Lynch v. Ackley

• Decision Date: 28 January 2016
• Docket Number: Docket No. 14–3751–cv.
• Citation: 811 F.3d 569
• Parties: Todd LYNCH, Plaintiff–Appellee, v. Margaret ACKLEY, Defendant–Appellant, City of New London, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

811 F.3d 569

Todd LYNCH, Plaintiff–Appellee,
v.
Margaret ACKLEY, Defendant–Appellant,

City of New London, Defendant.

Docket No. 14–3751–cv.

United States Court of Appeals, Second Circuit.

Argued: May 8, 2015.
Decided: Jan. 28, 2016.

811 F.3d 573

Michael J. Rose, Rose Kallor, LLP, Hartford, CT (Allison L. Pannozzo, on the brief), for Defendant–Appellant.

Christine S. Synodi, Synodi & Videll, LLC, Waterford, CT, for Plaintiff–Appellee.

Before: LEVAL, LOHIER, and DRONEY, Circuit Judges.

LEVAL, Circuit Judge:

Defendant Margaret Ackley, Chief of the New London Police Department ("NLPD"), appeals from the order of the United States District Court for the District of Connecticut (Shea, J. ) denying her motion for summary judgment on the ground of qualified immunity. The plaintiff, Todd Lynch, a police officer and a member and officer of the police union, alleges under 42 U.S.C. § 1983 (as well as making claims based on Connecticut law) that Ackley violated his First Amendment rights by retaliating against him for various episodes of speech critical of Ackley's performance as Chief. Ackley moved for summary judgment dismissing the § 1983 claims by reason of qualified immunity. The district court concluded that Lynch made a prima facie case for unconstitutional retaliation and that factual issues in dispute prevented the court from ruling on whether Ackley was entitled to qualified immunity under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The court therefore reserved decision on Ackley's qualified immunity defense until a jury could resolve the factual issues at trial.

The court did not correctly apply the law for determining whether a state actor is entitled by reason of qualified immunity to dismissal of a suit charging her under § 1983 with unconstitutional conduct. The defendant was entitled to have the court construe disputed facts in the light most favorable to the plaintiff and dismiss the claim if, at the time of the defendant's conduct, the law was unclear whether the facts, so construed, constituted a violation of the plaintiff's constitutional rights. We conclude that Ackley established her entitlement to summary judgment on Lynch's § 1983 claims by reason of her qualified immunity.

BACKGROUND

I. Factual Background

Plaintiff Lynch has been a New London patrolman and canine handler (K–9) since 2007, having previously served in the Connecticut State Police. In March 2011, he became Vice President of the New London Police Union, AFSCME Local 724 (the "Union"), and became President in November 2011. Defendant Ackley has been

811 F.3d 574

Chief of the NLPD since June 2009. Lynch submitted evidence showing that over a period of roughly three years beginning in August 2010, he spoke on eight occasions, either publicly or in union meetings, criticizing Ackley's performance of her responsibilities, and evidence sufficient for a factfinder to find that Ackley retaliated. Those episodes of speech and associations by Lynch and Ackley's alleged retaliatory actions were as follows.¹

(1) In August 2010, Lynch advocated among the union membership that the Union assert a grievance protesting Ackley's uninvited presence at a union meeting convened to discuss the NLPD's flex-time policy. Lynch asserts that, as retaliation, the department, claiming to be acting in compliance with the terms of the Union's collective bargaining agreement (the "CBA"), revoked compensation time accrued by him and by two other K–9 officers.

(2) At a September 2010 union meeting, Lynch asked that the Union consider a no-confidence vote against Ackley, expressing lack of confidence in her leadership. Later that month, Lynch was denied paid leave to attend the funeral of a former state police classmate, and was not allowed to attend a K–9 conference. He was also advised in October that he would not receive a $500 insurance stipend because he had not properly opted out of his insurance plan during the open enrollment period.

(3) In June 2011, the Union, with Lynch now serving as Vice President, endorsed the mayoral candidacy of City Councilor Michael Buscetto, who was an openly avowed critic of Ackley. In August and September 2011, in alleged retaliation Ackley sent emails to Kathleen Mitchell, a local political commentator, suggesting that Mitchell submit Freedom of Information requests to obtain civilian complaints filed against Lynch and the NLPD's K–9 unit.²

(4) In September 2011, the Union sponsored a paid advertisement in The Day, a New London newspaper, titled "Open Letter to the Citizens of New London," which questioned Ackley's leadership and asserted that her lack of judgment was negatively affecting police operations and public safety. The following day, Ackley sent Mitchell an email suggesting that she investigate Lynch's time sheets from the time of his service in the Connecticut State Police. In October, Ackley eliminated the day shift to which Lynch was assigned.³ Ackley later ordered Deputy Chief Marshall Segar to investigate Lynch's use of union-business leave.

(5) In February 2012, Lynch wrote to the mayor accusing Ackley of violating New London Executive Order No. 004, which prohibits officers from inquiring about an individual's immigration status

811 F.3d 575

unless it directly pertains to a criminal investigation. The letter noted that, in view of a police officer's duty to inform the chain of command of violations of the law, Lynch was obligated to bring Ackley's violation of law to the mayor's attention, as the mayor was at the top of the chain of command. Ackley, allegedly in retaliation, then ordered that a sergeant be present for all K–9 training, urged the mayor and city council to reduce the K–9 unit's budget, and, in response to the mayor's request, sent him statistical information reflecting a racial disparity in bites by K–9 dogs.

(6) In September 2012, Lynch wrote to the mayor on behalf of the Union, expressing the Union's concern that the NLPD's depleted officer ranks were jeopardizing public safety, and later, at the city council's request, Lynch participated in an October 2012 public safety committee ("PSC") meeting discussing the issues raised in Lynch's letter. Ackley then denied Lynch overtime pay for attending the PSC meeting, and in November removed certain K–9 unit records from his control.

(7) In May 2013, Lynch spoke at a PSC meeting on whether civilian complaints against officers should be discussed in open or executive session. Ackley later revoked Lynch's union business leave and placed him on AWOL status when he did not return to work as ordered after a collective bargaining meeting broke down.

(8) Finally, in June 2013, speaking at another PSC meeting, Lynch spoke of low police department morale and a high turnover rate of officers, and expressed concern that two dogs from the K–9 unit had been forced to retire. Ackley then limited K–9 unit training. In addition, when asked for guidance by a mayoral assistant who had received a Freedom of Information request from a reporter for The Day, Ackley advised him to proceed in accordance with City policy. The reporter then published an article discussing racial disparity in bites by K–9 dogs, focusing on an incident involving Lynch and his K–9 dog.

II. Procedural History

On March 15, 2012, Lynch filed a complaint in Connecticut Superior Court alleging, inter alia, a claim against Ackley and the City of New London (the "City") under § 1983 for First Amendment retaliation.⁴ Defendants removed the action to the federal district court, and Ackley moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the First Amended Complaint on the basis of qualified immunity. The district court (then Arterton, J. ) denied the motion.⁵ Lynch then filed this Second Amended Complaint, which added allegations that Ackley retaliated against him for two new instances of speech. Ackley renewed her motion, now seeking dismissal of the Second Amended Complaint.

811 F.3d 576

The district court (Shea, J. ) denied the motion.

At the conclusion of discovery, Ackley moved for summary judgment, arguing, with respect to Lynch's § 1983 claims, that her conduct did not violate the First Amendment and that, in any event, she was entitled to have the case against her dismissed by reason of her qualified immunity. The district court denied Ackley's motion. Lynch v. Ackley, No. 3:12–CV–537 (MPS), 2014 WL 4782812 (D.Conn. Sept. 24, 2014). The court ruled that Lynch's speech was protected from retaliation by the First Amendment and that Lynch raised genuine issues of fact as to whether Ackley's conduct amounted to an adverse employment action, whether Ackley had a retaliatory motive for taking those actions, and whether, under the Pickering balancing test, Ackley's interests in preventing disruption of the operations of the department clearly outweighed Lynch's interests in speaking on matters of public concern. As the result of these disputed issues of fact, the court reasoned that it could not yet determine whether Ackley violated Lynch's First Amendment rights. With...