249 F.3d 406 (5th Cir. 2001), 00-10046, Gonzales v Dallas County Texas

Docket Nº:00-10046
Citation:249 F.3d 406
Party Name:ARMANDO H. GONZALES, Plaintiff-Appellee, v. DALLAS COUNTY, TEXAS, ET AL, Defendants, AURELIO CASTILLO and CONNIE KIRBY, Defendants-Appellants.
Case Date:May 04, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 406

249 F.3d 406 (5th Cir. 2001)

ARMANDO H. GONZALES, Plaintiff-Appellee,



AURELIO CASTILLO and CONNIE KIRBY, Defendants-Appellants.

No. 00-10046

United States Court of Appeals, Fifth Circuit

May 4, 2001

Page 407

Appeal from the United States District Court for the Northern District of Texas

Before JOLLY and DAVIS, Circuit Judges, and RESTANI[*] Judge.

E. GRADY JOLLY, Circuit Judge:

The district court denied qualified immunity to these defendant-appellant Dallas County, Texas constables. They are alleged to have discharged the plaintiff-appellee, Armando Gonzales, in retaliation for his exercising his First Amendment rights. We reverse the district court's order. Although it is true that Gonzales engaged in activity protected by the First Amendment when he testified before a grand jury investigating corruption in the constable's department, the discharge was objectively reasonable with regard to Gonzales's constitutional rights. We reach this conclusion in the light of Gonzales's subsequent conduct of using excessive force and because the record demonstrates that the discharge was justified on grounds unrelated to his First Amendment rights and would have occurred notwithstanding his exercise of such rights.



In early 1997, Aurelio Castillo, the newly-elected Constable of Precinct 6 of Dallas County, instructed several of his deputies, including Armando Gonzales, to solicit "contributions" from several bail bondsmen. The understanding, according to Gonzales, was that the bondsmen who gave money to Castillo would receive assistance from the constable's department in locating and arresting bond-jumpers. Fearing that he would be terminated if he refused to solicit, Gonzales followed Castillo's instructions.

By September 1997, Gonzales had become concerned about the propriety of these contributions and reported the activity to an assistant district attorney. The Dallas County Grand Jury then began its investigation and subpoenaed Gonzales. When Castillo learned of the grand jury investigation, he asked his mother to persuade Gonzales to sign a statement that he had no knowledge of solicitations from the bail bondsmen. Gonzales refused to sign, and when Castillo confronted him personally, Gonzales said that the prepared statement was false and that he would not perjure himself. Gonzales testified before the grand jury, which in October 1997 returned an indictment against Castillo for the felony offense of bribery.1


In mid-November, about six weeks after being indicted for bribery, Constable Castillo learned that deputy Gonzales had been involved in an altercation while working part-time as a uniformed security guard at a large supermarket. The following facts are undisputed: An unarmed man, who was shopping with his seven year old son, shoplifted several pair of socks worth approximately $30. While apprehending the shoplifting suspect, Gonzales drew his 9mm semi-automatic pistol, struck the suspect on the head with his gun, and twice sprayed the suspect in the

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face with pepper spray. (Gonzales argues that such force was necessary under the circumstances.) The Dallas City Police arrived at the scene and took the suspect to a hospital where he was treated for his injuries. Gonzales did not report this incident either to Castillo or Kirby, but the supermarket manager contacted the constable's office several days after the incident.


Chief Deputy Constable Connie Kirby was responsible for investigating all allegations of inappropriate conduct and submitting written findings and a recommendation regarding disciplinary action to Constable Castillo. The supermarket manager advised Kirby that officials from the store's corporate office had investigated the incident and determined that Gonzales's conduct (as well as that of the assistant store manager who was on duty when the incident occurred) was inappropriate, dangerous, and "stupid." Specifically, they found that Gonzales had violated store policy by employing excessive force in apprehending a shoplifting suspect and by bragging about the incident afterwards. The corporate office decided that neither the assistant manager nor Gonzales should be allowed to work at the store again.

In the course of investigating this incident, Kirby interviewed and obtained statements from Gonzales, the shoplifter, and three store employees who witnessed the incident. Although Gonzales contended that he had used force only because it was necessary to defend himself, several store employees told Kirby that Gonzales was not in danger. One employee stated that the shoplifter "at no time tried to fight the officer or the manager." Another employee testified that the shoplifter was being detained by a store employee and appeared to be trying to escape through the door when Gonzales hit him. The shoplifter admitted that he was "struggl[ing] to get loose" from a store employee but did not attempt to harm Gonzales. The suspect also stated that he was handcuffed and lying on the restroom floor when Gonzales sprayed him with mace the second time.

Perhaps the most damning account that Kirby heard during his investigation came from another assistant store manager who arrived at work shortly after the incident. The assistant manager stated that Gonzales approached him, telling him that he had "missed all the excitement." Gonzales then explained, "in a bragging manner," that "A man stole something from the store and tried to escape. . . . I hit him in the head with my pistol and maced the [expletive deleted]. When he ran to the back of the store to the restroom to wash the mace from his eyes, I followed him in there and maced him again."

Chief Deputy Constable Kirby completed his investigation and submitted a report to Constable Castillo on December 10, 1997. In this report, Kirby suggested that Gonzales's actions reflected a serious lack of judgment and constituted an "unnecessary and inappropriate use of force" because (1) the...

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