848 F.3d 576 (4th Cir. 2017), 16-1039, Crouse v. Town of Moncks Corner

Docket Nº:16-1039
Citation:848 F.3d 576
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:RICHARD CROUSE; GEORGE T. WINNINGHAM, Plaintiffs - Appellants, v. TOWN OF MONCKS CORNER; JAMES CHAD CALDWELL, Chief of Police, Moncks Corner Police Department, Defendants - Appellees
Attorney:Shon Robert Hopwood, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellants. Christopher Wofford Johnson, GIGNILLIAT, SAVITZ & BETTIS, L.L.P., Columbia, South Carolina, for Appellees. Steven H. Goldblatt, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C....
Judge Panel:Before WILKINSON, MOTZ, and FLOYD, Circuit Judges. Judge Wilkinson wrote the opinion, in which Judge Floyd joined. Judge Motz wrote a separate opinion concurring in the judgment. DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judgment:
Case Date:February 15, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

Two police officers appealed their dismissal from the force, alleging retaliation for the exercise of their First Amendment rights. The district court granted qualified immunity to the police chief. The court held that the chief is entitled to qualified immunity because he could reasonably have believed that the officers were acting as police officers rather than private citizens and believed... (see full summary)

 
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Page 576

848 F.3d 576 (4th Cir. 2017)

RICHARD CROUSE; GEORGE T. WINNINGHAM, Plaintiffs - Appellants,

v.

TOWN OF MONCKS CORNER; JAMES CHAD CALDWELL, Chief of Police, Moncks Corner Police Department, Defendants - Appellees

No. 16-1039

United States Court of Appeals, Fourth Circuit

February 15, 2017

Argued December 7, 2016.

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Appeal from the United States District Court for the District of South Carolina, at Charleston. C. Weston Houck, Senior District Judge. (2:14-cv-00438-CWH).

ARGUED:

Shon Robert Hopwood, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellants.

Christopher Wofford Johnson, GIGNILLIAT, SAVITZ & BETTIS, L.L.P., Columbia, South Carolina, for Appellees.

ON BRIEF:

Steven H. Goldblatt, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.; Marybeth Mullaney, Mount Pleasant, South Carolina; Jennifer Munter Stark, Mount Pleasant, South Carolina, for Appellants.

Derwood L. Aydlette, III, GIGNILLIAT, SAVITZ & BETTIS, L.L.P., Columbia, South Carolina, for Appellees.

Before WILKINSON, MOTZ, and FLOYD, Circuit Judges. Judge Wilkinson wrote the opinion, in which Judge Floyd joined. Judge Motz wrote a separate opinion concurring in the judgment.

OPINION

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WILKINSON, Circuit Judge:

Appellants are two police officers who appeal their dismissal from the force, claiming that it was in retaliation for the exercise of their First Amendment rights. The district court granted qualified immunity to the police chief on the ground that it was unclear whether the officers had acted as private citizens or government employees. For the reasons that follow, we affirm the judgment.

I.

Plaintiffs Richard Crouse and George Winningham were detectives in the Moncks Corner Police Department until they were forced to resign in October 2013. Winningham was a corporal, and he reported directly to Crouse, a sergeant. Crouse, in turn, reported to Lieutenant Michael Roach. Roach's supervisors were Captain Mark Murray and, in charge of the entire department, Chief Chad Caldwell.

Crouse and Winningham had " good" relationships with Roach when they began to work for him, but those relationships deteriorated over time. J.A. 980, 1091. Crouse and Winningham complained about Roach's management style, his treatment of criminal suspects, and his showing the officers inappropriate pictures. Chief Caldwell agreed that Roach could be " argumentative" and " abrasive." J.A. 608. Another officer described Roach as " aggressive," but she felt that his approach as a detective " tend[ed] to work." J.A. 1323. Crouse discussed his complaints about Roach with both Captain Murray and Chief Caldwell, but until October 2013, these complaints did not include accusations of excessive use of force.1

The sequence of events leading to Crouse's and Winningham's resignations began with the arrest of James Berkeley on October 4, 2013. Berkeley had fallen asleep in his car in a Wal-Mart parking lot after taking the wrong medication. His three sons in the car could not wake him and alerted Wal-Mart security, who called the police. Roach was the first to arrive on the scene. Berkeley claims that Roach pulled him from the car and threw him to the ground, while Roach says that he pulled Berkeley out of the car to wake him up. A second Moncks Corner police officer, Shawnda Winder, arrived to find Berkeley

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standing outside of his car arguing with Roach. While she did not see the initial encounter, Winder felt that Roach was being rude to Berkeley and making the situation more difficult.

Roach and Winder learned that Berkeley had an outstanding arrest warrant and placed him under arrest in the back of Winder's patrol car. While Berkeley was in the patrol car, he and Roach began to argue again. Roach tried to shut the car door, but Berkeley's leg prevented it from closing. Roach tried to shut the door again and then used a knee strike to try to force Berkeley's leg into the car. Berkeley claims the knee strike hit his groin, while Roach claims the strike was to Berkeley's outer thigh. After the knee strike, Berkeley jumped out of the patrol car. Roach and Winder tried to push Berkeley back into the patrol car. Another officer on the scene, Officer Dozier, was able to force Berkeley onto the ground. Roach and Dozier held Berkeley down, and Roach threatened to use his Taser if Berkeley resisted further. Berkeley calmed down, and Dozier and Winder helped him back into the patrol car.

Crouse and Winningham learned about this incident the following Monday, October 7, 2013. That morning, another officer told Crouse and Winningham that he had heard that Roach had " kneed Mr. Berkeley in the" groin. J.A. 1116. Crouse and Winningham read the incident report and viewed pictures of Berkeley's injuries. Crouse discussed his concerns about the incident with Captain Murray.

The next day, Crouse and Winningham decided to talk to Berkeley. During their lunch, Crouse and Winningham drove to Berkeley's house. They were in plainclothes and driving an unmarked car, but their guns and badges were visible. After a few minutes sitting outside the house, they saw Berkeley and initiated a conversation with him. Crouse and Winningham encouraged him to file a complaint about Roach. They told him that other officers supported his version of the story, and Winningham suggested that Berkeley get an attorney. Crouse also handed Berkeley a form that the police department prepared for citizens to submit complaints about police officers. These forms were freely available in the police station and were distributed by clerical staff and police officers.

Crouse and Winningham made several efforts to conceal their visit to Berkeley. Crouse used a separate piece of paper to hold the citizen complaint form, ensuring that his fingers never touched the form that he gave to Berkeley. Crouse told Berkeley to pretend not to recognize the officers if they saw each other in the police station. After they left, the two officers initially agreed to say that Berkeley had flagged them down but ultimately decided to tell the truth if they were questioned.

Despite the officers' entreaties to Berkeley not to discuss their visit, he spoke with Officer Winder that day. He told her that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner Police Department. Winder informed Chief Caldwell, who assigned Lieutenant Mark Fields to investigate the entire incident--both Berkeley's claim of excessive use of force and the visit by the mysterious officers.

Fields began his investigation by reviewing the incident report and interviewing some of the officers who were present at Berkeley's arrest. On October 15, 2013, Fields interviewed Berkeley about both his arrest and the officers who had come by his house. Based on Berkeley's physical description of the two officers, Fields suspected that they were Crouse and Winningham.

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After reporting his suspicions to Chief Caldwell, Fields interviewed Crouse and Winningham separately. Both admitted to speaking with Berkeley and gave written statements describing what they had done. Fields told Chief Caldwell, who " was absolutely outraged." J.A. 687. Caldwell instructed Captain Murray to give Crouse and Winningham the opportunity to resign. Murray told Crouse and Winningham that if they did not resign, they would be terminated, and both officers resigned.

Fields's investigation into Berkeley's accusation of excessive force continued. After Fields finished his investigation, Chief Caldwell requested that the South Carolina Law Enforcement Division investigate the incident. That investigation ended in March 2014, when the local prosecutor determined that the evidence did not support seeking criminal charges against Roach for excessive use of force.

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. Relevant here, they raised a claim under 42 U.S.C. § 1983, arguing that their forced resignations had been an unconstitutional retaliation for the exercise of their First Amendment rights. At a hearing, the district court held that Chief Caldwell was entitled to qualified immunity on the First Amendment claim. The court reasoned that it was not clearly established law that Crouse and Winningham were acting as private citizens when they spoke to Berkeley and that, under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), acting as a private citizen was a necessary element of a First Amendment retaliation claim. The parties agreed to dismiss without prejudice two remaining claims.[2] Crouse and Winningham now appeal the grant of summary judgment on their First Amendment claim.

II.

It is well established that government workers do " not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of [their] employment." City of San Diego v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam). Underlying this rule is both the government employee's interest, " as a citizen, in commenting upon matters of public concern," Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and the community's interest in hearing those employees'" informed opinions on important public issues." Roe, 543 U.S. at 82. Nonetheless, " a governmental employer may impose certain restraints on the speech of its employees . . . that would be unconstitutional if applied to the general public." Id. at 80. A public agency has an interest " in promoting the efficiency of the public services it performs through its employees," Pickering, 391 U.S. at 568, and...

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