Police chief entitled to immunity after firing officers who encouraged citizen complaint – Fourth Circuit
Crouse v. Town of Monks Corner. In October, 2013, a man, Berkeley, fell asleep in his car in a Wal-Mart parking lot. HIs three sons could not wake him and alerted securit, who then called the police. The responding officer, Roach, pulled the man from the car and threw him to the ground. He and another responding officer later learned of an outstanding warrant and arrested the man, placing him in the police car.
While Berkeley was in the patrol car, he and Roach began to argue again. Roach tried to shut the car door, but Berkeley’s leg prevented it from closing. Roach tried to shut the door again and then used a knee strike to try to force Berkeley’s leg into the car. Berkeley claims the knee strike hit his groin, while Roach claims the strike was to Berkeley’s outer thigh. After the knee strike, Berkeley jumped out of the patrol car. Roach and Winder tried to push Berkeley back into the patrol car. Another officer on the scene, Officer Dozier, was able to force Berkeley onto the ground. Roach and Dozier held Berkeley down, and Roach threatened to use his Taser if Berkeley resisted further. Berkeley calmed down, and Dozier and Winder helped him back into the patrol car.
In the days that followed, the plaintiffs went to talk with Berkeley, in plain clothes but with visible badges and guns. They encouraged Berkeley to file a complaint about Roach and provided him the form to do so. Despite the officers’ efforts not to be identified to the police department, Berkeley described the officers and they were identified and forced to resign.
About a year later, they filed suit against the town and the police chief under 42 U.S.C. § 1983, arguing that the forced resignations were retaliation for the exercise of their First Amendment rights.
The district court held that the chief was entitled to qualified immunity because it was unclear whether the officers had acted as private citizens or government employees.
When a government employee claims that discipline was retaliation for speech, courts use a three-prong test to determine if the employee’s First Amendment rights are violated:
- Whether the employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest.”
- If the speech was made as a citizen and addressed a matter of public concern, the court must balance the interest of the employee in speaking with the interest of the government in providing efficient services.
- If the employee’s interest outweighed the government employer’s interest, the third prong requires a determination that the employee’s speech caused the disciplinary action.
Because the first two prongs of the test are questions of law, an employer is entitled to qualified immunity if either prong cannot be resolved under clearly established law. To defeat a qualified immunity defense, a plaintiff must show (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.
The Fourth Circuit held that the chief here was entitled to immunity because:
He could reasonably have viewed their conversation with Berkeley as surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. Caldwell saw this behavior as a serious threat to the smooth running of the police department and to his own ability to maintain operational control. In fact, it would be difficult for any institution to function when subordinates are engaged in secretive efforts to foment litigation against supervisors with whom they have, for whatever reason, an unfortunate personal chemistry.
The First Amendment does not protect speech made by a government employee in carrying out their official duties. Here, the officers argued because of their dress, an instruction not to speak with Berkeley and the time of their visit, they were acting as private citizens. The chief countered that they were clearly identified by guns and badges as officers of the department, as well as delivery of the official department complaint form. Officers regularly have interactions with citizens similar to the one at issue.
All of this is to say that:
These facts allowed Chief Caldwell to reasonably believe that, as a legal matter, Crouse and Winningham were speaking in their capacity as employees of the police department. . . . Because it was reasonable for Chief Caldwell to believe that Crouse and Winningham acted in their public roles as police officers, it was reasonable for Caldwell to believe that their speech was not protected, and he is thus entitled to qualified immunity.
The Fourth Circuit goes on to say that even if they were private citizens speaking on a matter of public concern, the Pickering balancing test favors the department.
That is, the interest in the speech activity was low because they were not seeking to create a public dialogue, and their issues grew out of their private frustrations with their supervisor. The chief could properly have balanced this private disagreement with a supervisor against the need to maintain his ability to manage the police department, a paramilitary organization, to conclude that the officers’ resignation was necessary.
Moreover, given Crouse and Winningham’s ongoing disputes with Roach, their efforts to conceal their speech, and the challenge their conduct, if not addressed, posed to police department operations, Chief Caldwell could reasonably have viewed the department’s interest in maintaining discipline as paramount in the Pickering balance. Because his judgments were reasonable ones, Chief Caldwell is entitled to qualified immunity.