918 F.2d 104 (9th Cir. 1990), 88-3994, Burgess v. Pierce County

Docket Nº:88-3994.
Citation:918 F.2d 104
Party Name:John W. BURGESS; Linda M. Burgess, husband and wife, Plaintiffs-Appellees, v. PIERCE COUNTY, a municipal corporation; Joseph Stortini; Jane
Case Date:November 02, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 104

918 F.2d 104 (9th Cir. 1990)

John W. BURGESS; Linda M. Burgess, husband and wife,

Plaintiffs-Appellees,

v.

PIERCE COUNTY, a municipal corporation; Joseph Stortini;

Jane "Doe" Stortini, husband and wife,

Defendants-Appellants.

No. 88-3994.

United States Court of Appeals, Ninth Circuit

November 2, 1990

Argued and Submitted Sept. 12, 1989.

James R. Orlando, Rovai, Miller, Foley, Orlando & Larkin, Tacoma, Wash., for defendants-appellants.

Page 105

Paul Lindenmuth, Law Office of Neil J. Hoff, Tacoma, Wash., for plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, ALARCON and HALL, Circuit Judges.

PER CURIAM:

John Burgess contends he was fired from his position as Pierce County Fire Marshal by Pierce County Executive Joseph Stortini because Burgess opposed the passage and enforcement by the County Council of ordinances Burgess believed to be unlawful and dangerous. Stortini contends he fired Burgess for a variety of managerial shortcomings. Burgess brought suit against Pierce County and Stortini under 42 U.S.C. Sec. 1983, claiming violations of the first and fourteenth amendments. After discovery, Pierce County and Stortini moved for summary judgment on several grounds, including Stortini's asserted right to qualified immunity. The district court denied the motion. Stortini appeals the denial of qualified immunity. 1

I

We take jurisdiction of this interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), to consider whether the rights Burgess alleges Stortini violated were clearly established, and whether, after discovery, Burgess made a sufficient evidentiary showing of the occurrence of the alleged conduct to create factual issues requiring trial. The scope of our review is detailed in Mitchell:

Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. [citation omitted]. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed those acts.

472 U.S. at 526, 105 S.Ct. at 2815.

We must first decide whether the rights Burgess alleges Stortini violated were "clearly established." "[S]tate and local officials are entitled to qualified immunity if 'their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Manhattan Beach Police Officers Ass'n, Inc. v. City of Manhattan Beach, 881 F.2d 816, 818 (9th Cir.1989) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Challenged conduct violates clearly established rights only if the unlawfulness of the conduct was apparent in light of preexisting law. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Whether the law was clearly established is a question of law reviewed de novo. Finkelstein v. Bergna, 881 F.2d 702, 703 (9th Cir.1989).

Burgess alleges he was fired in retaliation for speaking out during a dispute with Stortini regarding the interpretation and enforcement of local "fire flow" and "private road" standards. 2 Burgess' complaint and affidavits assert Stortini fired him in retaliation for communicating with other county officials, with the County Council and with members of the public, in opposition to passage and enforcement of ordinances Burgess believed conflicted with state fire flow and private road standards, threatened life and property, and exposed Pierce County to potential tort liability.

Page 106

The communications for which Burgess was allegedly fired related to matters of public concern and were protected by the first amendment. As the law stood when Stortini fired Burgess, discharging a public employee in retaliation for protected speech violated clearly established law of which a reasonable person would have known. See Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983); see also Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414-16, 99 S.Ct. 693, 695-97, 58 L.Ed.2d 619 (1979) (speech to employer as well as to the public on matters of public concern clearly protected); Knapp v. Whitaker, 757 F.2d 827, 845-46 (7th Cir.1985) (public employee speech to school board on matter of public concern protected despite "chain of command" administrative policy); McKinley v. City of Eloy, 705 F.2d 1110, 1114-15 (9th...

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18 practice notes
  • 31 F.3d 860 (9th Cir. 1994), 93-55393, Armendariz v. Penman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 1 August 1994
    ...fact as to whether defendant engaged in conduct violating plaintiffs' clearly established constitutional rights. Burgess v. Pierce County, 918 F.2d 104, 106 n. 3 (9th Cir.1990). The district court's rejection of a qualified immunity defense is reviewed de novo. Act Up!/Portland, 988 F.2d at......
  • 515 U.S. 304 (1995), 94-455, Johnson v. Jones
    • United States
    • Federal Cases United States Supreme Court
    • 12 June 1995
    ...Turner v. Dammon, 848 F.2d 440, 444 (CA4 1988) (same); Kelly v. Bender, 23 F.3d 1328, 1330 (CA8 1994) (same); Burgess v. Pierce County, 918 F.2d 104, 106, and n. 3 (CA9 1990) (per curiam) (same); Austin v. Hamilton, 945 F.2d 1155, 1157, 1162-1163 (CA10 1991) (same). We therefore granted cer......
  • 177 F.3d 839 (9th Cir. 1999), 96-56306, Gilbrook v. City of Westminster
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 21 May 1999
    ...of public concern: the fire department's ability to respond effectively to life-threatening emergencies. See Burgess v. Pierce County, 918 F.2d 104, 105-06 (9th Cir.1990) (holding that a fire marshal's comments regarding fire safety regulations touched on a matter of public concern), abroga......
  • 837 P.2d 505 (Or. 1992), SC S36999, Shockey v. City of Portland
    • United States
    • Oregon Supreme Court of Oregon
    • 9 July 1992
    ...fire department's use of ambulances are, the court said, "certainly a matter of public concern." In Burgess v. Pierce County, 918 F.2d 104, 105-06 (9th Cir.1990), a county fire marshall's statements to county officials and members of the public that passage and enforcement of coun......
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18 cases
  • 31 F.3d 860 (9th Cir. 1994), 93-55393, Armendariz v. Penman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 1 August 1994
    ...fact as to whether defendant engaged in conduct violating plaintiffs' clearly established constitutional rights. Burgess v. Pierce County, 918 F.2d 104, 106 n. 3 (9th Cir.1990). The district court's rejection of a qualified immunity defense is reviewed de novo. Act Up!/Portland, 988 F.2d at......
  • 515 U.S. 304 (1995), 94-455, Johnson v. Jones
    • United States
    • Federal Cases United States Supreme Court
    • 12 June 1995
    ...Turner v. Dammon, 848 F.2d 440, 444 (CA4 1988) (same); Kelly v. Bender, 23 F.3d 1328, 1330 (CA8 1994) (same); Burgess v. Pierce County, 918 F.2d 104, 106, and n. 3 (CA9 1990) (per curiam) (same); Austin v. Hamilton, 945 F.2d 1155, 1157, 1162-1163 (CA10 1991) (same). We therefore granted cer......
  • 177 F.3d 839 (9th Cir. 1999), 96-56306, Gilbrook v. City of Westminster
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 21 May 1999
    ...of public concern: the fire department's ability to respond effectively to life-threatening emergencies. See Burgess v. Pierce County, 918 F.2d 104, 105-06 (9th Cir.1990) (holding that a fire marshal's comments regarding fire safety regulations touched on a matter of public concern), abroga......
  • 837 P.2d 505 (Or. 1992), SC S36999, Shockey v. City of Portland
    • United States
    • Oregon Supreme Court of Oregon
    • 9 July 1992
    ...fire department's use of ambulances are, the court said, "certainly a matter of public concern." In Burgess v. Pierce County, 918 F.2d 104, 105-06 (9th Cir.1990), a county fire marshall's statements to county officials and members of the public that passage and enforcement of coun......
  • Free signup to view additional results