Gustafson v. Jones

• Decision Date: 27 June 1997
• Docket Number: No. 96-1991,96-1991
• Citation: 117 F.3d 1015
• Parties: Rod GUSTAFSON and Javier Cornejo, Plaintiffs-Appellants, v. Arthur JONES, Deputy Inspector, Jeffrey Bialk, Captain, and Philip Arreola, Chief, in their individual and official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1015

117 F.3d 1015

Rod GUSTAFSON and Javier Cornejo, Plaintiffs-Appellants, v. Arthur JONES, Deputy Inspector, Jeffrey Bialk, Captain, and Philip Arreola, Chief, in their individual and official capacities, Defendants-Appellees.

No. 96-1991.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 1996.

Decided June 27, 1997.

John F. Fuchs (argued), Susan C. Minahan, Marcia A. Snow, Fuchs, Snow & O'Connell, Milwaukee, WI, for Plaintiffs-Appellants.

Rudolph M. Konrad, Office of the City Attorney, Milwaukee, WI, Melanie R. Swank (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.

Before RIPPLE, MANION, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Few subjects are more prominently in the public eye today than the fight against crime. In this case, two officers of the Milwaukee Police Department, Rod Gustafson and Javier Cornejo, claimed that they attempted to voice their concerns about the way in which police officers were deployed by the department and found themselves first transferred from the prestigious Tactical Enforcement Unit (TEU) to street jobs, and later passed over for available promotions. They sued Arthur Jones, the Deputy Inspector, Jeffrey Bialk, the Captain to whom they reported, and Philip Arreola, the Chief of Police, under 42 U.S.C. § 1983, alleging that these actions were taken in retaliation for their exercise of their right to free speech under the First Amendment and that the transfers violated their due process rights. Magistrate Judge Aaron Goodstein granted judgment on the pleadings to all three defendants. We agree that the complaint stated no claim under the due process clause, but we reverse and remand for further proceedings on the First Amendment claims.

I

As of 1993, Gustafson had been with the Milwaukee Police Department's TEU for approximately five years, while Cornejo had about two years' service with the unit. In July of that year, the two officers responded to a shooting incident. About a week later, they decided on their own initiative to try to locate the shooter. While they were doing so, the original complainant saw them and gave them several leads, which they attempted to pursue. They remained available to their dispatcher throughout this time, and indeed, around 10:15 p.m. as they were leaving the suspect's house, they were contacted by another tactical unit and told that they were wanted in District 7. Cornejo called the dispatcher to get permission to go to District 7; at the same time, Deputy Inspector Jones called Gustafson on the police radio and gave instructions that Gustafson and Cornejo were to cease all further follow-up on the shooting incident and in the future to take assignments only from the dispatcher. As a result, they were unable to arrest the suspect, who they had been told was a member of a local gang and was extremely dangerous.

Later the same evening, Jones issued an order prohibiting all members of the TEU from conducting any follow-up investigations or assisting the Detective Bureau without his direct authorization. Gustafson and Cornejo had some concerns about the new policy and the way in which the July 13 incident had been handled, which they communicated to several of their co-workers, including officials of their union, the Milwaukee Police Association. An anonymous source then leaked copies of Jones' order and the police reports Gustafson and Cornejo had prepared about their July 13 investigation to the Milwaukee Journal/Sentinel and to several Milwaukee alderpersons. Ultimately, Jones was pressured by both the media and local politicians to rescind the order.

On November 21, 1993, Gustafson and Cornejo were transferred from TEU to street duty in two separate districts. These transfers were unusual, in that transfers normally occurred for one of three reasons: (1) promotion, (2) on request, or (3) discipline. These were clearly not promotions, nor had Gustafson or Cornejo requested a transfer. When they asked Captain Bialk the reason for the transfers, he refused to provide an explanation. In April 1994, a notice was posted announcing that open positions were available in the TEU. Both Gustafson and Cornejo applied, and they were both ranked at the top of the list of the 58 candidates. Notwithstanding their qualifications, however, they were not among the seven individuals selected for the positions. They filed the present suit on December 22, 1994.

II

A motion for judgment on the pleadings under Fed.R.Civ. P. 12(c), like a motion for failure to state a claim under Fed.R.Civ.P. 12(b)(6), should not be granted "unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief. In evaluating the motion, we [ ] view the facts in the complaint in the light most favorable to the nonmoving party." Frey v. Bank One, 91 F.3d 45, 46 (7th Cir.1996), quoting GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir.1995). We review the district court's decision de novo, which in this case requires us to examine three issues: whether the pleadings stated a claim under the First Amendment, whether they stated a claim under the Fourteenth Amendment's due process clause, and whether the three defendants were entitled to qualified immunity from suit.

A. First Amendment

In order to establish a First Amendment retaliation claim, the facts alleged in the complaint must show that (1) the speech in which the plaintiffs engaged was constitutionally protected under the circumstances, and (2) the defendants retaliated against them because of it. Caldwell v. City of Elwood, Ind., 959 F.2d 670, 672 (7th Cir.1992), quoting Barkoo v. Melby, 901 F.2d 613, 617 (7th Cir.1990). The particular speech on which the complaint focuses is the conversation the plaintiffs had with their co-workers and union officials about the events of July 13 and Jones' subsequent order forbidding self-initiated investigations. This speech, plaintiffs allege, was on a matter of public concern, namely, "the ability of police officers to quickly and effectively respond to law enforcement needs as they arise." This meant, they assert, that it was entitled to First Amendment protection. See Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir.1996) (speech on matters of "public concern" means "matters in which the public might be interested, as distinct from wholly personal grievances or 'casual chit-chat' "). See also Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983).

The defendants counter with three arguments. First, they claim that the plaintiffs' allegations were insufficient as a matter of law because they did not specify the content of their speech more specifically and they did not allege that the defendants were aware of it; second, they argue that the speech was not on a matter of public concern; and finally, they argue that even if the speech was protectable, the balancing test established by Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) requires judgment for the defendants.

Bearing in mind that we are just evaluating the pleadings, we find that the plaintiffs adequately alleged both the content of their speech and the defendants' awareness of it. The complaint specifically claimed that the plaintiffs were transferred because of the speech, in paragraphs 17 and 18, and it describes the nature of the speech. The course of events alleged in the complaint would permit the plaintiffs to prove that the defendants were aware of Gustafson and Cornejo's complaints and that this was the reason for the transfer, based on the timing, the workplace location of the speech, and the publicity about Jones' order. Had it not been for their discussions with co-workers and union officials, the anonymous source might never have tipped off the local media and politicians about the debate at all; or at least, a jury might find that the defendants saw things that way. The allegations about the retaliatory transfer distinguish this case from Caldwell, supra, where the plaintiffs alleged nothing other than the timing of the disciplinary action to link the speech to it. There was little reason in Caldwell to think that the mayor would otherwise have had a role in the plaintiff's suspension, while this case presents detailed accusations about the supervisory roles Jones, Bialk, and Arreola had.

The question whether the speech touches on a matter of public concern is more relevant to the defendants' third point, which is that the Pickering test is what determines whether their speech was "protectable" at all. Speech may not be protectable because it is obscene, because it may be regulated under the "commercial speech" doctrine, or because it conflicts with a valid government restriction on the time, place and manner of speech. Defendants, however, are not arguing that any of those reasons deprives Gustafson and Cornejo of their First Amendment rights. Instead, they suggest that public employees do not have any First Amendment rights to begin with when a Pickering/Connick analysis results in the conclusion that the public employer may suppress the speech or take unfavorable actions based upon it.

As a matter of pleading, we think the defendants are half right, but not right enough to win on this point. When a public employee alleges that she has suffered retaliation for the exercise of her First Amendment rights, she should be required to allege facts that could support a finding that the speech is on a matter of public concern. (Putting "magic words" in the complaint that certain speech is on a matter of public concern is no more necessary than including other legal arguments in the complaint; the key requirement is to allege speech that, when read within the context of the complaint, could qualify as such under the governing law.) See, e.g., Lashbrook v. Oerkfitz, 65 F.3d 1339,...