902 F.3d 500 (5th Cir. 2018), 17-40754, Mote v. Walthall

Docket Nº:17-40754
Citation:902 F.3d 500
Opinion Judge:W. EUGENE DAVIS, Circuit Judge:
Party Name:Marcus MOTE, Plaintiff-Appellee v. Debra WALTHALL, Defendant-Appellant.
Attorney:David K. Watsky, Christopher David Livingston, Esq., Lyon, Gorsky & Gilbert, L.L.P., Dallas, TX, for Plaintiff-Appellee. William Andrew Messer, Melissa H. Cranford, Brett Daniel Gardner, Messer, Rockefeller & Fort, P.L.L.C., Frisco, TX, for Defendant-Appellant.
Judge Panel:Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
Case Date:August 31, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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902 F.3d 500 (5th Cir. 2018)

Marcus MOTE, Plaintiff-Appellee


Debra WALTHALL, Defendant-Appellant.

No. 17-40754

United States Court of Appeals, Fifth Circuit

August 31, 2018

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Texas, Amos L. Mazzant, U.S. District Judge

David K. Watsky, Christopher David Livingston, Esq., Lyon, Gorsky & Gilbert, L.L.P., Dallas, TX, for Plaintiff-Appellee.

William Andrew Messer, Melissa H. Cranford, Brett Daniel Gardner, Messer, Rockefeller & Fort, P.L.L.C., Frisco, TX, for Defendant-Appellant.

Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.


W. EUGENE DAVIS, Circuit Judge:

The opinion issued August 31, 2018 is withdrawn, and the following is substituted therefor:

Police Chief Debra Walthall challenges the district court’s rejection of her qualified immunity defense. Walthall asserted this defense to a suit by Police Officer Marcus Mote under 42 U.S.C. § 1983 for wrongfully terminating him for exercising his First Amendment rights in connection with his efforts to organize a police association of members of the City of Corinth, Texas, Police Department. We agree with the district court that Mote’s association and speech rights to engage in the activities he alleged were clearly established. We therefore AFFIRM the district court’s denial of summary judgment on the basis of qualified immunity.

I. Background

Marcus Mote ("Mote") served as a police officer for the City of Corinth, Texas, Police Department ("Corinth PD" or "the department") from 2009 to 2015.1 During this time, Debra Walthall ("Walthall") served as Chief of Police for the Corinth PD. In January of 2015, Mote and his colleague Corporal Jason Foutch approached Walthall about starting a new Corinth police officers’ association affiliated with the Texas Municipal Police Association ("TMPA"), which would ultimately be known as the Corinth Police Officers’ Association ("CPOA"). Mote met with Walthall to request her support for the organization of the association. At the meeting, Mote detailed the association’s vision and mission statement, explaining that the association would exist to "support the officers, their families, and the community."

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Walthall indicated at the meeting that, as long as the association "stayed positive and true to this mission statement," she would support it. Mote then emailed the department employees— including all sergeants, corporals, and rank-and-file officers— stating the association’s mission statement and seeking their support. Mote represented that Walthall had given her support. In the next few days, several sergeants came to Mote stating that they had taken a copy of Mote’s email to Walthall, who had denied having had a discussion with Mote either about the association’s mission statement or about her support of the association.

Mote again met with Walthall. In that meeting, Walthall denied having had the earlier discussion with Mote about the association and its mission and denied offering her support. Again, Mote reiterated the mission statement of the association, and, again, Walthall gave her blessing, contingent on the association staying positive, but noted that if the association became negative "things will get ugly." Mote asked Walthall to issue a statement or email to the department to clarify her position, which she agreed to do, but never did. In the days following Mote’s email, Sergeants Clint Ventrca and Kevin Tyson expressed their displeasure about the association to Mote in heated conversations.

On February 11, 2015, Mote held an informational meeting for interested officers at a local restaurant. At this meeting, conducted with assistance from the TMPA, the prospective membership voted to establish the CPOA and its bylaws, limited its membership to corporals and lower-ranked officers, and selected its board members, with Mote being elected to the board as treasurer. On March 30, 2015, Mote filed the CPOA’s certificate of formation with the Texas Secretary of State. He included the purpose of the new non-profit corporation in the certificate, which reads as follows: The corporation shall be a voluntary nonprofit organization composed of peace officers and civilian employees of the Corinth Police Department, Corinth, Denton County, Texas. The corporation is organized for the general purposes of promoting benevolent, charitable, educational, civic, and fraternal activities among its members. In addition, the corporation is organized to preserve and strengthen camaraderie among its members; to improve the wages, hours of work, job security, working conditions, and living conditions of its members and their families; to promote the health, security, economic, cultural, legislative, educational, social, political, and recreational interest of its members and their families; to protect the civil rights and liberties of its members and their families; to assert a positive influence on the citizens and the community in which we serve; and to receive, gather, and disseminate such information as might be helpful to the members in the performance of their duties.

Soon after Mote began organizing the CPOA, Mote and other CPOA board members began getting written reprimands by the Corinth PD for what Mote considered petty violations, such as having a dirty squad car and failing to notify communications about off-duty assignments. Also, Mote alleges that several of his superior officers were strongly opposed to the association and complained to him about his efforts to organize it. He further alleges that the sergeants intimidated the rank-and-file and pressured them not to join the CPOA. Several officers approached Mote to tell him that, though they were interested in becoming a part of the CPOA, they feared retaliation for doing so.

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Mote was also disciplined for two more serious incidents. In the first incident, Mote received a written reprimand on July 30, 2014, for using the Texas Law Enforcement Telecommunication System without permission to review the driver’s licenses of approximately forty guests attending Lake Dallas High School’s prom while Mote was serving as the high school’s School Resources Officer ("SRO"). As a result, he was removed from the position of SRO.

In the second incident, Corinth PD determined, pursuant to an internal affairs investigation, that Mote violated several department policies by failing to act properly in the investigation of two intoxicated juveniles he observed outside a resident’s home while on patrol. On the recommendation of internal affairs and after a pre-disciplinary hearing on the second incident, Walthall terminated Mote on October 20, 2015. The Acting City Manager upheld Mote’s termination on appeal on December 23, 2015.

In February 2016, Mote filed suit against Walthall, alleging that he was terminated for exercising his First Amendment association and speech rights, as well as his procedural due process and equal protection rights pursuant to 42 U.S.C. § 1983. He also alleged statutory violations of Texas Government Code § 614.021 and Texas Labor Code § 101.301. He later withdrew his procedural due process claim.

Walthall filed a motion for summary judgment seeking dismissal of all of Mote’s claims. The district court, in a lengthy opinion, granted summary judgment in favor of Walthall on Mote’s equal protection and Texas Government Code § 614.021 claims but denied summary judgment as to Mote’s Texas Labor Code § 101.301 claim, his First Amendment claims, and Walthall’s qualified immunity defense. The district court found material issues of fact as to whether Mote’s speech and association rights were a substantial motivating factor for Mote’s termination. The district court specifically held that Mote’s association and speech rights were clearly established. This appeal is limited to Walthall’s challenge to that legal conclusion.

Walthall timely filed a notice of appeal disputing the district court’s denial of qualified immunity with respect to Mote’s First Amendment claims.

II. Jurisdiction and Standard of Review

Pre-trial denials of qualified immunity are immediately appealable as collateral orders because "qualified immunity includes immunity from suit— a right not to stand trial that would be ‘effectively lost if a case is erroneously permitted to go to trial.’ "[2] Thus, this Court has limited interlocutory jurisdiction "to review pure questions of law arising from the denial of motions to dismiss and motions for summary judgment in which public officials asserted qualified immunity as a defense."3

The only pure legal question we may answer at the qualified immunity stage is "whether a given course of conduct would be objectively...

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