757 F.3d 734 (8th Cir. 2014), 12-3249, Nord v. Walsh County

Docket Nº:12-3249
Citation:757 F.3d 734
Opinion Judge:BEAM, Circuit Judge.
Party Name:Ron Nord, Plaintiff - Appellee v. Walsh County, a North Dakota political subdivision; Lauren W. Wild, individually and in his capacity as Sheriff of Walsh County, Defendants - Appellants
Attorney:For Ron Nord, Plaintiff - Appellee: Sara Rae Behrens, Scott J. Landa, ZIMNEY & FOSTER, Grand Forks, ND. For Walsh County, a North Dakota political subdivision, Lauren W. Wild, individually and in his capacity as Sheriff of Walsh County, Defendants - Appellants: Ronald F. Fischer, Daniel L. Gausta...
Judge Panel:Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges. SHEPHERD, Circuit Judge, dissenting. SHEPHERD, Circuit Judge, dissenting.
Case Date:June 26, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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757 F.3d 734 (8th Cir. 2014)

Ron Nord, Plaintiff - Appellee

v.

Walsh County, a North Dakota political subdivision; Lauren W. Wild, individually and in his capacity as Sheriff of Walsh County, Defendants - Appellants

No. 12-3249

United States Court of Appeals, Eighth Circuit

June 26, 2014

Submitted October 23, 2013

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[Copyrighted Material Omitted]

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Appeal from United States District Court for the District of North Dakota - Fargo.

For Ron Nord, Plaintiff - Appellee: Sara Rae Behrens, Scott J. Landa, ZIMNEY & FOSTER, Grand Forks, ND.

For Walsh County, a North Dakota political subdivision, Lauren W. Wild, individually and in his capacity as Sheriff of Walsh County, Defendants - Appellants: Ronald F. Fischer, Daniel L. Gaustad, PEARSON & CHRISTENSEN, Grand Forks, ND.

Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges. SHEPHERD, Circuit Judge, dissenting.

OPINION

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BEAM, Circuit Judge.

Ron Nord brought this 42 U.S.C. § 1983 action against Walsh County (the " County" ) and Lauren Wild, both in his individual capacity and in his capacity as sheriff of Walsh County, alleging violations of his First Amendment and Fourteenth Amendment rights and various state law claims. Wild moved for summary judgment based upon qualified immunity as to Nord's First Amendment claim, which the district court denied.1 Wild, supported by the County, brings this interlocutory appeal.2 We reverse.

I. BACKGROUND

From 1991 until his termination on November 3, 2010, Nord was employed as a deputy sheriff in Walsh County, North Dakota. He served at the pleasure of Sheriff Lauren Wild, who had been the duly elected sheriff since 1989. In early 2010, Nord entered the sheriff election, running against Wild. Both Nord and Wild earned enough votes in the primary election to appear on the general election ballot.3 During Nord's campaign, he

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maintained his position as deputy sheriff without any change in pay or benefits and, according to Wild's deposition testimony, performed his duties as deputy sheriff. Nord does not assert that Wild in any way interfered with his campaign efforts. On November 2, 2010, Wild won the election.

The day following the election Wild called Nord into the office at 8:00 a.m., rather than his scheduled 1:00 p.m. shift, and terminated Nord's employment. Prior to terminating Nord, Wild consulted Tanya Wieler, the County's human resources consultant, and Barbara Whelan, the Walsh County attorney, regarding Nord's tenure. Both Wieler and Whelan told Wild he was within his authority as sheriff to terminate Nord.

Nord's termination caused some unrest in the County and resulted in a recall election, which Wild also won. During the recall election, Wild made statements that Nord was fired in accordance with an " unwritten rule" that deputy sheriffs who run against the sheriff will be fired and for certain statements Nord made during the campaign. After his termination, Nord searched for another job, and in May 2011, was hired as a deputy in the Grand Forks County Sheriff's Department.

On December 17, 2010, Nord filed this § 1983 lawsuit against Walsh County and Wild. Nord alleged that he was fired in retaliation for the statements he made along the campaign trail, statements, he claims, that were protected by the First Amendment. Wild moved for summary judgment asserting a qualified immunity defense, which the district court denied. Wild appeals the denial of qualified immunity.

II. DISCUSSION

We review a denial of summary judgment on the grounds of qualified immunity de novo. Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir. 2013). " Summary judgment is appropriate when the evidence viewed in the light most favorable to the nonmoving party presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. (quotation omitted). We have limited jurisdiction to hear an interlocutory appeal of a district court's denial of qualified immunity. Robbins v. Becker, 715 F.3d 691, 693 (8th Cir. 2013). We may review a district court's order denying such immunity to the extent that it turns on an issue of law, but we have no jurisdiction if the pretrial record sets forth genuine issues of fact necessary for resolution of the interlocutory appeal. Id. No such factual issues present themselves in this case.

" In a § 1983 action, qualified immunity shields a government official from liability unless his conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Coker v. Ark. State Police, 734 F.3d 838, 841-42 (8th Cir. 2013) (internal quotations omitted). Qualified immunity analysis requires a two-step inquiry: " '(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct.'" Winslow v. Smith, 696 F.3d 716, 731 (8th Cir. 2012) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). Unless both of these questions are answered affirmatively, an appellant is entitled to qualified immunity. Id. And, courts are " permitted to exercise their

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sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

We begin with the first step of the qualified immunity inquiry. In this limited context, Wild concedes that Nord was terminated in violation of his First Amendment rights under the first prong of the investigation. Assuming, without holding, that this is true, we conclude that step one of the qualified immunity analysis has been sufficiently established for purposes of further inquiry.

Despite this concession, Wild contends that given the circumstances of this dispute, qualified immunity nonetheless protects him because his act of terminating Nord did not violate a " clearly established statutory or constitutional right[] of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation omitted).

For a constitutional right to be clearly established, its contours " must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent."

Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (internal citation omitted).

As the Supreme Court has recently reiterated, " '[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments,' and 'protects all but the plainly incompetent or those who knowingly violate the law.'" Stanton v. Sims, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (internal quotation omitted)). In addition, " existing precedent must have placed the statutory or constitutional question beyond debate." Id. (quotation omitted).

To evaluate whether Nord makes out a claim that his constitutional rights were clearly established and violated by Wild's act of termination, we must determine whether or not his particular speech was protected by the First Amendment. Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000). This inquiry is one of law, not fact. Hinshaw v. Smith, 436 F.3d 997, 1004 (8th Cir. 2006).4

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This protected or not conundrum and well-established Supreme Court precedent brings into play the use of the so-called Pickering/Connick balancing test. See Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); see also Shockency v. Ramsey Cnty., 493 F.3d 941, 949 (8th Cir. 2007). As an initial matter, if the record supports the application of the test, it provides a balancing of Nord's First Amendment rights against Wild's state government employer prerogatives in an exercise that determines whether the contours of Nord's asserted rights were clearly enough established to make Wild's conduct actionable. See Shockency, 493 F.3d at 948.

If, upon application of the test, Nord's rights were not clearly established, Wild is, of course, entitled to a qualified immunity defense against Nord's claims. Indeed, if the evidence in the record is sufficient to proceed with the Pickering/Connick balancing exercise, this circuit has held that " the asserted First Amendment right will rarely be considered clearly established." Hall v. Mo. Highway & Transp. Comm'n, 235 F.3d 1065, 1068 (8th Cir. 2000).

To determine whether and how to apply Pickering/Connick, we turn to the record to make a substantive analysis of Nord's speech and Wild's rights as a public employer. See Pickering, 391 U.S. at 568-70. This analysis requires a two-step inquiry. " First, we determine whether the employee's speech can be 'fairly characterized as constituting speech on a matter of public concern.'" Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000) (quoting Connick, 461 U.S. at 146). " Second, if the speech addresses a matter of public concern, we balance the 'interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Id. (alteration in original) (quoting Pickering, 391 U.S. at 568).

[A]pplying the...

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