Kristofek v. Vill. of Orland Hills, Corp.

• Decision Date: 11 March 2013
• Docket Number: No. 12–2345.,12–2345.
• Citation: 712 F.3d 979
• Parties: David KRISTOFEK, Plaintiff–Appellant, v. VILLAGE OF ORLAND HILLS, a municipal corporation, and Thomas Scully, individually and in his official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 979

David KRISTOFEK, Plaintiff–Appellant,

v.VILLAGE OF ORLAND HILLS, a municipal corporation, and Thomas Scully, individually and in his official capacity, Defendants–Appellees.

No. 12–2345.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 9, 2013.

Decided March 11, 2013.

Keith A. Karlson, Attorney, Hinsdale, IL, Jerome Frank Marconi, Jr., Attorney, Law Offices of Jeromes F. Marconi, Chicago, IL, for Plaintiff–Appellant.

Kurt Austin Zimmer, Attorney, Del Galdo Law Group, LLC, Berwyn, IL, Patrick J. Ruberry, Attorney, Litchfield Cavo, Chicago, IL, for Defendants–Appellees.

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

In November 2010, Plaintiff David Kristofek, a part-time officer for the Village of Orland Hills Police Department, arrested a driver for traffic violations, but the driver turned out to be the son of a former mayor of a nearby town. Because of the driver's political connections, Kristofek was ordered to let him go. Kristofek strongly disagreed with what he believed was political corruption and expressed such concerns to his fellow officers, his supervisors, and eventually the FBI. When Police Chief Thomas Scully found out about this conduct, he fired him.

Kristofek sued, bringing First Amendment retaliation claims against Scully and the Village of Orland Hills pursuant to 42 U.S.C. § 1983. The district court granted the defendants' motions to dismiss, finding that Kristofek's speech did not involve a matter of public concern, principally because his sole motive was to protect himself from civil and criminal liability. The defendants-appellees rely solely on this reasoning as a basis for affirming on appeal. But the complaint does not allege that Kristofek's only motive was self-interested, and the mere existence of a self-interested motive does not preclude the plausibility of mixed motives, which is consistent with protected speech. We also find that Kristofek has plausibly pled, albeit barely, that Scully had at least de facto authority to set policy for hiring and firing, sufficient to sustain a Monell claim against the Village of Orland Hills. For these reasons, we reverse and remand.

I. BACKGROUND

Because this case is considered on a motion to dismiss for failure to state a claim, we assume the facts alleged in the complaint to be true. Plaintiff David Kristofek was a part-time police officer for the Village of Orland Hills. On November 12, 2010, while on routine patrol, Kristofek ran the license plate of an automobile and discovered that the registration was suspended. (The complaint does not say why he ran the plate, and it does not matter.) He pulled the vehicle over and asked the driver to produce proof of valid insurance, but the driver was unable to do so. Kristofek wrote two traffic tickets for the suspended registration and the absence of proof of insurance, and pursuant to police department policy, arrested the driver and had the vehicle towed. Additional officers arrived on the scene to help Kristofek take the driver to the police station.

During the arrest, the driver told the officers that his mother was a former mayor of a nearby town and asked to be released. The driver's girlfriend, who was a passenger in the vehicle, gave Kristofek a cell phone and said that the driver's mother was on the phone. The driver's mother asked Kristofek not to arrest her son, but Kristofek explained that under police department policy concerning certain traffic violations, he had no choice.

After taking the driver to the police station, Kristofek began filling out the arrest paperwork and entering the driver's booking information into the computer system. Other officers suddenly came in and told Kristofek to stop what he was doing, give all the paperwork to the deputy chief, and delete any information about the driver from the computer system. Kristofek believed he had done nothing wrong, so he personally confronted the deputy chief, who responded, “Did you not understand what you were [expletive] told?” Kristofek relented, gave the documents to the deputy chief, and released the driver.

A couple of days later, Kristofek ran into the deputy chief, who told him that Kristofek had made a “good arrest” but that the driver's release from custody was “above you and I.” Kristofek said he disagreed with the decision to release the driver simply because his mother was politically connected. Kristofek expressed concern “that the unequal application of the law due to political considerations was improper and possibl[y] illegal.” (The complaint is actually ambiguous as to whether he expressed this concern to the deputy chief or kept it to himself; we assume that he expressed it.)

Several months later, in April 2011, Kristofek participated in an online police training seminar, which posed a hypothetical that was coincidentally similar to what happened in November 2010. In the hypothetical, an officer makes a valid arrest and booking, but the supervisor takes the paperwork and orders the release of the arrestee, so that the arrestee may “evade prosecution.” The training simulation said that in this situation, the supervisor has committed a crime, because “in a case with similar facts, an Illinois appellate court ruled that a police officer is a public employee under the ‘official misconduct’ statute and can be prosecuted for a violation.”

After this training, Kristofek's concerns about the incident “escalated because of the possible criminal and civil liability.” He then spoke to the other officers who had assisted in the arrest, expressing his concerns that he and the other officers were potentially involved with political corruption and that they may have committed a crime. He then consulted an attorney, and pursuant to the attorney's advice, Kristofek told the FBI about the arrest and about “possible political corruption in the Orland Hills Police Department and/or Village of Orland Hills,” and said that he was not sure if the order to release the driver came from the police department or the mayor's office. The FBI agent said that there would be an investigation. Kristofek then went back to the other officers and told them that he had contacted the FBI out of his concern that he and the other officers could be accused of committing a crime.

On April 21, 2011, Kristofek was ordered to report to Police Chief Thomas Scully. Scully “angrily” said that he had heard that Kristofek was speaking to other officers about “possible corruption and illegal activity” concerning the release of the driver. Kristofek told Scully that he was concerned about exposing himself and the police department to liability and “wanted no part of it,” and he revealed that he had reported the incident to “an outside law enforcement agency” to protect himself. Scully said that he needed to be able to trust his police officers and that he no longer trusted him “for speaking to other persons about the circumstances of the arrest of the driver.” Scully then told Kristofek that he had two options: resign or have his employment terminated, and that if Kristofek could not decide, Scully would decide for him. Kristofek said he had done nothing wrong, and so he would not resign. Scully then terminated his employment, and Kristofek was immediately escorted out of the building in front of his coworkers. Two of the other officers who participated in the arrest have since left the police department.

Kristofek subsequently sued Scully and the Village of Orland Hills (collectively, “Orland Hills”), claiming pursuant to section 1983 that his First Amendment rights were violated when he was fired in retaliation for his statements to the other officers and the FBI about “possible political corruption, political favoritism, and criminal activity,” made in his capacity as a citizen “contesting the unequal application of the laws to its citizens.” He also brought several state law claims, including under the Illinois Whistleblower Act. The defendants moved to dismiss, and the district court granted their motions, finding that Kristofek's speech was not protected under the First Amendment because it did not involve matters of public concern. In so finding, the court emphasized that, according to the complaint itself, Kristofek's sole motive in spreading the word about political corruption was to protect himself from civil and criminal liability. The court then declined to exercise supplemental jurisdiction over the state law claims. Kristofek appealed.

II. ANALYSIS

In concluding below that Kristofek has stated viable First Amendment claims against Orland Hills, we emphasize that we are construing Kristofek's complaint liberally, assuming all of his factual allegations to be true, and drawing all reasonable inferences in his favor, as we must at this early stage. Nothing in this opinion should be read to prejudge whether the evidence will show that Kristofek's claims about Orland Hills's practices are meritorious.

A. Kristofek's Speech, Notwithstanding His Motives, Was a Matter of Public Concern

Kristofek claims that he was fired in retaliation for his speech concerning the wrongfulness of the police department's release of the driver due to the driver's political connections. A viable First Amendment retaliation claim by a public employee requires, at a minimum, that the speech being retaliated against be constitutionally protected, which means that the speech must involve a matter of “public concern.” See Chaklos v. Stevens, 560 F.3d 705, 712 (7th Cir.2009). ¹ “Whether a statement rises to the level of public concern is a question of law, and in answering this question we look to the ‘content, form, and context’ of the statement.” Id. (citing Connick v. Myers, 461 U.S. 138, 147–48, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). The motive of the speaker is relevant as part of the “context” in which the speech was made, id. at 714, but content “remains the most important factor in...