Mikko v. City of Atlanta

• Decision Date: 26 May 2017
• Docket Number: No. 15-15135,15-15135
• Citation: 857 F.3d 1136
• Parties: Donald MIKKO, Plaintiff-Appellee, v. The CITY OF ATLANTA, GEORGIA, Defendant, Paul Howard, Fulton County District Attorney in his individual capacity, Sheila Ross, Assistant Fulton County District Attorney, in her individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

857 F.3d 1136

Donald MIKKO, Plaintiff-Appellee,

v.The CITY OF ATLANTA, GEORGIA, Defendant,Paul Howard, Fulton County District Attorney in his individual capacity, Sheila Ross, Assistant Fulton County District Attorney, in her individual capacity, Defendants-Appellants.

No. 15-15135

United States Court of Appeals, Eleventh Circuit.

May 26, 2017

Matthew C. Billips, Orr Brown & Billips, LLP, ATLANTA, GA, for Plaintiff-Appellee.

Michelle Jeanette Hirsch, Ronald Steve Boyter, Jr., Samuel Scott Olens, Attorney General's Office, ATLANTA, GA, Kirsten S. Daughdril, Attorney at Law, HOUSTON, TX, for Defendants-Appellants.

Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and CHAPPELL,^* District Judge.

ED CARNES, Chief Judge:

When Donald Mikko was hired by the Atlanta Police Department as the director of its crime lab, he negotiated a contract that allowed him to perform forensics consulting work for private parties in his spare time. After a Georgia district attorney learned that Mikko had written an expert report for and planned to testify in Florida on behalf of the defense in a criminal case, the district attorney contacted the Atlanta police chief to express his concerns. The police chief fired Mikko. Mikko sued the Georgia district attorney and one of his assistants, among others, under 42 U.S.C. § 1983, claiming that they had conspired to violate his First Amendment rights. The district attorney and his assistant appeal from the district court's denial of their motion for judgment on the pleadings based on prosecutorial immunity and qualified immunity.

I. FACTS AND PROCEDURAL HISTORY

Because we are reviewing a ruling on a motion for judgment on the pleadings, we accept all of the allegations in the complaint as true and view them in the light most favorable to Mikko, the nonmoving party. Douglas Asphalt Co. v. Qore, Inc. , 541 F.3d 1269, 1273 (11th Cir. 2008).

From April 2012 to June 2013 Mikko served as the crime lab director for the City of Atlanta Police Department. Through his education, work experience, and FBI training, he had expertise in firearms and toolmarks. In addition to his work for the crime lab, he wanted to do outside consulting work as an expert. According to Mikko, the contract he negotiated with the Atlanta Police Department when he was hired allowed him to "perform consulting work as a private citizen so long as it did not relate to criminal prosecutions within the City of Atlanta or any investigations in which the City of Atlanta Police Department was a participant."¹

At some point before June 2013, Mikko agreed to testify on behalf of a criminal defendant in Florida. His supervisor at the Atlanta Police Department called Mikko and told him that he had been "notified by the chain of command" that the prosecutor in the Florida case had sent a letter to Paul Howard, the District Attorney for Fulton County,² "seeking to prevent [Mikko] from testifying in his private capacity as an expert witness for the defense" in the Florida case. Mikko then called the attorney representing the criminal defendant in Florida. He explained to her that the prosecutor down there "was apparently trying to prevent [him] from testifying by interfering in his employment," and that "he did not think he would be able to testify, because of the call from [his supervisor]." Thereafter, the "Florida court" called Mikko to see why "he could no longer come down to give the scheduled deposition," and Mikko, over the course of half an hour, discussed with the court his telephone call from his supervisor.

The Florida prosecutor had also contacted Sheila Ross, the Chief Executive Senior Assistant District Attorney for Fulton County, and sent her a copy of Mikko's expert report. Mikko met with his supervisor, who called Ross and, without Ross' knowledge, put her on speakerphone so Mikko could hear the conversation. Mikko's supervisor told Ross that "he understood [that] she had received a letter about [Mikko] testifying as a witness for the defense in a private case." Ross stated she had not, but that she had received a copy of a forensic lab report prepared by Mikko for the defense in a criminal case in Florida. She also said that she couldn't believe that Mikko "was going to testify on behalf of the defense," that she had read Mikko's report and "it bad-mouthed Florida law enforcement," and that she had given the lab report to District Attorney Howard, who had spoken to the Chief of the Atlanta Police Department, George Turner, about the report.

During that same telephone conversation with Mikko's supervisor, Ross also explained that District Attorney Howard had said it did "not look good for Atlanta police people, especially the crime lab director, to testify against the prosecution," and that he did "not want anyone from [the Atlanta Police Department] testifying against the prosecution or against law enforcement." Ross told Mikko's supervisor that Howard "was not happy and that he had already talked to [Chief Turner]" about it. Ross also explained that she did "not know what the outcome of all this would be," but they "were already talking about what to do."

At his supervisor's request, Mikko prepared a memo justifying his outside consulting work. A day later, Mikko received an email from the deputy chief of police of Atlanta, asking to meet with him on June 12, 2013. At that meeting, the deputy chief told Mikko that Chief Turner had decided Mikko's services were "no longer needed" and Mikko was fired.

Mikko filed a lawsuit in Georgia state court against the City of Atlanta, Chief Turner, District Attorney Howard, and Senior Assistant District Attorney Ross alleging that he "was discharged from his employment because he had agreed to testify on behalf of a criminal defendant in a jury trial of a felony criminal matter." The complaint stated that the defendants' goal was to prevent him from testifying in criminal proceedings on behalf of the defendant in Florida, and that the defendants had harmed him because he intended to testify "in his private, secondary employment" on behalf of a criminal defendant. He alleged that the Florida prosecutor, Fulton County District Attorney Howard, Senior Assistant District Attorney Ross, and Chief Turner had all acted in an effort "to cause or induce [Mikko] to withhold ... his expert testimony and expert report on behalf of the defendant in a felony criminal proceeding then pending in a Florida court."

The remainder of the complaint makes it clear that at the time of the defendants' alleged actions, Mikko had not yet testified in the Florida case but he had agreed to do so.³ And at the time he was fired, he had prepared for the defense in that Florida case an expert report (a copy of which is not contained in the record). The complaint alleges that "the testimony he was expected to give had no relationship whatsoever to his duties as Crime Lab Director or [was] otherwise related to any aspect of his employment with the Atlanta Police Department," and that his expert report "exposed actions by the Florida police and/or prosecutors which constituted or caused the mishandling of evidence, thereby exposing governmental misfeasance or malfeasance."

Based on those allegations, Mikko asserted three state law claims and one federal law claim. The federal claim is the only one at issue here. It contended that the defendants are liable under 42 U.S.C. § 1983 because they "took action to unlawfully retaliate against [Mikko] on account of his [intended] testimony as a private citizen in a jury trial of a felony criminal proceeding, to prevent him from testifying in the future in that same proceeding, and to deter him and others from testifying in future proceedings, in violation of his rights under the First Amendment."

The defendants removed the case to federal court. District Attorney Howard and Senior Assistant District Attorney Ross moved for judgment on the pleadings on grounds of prosecutorial immunity and qualified immunity as to Mikko's federal claim, and on the ground of Georgia official immunity as to his state law claims. The district court granted their motion as to the state law claims, concluding that the prosecutors were entitled to official immunity under Georgia law. It denied their motion on the § 1983 claim, and the prosecutors appeal that part of the district court's judgment.

This is the interlocutory appeal of the district attorney and senior assistant district attorney (hereafter "the prosecutors" or "the Georgia prosecutors") from the denial of their motion for judgment on the pleadings based on prosecutorial and qualified immunity grounds. The City of Atlanta and the Chief of Police Turner are not parties in this appeal.

II. STANDARD OF REVIEW

We review de novo a district court's denial of a judgment on the pleadings.

Douglas Asphalt , 541 F.3d at 1273. Claims of absolute immunity present questions of law that we review de novo . Rich v. Dollar , 841 F.2d 1558, 1561 (11th Cir. 1988). We also review de novo an interlocutory appeal from the denial of qualified immunity. Douglas Asphalt , 541 F.3d at 1273.

III. DISCUSSION

The Supreme Court has recognized two kinds of immunity for prosecutors who are sued under § 1983 : absolute immunity and qualified immunity. Buckley v. Fitzsimmons , 509 U.S. 259, 268–69, 113 S.Ct. 2606, 2613, 125 L.Ed.2d 209 (1993). The prosecutors claim that they are entitled to both types of immunity. They are half right.

A. Absolute Immunity

Absolute prosecutorial immunity is function related. The defendant prosecutor must show that it is "justified for the function in question." Id. at 269, 113 S.Ct. at 2613. A prosecutor is immune from liability under § 1983 for his actions "in initiating a prosecution and in presenting the State's case," and for actions that are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman , 424 U.S. 409, 430–31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). That includes "actions preliminary to the...