employee was unlawful." Dartland v.
Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989);
accord Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir.1994).
We must decide whether the result of the Pickering balance on
the assumed facts would lead to the inevitable conclusion that
Cooper's discharge was unlawful, such that Sheriff Smith could not
have believed that his actions were lawful in light of clearly
established law and the information he possessed. Anderson, 483
U.S. at 641, 107 S.Ct. at 3039-40. In applying the Pickering test,
we first ask if Cooper's speech to the GBI can be "fairly
characterized as constituting speech on a matter of public
concern." See Rankin, 483 U.S. at 384, 107 S.Ct. at 2897 (quoting
Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75
L.Ed.2d 708 (1983)); Bryson v. City of Waycross, 888 F.2d 1562,
1565 (11th Cir.1989). This is done by examining the content, form
and context of the speech. Bryson, 888 F.2d at 1565; Dartland,
866 F.2d at 1324. The Supreme Court in Connick, 461 U.S. at 146-
47, 103 S.Ct. at 1689-90, held that the question of whether a
public employee's speech is constitutionally protected turns on
whether the speech relates to matters of public concern or to
matters of merely personal interest to the employee. If the speech
does not involve an issue of public concern, our inquiry ends
there. Id. at 146, 103 S.Ct. at 1689-90; see also Ferrara v.
Mills, 781 F.2d 1508, 1512 (11th Cir.1986). Second, if the speech
involves an issue of public concern, we must balance Cooper's First Amendment interest against Smith's interest in the efficient
delivery of public services. Pickering, 391 U.S. at 568, 88 S.Ct.
at 1734-35; Bryson, 888 F.2d at 1565. Again the context and
circumstances are considered.
In this qualified immunity context, we then have to determine
whether the inevitable conclusion of the Pickering balance is that
Cooper's discharge was unlawful. The district court found that
Cooper's statements to the GBI involved matters of public concern,
that his interest in making these allegations to the GBI were not
outweighed by Smith's interest in the efficient management of his
department, that Cooper's cooperation with the GBI was "pure
whistle-blowing," and that Smith was therefore not entitled to
qualified immunity. Cooper v. Smith, slip op. at 13 (S.D.Ga. Aug.
4, 1994). We affirm the district court's conclusions in this
regard. There can be no doubt that corruption in a police
department is an issue of public concern. At the same time,
Sheriff Smith has a strong interest in the efficient operation of
the Department. However, that interest is insufficient to overcome
Cooper's interest in revealing to the GBI what he knows about
illegal activities within the Department. Clearly, the law does
not discourage public employees from cooperating with law
enforcement in investigations of unlawful activities within their
respective governmental organizations. This is, then, one of those
"extraordinary case[s] in which the First Amendment conclusion
would inevitably favor [the plaintiff] in light of Pickering
balancing." See Hansen, 19 F.3d at 578.
An analysis of the case law reveals that it was clearly established at the time Smith refused to renew Cooper's commission
that it was a violation of Cooper's First Amendment rights to take
adverse action against him for cooperating with an official law
enforcement investigation. In Oladeinde v. City of Birmingham, 963
F.2d 1481, 1486-87 (11th Cir.1992), cert. denied, 507 U.S. 987, 113
S.Ct. 1586, 123 L.Ed.2d 153 (1993), we held that three supervisory
police officers who allegedly retaliated against the plaintiffs for
seeking to expose corruption within the police department were not
entitled to qualified immunity. The plaintiffs, who were officers
in the Birmingham Police Department Narcotics Unit, alleged that
they were "whistleblowers" who "sought to expose allegedly corrupt
connections between police, city officials and drug dealers" and
that as a result of these efforts they were "exposed to retaliatory
harassment, threats and transfers to keep them quiet about affairs
that might be a matter of public concern." Id. at 1486.
We found Oladeinde to be one of those cases where the
"inevitable conclusion," that the defendants had violated the
plaintiffs' freedom of speech, would be reached. Id. at 1487; see
also Brawner v. City of Richardson, Tex., 855 F.2d 187, 193 (5th
Cir.1988) (noting that it is clearly established that a public
employee's speech revealing improper conduct by fellow employees is
protected under the First Amendment). The similarity between the
Oladeinde case and the case at bar is sufficient to have put a
reasonable sheriff in Smith's position on notice that he could not
constitutionally refuse to renew Cooper's commission for
cooperating with the GBI.
Contrary to Smith's argument, the instant case is distinguishable from Dartland and Hansen. In both of those cases,
the expression by the plaintiffs of personal dissatisfaction within
an otherwise protected speech context removed their cases from
"inevitable" status under the Pickering balance. See Dartland, 866
F.2d at 1324 ("Although Dartland possessed a constitutional
interest in expressing his view on a matter of public importance,
the insulting nature of his words gives his speech an element of
personal as opposed to public interest."); Hansen, 19 F.3d at 577
(Though "[s]ubpoenaed deponents may generally be free to criticize
their employers," the "manner of Hansen's speech was vulgar,
insulting, and defiant."). Only speech that relates to matters of
public concern, not speech relating to matters of merely personal
interest, is constitutionally protected. Connick, 461 U.S. at 146-
47, 103 S.Ct. at 1689-90.
In contrast to the nature of the employee speech in Dartland
and Hansen, where their insulting or vulgar manner rendered those
words of personal rather than public concern, Cooper's speech in
this case is clearly a matter of public concern. The district
court viewed the facts as "pure whistle-blowing," finding no
evidence that Cooper did anything except express the facts as he
knew them to the GBI, nor that he used his cooperation as an
opportunity to denigrate the department through the expression of
personal grievances. To allow Smith to punish Cooper with impunity
merely for speaking in a proper manner with the GBI would send a
signal to public employees everywhere that it is better to remain
silent than to cooperate with those officially charged with rooting
out wrongdoing in public organizations. This the law does not do. Conclusion
Because the law was clearly established at the time that
Cooper's speech to the GBI was constitutionally protected, Smith
violated Cooper's First Amendment rights when he refused to renew
his commission, insofar as that refusal was based on Cooper's
cooperation with the GBI. Thus, the district correctly concluded
that Smith is not entitled to qualified immunity as to this
allegation.
AFFIRMED.