Bass v. Richards

• Decision Date: 14 August 2002
• Docket Number: No. 01-1202.,01-1202.
• Citation: 308 F.3d 1081
• Parties: Larry T. BASS, Plaintiff-Appellee, v. William T. RICHARDS, Sheriff; Russell Hebert, Undersheriff; and Tim Evans, Deputy Sheriff, Defendants-Appellants, and The Board of County Commissioners of the County of Archuleta, State of Colorado, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

308 F.3d 1081

Larry T. BASS, Plaintiff-Appellee, v. William T. RICHARDS, Sheriff; Russell Hebert, Undersheriff; and Tim Evans, Deputy Sheriff, Defendants-Appellants, and The Board of County Commissioners of the County of Archuleta, State of Colorado, Defendant.

No. 01-1202.

United States Court of Appeals, Tenth Circuit.

August 14, 2002.

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Jonathan A. Cross (Robert M. Liechty with him on the briefs) of Cross & Liechty, P.C., Denver, CO, for Defendants-Appellants.

G. Stephen Long (Joseph J. Mellon and Brian R. Reynolds with him on the brief) of Shughart Thomson & Kilroy, P.C., Denver, CO, for Plaintiff-Appellee.

Before HENRY, ANDERSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Appellants Richards, Hebert, and Evans are police officials of Archuleta County, Colorado. Appellee Bass brought suit against them under 42 U.S.C. § 1983 alleging that they had violated his First Amendment speech and association rights. Appellants moved for summary judgment asserting a qualified immunity defense. They appeal the district court's denial of that motion. This court has jurisdiction under 28 U.S.C. § 1291 over several, but not all, of Appellants' claims. We affirm in part and dismiss in part.

II. BACKGROUND

Pagosa Lakes Property Owners Association ("Pagosa Lakes") is a resort community of approximately 4,500 residents near the town of Pagosa Springs in Archuleta County, Colorado. Because of the limited manpower of the Pagosa Springs and Archuleta County police forces, Pagosa Lakes maintained its own police department, the Public Safety Office. Larry Bass worked as the Chief of the Office. The Public Safety Office worked closely with the Archuleta County Sheriff's Office. To give Bass and other public safety officers at Pagosa Lakes the authority to make arrests and investigate crimes, the Sheriff deputized the Pagosa Lakes officers. Each held the title of "reserve deputy" in the Sheriff's office. Though Bass and the other Pagosa Lakes officers were based at the Public Safety Office at Pagosa Lakes, as reserve deputies they were under the direct supervision of employees of the Sheriff's office.

Sometime prior to the summer of 1997, Bass talked with his friend, Lee Vorhies, about Vorhies' interest in running for Archuleta County Sheriff in the November 1998 election. During the summer of 1997, Bass began privately supporting Vorhies to run against the incumbent Sheriff Richards. Bass never campaigned for Vorhies or otherwise publicly supported Vorhies' campaign. The Sheriff's office became aware of Bass' private support for Vorhies sometime that summer. Undersheriff Hebert was informed by another individual that Bass was supporting Vorhies and had said that "the money and machinery are in place." Hebert decided to approach Bass about his political activities and arranged several meetings with Bass throughout the summer. In a June 1997 meeting, Hebert "cautioned Bass ... about politics against the Sheriff." In a July meeting, Hebert told Bass that "he owed loyalty to the Sheriff." In that same meeting, Bass denied publicly supporting Vorhies, but he did reveal to Hebert that he preferred Vorhies' political philosophy. Also in July 1997, employees of the Sheriff's office met with Sheriff Richards to discuss Bass' support of Vorhies. The possibility of removing Bass' reserve deputy commission was discussed but all agreed that such an action would violate Bass' First Amendment rights. Bass had several additional meetings with Sheriff's office employees, including the Sheriff, during the summer and fall of 1997. In some of those meetings, employees made statements that Bass interpreted as threats, including an incident in which Appellant Evans shook his finger at Bass and said it was Evans' "mission to make sure that Sheriff Richards gets reelected."

In November 1997, Bass testified in an unrelated state criminal trial. After several days of testimony, the state judge granted the defendant's motion to dismiss the charges. In his minute order, the judge stated that Bass "withheld information within his knowledge, even when he found out about its importance to the case and was requested to provide any pertinent information to the case." The judge also stated that Bass had improperly marked evidence bags after learning of their importance to a suppression motion. Because of these improprieties, the judge dismissed the charges. The Sheriff's office suspended Bass' reserve deputy commission in December 1997 and conducted an investigation into Bass' role in the dismissed criminal case. Following the investigation, Bass' reserve deputy commission was revoked permanently in January 1998. For purposes of summary judgment and this appeal, however, Appellants concede that Bass' commission was revoked because of his support for Vorhies, not because of Bass' conduct in the criminal trial.

Following Bass' suspension, he became interested in running for Sheriff. Consequently, Bass, Vorhies, and supporters of both men held a meeting in which they discussed which man would make a better candidate against Sheriff Richards in the November 1998 election. The meeting concluded with a decision that Vorhies alone should run against Richards. Vorhies' candidacy became official then or shortly thereafter. Bass supported Vorhies through the primary in August 1998 in which Vorhies was defeated.

Bass brought suit in federal district court alleging that Appellants violated his free speech and association rights when they removed his commission because of Bass' comments about his preference for Vorhies and his association with Vorhies. Appellants moved for summary judgment on the basis of qualified immunity. Among other things, they argued that Pickering v. Board of Education only prohibited employee termination based on speech about a matter of public concern. See 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). They contended that Bass had only privately supported an unannounced candidate, and it was not clearly established that such speech was about a matter of public concern. The district court rejected this argument, ruling that because Appellants admitted they knew Bass was supporting Vorhies, the support was not private speech. The district court also rejected Appellants' argument that Bass' right to associate with an unannounced candidate was not clearly established.

III. APPELLATE JURISDICTION

This is an interlocutory appeal of the denial of Appellants' summary judgment motion. This court has no jurisdiction over appeals to non-final orders absent some specific statutory grant. See 28 U.S.C. § 1291. The denial of a summary judgment motion ordinarily is not an appealable final order. See Schmidt v. Farm Credit Servs., 977 F.2d 511, 513 n. 3 (10th Cir.1992). It is subject to appeal, however, when the defendants are public officials asserting a qualified immunity defense and the appealed issue is whether a given set of facts establishes that defendants violated clearly established law. See Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Those portions of the summary judgment denial, however, which involve a determination of evidence sufficiency, i.e., whether there exists a genuine issue of material fact, are not appealable. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In other words, the scope of interlocutory appeals to denials of qualified immunity is limited to "purely legal" challenges to the denial. See Shinault v. Cleveland County Bd. of County Comm'rs, 82 F.3d 367, 370 (10th Cir.1996) (quotation omitted). "Our jurisdiction, then, turns on what portion of the district court order [defendants] appeal[ ]." Id.

Appellants raise four general issues: (1) whether it was clearly established that the mere removal of a commission is sufficiently punitive to infringe upon Bass' speech and association rights; (2) whether it was clearly established that Bass' speech was on a matter of public concern and thus protected; (3) whether Bass' right to associate with an unannounced political candidate was clearly established; and (4) whether the evidence presented was sufficient to demonstrate that Appellant Evans participated in a conspiracy to deprive Bass of his constitutional rights.

Appellants' fourth contention is a factual one over which we have no jurisdiction. Appellants argue that Evans has qualified immunity because the "facts are completely insufficient" to show that he knowingly participated in a conspiracy to violate Bass' rights.¹ In Johnson v. Jones, the defendant officials challenged the district court's determination that there was an issue of fact regarding the officials' participation in the beating of the plaintiff. See 515 U.S. at 313, 115 S.Ct. 2151. The Supreme Court held that such a determination was not an appealable final order. See id. Appellants' challenge is essentially the same as that made in Johnson v. Jones, and this court does not have jurisdiction to consider it.

The first three issues, however, are purely legal and we have jurisdiction to consider them. Bass contends² that the district court determined that a genuine issue of material fact existed as to the Sheriff's intent in stripping Bass' commission, a necessary element to Bass' speech and association claims. It is apparent, however, that the district court's denial of qualified immunity did not turn on this disputed fact. Appellants argued below that even if the Sheriff removed the commission to punish Bass for his speech, they were entitled to qualified immunity because: (1) the removal of Bass' commission was not sufficiently punitive to infringe upon Bass' rights, (2) his speech was not on a matter of public concern, and (3) his right to associate with an unannounced political candidate was not clearly established. The district court reached all of these legal arguments and rejected them. Appellants...