Hansen v. Soldenwagner

• Decision Date: 21 April 1994
• Docket Number: No. 92-4846,92-4846
• Parties: 9 Indiv.Empl.Rts.Cas. (BNA) 712 Brent K. HANSEN, Plaintiff-Appellee, v. John SOLDENWAGNER; Raymond Malecki; John Puleo, Defendants-Appellants, City of Sunrise, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 573

19 F.3d 573

9 Indiv.Empl.Rts.Cas. (BNA) 712

Brent K. HANSEN, Plaintiff-Appellee, v. John SOLDENWAGNER; Raymond Malecki; John Puleo Defendants-Appellants City of Sunrise, Defendant.

No. 92-4846.

United States Court of Appeals, Eleventh Circuit.

April 21, 1994.

Robert H. Schwartz, Gunther & Whitaker, P.A., Ft. Lauderdale, FL, for defendants-appellants.

Michael R. Piper, Johnson, Anselmo, Murdoch, Burke & George, P.A., Ft. Lauderdale, FL, for City of Sunrise.

Arthur M. Wolff, Law Offices of Arthur M. Wolff, Ft. Lauderdale, FL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges, and FRIEDMAN ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

This case involves First Amendment claims brought by a police officer under 42 U.S.C. Sec. 1983. The district court denied the individual defendants' motion for summary judgment based on qualified immunity. We reverse.

BACKGROUND

Plaintiff Brent K. Hansen is a police officer for the City of Sunrise, Florida ("City"). Hansen was subpoenaed to provide deposition testimony in the criminal prosecution of a former City police officer, Martin Singer. Singer had been arrested for burglary. Hansen gave the deposition testimony in July 1989.

During the deposition, Hansen criticized the City Police Department for prosecuting Singer. Hansen called the Singer arrest "ridiculous," "stupid," and "the dumbest thing I've ever seen since I've been working there;" Hansen recalled arriving on the scene of Singer's arrest and asking "how the fuck is that a good arrest?" He attributed the arrest to the "inexperience" of the officers involved, adding that "no one seems to give a shit up top" about the alleged inexperience and disorganization.

Hansen was also asked whether he had worked with Singer. Noting that Singer was a member of his squad, Hansen recalled praising Singer in an evaluation: "[H]e does real good.... [But] I've got to hear shit like what are you doing giving such a high evaluation which is a bunch of crap. And I don't have to listen to that."

In April 1990, defendant John G. Soldenwagner, the City's Chief of Police, learned of the testimony and ordered an Internal Affairs investigation. Shortly thereafter (but shortly before the scheduled start of Singer's criminal trial), defendants Raymond Malecki and John Puleo, officers in the Internal Affairs Division, conducted a hearing. Before the hearing, Chief Soldenwagner notified Hansen that the investigation charged him with "Conduct impairing efficiency of the Department to the detriment of discipline and/or public acceptance of the Department."

At the outset of the investigation, Hansen was assigned to desk duty, a step which was consistent with the department's "general policy." Hansen's salary was not reduced. The investigation concluded in September 1991, with a recommendation by Soldenwagner that Hansen be terminated. City Manager Patrick Salerno reduced the proposed disciplinary action to a five-day suspension.

Hansen filed a written grievance requesting that his suspension be reconsidered. Hansen admitted in the grievance that his Hansen filed this action under 42 U.S.C. Sec. 1983. Hansen alleged that defendants Malecki and Puleo, acting individually and in conspiracy with Soldenwagner, violated Hansen's First Amendment rights by investigating him and suspending him. Hansen also suggests that the investigation was initiated to deter him from testifying freely in Singer's trial. Defendants' motion for summary judgment was denied. Defendants appeal, reasserting the qualified immunity defense. We review this issue de novo. Hutton v. Strickland, 919 F.2d 1531, 1536 (11th Cir.1990).

"conduct [in the Singer deposition] was unprofessional." Soldenwagner denied Hansen's request. In Hansen's final administrative appeal, Police Personnel Director James Harris concluded that the suspension was proper.

QUALIFIED IMMUNITY

Qualified immunity protects government officials performing discretionary functions from civil liability if their conduct violates no "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, 2738, 73 L.Ed.2d 396 (1982). Here, the parties do not dispute that defendants were performing discretionary functions, nor do they dispute which acts were taken. Thus to prevail, Hansen must show that defendants violated his "clearly established" federal rights and that every reasonable officer faced with the circumstances facing these defendants would have known that defendants' acts were unlawful. Id.

To be established clearly, a right must be so particularized that "in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Pre-existing law--whether it be case law or statutory law--must be available to instruct in a concrete way the government agent, given the circumstances. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (emphasis added). A recent en banc decision explains plaintiff's considerable burden:

When considering whether the law applicable to certain facts is clearly established, the facts of cases relied upon as precedent are important. The facts need not be the same as the facts of the immediate case. But they do need to be materially similar. See, e.g., Edwards v. Gilbert, 867 F.2d 1271, 1277 (11th Cir.1989). Public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.

Adams v. St. Lucie County Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir.1992) (Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th Cir.1993).

The question before us is not whether, in general, public employees enjoy some freedom under the First Amendment to speak on matters of public concern; they do. Nor is the question whether public employees have an interest in providing truthful testimony in criminal cases; they do. Here, as in all qualified immunity cases, the question is fact specific: in April 1990, was it clearly established in this circuit that it was unconstitutional for police officials to investigate and to suspend an officer for making vulgar, insulting, and defiant criticisms of the department while giving testimony at a deposition pursuant to a subpoena? The answer is "No."

Past cases show that defendants who allegedly violate public employees' First Amendment freedoms rarely act within "clearly established" contours of law:

The Supreme Court has never established a bright-line standard for determining when the State as an employer may take action adverse to an employee in response to that employee's speech. Instead, the Court has balanced the interest of the employee in commenting on matters of public concern against the interest of the employer in performing public services efficiently.

Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir.1989) (citing Pickering v. Board of Education, 391 U.S. 563 Because Pickering requires a balancing of competing interests on a case-by-case basis, our decisions tilt strongly in favor of immunity by recognizing that only in the rarest of cases will reasonable government officials truly know that the termination or discipline of a public employee violated "clearly established" federal rights. ¹ See Dartland, 866 F.2d at 1323-24. When "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 [act taken against] the employee was unlawful." Id. at 1323 (emphasis added); see also Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236-37 (11th Cir.1992); Busby v. City of Orlando, 931 F.2d 764, 773-75 (11th Cir.1991) (per curiam).

568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)).

Hansen suggests that Pickering balancing is no good here; because he was subpoenaed, he says he enjoys an absolute First Amendment right to respond to deposition questions in the manner he chooses. That witnesses (without fear of unwarranted reprisal from government employers) be able to testify truthfully in court proceedings is a matter of public importance. ² Public employees who allegedly suffer retaliation for providing testimony can enjoy protection under the First Amendment, see, e.g., Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096 (5th Cir.1987); but the act of providing testimony does not, by itself, absolutely shield the public employee from further scrutiny by his superiors. ³

In Martinez v. City of Opa-Locka, Fla., 971 F.2d 708 (11th Cir.1992), we noted that "a public employee's right to freedom of speech is not absolute" when the public employee alleged that she had been terminated for providing unfavorable testimony, under subpoena, before a city commission. Id. at 712 (quoting Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989)). The Martinez court looked to Pickering and weighed "several factors" in deciding whether the testimonial speech overruled the government's interest in providing efficient services. Id. The decisions in Dartland and Sims make clear that, because this multi-factor balancing process admits of few bright lines, a government agent will know only in the most extraordinary circumstances that "what he is doing" does violate plaintiff's rights. Dartland, 866 F.2d at 1323; Sims, 972 F.2d at 1236-37.

Several considerations reveal that Pickering balancing, when applied to these facts, would not yield the "inevitable" result necessary for denying immunity. ⁴ Precedents recognize that the manner of a public employee's speech is an important element in the Pickering balance. See...