Cooper v. Smith

• Decision Date: 26 July 1996
• Docket Number: No. 94-8992,94-8992
• Parties: 11 IER Cases 1703 Athel B. COOPER, Plaintiff-Appellant, Cross-Appellee, v. William E. SMITH, Individually and in his official capacity as Sheriff of Camden County, Georgia, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 761

89 F.3d 761

11 IER Cases 1703

Athel B. COOPER, Plaintiff-Appellant, Cross-Appellee, v. William E. SMITH, Individually and in his official capacity as Sheriff of Camden County, Georgia Defendant-Appellee, Cross-Appellant.

No. 94-8992.

United States Court of Appeals Eleventh Circuit.

July 26, 1996.

Christopher A. Frazier, Brunswick, GA, for appellant.

Terry Lee Readdick, G. Todd Carter, Dickey, Whelchel, Brown & Readdick, Brunswick, GA, for appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior Circuit Judge.

ANDERSON, Circuit Judge:

In 1993 appellant/cross-appellee Athel B. Cooper ("Cooper") filed the instant 42 U.S.C. § 1983 action against appellee/cross-appellant William E. Smith ("Smith"). Smith is the Sheriff of Camden County, Georgia, and Cooper was one of his deputies. Cooper alleges that Smith refused to renew his commission as a deputy because Cooper cooperated with the Georgia Bureau of Investigation (GBI) during its investigation into corruption at the Camden County Sheriff's Department. The district court granted in part and denied in part Smith's motion for summary judgment on qualified immunity grounds. This appeal followed.

Facts

"In reviewing the district court's denial of summary judgment, we--in most qualified-immunity interlocutory appeals--accept the facts which the district court assumed for purposes of its decision about whether the applicable law was clearly established." Ratliff v. DeKalb County, Georgia, 62 F.3d 338, 340 (11th Cir.1995) (citing Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995)); see also Dolihite v. Maughon by and through Videon, 74 F.3d 1027, 1033 n. 3 (11th Cir.1996) (explaining that the appellate court might ordinarily simply accept the district court's identification of each appellant's actions and knowledge for purposes of comparison with clearly established law); Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir.1996), petition for certiorari filed 64 USLW 3742 (Apr. 25, 1996) (NO. 95-1743).

The following are the relevant facts assumed by the district court:

In 1991 or 1992, the GBI began an investigation of alleged corruption in the Camden County Sheriff's Department. In July of 1992, Cooper and his wife ... gave information to the GBI which they believed would be kept confidential. The Coopers' conversations with the GBI took place at the Coopers' home. According to the Coopers, Smith and others in the Department found out about the Coopers' cooperation with the GBI. After the Coopers spoke to the GBI, the Camden County Grand Jury returned an indictment against Smith. Smith was reelected as Sheriff of Camden County soon after his indictment. ¹ Following Smith's reelection, Cooper began to hear rumors that he would no longer have a job when Smith's new term began in 1993.

Seeking clarification of his job situation, Cooper wrote a letter to Major Charles A. Easterling ..., the Acting Chief Deputy of the Department, on November 24, 1992. In Easterling's response, dated December 9, 1992, he declined to give Cooper a promotion or assurances of job security. On December 17, 1992, Cooper wrote to Smith in response to Easterling's letter ... [detailing his discontent with matters within the Department].

Cooper v. Smith, 855 F.Supp. 1276, 1277 (S.D.Ga.1994). ¹ On December 29, 1992, Smith told Cooper that his commission as deputy sheriff would not be renewed for the following year.

Cooper filed the instant suit, alleging that he had been dismissed in retaliation for exercising his right to free speech in violation of the First Amendment to the United States Constitution. ² The district court granted Smith's motion for summary judgment in part and denied it in part. As to the First Amendment claim against Smith in his individual capacity, the district court held that Smith was entitled to qualified immunity with respect to Cooper's speech contained in the December 17, 1992, letter. However, the district court held that Smith was not entitled to qualified immunity with respect to Cooper's speech in cooperating with the GBI. Cooper v. Smith, No. CV293-70, slip op. at 12 (S.D.Ga. Aug. 4, 1994).

Cooper appeals the district court's grant of summary judgment with respect to the speech contained in the December 17, 1992, letter. The district court's ruling on this issue is not a final order. FED.R.CIV.P. 54(b); Winfrey v. School Bd. of Dade County, Fla., 59 F.3d 155, 157 (11th Cir.1995) (In the absence of certification by the district court, "a partial disposition of a multiclaim or multiparty action does not qualify as a final judgment [under § 1291] and is ordinarily an unappealable interlocutory order.") (internal quotations omitted). Assuming arguendo that we have pendent jurisdiction, we decline to exercise it. Smith cross-appeals, challenging the district court's denial of qualified immunity with respect to Cooper's speech in cooperating with the GBI. This denial of qualified immunity is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We affirm this ruling.

Discussion

The appealable issue in this case is whether a public official who terminates an employee for cooperating with law enforcement investigators is entitled to qualified immunity. ³ "[G]overnment officials performing discretionary functions generally 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, 102 S.Ct. 2727, 2740, 73 L.Ed.2d 396 (1982). That Smith was performing a discretionary function when he refused to renew Cooper's commission is not in dispute. For Cooper to pierce the qualified immunity protecting Smith, he must show that Smith violated one of Cooper's "clearly established" rights under federal law. Id.

It must be kept in mind that the sweep of qualified immunity is necessarily broad. It protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). The policy considerations driving such a rule are straightforward: government officials exercising their official discretion in the discharge of their duties cannot live in constant fear of lawsuit, with the concomitant costs to public servant and society. Such fear will stymie the work of government and will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties." Harlow, 457 U.S. at 814, 102 S.Ct. at 2736 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir.1949)). The doctrine of qualified immunity was created to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Id. at 818, 102 S.Ct. at 2738.

At the same time, qualified immunity is not an impenetrable shield, because of which all manner of constitutional violations by public officers must be tolerated. "When government officials abuse their offices, 'action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.' " Anderson, 483 U.S. at 638, 107 S.Ct. at 3038 (quoting Harlow, 457 U.S. at 814, 102 S.Ct. at 2736). In an effort to balance these competing concerns, the Supreme Court has devised an objective test for evaluating official conduct. "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the 'objective legal reasonableness' of the action assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (internal citations omitted).

Cooper argues that Smith refused to renew his commission because he cooperated with the GBI in its corruption investigation. We must determine whether Cooper had a clearly established right under the First Amendment to speak with the GBI. If we find that such a right was clearly established, then Smith is stripped of the protection that qualified immunity affords, insofar as Cooper's speech in cooperating with the GBI caused Smith's adverse employment action.

"It is clearly established that a State may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987). Nonetheless, the First Amendment does not protect all speech by public employees. In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Supreme Court outlined the balancing test through which public employee free speech claims are to be evaluated. This test is designed to balance the interest of the employee in commenting on matters of public concern against the interest of the employer in the efficient delivery of public services. Id. at 568, 88 S.Ct. at 1734-35. "Because no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful." Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989); accord Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir.1994).

We must decide whether the result of the Pickering balance on the assumed facts would lead to the inevitable conclusion that Cooper's discharge was unlawful, such that Sheriff Smith could not have believed that his actions were lawful in light of clearly established law and the information he possessed. Anderson, 483 U.S. at 641, 107 S.Ct. at...