Coady v. Steil

• Decision Date: 09 September 1999
• Docket Number: No. 98-3569,98-3569
• Citation: 187 F.3d 727
• Parties: (7th Cir. 1999) Bernard Coady, Plaintiff-Appellee, v. Russell Steil, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 727

187 F.3d 727 (7th Cir. 1999)

Bernard Coady, Plaintiff-Appellee, v. Russell Steil, Defendant-Appellant.

No. 98-3569

United States Court of Appeals, Seventh Circuit

Argued April 14, 1999

Decided August 11, 1999

Rehearing Denied September 9, 1999

Appeal from the United States District Court for the Central District of Illinois. No. 97-C-3071--Richard Mills, Judge.

Before Coffey, Flaum and Easterbrook, Circuit Judges.

Flaum, Circuit Judge.

Before us is Russell Steil's interlocutory appeal of the district court's denial of his summary judgment motion in a sec. 1983 suit filed against him by the plaintiff, Bernard Coady. For the reasons set out below, we affirm the district court's decision that Steil is not entitled to summary judgment.

Facts

The plaintiff has been a firefighter for the Springfield Fire Department ("SFD") since 1978. In 1995, Coady, a Captain in the SFD, was stationed at Firehouse No. 1 (the "Firehouse"), located in downtown Springfield. At that time, Steil was the SFD's Chief. On Saturday, March 18, 1995, before Coady reported for duty at the Firehouse, he parked his car on a sidewalk located to the east of the Firehouse. Between six and nine other members of the department parked their cars there as well that morning. These spots were not SFD property. They were, however, along the route of the Springfield St. Patrick's Day parade, which was held later that day.

The plaintiff, like some of the other firefighters, had a "Curran for Mayor" sign displayed on his car roof in support of the Democratic candidate for mayor of Springfield, Mike Curran. According to the plaintiff, it was not uncommon for other firefighters to have signs or stickers on their personal vehicles supporting Karen Hasara, the Republican candidate for mayor. Chief Steil was no stranger to off-duty political activity--he was a Republican precinct committeeman who openly supported Hasara's candidacy, and allegedly campaigned for a number of other Republican candidates.

Between 10:00 and 10:15 a.m. on March 18, Steil arrived at the Firehouse, and told Coady and the other firemen that they would have to move their cars, even though firefighters had a longstanding practice of parking on the sidewalk. After some discussion, Steil told the plaintiff that if he removed the sign from atop his car, he would not have to re-park it. The plaintiff left the Firehouse building and returned to his automobile to remove the sign from the top of his vehicle, but apparently could not fit it into his trunk, so he put it in the car's back seat. This did not satisfy Steil, so Coady made another attempt to remedy the situation. This effort was also unsatisfactory. The defendant then allegedly took the plaintiff into his office at the back of the Firehouse and cursed at him. Then, according to Coady, the defendant struck him a number of times. Several firefighters saw Coady run from the building with bruises, contusions and lacerations on his face.

Shortly thereafter, the plaintiff filed suit, alleging that Steil's attack was an unlawful retaliation against him for exercising his protected First Amendment rights by supporting a candidate for public office. The defendant moved for summary judgment, contending that: 1) the plaintiff had no protected First Amendment right to speech; 2) even if the plaintiff's speech was protected, the alleged battery was not retaliatory; and 3) the defendant was entitled to qualified immunity because, if the plaintiff had a constitutional right, it was not clearly established on March 18, 1995.

The district court denied the defendant's motion for summary judgment, rejecting all three of his contentions. Particularly important to the court's ruling was that, at least for summary judgment purposes, the plaintiff was not "on duty" as a SFD firefighter when he engaged in the political activity issue. The defendant argued that when Coady parked his car on the sidewalk near the Firehouse he was de facto on SFD property, and thus Chief Steil could appropriately order the plaintiff to remove the sign from atop his car.¹ This argument was based on state and municipal ordinances prohibiting civil servants from engaging in political activities while "at work on duty," as well as a SFD ordinance doing the same. See 65 ILCS 5/10-1-27.1; Section 36.07(a) Springfield, Illinois Code of Ordinances, as amended (1988); see also Springfield Fire Department General Order 400 (1977).²

The district court, however, found that the issue of whether the plaintiff was on-duty was, at a minimum, hotly contested, and could not be decided at the summary judgment stage. The district court judge noted that no other firefighter testified that Coady asked him to place a sign on his vehicle, and that there was no evidence that Coady put the sign on his own car after his shift had already started. Additionally, the district court found that the defendant could not show that the plaintiff was attempting to assert that the SFD supported Mike Curran, the Democratic candidate, for mayor. Finally, the district court's opinion rejected the defendant's claim that Coady's car was parked on SFD property. After concluding that Coady had not engaged in political activity while on-duty, the district court found that Steil had violated the plaintiff's First Amendment rights, that the battery was in retaliation for the plaintiff's exercise of those rights, and that qualified immunity did not shield the defendant from liability. The defendant filed an interlocutory appeal, raising the same arguments he did below with the exception of the retaliation issue.

Analysis

A.

Because it is relevant to the scope of our inquiry, we must address our jurisdiction over this appeal before analyzing the defendant's arguments. Under 28 U.S.C. sec. 1291, we have jurisdiction to hear appeals only from "final decisions" of district courts. Given this language, interlocutory appeals are the exception, and not the rule. See Johnson v. Jones, 515 U.S. 304, 309 (1995); Rambo v. Daley, 68 F.3d 203, 205 (7th Cir. 1995). A general exception to this rule is that a district court's denial of a motion for summary judgment predicated on a claim of qualified immunity is ordinarily immediately pursuable. Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). There exists, as is often the case, an exception to this exception: "a defendant entitled to invoke a qualified-immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record set forth a 'genuine' issue of material fact for trial." Johnson, 515 U.S. at 319-320.

This broad language in Johnson is not quite as sweeping as it might seem; the Supreme Court subsequently explained: "Johnson surely does not mean that every . . . denial of summary judgment [based on a determination that there is an issue of material fact] is nonappealable. Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable." Behrens v. Pelletier, 516 U.S. 299, 313 (1996). Thus, while a defendant is not entitled to immediately appeal a district court's determination that a genuine factual dispute exists about a material matter, an interlocutory appeal may properly cover a defendant's assertion that a district court's ruling that a given set of facts shows a violation of "clearly established" law is incorrect. See id.; see also Clash v. Beatty, 77 F.3d 1045, 1046 (7th Cir. 1996). The practical effect of these principles is that while it is appropriate for us to address the district court's analysis of whether the defendant violated a clearly established right held by the plaintiff (and thus is not entitled to qualified immunity), we do so in the context of accepting the district court's determination that a genuine issue of material fact exists as to whether Coady was engaged in political activity on duty. See Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 977 (9th Cir. 1998) (On qualified immunity interlocutory appeal "we simply assume the disputed facts in the light most favorable [to the plaintiff], and then decide whether the [defendants] violated any of [the plaintiff's] clearly established constitutional rights."). To that end, we reject the defendant's repeated entreaties to revisit the question of whether the plaintiff was on-duty when he engaged in political activity, because, even if we had the inclination to do so, we have no jurisdiction to review the district court's finding that a genuine issue of material fact exists on that question.

B.

The rule of qualified immunity is familiar: public officials are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When a state defendant raises qualified immunity as a defense, the plaintiff has a two-part burden. First, he must show a violation of a federal constitutional right. Second, the plaintiff must establish that the constitutional standards at issue were clearly established at the time the alleged violation occurred. Kernats v. O'Sullivan, 35 F.3d 1171, 1176 (7th Cir. 1994).

Here the plaintiff has alleged a violation of his First Amendment rights. To determine whether a public employee has a protected First Amendment right, we undertake a two part inquiry, known as the Connick-Pickering test. Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Educ. of Twnshp. H.S. Dist. 205, 391 U.S. 563 (1968); Kokkinis v. Ivkovich, 185 F.3d 840 (7th Cir.1999). First, the court must determine whether the plaintiff's speech addressed a matter of public concern. See Connick, 461 U.S. at 147-48. If it did, the court must then apply the Pickering balancing test to determine whether "the interests of the [plaintiff] as a citizen in commenting upon the matters of...