219 F.3d 1197 (10th Cir. 2000), 98-6219, Worrell v. Henry

Docket Nº:98-6219
Citation:219 F.3d 1197
Party Name:JAMES A. WORRELL, Plaintiff-Appellant, v. GARY L. HENRY, in his official capacity as District Attorney of the Twentieth Judicial District for the State of Oklahoma, and in his individual capacity; WILLIAM FLOYD "DUB" TURNER, in his individual capacity; FRANK KEATING, in his official capacity as Governer of the State of Oklahoma; ELAINE DODD, in her
Case Date:July 26, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1197

219 F.3d 1197 (10th Cir. 2000)

JAMES A. WORRELL, Plaintiff-Appellant,

v.

GARY L. HENRY, in his official capacity as District Attorney of the Twentieth Judicial District for the State of Oklahoma, and in his individual capacity; WILLIAM FLOYD "DUB" TURNER, in his individual capacity; FRANK KEATING, in his official capacity as Governer of the State of Oklahoma; ELAINE DODD, in her individual capacity; and MALCOLM ATWOOD, in his individual capacity, Defendants-Appellees.

No. 98-6219

United States Court of Appeals, Tenth Circuit

July 26, 2000

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 96-CV-718-C)

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D. Gregory Bledsoe, Tulsa, Oklahoma, for Plaintiff-Appellant.

Lisa Tipping Davis, Assistant Attorney General, State of Oklahoma, for Defendant-Appellee Henry.

David Lee, Lee & Gooch, Oklahoma City, Oklahoma, (Scott Rowland, Oklahoma State Bureau of Narcotics and Dangerous Drugs, Oklahoma City, Oklahoma, with him on the brief) for Defendants-Appellees Turner, Dodd, and Atwood.

Before HENRY and MURPHY, Circuit Judges, and KIMBALL, District Judge.[*]

HENRY, Circuit Judge

James Worrell appeals the district court's grant of summary judgment against him and in favor of the defendants Gary Henry, William Floyd "Dub" Turner, Elaine Dodd, and Malcom Atwood on his claim alleging a violation of his First Amendment rights pursuant to 42 U.S.C. § 1983. In the district court proceedings, Mr. Worrell challenged Mr. Henry's withdrawal of an offer of employment to serve as the coordinator of a drug task force, administered by Mr. Henry in his capacity as District Attorney for the Twentieth District of Oklahoma. According to Mr. Worrell, Mr. Henry withdrew the offer because of information he received from the defendant Mr. Turner, an agent for the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD): Mr. Turner informed Mr. Henry that Mr. Worrell had testified as an expert witness for the defendant in a murder trial nine years earlier. Mr. Worrell maintained that the withdrawal of the job offer constituted retaliation for activity protected by the First Amendment--truthful testimony in the murder trial.

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Applying the balancing test first set forth by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968), the district court rejected Mr. Worrell's argument. Noting that Mr. Henry had received information from Mr. Turner that law enforcement officers did not trust Mr. Worrell, the court concluded that Mr. Worrell's interest in testifying was outweighed by the defendants' interest in administering an effective drug task force.

For the reasons set forth below, we agree with the district court's resolution of the Pickering balancing test with regard to Mr. Henry. However, because the Pickering balancing test has not been applied to individuals who are neither the plaintiff's employer nor parties to a contract with him, we conclude that the district court erred in analyzing Mr. Worrell's claims against Mr. Turner, Ms. Dodd, and Mr. Atwood. As to those claims, we vacate the district court's grant of summary judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In January 1986, attorneys representing the defendant in a capital murder case pending in the District Court of Woodward, Oklahoma asked Mr. Worrell to testify at trial.1 At the time, Mr. Worrell was employed as a private investigator, but he had previously worked as an FBI agent. The lawyers informed him that the case involved the killing of an undercover ONBDD agent who had tried to make an arrest. They explained that they were exploring a theory of self-defense: that the murdered ONBDD agent had attempted to arrest the defendant without displaying any indication of his official authority and that, as a result, the defendant could have reasonably believed that the agent was attempting to rob him.

Mr. Worrell agreed to testify as a paid expert. On January 30, 1986, he gave the following testimony on direct examination by the defendant's attorney:

Q: As to the undercover arrest itself, are [sic] there any type of standard operating procedure, or basic fundamental course that is taught the officer as to how he is to go about identifying himself under those circumstances?

A: Yes. Whoever is going to make the apprehension must have some form of identification to show that they are a law enforcement officer. They must either wear their badge, or they must be in uniform or they must have a jacket. In fact, the FBI have big black armbands with white letters on them in addition to their badge. But, they must have some identification so that the criminal will realize that you are a constituted authority when you make the arrest.

. . .

Q: Why would it be necessary for an undercover officer to specifically show identification in addition to just saying that he is an officer?

A: Because the criminal doesn't know unless he sees a symbol of authority. Anybody could hollar [sic] the words ["]police,["] and without the symbol of authority, the criminal can only assume that somebody is fixing to rip him off, take him down, and he doesn't know who that is.

Aplt's App. at 242, 245.

The prosecution offered testimony from a supervising special FBI agent to rebut Mr. Worrell's testimony. The FBI agent stated that proper arrest procedure required the law enforcement officer to identify himself as an agent but that he did not usually display a badge or other credentials. After hearing all the evidence, the jury convicted the defendant. However, it rejected the prosecution's request for the death penalty and imposed a sentence of life imprisonment.

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Mr. Worrell's testimony in the Ellis case generated considerable anger and resentment among ONBDD agents. Some agents speculated that it was Mr. Worrell's testimony that kept the defendant from receiving the death penalty. Although Mr. Turner had not attended the trial and had not reviewed a transcript of Mr. Worrell's testimony, he heard from other agents that Mr. Worrell had testified that "the investigation was basically botched from the beginning . . . and . . . because of . . . the poor caliber of the investigators, this is what led to [the ONBDD agent's] murder." Id. at 111.

In 1994, Mr. Henry was elected District Attorney for the Twentieth Judicial District of Oklahoma. Mr. Worrell applied for an investigative position with Mr. Henry's office, and some time between January and March 1995, Mr. Henry offered Mr. Worrell the position of coordinator of the District Attorney's drug task force. Mr. Henry wanted the task force to handle informants and conduct undercover drug investigations. Mr. Henry informed Mr. Worrell that he had applied for a grant for the task force from the Violent Crime Grant Board and that the job offer was conditioned on the award of the grant. Mr. Worrell accepted the offer, and Mr. Henry submitted Mr. Worrell's résumé along with the grant application seeking funding for the task force.

Mr. Henry also discussed the drug task force with the defendant Mr. Turner, who was the ONBDD agent in charge of the Ardmore district. In their initial discussions, Mr. Turner offered the ONBDD's assistance to task force personnel. He thought that the task force was a "[t]remendous idea," id. at 115, and told Mr. Henry that ONBDD agents would assist in training task force employees and getting them admitted into educational programs for law enforcement agents.

Mr. Turner's view of the task force soon changed. Although he had heard that Mr. Henry had offered the coordinator position to Mr. Worrell, he had not initially recognized Mr. Worrell's name. In May or June of 1995, an FBI agent informed Mr. Turner that Mr. Worrell was the agent who had testified for the defense in the Ellis case. Mr. Turner contacted his supervisors, the defendant Elaine Dodd (the ONBDD Director) and the defendant Malcom Atwood (the ONBDD agent-in-charge). He told them that he intended to withdraw his previous offers of ONBDD assistance if Mr. Henry hired Mr. Worrell. He explained that he believed that Mr. Worrell had been deceitful, that he did not trust him, and that he would not work with him. Ms. Dodd and Mr. Atwood informed Mr. Turner that he would not be required to work with someone whom he did not trust, and they agreed that he could talk to Mr. Henry about Mr. Worrell.

After speaking with Ms. Dodd and Mr. Atwood, Mr. Turner telephoned Mr. Henry. Mr. Henry summarized their conversation as follows:

[H]e had found out that Mr. Worrell was one and the same individual who testified in a murder trial in Woodward County, I believe, regarding the murder of an OBN[DD] agent . . . , that he felt like Mr. Worrell had whored himself out to the defense and that he did not trust him and that he was agent in charge and that he was not going to work with any agency or anybody that he did not trust and he would not put his officers in a position of working with anyone he didn't trust and therefore, all offers, . . . were revoked if Mr. Worrell went to work for me.

Id. at 146.

After conferring with a colleague at the District Attorney's Council and an FBI agent, Mr. Henry decided to rescind the job offer he had made to Mr. Worrell. In explaining his decision, he told Mr. Worrell that he was concerned not with the testimony in the Ellis case but rather with the fact that the ONBDD "was not going to cooperate or coordinate with the Task Force and that [he] felt that cooperation and coordination was essential." Id. at 149.

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In deposition testimony, Mr. Henry further explained:

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