Kidwell v. Eisenhauer

• Citation: 679 F.3d 957
• Decision Date: 22 May 2012
• Docket Number: No. 11–1929.,11–1929.
• Parties: Kenneth KIDWELL, Plaintiff–Appellant, v. Joseph S. EISENHAUER, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

679 F.3d 957

Kenneth KIDWELL, Plaintiff–Appellant,

v.Joseph S. EISENHAUER, et al., Defendants–Appellees.

No. 11–1929.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 2012.

Decided May 22, 2012.

John A. Baker (argued), Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff–Appellant.

William W. Kurnik (argued), Attorney, Knight, Hoppe, Kurnik & Knight, Ltd., Rosemont, IL, for Defendants–Appellees.

Before MANION and WILLIAMS, Circuit Judges, and CASTILLO, District Judge.^*

MANION, Circuit Judge.

Over the course of six months, Kenneth Kidwell, a sixteen-year veteran of the Danville, Illinois police department, publicly criticized several departmental officials at two police officers' union meetings. Roughly during that same time period, Kidwell also committed several violations of departmental policy and was punished accordingly with, among other things, a written reprimand and a two-day suspension. Then, after Kidwell failed to clear a fitness-for-duty evaluation, the department officials filed termination charges against him. The matter was assigned to arbitration where he was suspended but not terminated. Ultimately, Kidwell brought this suit under § 1983 against Danville's mayor and several department officials, alleging that the actions taken against him were in retaliation for the criticisms he voiced at the two union meetings. The district court held that Kidwell could not make out a prima facie case for retaliation and therefore granted summary judgment in favor of the defendants. We agree with the district court's conclusions, and thus affirm.

I.

Kenneth Kidwell has been a police officer for the city of Danville, Illinois since December 1992. In 1996 he was promoted to sergeant, a rank that he still holds. As a sergeant, Kidwell was a second-shift patrol supervisor. In addition, on January 1, 2006, Kidwell was assigned the collateral duty of supervising the Community Oriented Policing Service (“COPS”) Unit. The COPS Unit, which was composed of Kidwell and two other officers, was assigned to periodically patrol the Danville housing projects and assist with certain police investigations.

In March 2007, Defendant Doug Miller, a deputy director of the police department, received a call from an anonymous source who informed Miller that Danville gang members were planning a hit on two police officers. As the supervisor of the COPS Unit, Kidwell became involved in investigating this threat. After a period of time, Kidwell became displeased with the police department's progress, so he took it on himself to dig further into the investigation.

As part of this supplemental investigation, Kidwell cultivated a relationship with a confidential informant. Subsequently, the confidential informant was arrested for battering a woman and was jailed with a high bond. In December 2007, Kidwell approached an assistant state's attorney to request that the attorney talk to the judge about lowering the bond amount so that Kidwell could continue to work with the informant on the police assassination investigation. The attorney apparently agreed to seek a reduction of the bond amount. A few weeks later, Kidwell again met with the assistant state's attorney who told Kidwell that the judge had refused to lower the bond amount. So Kidwell personally met with the judge who apparently told Kidwell that the assistant state's attorney had never requested that the informant's bond amount be lowered. After Kidwell explained that the informant was helping him investigate a police assassination plot, the judge agreed to lower the amount of the bond. The state's attorney's office was upset that Kidwell had surreptitiously discussed the lowering of the informant's bond with a judge and complained to Defendant Larry Thomason, Director of Danville's Public Safety Department. Concerned about the future of the relationship between the police department and the state's attorney's office, Thomason initiated an investigation into Kidwell's actions. Although Kidwell was found not to have violated any police department rules, the department nevertheless changed its policy to forbid such backroom dealings with judges in the future.

Kidwell's first purported act of protected speech occurred soon thereafter, and a tumultuous year and a half ensued. On February 11, 2008, Kidwell and another officer made a joint presentation at the Police Benevolent and Protective Association (the “union”) meeting, expressing concern about the department's failure to follow through on the police assassination investigation. Kidwell also relayed the aforementioned incident where the assistant state's attorney had lied to him about attempting to have the confidential informant's bond lowered. Finally, Kidwell brought up the prospect of the union holding a no-confidence vote against the police department administration and the mayor. That vote apparently never occurred.

Next, on April 2, 2008, Kidwell approached Defendant Bob Richard, a deputy director of the police department, concerning an internal investigation Richard was conducting on a fellow officer, Tony Piatt. Kidwell asked Richard—while Piatt was within earshot—“Why are you headhunting him?” On April 15, pursuant to departmental rules and regulations, Richard issued Kidwell a “Written Reprimand at Division Level” for Kidwell's public headhunting comment.

Later in April 2008, Richard received word that Kidwell had been meeting with informants in Kidwell's personal vehicle while on duty and without anyone in the police department's knowledge. Concerned for Kidwell's safety, Richard instructed a police commander, John Miller, to meet with Kidwell and direct him not to meet with informants alone without first telling someone in the department. On May 1, 2008, Miller relayed the directive to Kidwell and emphasized that the directive was put in place out of concern for Kidwell's safety. Kidwell denied (and continues to deny) that he had met with informants in his personal vehicle while on duty. He contends that this policy was instituted solely for him.

On May 23, 2008, Richard informed Kidwell that the COPS Unit, which Kidwell supervised, was being combined with another unit named the Problem Oriented Policing (“POP”) Unit. Formed in June 2007, the POP Unit consisted of one sergeant and three officers and was organized under the police department's criminal investigations section. The record is not clear on how the COPS and POP Units were different, but it is apparent that they had overlapping roles. As Thomason put it, both units assisted detectives and shared resources. Thomason apparently was seeking to find a way to combine the COPS and POP Units beginning in June 2007 (the inception of the POP Unit), as the department was hit with economic and manpower constraints in the beginning of 2008. Thomason became further convinced that it would be a more efficient use of both resources and manpower to combine the two units under the investigations section. Specifically, because the patrol section was in need of more command personnel, combining the two investigation units had the effect of freeing up Kidwell to focus more on his supervisory role in the patrol section. And so the units merged and the COPS Unit was placed under the leadership of the POP Unit sergeant and the investigations section. Kidwell's leadership position was thus eliminated, and on June 25, 2008, Richard ordered Kidwell to turn in his COPS Unit-issued cell phone.

On August 8, 2008, Kidwell attended another union meeting where he engaged in another purported act of protected speech. Kidwell complained that Richard had interfered with a grievance that Kidwell had filed and had otherwise been acting contrary to the union's policies. Kidwell thus argued that Richard had a conflict of interest and asked that Richard be removed from the union. Kidwell was the primary presenter at this meeting, and Thomason, Richard, and Doug Miller were all in attendance.

On August 26, 2008, a little more than two weeks after the second union meeting, Kidwell received a call from the same confidential informant who had been helping Kidwell with the police-assassination investigation. The informant told Kidwell that he was in Chicago and in possession of an explosive device; he asked Kidwell to travel to Chicago so that the informant could turn the device over to Kidwell. So Kidwell traveled to Chicago in his personal vehicle without telling anyone in the police department (a trip of at least 120 miles one way), and took a civilian with him. On arrival, Kidwell discovered that the explosive device was actually a piece of firework. Confident that it would not explode in transit, Kidwell carried the device in his trunk back to the Danville police department. After returning to the department, Kidwell informed Richard that he had an explosive device in his trunk, and Richard directed Kidwell to call the bomb squad. Kidwell did so and was instructed to drive the device over to Ogden, Illinois, approximately 15 to 20 miles away, to turn it over to the bomb squad.

When Thomason learned of this episode, he was concerned about several aspects of Kidwell's conduct. Among those concerns was the fact that Kidwell had gone out of the police department's jurisdiction without notifying either his own chain of command or the Chicago police department, and that Kidwell had also potentially placed a civilian in danger. Thomason therefore called a meeting with Kidwell, who recounted the details of the trip, corroborating the information that Thomason had received. Thomason then informed Kidwell by memorandum that Kidwell was in violation of several departmental rules, and as punishment Kidwell was suspended for two days on September 17, 2008.

On the same day that his suspension began, September 17, 2008, Kidwell transported the same confidential informant to Burlington, Iowa, ostensibly so that the informant could receive medical treatment from a...