Sexton v. Martin

• Decision Date: 14 December 1999
• Docket Number: No. 99-1511,99-1511
• Parties: (8th Cir. 2000) R. SCOTT SEXTON; CYNTHIA W. SEXTON; KRIS KISTLER; PATRICIA KISTLER; GARY DUDLEY; JOSEPH FIORINO; RICHARD POMEROY; JOHN REIFSCHNEIDER; MYRNA DUDLEY; CAROLYN FIORINO; JANICE POMEROY; LEE REIFSCHNEIDER; Plaintiffs/Appellees v. RONALD MARTIN, Defendant/Appellant CITY OF DES PERES, MISSOURI Defendant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 905

210 F.3d 905 (8th Cir. 2000)

R. SCOTT SEXTON; CYNTHIA W. SEXTON; KRIS KISTLER; PATRICIA KISTLER; GARY DUDLEY; JOSEPH FIORINO; RICHARD POMEROY; JOHN REIFSCHNEIDER; MYRNA DUDLEY; CAROLYN FIORINO; JANICE POMEROY; LEE REIFSCHNEIDER; Plaintiffs/Appellees v. RONALD MARTIN, Defendant/Appellant

CITY OF DES PERES, MISSOURI Defendant.

No. 99-1511

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: December 14, 1999

Filed: April 19, 2000

Appeal from the United States District Court for the Eastern District of Missouri

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before RICHARD S. ARNOLD and HANSEN, Circuit Judges, and MELLOY,¹ District Judge.

MELLOY, District Judge

Ronald Martin ("Martin"), former Director of Public Safety for the City of Des Peres Department of Public Safety ("DPS"), appeals the district court's ² denial of his request for qualified immunity in this civil rights action filed by R. Scott Sexton ("Sexton") and Kris Kistler ("Kistler"). We affirm the district court's ruling.

I. BACKGROUND

Sexton and Kistler are former Public Safety Officers for the DPS. The DPS provides police, fire, and ambulance services to the residents of the City of Des Peres, Missouri. Martin served as the Director of Public Safety for the DPS during the entire period of Sexton's and Kistler's employment. Immediately below Martin in the department hierarchy were William Bridges and Keith Krumm, both of whom held the rank of Captain.

The DPS was originally located at 1019 North Ballas Road in the City of Des Peres ("the old building"). In approximately 1974, the DPS began recording telephone conversations that took place in the DPS building. Martin asserts conversations were recorded for purposes of security, safety, and quality control. The recording device was located in the dispatch area of the building and recorded telephone and radio conversations twenty-four hours a day. The recording was done by instrument rather than by line; that is, every conversation that took place on a particular telephone was recorded, regardless of which line was being used on that telephone. All the telephones in the building were recorded except for the telephone in the kitchen. The kitchen telephone was reserved for Public Safety Officers to make private calls to their families or to make other personal calls while on duty.

In July of 1992, the DPS moved into a new building. Like the old building, the new building utilized a recording device which recorded incoming and outgoing telephone calls. Unlike the old building, however, the recording in the new building was done by line rather than by telephone, and every line was recorded, including the private line in the kitchen. Sexton and Kistler maintain that the Public Safety Officers were not notified that their conversations were being recorded.

On April 8, 1995, Kistler drove his police vehicle through a supermarket window. An investigation was conducted and on October 17, 1995, Kistler was charged with several city regulatory violations.

On October 22, 1995, Sexton and Kistler investigated the telephone recording system and discovered that the telephone in the kitchen was being recorded. On October 24, 1995, Sexton, Kistler, and their attorney went to city hall to disclose to the public the private line in the DPS building was being recorded illegally and request that it be taken off the recording system.³ On October 26, 1995, the recording of the private line ceased.

Kistler was terminated October 30, 1995, and Sexton was terminated December 11, 1995. Martin asserts that he recommended Sexton's termination because Sexton failed to account for his activities on October 22, 1995, and he failed to follow direct orders of superiors on that same date. Martin contends that he recommended Kistler's termination for gross negligence in the operation of a motor vehicle on April 8, 1995, the failure to obey and promptly execute orders of superiors, and sleeping on duty. Their terminations were affirmed after hearings by the City of Des Peres Board of Aldermen. Sexton and Kistler subsequently brought a six-count complaint ⁴ which asserted that the City of Des Peres and Martin, among others, placed an illegal wiretap and illegally recorded private telephone conversations on a telephone designated for personal calls.

This appeal concerns Count II of the plaintiffs' Third Amended Complaint. In Count II, Sexton and Kistler filed a claim pursuant to 42 U.S.C. 1983, asserting that Martin improperly recommended the plaintiffs' termination in retaliation for the exercise of their First Amendment free speech rights - namely, making public the City's potentially illegal wiretap.⁵ In a motion for summary judgment, Martin sought protection from liability under the doctrine of qualified immunity. After the district court denied Martin's claim of qualified immunity as to plaintiffs' retaliatory discharge claims, Martin renewed his claim of qualified immunity in a supplemental motion for summary judgment. The district court again rejected his request, and Martin appeals the district court's ruling.

II. DISCUSSION

"A district court's denial of a motion for summary judgment based on qualified immunity is immediately appealable." Collins v. Bellinghausen, 153 F.3d 591, 595 (8 th Cir. 1998). We review the district court's denial of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Id.

Under the doctrine of qualified immunity, state actors are protected from civil liability when "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 (1982) (internal quotations omitted); McCaslin v. Wilkins, 183 F.3d 775, 778 (8 th Cir. 1999). The qualified immunity inquiry is a two-step process. First, this Court must ascertain whether the plaintiffs have asserted a violation of a constitutional or statutory right. See Munz v. Michael, 28 F.3d 795, 799 (8 th Cir. 1994) (citing Beck v. Schwartz, 992 F.2d 870, 871 (8 th Cir. 1993) (per curiam)). Second, we must determine whether that constitutional right was clearly established at the time that the plaintiffs were discharged. See Munz, 28 F.3d at 799. "This court has . . . taken a broad view of what constitutes 'clearly established law' for the purposes of a qualified immunity inquiry. . . " Boswell v. Sherburne County, 849 F.2d 1117, 1121 (8 th Cir. 1988), cert. denied, 488 U.S. 1010 (1989). "For a right to be deemed clearly established, the 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Buckley v. Rogerson, 133 F.3d 1125, 1128 (8 th Cir. 1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). However, "[i]t is only necessary that the unlawfulness of the official's act [be] apparent in view of pre-existing law." Hall v. Lombardi 996 F.2d 954, 958 (1993), cert. denied, 510 U.S. 1047 (1994). Therefore, if the law claimed to have been violated was clearly established, the qualified immunity defense ordinarily fails, "since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19.

A.

Plaintiffs have properly alleged a violation of a constitutional right -- Martin recommended their discharge in retaliation for exercising their right to free speech. See, e.g., Rankin v. McPherson, 483 U.S. 378, 383 (1987) ("[i]t 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."). The dispute in this case centers around the Court's second inquiry - whether the plaintiffs' free speech rights were clearly established at the time of discharge. To determine whether this right was clearly established, the Court must first determine whether the speech is protected by the First Amendment. This determination is also a two-step inquiry. See Kincade v. Blue Springs, Mo., 64 F.3d 389, 395 (8 th Cir. 1995), cert. denied, 517 U.S. 1166 (1996). The threshold question this Court must answer is whether the speech can be fairly characterized as constituting "speech on a matter of public concern." Id. (quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983)). If this Court finds the speech to be a matter of public concern, we turn to the second step, the Pickering balancing test, which "involves balancing the employee's right to free speech against the interests of the public employer." Id. (citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). Pickering requires we strike a "balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public employer] in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568.

(1) Threshold Inquiry - "Matters of Public Concern"

As to the first step of the inquiry - whether it was clearly established that Sexton's and Kistler's speech was a matter of public concern at the time they were terminated - this Court has held that speech concerning potential misconduct by public officers is a matter of public concern. See Barnard v. Jackson County, Mo., 43 F.3d 1218, 1225 (8 th Cir.), cert. denied, 516 U.S. 808 (1995); Brockell v. Norton, 732 F.2d 664, 668 (8 th Cir. 1984). In Barnard, this Court found "[s]peech disclosing allegations of criminal activity allegedly committed by elected public officials and allegations of official misconduct by an incumbent elected official are matters occupying the highest rung of hierarchy of First Amendment values . . . Such speech is of inherent public concern." 43 F.3d at 1225 (internal quotations omitted). Likewise, in Brockell this Court found allegations that a police officer improperly possessed a copy of the certification test, prior to...