930 F.2d 1209 (7th Cir. 1991), 90-1559, Upton v. Thompson

Docket Nº:90-1559, 89-3627.
Citation:930 F.2d 1209
Party Name:Derrell E. UPTON, Plaintiff-Appellee, v. Bernie C. THOMPSON, Individually and in His Capacity as Sheriff of Kankakee County, Defendant-Appellant. Jack L. THULEN, Plaintiff-Appellee, v. Marvin BAUSMAN, Individually and in His Official Capacity as Sheriff of Carroll County, Illinois, Defendant-Appellant.
Case Date:April 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1209

930 F.2d 1209 (7th Cir. 1991)

Derrell E. UPTON, Plaintiff-Appellee,


Bernie C. THOMPSON, Individually and in His Capacity as

Sheriff of Kankakee County, Defendant-Appellant.

Jack L. THULEN, Plaintiff-Appellee,


Marvin BAUSMAN, Individually and in His Official Capacity as

Sheriff of Carroll County, Illinois, Defendant-Appellant.

Nos. 90-1559, 89-3627.

United States Court of Appeals, Seventh Circuit

April 22, 1991

Argued Sept. 27, 1990.

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Timothy T. McLaughlin, Oak Lawn, Ill., for Jimmie R. Sweeney, Jack L. Thulen and Harlan L. Carbaugh.

Marilyn Longwell, Charmaine E. Dwyer, Kerr & Longwell, Chicago, Ill., for Derrell E. Upton.

James G. Sotos, Charles E. Hervas, James R. Schirott, Michael W. Condon, Schirott & Associates, Itasca, Ill., Richard R. Haldeman, Williams & McCarthy, Rockford, Ill., for Marvin Bausman.

Charles E. Hervas, James G. Sotos, Michael W. Condon, Phillip A. Luetkehans, Schirott & Associates, Itasca, Ill., for Bernie C. Thompson.

Before CUMMINGS, COFFEY and MANION, Circuit Judges.

MANION, Circuit Judge.

These two cases before us on appeal, while distinct lawsuits, raise the same legal issues from similar facts making them suitable for disposition in a single integrated opinion.

Both cases involve appeals from denials of qualified immunity on motions for summary judgment by Sheriffs sued by their discharged deputies. The deputies claim that their discharges were impermissibly motivated by the Sheriffs' opposition to their political party affiliations, thus infringing on their First Amendment rights. The Sheriffs insist that the deputies' right to be free from this type of patronage firing was not clearly established at the time of the terminations, and therefore they are protected from liability under a theory of qualified immunity. The district courts in each case disagreed and denied qualified immunity to the Sheriffs. We conclude that at the time of the deputies' firings it was not clearly established that the deputies were protected from patronage firings under the prevailing doctrines. We further conclude that political considerations are appropriate for determining qualifications for the position of deputy sheriff. We reverse the decisions of the district courts.

I. Nature of the Case in No. 90-1559 (Upton)

In late August, 1986, Derrell Upton was hired as a probationary deputy sheriff in Kankakee County, Illinois. In November, 1986, Sheriff Scroggins, a Republican, lost the sheriff's election to the defendant, Bernie Thompson, the Democratic candidate. The Sheriff's Department of Kankakee County serves a rural Illinois community and employs between 70 and 80 deputy sheriffs. Thompson was sworn in as Sheriff on December 1, 1986. On December 6, 1986, Thompson terminated Upton. At the time of his termination, Upton was a probationary deputy, subject to at-will dismissal by the Sheriff (Ill.Rev.Stat. ch. 125, p 160 (1985)). Upton, an active member of the Kankakee County Republican Party, alleges that his termination resulted from his failure to support the Democrat Thompson for Sheriff in the November 1986 election and was in retaliation for his political affiliation in general.

During the campaign for Sheriff, Upton personally supported the incumbent Sheriff Scroggins in his bid for reelection and displayed a Scroggins bumper sticker on his car. During that same time Upton held the politically influential post of vice-president and acting president of the local chapter of the Illinois Fraternal Order of Police. Although

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Upton urged neutrality, the union members, by a majority vote, decided to endorse Sheriff Scroggins. In his capacity as a union official, Upton was questioned by reporters concerning the endorsement. Upton was clearly a political adversary of Thompson's, and was in a position to organize political opposition to Thompson.

Upton brought a civil rights action against Sheriff Thompson pursuant to 42 U.S.C. Sec. 1983 alleging that his dismissal was an impermissible punishment for his exercise of his First Amendment right to support the incumbent Sheriff Scroggins in the 1986 election. Although Sheriff Thompson denies the allegations of any political motivation in Upton's firing, for the sake of Thompson's affirmative defense of qualified immunity, the parties have stipulated that Thompson fired Upton for political reasons.

Sheriff Thompson moved for summary judgment on the grounds of qualified immunity, arguing that the termination of a deputy sheriff in 1986, even for political reasons, did not violate Upton's clearly established constitutional rights. The district court concluded such rights were clearly established and denied the Sheriff's motion for summary judgment. Sheriff Thompson appeals the denial of qualified immunity.

II. Nature of the Case in No. 89-3627 (Thulen)

The Carroll County Sheriff's Department is a small, rural office located in Mt. Carroll, Illinois. It employs only four full-time deputy sheriffs and 16 full-time employees.

The plaintiff, Jack Thulen, served as a Deputy Sheriff for Carroll County for 13 years under the administration of his brother and former Sheriff Jimmie Thulen, a Democrat. Jack Thulen's tenure began on the same day his brother Jimmie assumed the office of sheriff in 1970, and he served as chief deputy until Sheriff Thulen was defeated in the November 4, 1986 sheriff's election by the Republican candidate, Marvin Bausman.

During the 1986 campaign, Jack Thulen actively supported his brother's bid for re-election. In addition to being an outspoken supporter of Jimmie's candidacy, Jack Thulen helped the campaign by putting up signs and attending fundraisers. In his campaign against Jimmie Thulen, Marvin Bausman espoused a platform which was very critical of the Thulen administration. Specifically, candidate Bausman charged the incumbent administration with imprudent use and waste of public funds, poor leadership and lack of aggressive law enforcement.

Upon assuming office on December 1, 1986, Sheriff Bausman terminated Jack Thulen, who then filed a Sec. 1983 civil rights case against Bausman in both his individual and official capacities. Thulen claims he was fired for political reasons in violation of his First Amendment rights to freedom of association and expression. Bausman sought summary judgment on all allegations, including a claim for qualified immunity on the individual charge. The district court denied summary judgment on all claims.

III. Analysis

  1. Standard of Review

    Both Sheriffs appeal the district court denials of their summary judgment motions for qualified immunity. A district court's denial of a claim of qualified immunity is an immediately appealable final decision within the meaning of 28 U.S.C. Sec. 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). This court reviews de novo a district court's summary judgment determination in qualified immunity cases where the facts are not disputed. Jackson v. Elrod, 881 F.2d 441, 443 (7th Cir.1989). Upon appeal this court determines whether the substantive law has been properly applied by the district court. Id.

  2. Qualified Immunity

    Under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), "governmental officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate

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    clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. "For executive officers in general, ... qualified immunity represents the norm." Id. at 807, 102 S.Ct. at 2732. 1 The right the official is alleged to have violated must have been "clearly established" in a "particularized" way and "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). In Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), the Supreme Court stated that "whether an official may prevail in his qualified immunity defense depends upon the 'objective reasonableness of his conduct as measured by reference to clearly established law.' " Id. at 191, 104 S.Ct. at 3017 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). The principle behind the doctrine is that " '[i]f the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to know that the law forbade conduct not previously identified as unlawful.' " Greenberg v. Kmetko, 840 F.2d 467, 472 (7th Cir.1988) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). See also Cygnar v. City of Chicago, 865 F.2d 827, 843 (7th Cir.1989). What is important, in the final analysis, is "whether the legal norms governing [the government official's] behavior were clearly established at the time of the challenged actions." Wrigley v. Greanias, 842 F.2d 955, 958 (7th Cir.1988) (quoting Wade v. Hegner, 804 F.2d 67, 71 (7th Cir.1986)).

    In further characterizing the suitability of applying qualified immunity...

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