Académique Documents
Professionnel Documents
Culture Documents
No. 14-1081
No. 14-1125
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cv-00333-CCE-JEP)
Argued:
December 9, 2014
Decided:
ARGUED: Stephen John Dunn, VAN HOY, REUTLINGER, ADAMS & DUNN,
Charlotte,
North
Carolina,
for
Appellants/Cross-Appellees.
Robert Mauldin Elliot, Helen Parsonage, ELLIOT MORGAN PARSONAGE,
PLLC,
Winston-Salem,
North
Carolina,
for
Appellees/CrossAppellants.
ON BRIEF: Jaye E. Bingham-Hinch, Raleigh, North
Carolina, Patrick H. Flanagan, CRANFILL, SUMNER & HARTZOG, LLP,
Charlotte, North Carolina; Philip M. Van Hoy, VAN HOY,
REUTLINGER, ADAMS & DUNN, Charlotte, North Carolina, for
Appellants/Cross-Appellees.
J.
Michael
McGuinness,
THE
MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William J.
Johnson,
NATIONAL
ASSOCIATION
OF
POLICE
ORGANIZATIONS,
Alexandria, Virginia, for Amicus Curiae.
do
not
surrender
their
First
Amendment
rights
by
(Mocksville
out
Governors
PD)
as
concerned
Office
about
Mocksville PD.
in
Mocksville,
citizens
to
corruption
North
the
and
Carolina
North
Carolina
misconduct
at
the
protection.
For
this
and
other
reasons
explained
I.
Viewing
the
evidence
in
the
light
most
favorable
to
the
evidence
shows
that
3
Plaintiffs
Kenneth
L.
Hunter
three
Plaintiffs
had
distinguished
careers
with
the
Cook
drink
alcohol
publicly,
excessively,
and
while
in
Plaintiffs
perceived
racial
discrimination
at
the
Mocksville
PD.
And
Plaintiffs
believed
that
Cook
fixed
independently
Mocksville
(Bralley).
Town
raised
Manager,
such
Defendant
concerns
about
Christine
W.
Cook
Bralley
Bralley
and
soon
thereafter
criticized
by
Matthews
reversed.)
In
November
escalated.
to
2011,
the
situation
at
the
Mocksville
PD
second-in-command
and
stripping
the
Mocksville
Hunter,
PD,
of
one
of
his
only
two
African-Americans
at
responsibilities.
other
adhere
to
lieutenant.
In
hand,
the
was
invited
politics
to
of
Cooks
the
home,
MPD,
and
supervisory
Donathan, on
instructed
to
promoted
to
J.A. 161.
early
December
2011,
five
Mocksville
PD
officers,
At that meeting,
corruption
at
the
Mocksville
PD.
According
to
Hunter,
community,
that
Mocksville
deserved
an
effective
police
force that served everyone equally and not because they felt it
was part of our job duties.
J.A. 137.
to
report
our
citizen
complaints
separately
from
our
Id.
General,
authorities
who
however,
were
referred
closely
Plaintiffs
aligned
with
Cook
to
and
The
local
whom
Plaintiffs
their
suspicions
that
Cook
embezzled
funds,
had
powers to, for example, use blue lights and pull people over
even
though
he
was
authority to do so.
only
an
administrative
chief
without
the
that
State
Bureau
of
Investigation
(SBI)
close
Cook
relationship
with
both
and
Matthews.
Medlin
saw
Smith show Matthews a piece of paper and saw the two men look
for Cook.
from
Smith,
called
the
disposable
phone.
Smith
left
J.A. 140.
As
it
turned
out,
the
phone
was
nevertheless
found.
at
the
Sheriffs
Office.
The
Sheriffs
Department
The officer
December
27,
2011,
Bralley
contacted
Sprint
customer
invoice
issued
that
same
day
for
the
billing
The
period
received
calls
from
the
disposable
phone
using
their
all
three
fired
anyone
December
Plaintiffs.
during
his
This
29,
2011,
was
tenure
misbehaviorincluding
the
as
Chief
first
the
illegal
Cook
time
Cook
Mocksville
drug
fired
use
PD
had
chief.
and
even
Officer
criminal
gave
performance
justifications
such
as
[sic]
Officer.
of
these
[i]nformation,
after-the-fact
memo
and
other
conduct
unbecoming
issues
to
before
the
town
they
were
attorney,
fired.
Cook
In
an
expressly
J.A. 543.
told
him
that
you
cant
have
people
in-house
April
and
2012,
the
Plaintiffs
Town
of
brought
Mocksville,
suit
that
are
J.A. 2009.
against
alleging,
among
Cook,
other
the
ensued.
Mocksville
Defendants
Plaintiffs opposed.
PD.
then
Defendants
answered,
moved
summary
for
and
discovery
judgment,
which
In January 2014,
parties
appeal.
We
challenge
review
aspects
these
summary
of
both
judgment
orders
in
rulings
de
this
novo,
partyhere,
Plaintiffsand
drawing
all
reasonable
II.
Defendants
immunity,
argue
which
constitutional
established
violations
could
they
are
government
but
entitled
officials
who,
reasonably
in
light
believe
that
to
qualified
who
of
their
commit
clearly
actions
shields
law,
were lawful.
that
Defendants
must
show
either
that
no
constitutional
10
Id.
Defendants argue
With
their
first
argument,
Defendants
contend
that
the
We disagree.
1.
Speech by citizens on matters of public concern lies at
the heart of the First Amendment, which was fashioned to assure
unfettered
interchange
of
ideas
for
the
bringing
about
of
Lane, 134
S. Ct. at 2377 (quoting Roth v. United States, 354 U.S. 476, 484
(1957)).
not
condition
employment
constitutional rights.
on
the
relinquishment
of
Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391
U.S. 563, 568 (1968)).
In its most recent statement on public employee speech, a
unanimous Supreme Court underscored the considerable value of
encouraging,
employees.
rather
For
than
government
inhibiting,
employees
are
speech
often
by
in
public
the
best
position to know what ails the agencies for which they work.
11
Lane,
134
S.
Ct.
at
citation omitted).
2377
(quotation
marks,
alterations,
and
543
U.S.
77,
82
(2004)
(per
curiam).
San Diego v.
Indeed,
[t]he
opinion
disseminate it.
as
it
Id.
is
the
employees
own
right
to
recognized
that
speech
by
public
employees
on
subject
those
employees
gain
knowledge
as
the
Supreme
of
matters
of
public
recognized,
[t]he
Court
has
[i]t
would
be
antithetical
to
our
Id. at 2380.
jurisprudence
to
by
public
officialsspeech
by
public
employees
Id.
consider
controlling
the
the
governments
operation
of
its
12
countervailing
workplaces.
interest
Id.
at
in
2377.
Government
employers,
like
private
employers,
need
without
it,
there
would
be
little
chance
for
the
Garcetti v. Ceballos,
As the
answer
implicated.
is
no,
First
Amendment
protections
are
If
not
Id.
citizenthe
Supreme
Court
has
question
at
instructed
the
us
heart
to
of
engage
this
in
appealthe
practical
whether
the
speech
at
issue
occurred
in
the
normal
424.
employees
descriptions.
rights
by
Id. at 424.
creating
excessively
broad
job
and
its
employee
speech
broadly.
implications
far
too
Id.
deputy
district
attorney
had
prepared
for
his
supervisors
as
547
citizen
professional
when
he
went
activities,
such
about
as
conducting
supervising
his
daily
attorneys,
Id. at 422.
Accordingly,
within
scope
of
the
the
internal
deputys
protected speech.
memorandum,
ordinary
which
duties,
did
fell
not
the
constitute
Id. at 421-22.
sworn
testimony
in
14
judicial
proceeding
was
public
employment
or
concerns
information
learned
The Court
Id. at
Id.
Lanecorruption
in
public
program
and
misuse
of
Id. at 2380.
Id. at 2381.
of
interfered
with
his
the
daily
duties
regular
in
the
operation
classroom
of
the
nor
schools
Id. at 572-73.
The
Id.
at 571.
Id. at 571-72.
Even in our own Circuit, we have made clear that the core
First Amendment concern is the actual workingsnot just the
speeches and reports and handoutsof our public bodies.
Andrew
v. Clark, 561 F.3d 261, 273 (4th Cir. 2009) (Wilkinson, J.,
concurring).
a
Section
1983
complaint
in
which
former
police
commander
Id.
plaintiff
police
officer
terminated
in
retaliation
for
Id. at
Id.
actual
superiors,
coverage.
potential
calling
for
an
wrongdoing
external
on
the
part
investigation
of
and
his
media
Id.
We made it
their
speech
warrants
protection.
Id.
at
303
speech
was
not
that
Plaintiffs
protected
because
they
calling
the
Governors
spoke
as
Defendants
Office
was
Id. at
agree.
Nothing
before
us
suggests
that
Plaintiffs
daily
the
Governors
Office
for
any
purpose,
much
less
to
Plaintiffs
request
that
the
Governors
Office
look
into
S.
Ct.
Plaintiffs
at
2379.
Indeed,
day-to-day
duties,
practical
Garcetti,
547
Lane,
inquiry
U.S.
at
into
424,
Plaintiffs
citizens.
illustrates
that
Plaintiffs
acted
as
private
free time and away from their Mocksville PD offices, with a nongovernmental
and
organizationthe
corruption
at
the
NAACPabout
Mocksville
PD.
perceived
The
misconduct
NAACP
suggested
the
ultimately
the
North
Carolina
Attorney
North
Carolina
Governors
Generals
Office.
Office
and
Initially,
criminal
laws,
and
Plaintiffs,
18
police
officers,
suspected
criminal
conduct.
While
some
of
the
suspected
for
personal
gain,
might
qualify
as
criminal,
other
in
Defendants
writing
other
conveniently
employees
omit
from
violating
their
brief
laws
to
(though
whom
such
State,
and
City
laws
and
ordinances
coming
within
by
creating
excessively
19
broad
job
descriptions.
Accordingly, the
their
next
argument,
Defendants
contend
that
Defendants
contend
that
Plaintiffs
therefore
cannot
that
violation
of
his
plaintiff
First
claiming
Amendment
retaliatory
rights
must
discharge
show
that
in
his
20
in
the
omitted)).
The
employers
decision
to
terminate
him
(citation
Court
has
made
clear
that
defendant,
whether
or
not
the
pretrial
record
sets
forth
Iko v.
21
summary
judgment
because
material
dispute
of
fact
Defendants
causation
argument
due
to
dispute
of
See Iko,
their
final
argument
on
appeal,
Defendants
contend
violations
law,
could
but
who,
reasonably
22
in
believe
light
that
of
their
clearly
actions
were lawful.
right
was
clearly
established,
Regarding whether a
[t]he
relevant,
dispositive
that
confronted.
202
his
conduct
was
unlawful
in
the
situation
he
(2001),
overruled
in
part
on
other
grounds,
Pearson
v.
ring
the
clearly
established
bell,
there
the
nonexistence
of
case
holding
the
need
not
In other
defendants
231, 251 (4th Cir. 1999) (holding that First Amendment rights of
an off-duty officer communicating about concealed weapons were
sufficiently
officers
established
by
entertainment
precedent
regarding
performances).
off-duty
Rather,
the
rights
of
public
employeeswe
have
expressly
held
2009
that
an
employees
speech
about
serious
Durham,
above,
in
Durham,
police
As discussed in greater
officer
claimed
he
was
The
plaintiff
involving
the
use
officer
of
wrote
force
and
report
refused
about
to
bow
an
to
ordinary
public
workplace
employees
are
dispute
speaking
and
out
on
clear
that
government
where
misconduct,
In Andrew, we
where
he
alleged
retaliation
for
releasing
to
the
Id. at 261-
governments]
(Wilkinson,
operations
J.,
into
public
concurring).
In
view.
Judge
Id.
at
Wilkinsons
273
lyrical
Id.
2011
speech
and
retaliation
at
issue
here,
speech
all
serious
protected.
misconduct
Durham,
737
in
F.3d
law
at
enforcement
30304
agency,
(citation
is
omitted).
Courts
Andrew
or
reasoning
Durham
dispositive.
or
broadly-worded
suggests
that
that
But nothing in
holdings
fact
in
was
either
somehow
First
Amendment
protection.
And
we
agree
with
Justice
to
the
news
misconduct
to
media
the
is
protected,
Governors
but
Office,
exposing
as
in
that
this
same
case,
by
definition is not.
In sum, it was clearly established in the law of this
Circuit in December 2011 that speech about serious misconduct
in a law enforcement agency[] is protected.
at 30304.
III.
In their lone argument on appeal, Plaintiffs contend that
Bralley
employment
was
of
the
the
final
decisionmaker
plaintiffs,
and
that
with
respect
Cook
was
to
the
the
final
Accordingly,
us.
With a few exceptions not relevant here, this court has
jurisdiction of appeal from final decisions only.
Sun
Ins.
Office,
Ltd.,
375
F.2d
670,
673
(4th
Cir.
Cram v.
1967).
Cooper, 718 F.3d 347, 353-54 n.7 (4th Cir. 2013) (quoting Fox v.
Baltimore City Police Dept, 201 F.3d 526, 530 (4th Cir. 2000)).
The district courts disposal only of Plaintiffs claims
against
the
judgment.
Town
It
of
is,
Mocksville
therefore,
does
not
not
constitute
generally
final
reviewable.
See
Procedure
Rule
54(b)
provides
vehicle
by
which
of
fewer
than
all
of
the
claims
or
resolves
the
however,
the
record
not
reflect
that
the
January 2014 order that final judgment has not been entered as
to any party . . . pursuant to Rule 54.
27
Hunter, 2014 WL
881136, at *2.
this issue. 4
IV.
For
district
the
reasons
court,
to
explained
the
extent
above,
they
the
are
judgments
reviewable
of
at
the
this
juncture, are
AFFIRMED.
Had the district court come down the other way on the
issue, moreover, it still would have been unreviewable.
See
Swint v. Chambers Cnty. Commn, 514 U.S. 35, 43 (1995) (holding
that a county commissions assertion that the sheriff was not
the county policymaker was a defense to liability, not an
immunity from suit, and that denial of summary judgment for the
county commission was thus not immediately appealable).
28
and
clearly
Town
Manager
established
Christine
at
the
Bralley
time
that
because
Chief
it
Cook
was
not
fired
the
Governors
employees.
Office
as
citizens,
rather
than
as
Constitution
does
not
employer discipline.
insulate
their
communications
from
(2006).
In
December
2011,
Police
Officers
Kenneth
L.
Hunter,
in
Mocksville,
North
Carolina,
used
disposable
corruption
and
misconduct
within
the
Police
an
investigation
be
initiated.
Two
weeks
later,
after
Chief Cook allegedly learned of the call and consulted with Town
Manager Bralley, he terminated the three officers employment.
The officers commenced this action under 42 U.S.C. 1983
against
Chief
Cook,
Town
Manager
Bralley,
and
the
Town
of
their
exercise
of
free
speech
29
rights
in
calling
the
Governors
damages,
Office.
They
reinstatement,
sought
and
compensatory
injunctive
relief
and
punitive
against
future
the
district
defendants
court
denied
motion
Chief
for
Cook
summary
and
Town
judgment,
Manager
the
Bralleys
this
interlocutory
appeal,
challenging
the
district
majority
affirms
the
qualified
immunity
ruling,
departmental
misconduct
was
protected
by
the
First
not
simply
carrying
on
their
daily
professional
to
informed
identify
Chief
any
Cook
controlling
and
Town
precedent
Manager
that
Bralley
that
would
have
they
were
or
citizens
when
30
complaining
to
the
Governors
Office
about
departmental
corruption
and
misconduct
was
undecided in this circuit -- and has remained so before today -and the proper application of relevant principles is murky at
best.
Therefore,
the
relevant
case
law
was
not
clearly
In such
instructions
grant
to
Chief
Cook
and
Town
Manager
Bralley
qualified immunity.
In considering whether a right was clearly established at
the time of the challenged conduct, courts are guided by three
principles.
reasonably have been thought consistent with the rights [he is]
31
Second, while
question
beyond
debate,
al-Kidd,
131
S.
Ct.
v.
Stacy,
157
F.3d
271,
277-78
(4th
Cir.
1998).
In
Garcetti, the Supreme Court refined the test, making clear that
when
public
employees
make
statements
pursuant
to
their
an
employee
was
speaking
as
citizen
is
logically
They
enforcement
officers
included
the
reporting
and
speaking
as
employees
rather
than
citizens
when
they
Office
of
departmental
corruption
involving
his
Bralley
to
have
concluded
that
the
officers
were
police
department
proposition
agree.
with
Neither
is
which
case
matter
Chief
Cook
addresses
of
public
and
Town
the
concern
Manager
independent
--
Bralley
inquiry
of
Andrew,
police
officer
alleged
that
his
First
In
he
spoke
as
an
employee,
Andrew
alleged
in
his
complaint
written
similar
memoranda
after
other
officer-
commissioner
unauthorized
and
characterized
ignored
it;
the
and
memorandum
(5) that
he
was
as
not
Id.
at 264.
The
defendants
replied
that
reports
for
all
shootings
within
his
district.
Id.
added);
see
also
id.
(At
this
Id. at 267
stage
of
the
Thus, in the
the
sheriffs
officials.
office
to
the
media
and
various
state
on
whether
employers
his
interest
environment.
interest
in
in
speaking
maintaining
Id. at 298-304.
an
outweighed
effective
his
work
never
Durham,
737
raised
F.3d
291
in
his
(No.
brief.
12-2303),
See
2013
Br.
WL
of
Appellant,
551533
(arguing
any
interest
that
the
deputy
sheriff
claimed
in
media,
either
exclusively
(Andrew)
or
in
tandem
with
distinction,
that
placed
it
can
hardly
be
said
the . . . constitutional
question
existing
beyond
precedent
debate,
al-
protected
Governors
at 427
when
Office.
(Stevens,
omitted).
made
Ante,
J.,
Maybe
publicly
at
but
25
(quoting
dissenting))
so,
but
that
not
is
when
Garcetti,
(internal
not
made
the
to
547
quotation
proper
the
U.S.
marks
inquiry.
reasonable
individual
official
defendants
Amendment rights.
would
conduct
have
violated
understood
the
that
plaintiffs
the
First
Office, 767 F.3d 379, 398 (4th Cir. 2014), cert. denied, No. 14887, 2015 WL 275612 (U.S. Apr. 27, 2015).
our
prior
case
law
suggested
that
law-enforcement
officer
Maciariello v.
for
incorrect
would
grant
them
qualified
38