Kinney v. Weaver, No. 00-40557.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtKing
Citation301 F.3d 253
PartiesDean KINNEY; David Hall, Plaintiffs-Appellees, v. Bobby WEAVER, Etc.; et al., Defendants, J.B. Smith, Smith County Sheriff; Smith County, Texas; W.A. "Bill" Young, Tyler Police Chief; City of Tyler, Texas; East Texas Police Chief's Association; Bobby Weaver, Gregg County Sheriff; Bob Green, Harrison County Sheriff; Gregg County, Texas; Harrison County, Texas; Ronnie Moore, Kilgore Director of Public Safety; Charles "Chuck" Williams, City of Marshall Police Chief; Ted Gibson, Nacogdoches Police Chief; City of Kilgore, Texas; City of Marshall, Texas; City of Nacogdoches, Texas, Defendants-Appellants.
Docket NumberNo. 00-40557.
Decision Date31 July 2002

Page 253

301 F.3d 253
Dean KINNEY; David Hall, Plaintiffs-Appellees,
v.
Bobby WEAVER, Etc.; et al., Defendants,
J.B. Smith, Smith County Sheriff; Smith County, Texas; W.A. "Bill" Young, Tyler Police Chief; City of Tyler, Texas; East Texas Police Chief's Association; Bobby Weaver, Gregg County Sheriff; Bob Green, Harrison County Sheriff; Gregg County, Texas; Harrison County, Texas; Ronnie Moore, Kilgore Director of Public Safety; Charles "Chuck" Williams, City of Marshall Police Chief; Ted Gibson, Nacogdoches Police Chief; City of Kilgore, Texas; City of Marshall, Texas; City of Nacogdoches, Texas, Defendants-Appellants.
No. 00-40557.
United States Court of Appeals, Fifth Circuit.
July 31, 2002.

Page 254

COPYRIGHT MATERIAL OMITTED

Page 255

COPYRIGHT MATERIAL OMITTED

Page 256

Curtis B. Stuckey (argued), Alex Arthur Castetter, Stuckey, Garrigan & Castetter, Nacogdoches, TX, Leslie Stephen Mendelsohn, Les Mendelsohn & Associates, San Antonio, TX, for Plaintiffs-Appellees.

Gregory Duane Smith (argued), Herschel Tracy Crawford, Ramey & Flock, Tyler, TX, for J.B. Smith and Smith County, Texas.

Michael Keith Dollahite, Ritcheson, Dollahite & Lauffer, Tyler, TX, for W.A. "Bill" Young, City of Tyler, Texas and East Texas Police Chief's Ass'n.

Louis Charles Van Cleef, Brown McCarroll, Longview, TX, Robert Scott Davis, Flowers Davis, Tyler, TX, for Bobby Weaver, Bob Green, Gregg County, Texas and Harrison County, Texas.

Earl Glenn Thames, Jr., Jay Nelson Green, Potter Minton, Tyler, TX, for Ronnie Moore, Charles "Chuck" Williams, Ted Gibson, City of Kilgore, Texas, City of Marshall, Texas and City of Nacogdoches, Texas.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL, District Judge.*

KING, Chief Judge:


Plaintiffs-Appellees Dean Kinney and David Hall brought suit against seven law enforcement officials, the seven cities or counties that employ these officials, and the East Texas Police Chiefs' Association,1 asserting four claims: (1) a 42 U.S.C. § 1985(2) claim alleging conspiracy against Kinney and Hall because of their testimony in judicial proceedings, (2) a 42 U.S.C. § 1983 claim alleging violations of their rights to freedom of speech under the First and Fourteenth Amendments, (3) a § 1983 claim alleging violations of their Fourteenth Amendment rights to due process of law, and (4) a state law claim alleging tortious interference with business relations. The law enforcement officials now appeal the district court's order denying their summary judgment motion that asserted qualified immunity against the federal claims and state-law immunity against the tort claim. For the following reasons, we AFFIRM the district court's order holding that the law enforcement officials are not entitled to qualified immunity

Page 257

against the § 1985 claim or the § 1983 First Amendment claim, or to state-law immunity against the tort claim, and we REVERSE that court's order holding that those officials do not have qualified immunity against the § 1983 due process claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

Viewing the summary judgment record in the light most favorable to the nonmoving parties, i.e., Dean Kinney and David Hall, the facts are as follows. See Kemp v. G.D. Searle & Co., 103 F.3d 405, 406 (5th Cir.1997) (setting out the facts in the light most favorable to the non-moving party in reviewing a summary judgment). At the time of the events giving rise to their claims in the instant case, Kinney and Hall were instructors at the East Texas Police Academy ("ETPA"), a division of Kilgore College in Kilgore, Texas. Founded by the East Texas Police Chiefs' Association in 1966, the ETPA provides basic and advanced training for law enforcement officers in the greater East Texas area. At the time of the events giving rise to the instant case, Kinney and Hall had been working at the ETPA for seventeen years and six years, respectively, under renewable one-year employment contracts. The law enforcement officials asserting qualified immunity in this case are chiefs of police or sheriffs who possess final authority over the training of the officers employed by their respective agencies (collectively "the Police Chiefs and Sheriffs"). Before the fall of 1998, the Police Chiefs and Sheriffs enrolled their officers in ETPA courses on a regular basis, including courses taught by Kinney and Hall.

In August 1998, Kinney and Hall testified as expert witnesses for the family of Edward Gonzales, a seventeen-year-old who was fatally shot by a police officer employed by the city of Kerrville ("the Kerrville case").2 Based on their knowledge and experience as law enforcement instructors specializing in the use of force and firearms, Kinney and Hall testified that the Kerrville police officer had used excessive force and that the Kerrville police department had failed to implement the proper policies necessary to direct the conduct of officers acting as "snipers." Although Kinney and Hall made fee arrangements with the attorney who represented Gonzales's family in their wrongful death action against the officer and the city, Kinney and Hall decided shortly after they were deposed that they would decline payment. Kinney's explanation for this decision, confirmed by Hall, is that the two "felt so strongly about the incident and what had happened to Eddie Gonzales" that they concluded that "it wouldn't be right to charge."

Shortly after Kinney and Hall testified in the Kerrville case, William Holda, the president of Kilgore College, received letters from some of the Police Chiefs and Sheriffs denouncing Kinney's and Hall's expert testimony for the Kerrville case plaintiffs and threatening to stop using the ETPA for officer training. In a letter dated September 15, 1998, Kilgore Director of Public Safety Ronnie Moore3 told Holda that he was concerned about Kinney's and Hall's recent inquiries regarding a case initiated by Kilgore's police department because "[i]t is a well known fact

Page 258

within this agency that these instructors had previously testified in another matter, against other Officers." Moore informed Holda that "[d]ue to these circumstances, our agency will be exploring other options to provide the professional training necessary for our Officers." In a letter dated September 29, 1998, Charles Williams, the chief of the city of Marshall's police department, also complained to Holda about Kinney's and Hall's expert testimony. Specifically, he wrote, "I think it is deplorable ... that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies" (emphasis in original). Williams stated further that "[t]he Marshall Police Department will not attend any courses taught by Mr. David Hall or Mr. Dean Kinney due to the liability they place on this Police Department." Williams attached three newspaper articles that mentioned Kinney's and Hall's roles as expert witnesses for the plaintiffs in the Kerrville case.

The summary judgment evidence submitted by Kinney and Hall includes Williams's deposition, in which he testified that he learned of Kinney's and Hall's involvement in the Kerrville case when he received an envelope from an anonymous source containing the three newspaper articles that Williams attached to his letter to Holda. In addition to the articles, the envelope contained a note telling Williams to contact Moore for more information, which Williams did shortly after receiving the envelope. Williams forwarded copies of his September 29, 1998 letter and the attached articles to Moore and four of the other Police Chiefs and Sheriffs, namely, Bill Young, the chief of police for the city of Tyler, Bob Green, the sheriff of Harrison County, Bobby Weaver, the sheriff of Gregg County, and J.B. Smith, the sheriff of Smith County. The set of documents that Williams forwarded to Young, which is in the summary judgment record, also included a copy of Moore's September 15 letter to Holda.

Young sent a letter to Holda on September 30, 1998, the day after he received the letters and articles from Williams. Young wrote, "I am greatly disturbed by the recent news that [David Hall and Dean Kinney] have acted in the capacity of `Expert Witnesses' to testify against another law enforcement agency and it's [sic] officers." He emphasized he was "voic[ing] [his] concern, not only as Chief of Police of an agency that is one of your largest customers, but also as President of the East Texas Police Chiefs' Association." Noting that "[i]t is not our preference to have these two instructors teach our officers and also engage in legal combat with them in the judicial system," Young stated that "[t]his matter will force us to consider alternative methods to achieve our training needs if not resolved as soon as possible."

In an attempt to address these complaints, Holda met with Moore, Williams, and Young on September 30, 1998. Also in attendance were three other law enforcement officers to whom Williams had forwarded copies of his letter to Holda, including Defendant Green. In his affidavit, Holda gave an account of this meeting that was largely confirmed by Moore, Williams, Young, and Green in their depositions. According to Holda, all four men "made it clear" (1) "that it was unacceptable for Mr. Hall and Mr. Kinney to continue as instructors of officers and recruits and also testify in litigation against police officers," and (2) "that they would no longer send officers and recruits to the [ETPA] for training if Mr. Hall and Mr. Kinney remained on the Academy faculty." Moore, Williams, and Green subsequently agreed to use the ETPA on the condition that their officers would not be instructed by Kinney and Hall, but Young continued

Page 259

to insist that Kinney and Hall be removed from the ETPA faculty.

Shortly after the September 30 meeting, Holda met with Kinney and Hall to apprise them...

To continue reading

Request your trial
12 practice notes
  • Kinney v. Weaver, No. 00-40557.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 15, 2004
    ...claims and state official immunity against the tort claim. A panel of this court affirmed in part and reversed in part. Kinney v. Weaver, 301 F.3d 253 (5th Cir.2002), vacated and reh'g en banc granted, 338 F.3d 432 (5th Cir.2003). On rehearing en banc, we now AFFIRM the district court's ord......
  • East Mississippi State Hosp. v. Callens, No. 2000-CT-00258-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 15, 2004
    ...in commenting on a matter of public concern than the defendants had in protecting the efficiency of the workplace. Kinney v. Weaver, 301 F.3d 253, 268 (5th Cir.2002). Once the plaintiff shows that the protected speech activity was a motivating factor, the burden shifts to the defendants to ......
  • McGreal v. Ostrov, No. 98 C 3958.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • August 21, 2002
    ...by the fact that McGreal is a governmental employee claiming a violation of his First Amendment rights. See e.g. Kinney v. Weaver, 301 F.3d 253, 269-79 (5th Cir. 2002) (engaging in a Pickering-Connick First Amendment analysis as the first step in a qualified immunity question); Gragg v. Ken......
  • Scott v. Godwin, No. 13-02-096-CV.
    • United States
    • Court of Appeals of Texas
    • August 31, 2004
    ...for exercising his First Amendment rights was prohibited by law. See Lanier, 520 U.S. at 270, 117 S.Ct. 1219; see also Kinney v. Weaver, 301 F.3d 253, 279 (5th Cir.2002). 147 S.W.3d 620 2. Legal Objectiveness The objective reasonableness of the official's conduct is measured by the clearly ......
  • Request a trial to view additional results
12 cases
  • Kinney v. Weaver, No. 00-40557.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 15, 2004
    ...claims and state official immunity against the tort claim. A panel of this court affirmed in part and reversed in part. Kinney v. Weaver, 301 F.3d 253 (5th Cir.2002), vacated and reh'g en banc granted, 338 F.3d 432 (5th Cir.2003). On rehearing en banc, we now AFFIRM the district court's ord......
  • East Mississippi State Hosp. v. Callens, No. 2000-CT-00258-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 15, 2004
    ...in commenting on a matter of public concern than the defendants had in protecting the efficiency of the workplace. Kinney v. Weaver, 301 F.3d 253, 268 (5th Cir.2002). Once the plaintiff shows that the protected speech activity was a motivating factor, the burden shifts to the defendants to ......
  • McGreal v. Ostrov, No. 98 C 3958.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • August 21, 2002
    ...by the fact that McGreal is a governmental employee claiming a violation of his First Amendment rights. See e.g. Kinney v. Weaver, 301 F.3d 253, 269-79 (5th Cir. 2002) (engaging in a Pickering-Connick First Amendment analysis as the first step in a qualified immunity question); Gragg v. Ken......
  • Scott v. Godwin, No. 13-02-096-CV.
    • United States
    • Court of Appeals of Texas
    • August 31, 2004
    ...for exercising his First Amendment rights was prohibited by law. See Lanier, 520 U.S. at 270, 117 S.Ct. 1219; see also Kinney v. Weaver, 301 F.3d 253, 279 (5th Cir.2002). 147 S.W.3d 620 2. Legal Objectiveness The objective reasonableness of the official's conduct is measured by the clearly ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT