Lynch v. Ackley

811 F.3d 569, 41 I.E.R. Cas. (BNA) 20, 205 L.R.R.M. (BNA) 3291, 2016 U.S. App. LEXIS 1378, 2016 WL 335928

• Court: Court of Appeals for the Second Circuit
• Decided: January 28, 2016
• Docket: Docket 14-3751-cv
• Status: Published

Opinion

LEVAL, Circuit Judge:

Defendant Margaret Ackley, Chief of the New London Police Department (“NLPD”), appeals from the order of the United States District Court for the District of Connecticut (Shea, J.) denying her motion for summary judgment on the ground of qualified immunity. The plaintiff, Todd Lynch, a police officer and a member and officer of the police union, alleges under 42 U.S.C. § 1983 (as well as making claims based on Connecticut law) that Ackley violated his First Amendment rights by retaliating against him for various episodes of speech critical of Ackley’s performance as Chief. Ackley moved for summary judgment dismissing the § 1983 claims by reason of qualified immunity. The district court concluded that Lynch, made a prima facie case for unconstitutional retaliation and that factual issues in dispute prevented the court from ruling on whether Ackley was entitled to qualified immunity under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The court therefore reserved decision on Ackley’s qualified immunity defense until a jury could resolve the factual issues at trial.

The court did not correctly apply the law for determining whether a state actor is entitled by reason of qualified immunity to dismissal of a suit charging her under § 1983 with unconstitutional conduct. The defendant was entitled to have the court construe disputed facts in the light most favorable to the plaintiff and dismiss the claim if, at the time of the defendant’s conduct, the law was unclear whether the facts, so construed, constituted a violation of the plaintiffs constitutional rights. We conclude that Ackley established her entitlement to summary judgment on Lynch’s § 1983 claims by reason of her qualified immunity.

BACKGROUND

I. Factual Background

Plaintiff Lynch has been a New London patrolman and canine handler (K-9) since 2007, having previously served in the Connecticut State Police. In March 2011, he became Vice President of the New London Police Union, AFSCME Local 724 (the “Union”), and became President in November 2011. Defendant Ackley has been Chief of the NLPD since June 2009. Lynch submitted evidence showing that over a period of roughly three years beginning in August 2010, he spoke on eight occasions, either publicly or in union meetings, . criticizing Ackley’s performance of her responsibilities, and evidence sufficient for a factfinder to find that Ackley retaliated. Those episodes of speech and associations by Lynch and Ackley’s alleged retaliatory actions were as follows. 1

(1) In August 2010, Lynch advocated among the union membership that the Union assert a grievance protesting Ackley’s uninvited presence at a union meeting convened to discuss the NLPD’s flex-time policy. Lynch asserts that, as retaliation, the department, claiming to be acting in compliance with the terms of the Union’s collective bargaining agreement (the “CBA”), revoked compensation time accrued by him and by two other K-9 officers.

(2) At a September 2010 union meeting, Lynch asked that the Union consider a no-confidence vote against Ackley, expressing lack of confidence in her leadership. Later that month, Lynch was denied paid leave to attend the funeral of a former state police classmate, and was not allowed to attend a K-9 conference. He was also advised in October that he would not receive a $500 insurance stipend because he had not properly opted out of his insurance plan during the open enrollment period.

(3) In June 2011, the Union, with Lynch now serving as Vice President, endorsed the mayoral candidacy of City Councilor Michael Buscetto, who was an openly avowed critic of Ackley. In August and September 2011, in alleged retaliation Ack-ley sent emails to Kathleen Mitchell, a local political commentator, suggesting that Mitchell submit Freedom of Information requests to obtain civilian complaints filed against Lynch and the NLPD’s K-9 unit. 2

(4) In September 2011, the Union sponsored a paid advertisement in The Day, a New London newspaper, titled “Open Letter to the Citizens of New London,” which questioned Ackley’s leadership and assertr ed that her lack of judgment was negatively affecting police operations and public safety. The following day, Ackley sent Mitchell an email suggesting that she investigate Lynch’s time sheets from the time of his service in the Connecticut State Police. In October, Ackley eliminated the day shift to which Lynch was assigned. 3 Ackley later ordered Deputy Chief Marshall Segar to investigate Lynch’s use of union-business leave.

(5) In February 2012, Lynch wrote to the mayor accusing Ackley of violating New London Executive Order No. 004, which prohibits officers from inquiring about an individual’s immigration status unless it directly pertains to a criminal investigation. The letter noted that, in view of a police officer’s duty to inform the chain of command of violations of the law, Lynch was obligated to bring Ackley’s violation of law to the mayor’s attention, as the mayor was at the top of the chain of command. Ackley, allegedly in retaliation, then ordered that a sergeant be present for all K-9 training, urged the mayor and city council to reduce the K-9 unit’s budget, and, in response to the mayor’s request, sent' him statistical information reflecting a racial disparity in bites by K-9 dogs.

(6) In September 2012, Lynch wrote to the mayor on behalf of the Union, expressing the Union’s concern that the NLPD’s depleted officer ranks were jeopardizing public safety, and later, at the city council’s request, Lynch participated in an October 2012 public safety committee (“PSC”) meeting discussing the issues raised in Lynch’s letter. Ackley then denied Lynch overtime pay for attending the PSC meeting, and in November removed certain K-9 unit records from his control.

(7) In May 2013, Lynch spoke at a PSC meeting on whether civilian complaints against officers should be discussed in open or executive session. Ackley later revoked Lynch’s union business leave and placed him on AWOL status when he did not return to work as ordered after a collective bargaining meeting broke down.

(8)Finally, in June 2013, speaking at another PSC meeting, Lynch spoke of low police department morale and a high turnover rate of officers, and expressed concern that two dogs from the K-9 unit had been forced to retire. Ackley then limited K-9 unit training. In addition, when asked for guidance by a mayoral assistant who had received a Freedom of Information request from a reporter for The Day, Ackley advised him to proceed in accordance with City policy. The reporter then published an article discussing racial disparity in bites by K-9 dogs, focusing on an incident involving Lynch and his K-9 dog.

II. Procedural History

On March 15, 2012, Lynch filed a complaint in Connecticut Superior Court alleging, inter alia, a claim against Ackley and the City of New London (the “City”) under § 1983 for First Amendment retaliation. 4 Defendants removed the action to the federal district court, and Ackley moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the First Amended Complaint on the basis of qualified immunity. The district court (then Arterton, J.) denied the motion. 5 Lynch then filed this Second Amended Complaint, which added allegations that Ackley retaliated against him for two new instances of speech. Ack-ley renewed her motion, now seeking dismissal of the Second Amended Complaint. The district court (Shea, /.) denied the motion.

At the conclusion of discovery, Ackley moved for summary judgment, arguing, with respect to Lynch’s § 1983 claims, that her conduct did not violate the First Amendment and that, in any event, she was entitled to have the case against her dismissed by reason of her qualified immunity. The district court denied Ackley’s motion. Lynch v. Ackley, No. 3:12-CV-537 (MPS), 2014 WL 4782812 (D.Conn. Sept. 24, 2014). The court ruled that Lynch’s speech was protected from retaliation by the First Amendment and that Lynch raised genuine issues of fact as to whether Ackley’s conduct amounted to an adverse employment action, whether Ack-ley had a retaliatory motive for taking those actions, and whether, under the Pickering balancing test, Ackley’s interests in preventing disruption of the operations of the department clearly outweighed Lynch’s interests in speaking on matters of public concern. As the result of these disputed issues of fact, the court reasoned that it could not yet determine whether Ackley violated Lynch’s First Amendment rights. With respect to Lynch’s claim of qualified immunity, the court similarly ruled that, because there were disputed issues of fact, it could not determine whether Lynch’s actions contravened law that was clearly established at the time. The court denied Ackley’s motion. Ackley then brought this interlocutory appeal challenging the district court’s denial of qualified immunity.

DISCUSSION

I. Appellate Jurisdiction

Before reaching the merits of Ackley’s appeal, we must address Lynch’s contention that we lack jurisdiction to review the district court’s ruling at this stage. Lynch argues that there was no appealable final decision below because the district court rested its denial of qualified immunity on its finding that factual disputes underlying the Pickering balancing test precluded it from determining whether there was a constitutional violation as a matter of law. We disagree.

“A district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is deemed an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). This exception is justified by the fact that because qualified immunity is not only a defense to liability, but also provides immunity from suit, an important part of its benefit is effectively lost if a case is erroneously permitted to go to trial; thus, the defendant’s entitlement to qualified immunity should be resolved “at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 231-32, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Whether an asserted constitutional violation was clearly established at the time of the defendant’s challenged conduct may be a purely legal question. Martinez v. Simonetti, 202 F.3d 625, 632 (2d Cir.2000). “[A]s long as the defendant can support an immunity defense on stipulated facts, facts accepted for purposes of the appeal, or the plaintiffs version of the facts that the district judge deemed available for jury resolution, an interlocutory appeal is available to assert that an immunity defense is established as a matter of law.” Smith v. Edwards, 175 F.3d 99, 104-05 (2d Cir. 1999) (quotation marks omitted). Adjudication of Ackley’s motion for qualified immunity does not need to await jury resolution of disputed factual issues. If on Lynch’s version of disputed facts — accepting reasonable inferences most favorable to him — there was no clear law at the time prohibiting Ackley’s conduct, then Ackley is entitled to qualified immunity. Ackley’s motion can be adjudicated on this basis as a pure question of law, and this appeal is properly before us. 6

II. The Law of Unconstitutional Retaliation for Speech

The Supreme Court has long recognized that the First Amendment affords a degree of protection to public employees to exercise the right of free speech without risk of retaliation by the State employer if the employee’s speech in question is “on matters of public interest.” See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. At the same time, however, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Id. Thus, while those who “aeeept[ ] public employment ... do[ ] not check all of their First Amendment rights at the door,” nonetheless “a citizen, upon entering government service, by necessity must accept certain limitations on his or her freedom.” Jackler v. Byrne, 658 F.3d 225, 234 (2d Cir. 2011) (internal quotation marks and citations omitted). In adjudicating the rights of public employees to speak without facing retaliation from a government employer, courts attempt “to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Courts must weigh the employee’s speech interests against the • government’s interest in “effective and efficient fulfillment of [its] responsibilities to the public, including promoting efficiency and integrity in the discharge of official duties, and maintaining] proper discipline in public service.” Lane v. Franks, — U.S. -, 134 S.Ct. 2369, 2381, 189 L.Ed.2d 312 (2014) (internal quotation marks and alterations omitted). 7

The Supreme Court has identified a further limitation on the public employee’s First Amendment right to be free of retaliation for speech. In Garcetti v. Geballos, the Court 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.” 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “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 424, 126 S.Ct. 1951. In such circumstances, to require a “delicate balancing of the competing interests surrounding the speech and its consequences” (as required when employees speak as citizens) “would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.” Id. at 423, 126 S.Ct. 1951.

In pursuit of this balance the Supreme Court has identified three circumstances in which public employee speech is not protected from retaliation by State employers. First, speech about personal matters, as opposed to “matters of public concern,” is not protected from retaliation. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Second, even speech on matters of public concern is not protected from retaliation unless the employee’s First Amendment interests outweigh government employers’ legitimate interests in efficient administration. Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Third, speech made by employees “pursuant to ... official duties” rather than “as a private citizen” is not protected from retaliation. 8 See Garcetti, 547 U.S. at 421-22,126 S.Ct. 1951.

III. Qualified Immunity

A state actor charged under § 1983 with violating a plaintiffs constitutional rights is entitled to have the action dismissed on the basis of qualified immunity if at the time of the challenged conduct there was no “clearly established law” that such conduct constituted a constitutional violation. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This is so even if the court would conclude that, under law at the later time of the court’s ruling, the defendant’s conduct would be found to violate the Constitution. Id. at 818-19, 102 S.Ct. 2727. This rule is based on the proposition that public officers should freely act in pursuance of their duties without fear of being held liable for damages under constitutional standards of which they have no notice because the standards were not yet developed at the time of their conduct. See Ashcroft v. ak-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011). We have ruled that the need for “clearly established” law is satisfied if the law on the subject was defined at the time with reasonable clarity or clearly foreshadowed in rulings of the Supreme Court or the Second Circuit, 9 so that the defendant should have understood that her conduct was unlawful. See Looney v. Black, 702 F.3d 701, 706 (2d Cir.2012); Varrone v. Bilotti 123 F.3d 75, 79 (2d Cir.1997).

IV. Application of Qualified Immunity to Lynch’s First Amendment Claims 10

Ackley contends she is entitled as a matter of law to dismissal of Lynch’s First Amendment claims by reason of qualified immunity. She argues that, construing the facts in the light most favorable to Lynch, her allegedly retaliatory actions did not violate constitutional standards that were clearly established at the time. We agree that there was no clear law at the time of the events establishing that Ackley’s conduct constituted a First Amendment violation, and we express no view on whether Ackley’s alleged conduct should be found to violate the First Amendment. 11

With respect to what may be Lynch’s strongest claim for protection from retaliation — his claim that Ackley retaliated against him for his perceived role in the Union’s endorsement of Buscetto for may- or — there was no clear law as to whether Ackley’s alleged retaliatory actions constituted ‘prohibited retaliation because Ack-ley’s alleged retaliatory acts were limited to her exercise of her own First Amendment right to defend herself against Lynch’s attacks. Her speech in defending herself involved core First Amendment issues of public importance. With respect to Lynch’s claim relating to retaliation for a union grievance, the grievance he expressed was not clearly a matter of public concern under Pickering. Finally, with respect to Lynch’s remaining claims, we find that because Lynch’s speech interfered significantly with Ackley’s ability to effectively run the NLPD, she was arguably entitled to retaliate under Pickering’s balancing test, even under the version of the facts most favorable to Lynch.

A. The Union’s Endorsement of Bus-cetto

Lynch claims that Ackley’s retaliation for his perceived role in the Union’s endorsement of Councilman Steve Buscetto for Mayor of New London failed to satisfy the three-pronged test described above. The endorsement undoubtedly expressed a matter of public concern. Endorsements of candidates for political office are at the core of First Amendment protected speech. Lynch’s role in the Union endorsement constituted speech as a citizen, rather than as an employee speaking pursuant to employment duties, and an employee’s First Amendment interest in expressing support for a candidate for election to public office will, in most circumstances, 12 outweigh the employer’s interest in the efficient accomplishment of the public responsibilities of the agency.

For his role in the Union’s endorsement of Buscetto, Lynch alleges that Ackley encouraged an investigative reporter to seek out- and publish derogatory information about Lynch relating to civilian complaints on his conduct as a K-9 officer. This allegedly retaliatory conduct, however, consisted of Ackley’s exercise.of her own core First Amendment rights in a public forum about a matter of public importance relating to employment to defend herself against Lynch’s attacks. It is hard to see why in this context Ackley has any less entitlement to First Amendment protection than Lynch.

To the extent Lynch argues that, notwithstanding his employment in government, he retained free-speech rights guaranteed by the First Amendment, it appears to us that the same argument is available to Ackley. Lynch contends Ackley was forbidden by the First Amendment from taking retaliatory action against him, but it is hardly the conventional role of the First Amendment to bar Ackley from exercising her free-speech rights in defense against Lynch’s attacks on her. In any event, we need not decide the issue. It suffices for our purposes that, given the nature of Ackley’s allegedly retaliatory speech, there was no clear law or precedent communicating to Ackley that her exercise of free-speech rights about a matter of public importance relating to employment in an effort to defend herself publicly against Lynch’s attacks violated Lynch’s First Amendment rights. That absence of authority compels the grant of qualified immunity to Ackley on this claim.

We recognize that adverse employment actions may include adverse actions taken outside the employment context as well as harm to the incidents of employment. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). But it seems highly improbable that the anti-retaliation component of the First Amendment may muzzle an employer’s speech on matters of public concern in this context, preventing her from engaging, or soliciting support, against one who declared himself to be her foe in public debate. In other contexts in which public officials have been sued under 42 U.S.C. § 1983 with allegations that their retaliatory speech unconstitutionally violated the First Amendment rights of plaintiffs, we have ruled that the speech of the defendants was protected by the First Amendment, while noting that such protection was not absolute and that such retaliatory speech might be actionable notwithstanding the First Amendment when it could “reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the [plaintiffs] failure to accede to the official’s [desires].” Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir.1983). And in X-Men Sec., Inc. v. Pataki 196 F.3d 56, 71 (2d Cir.1999), we noted that, notwithstanding First Amendment protection of legislators’ “advocacy” and other forms of speech related to affairs of government, protection might not extend to speech inviting “threats, intimidation, or coercion.” Another Circuit, in a similar context, noted a “possible exception” to the First Amendment’s protection of public officials’ retaliatory speech when “the retaliatory disclosure of information relates to those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty,” such as when the retaliatory disclosures are “sufficiently embarrassing, humiliating, or emotionally distressful.” Suarez Corp. Indus, v. McGraw, 202 F.3d 676, 688 (4th Cir.2000) (internal quotation marks omitted).

The few arguably precedential rulings we have found have not tried to specify the limits of the First Amendment’s protection of retaliatory speech by public officials, and neither do we. Nonetheless, the fact that Ackley’s allegedly retaliatory speech involved efforts to defend herself against the verbal attacks of an employee accusing of her of incompetence and bad administration, and addressed matters of public importance relevant to the attacker’s public employment duties, tends to support her entitlement to First Amendment protection. We know of no authority establishing the contrary. We therefore hold, in the absence of any clear authority for Ackley’s liability, that Ackley is entitled to qualified immunity as to this claim.

B. Filing of Union Grievances

Lynch also claims that Ackley retaliated against him for various incidents of his union activity, which included his filing a union grievance protesting Ackley’s presence at a union meeting discussing the Department’s flex-time policy. It is far from clear that this grievance asserted a matter of public concern, rather than a “personal grievance[ ].” Ruotolo v. City of N.Y., 514 F.3d 184, 189 (2d Cir.2008). Lynch contends his grievance expressed a matter of public concern because management intrusion in union matters can “chill and deter union members from openly discussing their positions.” Joint App’x at 169. Labor versus management disputes, needless to say, almost invariably involve a conflict between the labor force and management over an issue that concerns the terms and conditions of employment. Such disputes often have a strong flavor of “personal grievance” notwithstanding that the personal grievance is shared by numerous employees. On the other hand, especially in the case of employment in a public agency, which renders service to the general public, it is rarely difficult for a plaintiff to construct an argument that the dispute is a matter of public concern, either because it relates to the delivery of services to the public, or because it invokes basic aspects of the right to unionization. Some such arguments might well be persuasive, others not. Suffice it to say about Lynch’s argument that it - was unclear whether such a grievance should be viewed as a matter of public concern for purposes of Pickering analysis.

Lynch’s reliance on Hoyt v. Andreucci, 433 F.3d 320 (2d Cir.2006), and Clue v. Johnson, 179 F.3d 57 (2d Cir.1999), is unavailing. The issue in Hoyt was very different from this case. That case involved an employee who alerted the Albany County legislature that one of the county’s employees was disciplining corrections officers in an unlawful manner. The court found that “concerns raised to the government about the lawfulness of public officials’ actions” were issues of public concern. 433 F.3d at 330. Lynch’s grievance against Ackley does not clearly implicate concerns remotely similar to Hoyt.

Clue gives Lynch no better support. Clue involved a claim of management retaliation against a minority faction of the Transit Workers’ Union, which sought to unseat union leadership. The court held that the activity in question did implicate matters of public concern because “[t]he intraunion dispute here did not merely involve internal union affairs,” but rather involved “a struggle over the labor policies of the Transit Authority and what role the [union] ought to play in changing those policies.” 179 F.3d at 61. The issue in Clue was nothing like Lynch’s grievance. Though the court said in dicta that “retaliation solely for union activity clearly raises a public concern under Connick,” id., it obviously did not mean that all activities undertaken through a union necessarily become matters of public concern merely by virtue of their collateral connection to the union. Cf. Borough of Duryea v. Guarnieri, 564 U.S. 379, 428, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011) (“A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context.”). Indeed, it recognized that some union activity was likely unprotected from retaliation. Clue, 179 F.3d at 61. 13

C. Lynch’s Remaining Claims

The remainder of Lynch’s claims involve retaliation for communication with town leaders or the public at large concerning Lynch’s and the Union’s contentions that Ackley was a bad chief, and that her continuing presence in that position endan gered the safety of NLPD officers and the public. We assume — -without holding— that each of these instances of speech constituted speech as a citizen on a matter of public concern. Nonetheless we hold that, even given the version of the facts most favorable to Lynch, Ackley’s retaliatory actions were not prohibited by clearly established law.

Under Pickering, Ackley was permitted to retaliate against Lynch’s speech if Lynch’s speech interests were outweighed by the government’s interest in “promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Lynch’s speech obviously threatened to disrupt Ackley’s ability to administer the NLPD effectively. Indeed, the whole purpose of Lynch’s speech, as a union officer, was to undermine and impair her authority over the Department. Lynch’s opposition to Ackley was hostile and very public, and included his efforts to persuade the executive and legislative authorities of New London to block and countermand her policies. Even construing the evidence in the light most favorably to Lynch, his actions were sufficiently disruptive as to render at least unclear whether his free-speech interest outweighed Ackley’s interest in the effective management of the Police Department.

Because no authority clearly establishes that Lynch’s interest in speech as a union officer attacking Ackley’s competence as chief outweighed Ackley’s governmental interest in effective administration of her department, Ackley is entitled to summary judgment on the ground of qualified immunity.

Y. Lynch’s Freedom of Association Claim

Lynch also claims unlawful retaliation for his associations with City Councilor Buscetto and the Union. The sole associative activity with Buscetto cited by Lynch to justify his claim is the union’s endorsement of Buscetto as a mayoral candidate. This claim based on Lynch’s First Amendment association rights is subject to the same analysis as set forth above for Lynch’s First Amendment free-speech right based on the same incident.

As for Lynch’s claim based on his association with the Union, he has made no showing that Ackley retaliated against him because of his union membership, particularly as he has presented no evidence that she retaliated against any other police officer for membership or for holding office in the Union. We recognize that Lynch’s evidence was sufficient to show that Ackley retaliated against him for the things he said in the framework of the Union. There was no showing, however, that she retaliated because of his association with the Union. 14 Ackley was entitled to summary judgment on this claim whether on the theory of qualified immunity or on the merits. 15

CONCLUSION

For the foregoing reasons, the district court’s ruling denying Ackley’s motion to dismiss by reason of qualified immunity is REVERSED.

1 .At various times in the proceedings below, Lynch raised three additional instances of speech, including his speech at a March 2011 city council committee meeting, his September 2011 call for a no-confidence vote, and his speech during union negotiations in June 2013. The district court ruled that Lynch either waived his arguments with respect to these instances or failed to present sufficient evidence on them. Because Lynch provides no basis for showing that the district court erred in that reasoning, we do not address those instances.

2 . Lynch also alleges that Ackley prevented him from securing locations and equipment for K-9 training and deprived him of control over K-9 records and the NLPD's drug safe. However, these events allegedly took place before the union's endorsement in June 2011, and seem to relate only to Lynch’s claims of retaliation for Lynch's March 2011 ascendancy to vice presidency of the union — claims that Lynch does not press on appeal.

3 . Lynch does not dispute that his request to be placed on another squad’s day shift was subsequently granted.

4 . The complaint also included claims for libel per se and under Conn. Gen.Stat. § 31-51q, which imposes liability on public employers who discipline or discharge an employee on account of the employee’s exercise of speech rights protected by the United States Constitution or the Connecticut Constitution. Those claims are not at issue in this appeal, and we leave it to the district court to consider what impact, if any, our ruling has on Lynch’s § 3 i — 51 q claims on remand.

5 . At oral argument of this appeal, Lynch argued that Judge Arterton’s denial of Defendants’ motion to dismiss the First Amended Complaint created "law of the case” on the issue whether Lynch’s speech was made as a citizen on a matter of public concern. We reject that argument. Judge Arterton ruled only that the court was unable to make a determination at the pleading stage. See Lynch v. Ackley, No. 3:12-CV-537 (JBA), 2012 WL 6553649, at *4-6 (D.Conn. Dec. 14, 2012).

6 . Locurto v. Safir, 264 F.3d 154 (2d Cir.2001), cited by Lynch, does not conflict with our acceptance of jurisdiction. In that case, the defendants appealed the district court's denial of qualified immunity at summary judgment only on the ground that their assessment of the disruption caused by the plaintiffs' speech was objectively reasonable under Pickering. Id. at 168. We dismissed the portion of the appeal challenging that ruling because the defendants’ subjective intent was a factual issue that precluded resolution on the Pickering test as a matter of law. Id. at 169-70. Here, in contrast, the basis for Ackley's appeal is that, on Lynch’s version of the facts, Lynch did not establish a violation of a federally protected right and that any such violation was not based on clearly established law. Both are issues that are capable of resolution as a matter of law.

7 . Lane was decided after the events in question in this case, and does not bear on the court’s analysis of qualified immunity. We quote it here for its helpful explanation of the law established by Pickering, Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and their progeny.

8 . To prevail on a claim, the employee must also prove that she has suffered an adverse employment action, for which the speech was a motivating factor. See Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2003). Moreover, as a prerequisite to this whole analysis, the speech must come within the protection of the First Amendment to begin with. See Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir.2011). This element is rarely in dispute, as practically all speech enjoys some First Amendment protection — with rare exceptions for such things as obscenity, fighting words, and yelling "fire” in a movie theater. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). And perhaps because it is hardly ever in dispute, it is generally assumed, rather than explicitly stated, that this is an essential element of the claim. A semantic confusion does, however, often arise in the explanation of a ruling on a State employee's claim of unconstitutional retaliation for speech. Courts sometimes characterize the determinative question in § 1983 First Amendment retaliation suits as whether the employee speech at issue was "constitutionally protected.” In most cases, such words seem intended as shorthand for whether the speech was constitutionally protected from employer retaliation. The test for establishing unconstitutional retaliation for an employee’s speech is far more stringent than the test for establishing that speech enjoys protection under the First Amendment.

9 . In some circumstances, decisions of other circuits can “clearly establish” law for this circuit. See Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir.2014).

10 . We review de'novo a district court's denial of qualified immunity. Clubside, Inc, v. Valentin, 468 F.3d 144, 152 (2d Cir.2006). Because Ackley's motion was for summary judgment, we construe the evidence in the light most favorable to Lynch. See id. Summary judgment may be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to-judgment as a matter of law.” Fed.R.Civ.P. 56(a).

11 . Prior to the Supreme Court's decision in Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), under the rule of. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), an inferior federal court was obligated to give an advisory ruling whether the challenged conduct amounted to a constitutional violation before considering whether the defendant was entitled to qualified immunity because of the absence of clearly settled law to that effect at the time of the conduct. Id. at 201, 121 S.Ct. 2151. In Pearson, however, the Supreme Court rescinded that requirement, giving courts discretion whether to follow the Saucier formula or go directly to the question whether the law was clearly established at the time. Pearson, 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court’s reason for originally adopting the Saucier rule was to avoid having unconstitutional conduct go repeatedly unremedied if courts could repeatedly rule that the defendant’s qualified immunity made it unnecessaiy to reach the question whether the defendant's conduct in fact violated the Constitution. See id. at 232, 129 S.Ct. 808 (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). In this case, however, there is little likelihood that frequently repeated instances of questionable conduct would repeatedly escape review. Qualified immunity applies only to _ a plaintiff's claim against an individual state actor for damages. It has no application when the suit is brought against a municipality, nor when the suit seeks injunctive relief. See Owen v. City of Independence, 445 U.S. 622, 637-38, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Accordingly, if other plaintiffs brought allegations similar to Lynch’s, qualified immunity would not be available in the very likely event that those plaintiffs sought damages against the municipality or injunc-tive relief. It appears there is little likelihood of the circumstance Saucier was designed to prevent.

12 . We do not mean to suggest that a public employee’s endorsement of a candidate for public office would always be protected from employer retaliation. If, for example, a governor’s speechwriter or an elected district attorney’s chief aide publicly endorsed the candidate opposing her boss’s campaign for election, there would no doubt be a strong argument that such an affront sufficiently risked impairing the supervising official's performance of her public duties as to justify the aide's demotion or dismissal without offending the standards of the First Amendment.

13 . A further question is where, as the law stood at the time of Ackley's actions, Lynch's union activities would have fallen under Gar-cetti's classifications. Garcetti essentially divided all speech by employees into two categories — speech "pursuant to ... official duties,” which is ineligible for protection from retaliation, and speech "as a citizen,” which is eligible and is protected from retaliation if the requirements of Pickering are met. 547 U.S. at 421-22, 126 S.Ct. 1951. It is not clear that speech by employees in the role of union officers, involving advocacy as to the terms and conditions of employment, fits comfortably into either category. While such speech is not made pursuant to duties imposed by the employer, such speech is made pursuant to duties that arise from the employment relationship between management and the union membership — the duty of union officers is to represent the membership in advocacy and negotiation as to the terms and conditions of employment. Whether such speech belonged in the category of citizen speech, eligible for protection from retaliation, seems to us to have been unclear at the time of Ackley’s actions.

The Supreme Court’s later ruling in Lane v. Franks arguably narrowed the scope of ineligible employee speech. But Lane was decided subsequent to Ackley’s conduct. It therefore had no bearing on the crucial issue for purposes of qualified immunity — whether the law at the time of Ackley’s conduct gave her clear notice that her conduct violated Lynch’s rights under the First Amendment.

14 . Lynch’s claim differs substantially from the union-based association claim at issue in State Emp. Bargaining Agent Coalition v. Rowland, 718 F.3d 126 (2d Cir.2013), in which plaintiffs claimed that the state employer terminated approximately 2,800 unionized state employees, but no non-union workers. See id. at 130.

15 . We note, furthermore, that it is unclear whether, and if so, how, Garcetti applies to claims of retaliation against protected association.