738 F.3d 818 (7th Cir. 2013), 12-2675, Swetlik v. Crawford

Docket Nº:12-2675.
Citation:738 F.3d 818
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Brian W. SWETLIK, Plaintiff-Appellant, v. Kevin CRAWFORD, Former Mayor, individually and in his official capacity, et al., Defendants-Appellees.
Attorney:William Rettko, Rettko Law Offices, Brookfield, WI, for Plaintiff-Appellant. Gregg J. Gunta, Kevin P. Reak, Gunta & Reak, S.C., Wauwatosa, WI, for Defendants-Appellees.
Judge Panel:Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge, concurring.
Case Date:December 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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738 F.3d 818 (7th Cir. 2013)

Brian W. SWETLIK, Plaintiff-Appellant,


Kevin CRAWFORD, Former Mayor, individually and in his official capacity, et al., Defendants-Appellees.

No. 12-2675.

United States Court of Appeals, Seventh Circuit.

December 23, 2013

Argued Nov. 1, 2012.

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[Copyrighted Material Omitted]

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William Rettko, Rettko Law Offices, Brookfield, WI, for Plaintiff-Appellant.

Gregg J. Gunta, Kevin P. Reak, Gunta & Reak, S.C., Wauwatosa, WI, for Defendants-Appellees.

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Brian Swetlik is a police detective in Manitowoc, Wisconsin. Swetlik sued the City of Manitowoc, its mayor, and members of its Common Council, alleging that they violated his First Amendment rights by voting to file a termination charge against him with the Manitowoc Police and Fire Commission. The voted after an outside

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investigation recommended Swetlik's termination based on its finding that he had been untruthful in statements about the police chief. Swetlik argues that the charges were actually in retaliation for his public criticism of the chief, which he made in his capacity as a union member supporting the union's demands for the chief's resignation. The Police and Fire Commission later dismissed the charges against Swetlik and he was reinstated after a period of paid administrative leave. In the end, it was actually the chief who lost his job.

The district court granted summary judgment for the finding that Swetlik's statements were not protected speech because they did not address a matter of public concern and, alternatively, that the were justified in bringing the charge against him based on the recommendation of the investigation. We agree with the district court on the second ground and affirm on that basis.

I. Factual and Procedural Background

Because we are reviewing a grant of summary judgment, we must view the evidence in the light reasonably most favorable to Swetlik as the non-moving party, and we must give him the benefit of reasonable inferences in his favor. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012). In November 2005, the Manitowoc police brought into custody a man suspected of stabbing a police officer. The central controversy in this case begins with an odd incident involving this suspect's custody. The suspect was apparently refusing to eat, and police officers believed he was mentally unstable. For reasons that are unclear, Police Chief Perry Kingsbury arranged for the suspect's mother to bring him a home-cooked meal at the police station. But the chief's wishes were not relayed to the officers taking the suspect to jail, including Swetlik. Before the home-cooked meal arrived, Swetlik and other officers had already taken the suspect to the county jail for booking. When Chief Kingsbury discovered this, he called the jail and spoke with Swetlik.

This telephone call is at the heart of this dispute. Swetlik said a great deal about this telephone call, both publicly and privately, before he eventually learned that it had been recorded. The actual contents of the conversation are no longer disputed. During the call, Chief Kingsbury explained that he wanted to get the suspect the home-cooked meal, but Swetlik said the jail would not permit outside food. After Kingsbury learned that the suspect's booking process had already begun, the conversation proceeded as follows:

Chief: Okay. Stop the process, bring him back, we've got some more questions to do.

Swetlik: Okay. Should I ask him if he wants to— if he wants to, he might not?

Chief: Well, just— just— why— why can't we just say that hey, we— I'm sorry, we forgot, we've got a few more questions to ask and is there— do you— do you mind coming back over to the department to answer the question?

[Swetlik then asked the suspect if he wanted to come back to the station for food from his mother; the suspect said he did not want any food; Swetlik got back on the telephone with Chief Kingsbury]

Chief: So you didn't do what I asked you to do. You started talking about the food. What I asked you to do is say hey, you mind coming back over and ask a few questions, we forgot about something. And that's okay, you went about it your way, but— and now he doesn't want anything so just let him get booked—

... Just let him get booked and whatever— whatever happens, happens. Okay?

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Swetlik: Okay. He'll— he'll— he'll visit with her later, he just—

Chief: Whatever.

Swetlik:— he don't— he don't want to eat anything.

Chief: Well, I understand that but we— we— we might have been able to get him a meal, okay. But that's okay, we might not have been.

Swetlik: Okay.

Chief: We'll catch ya later.

Swetlik: Okay. Bye.

Swetlik interpreted the chief's words as an instruction to lie to the jailers by telling them that police wanted to question the suspect further. He also misunderstood the chief's final words to be " I will deal with you later" and took them as a threat. Swetlik was upset. He told the police officers who were with him that Chief Kingsbury had told him to lie and had threatened him for not doing so. Later that day he reported the same to a deputy chief of police, who apparently took no action on Swetlik's complaint.

Swetlik was not the only one who had complaints about Chief Kingsbury. The police union took a vote of no confidence in Kingsbury in early 2006 and compiled a list of grievances against him and the general operation of the police department with regard to public safety and department morale. Swetlik added this grievance to the list:

Chief has told officers to lie to other agencies (Golden Attack)[.] A suspect was taken to MTSO after the stabbing [of] an officer and while being booked in called an officer and told him to bring the suspect back to the PD for a homecooked meal from the suspect[']s mother. When the officer asked what he was suppose[d] to tell the jail staff the chief told him to lie and say there were more questions to be asked. The officer refused and the chief said, " I will deal with you later[.]" Nothing was done.

The union marched to city hall to present its list of 37 grievances and to demand the resignation of Chief Kingsbury. They presented the grievances and demand to the mayor, the Common Council, and members of the Police and Fire Commission. Kingsbury responded by arranging a mediation session between the union and one of his deputies. After mediation failed, Kingsbury sought to have an outside investigation into the veracity of the union's complaints. He and his private attorney discussed the possibility with the mayor, and the three agreed that an investigation for the purpose of getting " to the heart of the complaints from the view of an outside investigator" would be appropriate. Kingsbury sent a letter to the mayor formally requesting an investigation into the union's complaints against him and the department. The mayor agreed and the city attorney hired an outside investigator, the law firm of DeWitt Ross & Stevens, S.C.1

In authorizing the investigation, the mayor explained that its purpose was to " bring this long-debated issue in our community to a close" by investigating the " alleged complaints and accusations against Chief Perry Kingsbury and his administration, and all related issues and incidents." Swetlik maintains that the purpose of the investigation was to silence the union, pointing to statements by the private attorney who represented Chief Kingsbury throughout the investigation. The attorney told the investigators:

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" When you have got that much [union] noise going on, you can't be bopping everybody. He [the Chief] wouldn't have a department. Which one, who, and how? Part of the reason you guys are in here is to help us sort out [who's] on first, second, and third. It's hard enough just running the PD let alone trying to figure out all this intrigue." The chief's attorney also told the investigators that Swetlik exemplified the union's agenda and that he had a " poisoned" attitude.

Over the next year, the law firm conducted more than 80 interviews. Swetlik was interviewed three times about the telephone call and his allegations that Chief Kingsbury threatened him for not following his instructions to lie to the jailers. Before his interviews, though, he had listened to the recording of the conversation. During his first interview, Swetlik conceded that Chief Kingsbury did not actually say the words that he had earlier claimed were a threat (" I will deal with you later" ). Still, Swetlik maintained that Kingsbury had directed him to lie to the jailers rather than to the suspect. (The assumption shared by all parties is that deception of suspects is an accepted part of interrogation, but that law enforcement officers must be honest with each other.)

The investigators' report ultimately recommended to the mayor and the council that both Swetlik and Chief Kingsbury be terminated (as well as another officer). With regard to Kingsbury, the report addressed over a dozen allegations against him and found that most were valid. Based on those findings, it recommended that Kingsbury be removed for " inefficiency," " official misconduct," and " malfeasance in office." With regard to Swetlik, the report recommended termination because he had lied about the telephone call with Kingsbury, and lying violated a department rule. The report said:

[T]here is no doubt that [Swetlik] lied to other officers about the Chief allegedly instructing him to lie to the sheriff's department deputies and threatening him for failing to do so. Perhaps more importantly, however, is that Detective Sergeant Swetlik allowed those lies to be perpetuated and brought forth to the Police and...

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