Kinney v. Weaver, No. 00-40557.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtKing
Citation367 F.3d 337
Decision Date15 April 2004
Docket NumberNo. 00-40557.
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.

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367 F.3d 337
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.
April 15, 2004.

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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 Smith and Smith County, TX.

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

Louis Charles Van Cleef, Holmes & Moore, Longview, TX, Robert Scott Davis, Flowers Davis, Tyler, TX, for Weaver, Green, Gregg Cty., TX and Harrison Cty., TX.

William S. Helfand, Kevin D. Jewell, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Moore, Williams, Gibson, City of Kilgore, TX, City of Marshall, TX and City of Nacogdoches, TX.

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

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.*

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, 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 Amendment, (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 bring an interlocutory appeal of the district court's order denying their motion for summary judgment, in which they asserted qualified immunity against the federal 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 order denying the officials' claim of immunity from the § 1985 claim, the § 1983 First Amendment claim, and the state law claim; given material factual disputes, these claims cannot be disposed of on summary judgment. We REVERSE the district court's order

Page 341

denying immunity from the plaintiffs' § 1983 due process claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

While many of the basic facts in this case are uncontested, a number of the legally relevant facts are still disputed at this stage. In Parts II and III of this opinion, we elaborate the appellate prism through which we must view the facts in this interlocutory appeal from the district court's decision denying qualified immunity. As we explain there, we are required to accept the truth of the plaintiffs' summary judgment evidence, and we lack jurisdiction to review the genuineness of those factual disputes that precluded summary judgment in the district court. Nonetheless, for ease of understanding and later discussion, our recitation of the facts will note both sides' assertions with respect to the material points of disagreement.

At the time of the events giving rise to this 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. Kinney and Hall had been working at the ETPA for seventeen years and six years, respectively, under renewable one-year employment contracts. The seven law enforcement officials (collectively "the Police Officials") asserting qualified immunity in this case are police chiefs or sheriffs who possess final authority over the training of the officers employed by their respective agencies.1 Before the fall of 1998, the Police Officials enrolled their officers in ETPA courses on a regular basis, including courses taught by Kinney and Hall. The Police Officials were not contractually bound to continue using either the ETPA's services or the services of Kinney and Hall in particular.

In August 1998, Kinney and Hall testified as expert witnesses for the family of Edward Gonzales, a teenager who was fatally shot by a police sniper employed by the city of Kerrville, Texas. The Kerrville case did not involve officers who had trained at the ETPA or police agencies that sent trainees to the ETPA, as Kerrville lies several hundred miles from Kilgore, outside the region from which the ETPA draws its students.2 Kinney and Hall had never before testified as expert witnesses against police officers, though Kinney had previously testified as an expert in defense of the police. The lawyer for the victim's family in the Kerrville case approached the two instructors because he had experienced difficulty finding local experts who were willing to testify against the police.

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

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necessary to direct the conduct of officers acting as snipers. Kinney and Hall were technically under subpoena in the Kerrville case, but they testified voluntarily. Although Kinney and Hall originally planned to receive payment for their services, they decided, shortly after their depositions and before trial, 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."

Soon after Kinney and Hall testified in the Kerrville case, William Holda, the president of Kilgore College, received letters from some of the Police Officials threatening to stop using the ETPA for officer training. In a letter dated September 15, 1998, Kilgore Director of Public Safety Ronnie Moore told Holda that he was concerned about the instructors' recent inquiries regarding a gun confiscated by the Kilgore police, because "[i]t is a well known fact within this agency that these instructors had previously testified in another matter, against other Officers."3 Moore said that testimony offered in support of the police was "acceptable and reasonable," but Kinney's and Hall's testimony "is in direct conflict with the basic fundamentals and expectations that we have come to enjoy from Academy instructors." 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 the instructors' expert testimony. He wrote, "I think it is deplorable ... that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies." 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, probably in August 1998, an anonymous package containing the three newspaper articles that he attached to his letter to Holda. In addition to the articles, the package contained a note telling Williams to contact Moore for more information, which Williams did shortly after receiving the package.

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Williams forwarded copies of his September 29, 1998, letter and the attached articles to Moore and four of the other Police Officials, 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 that he was "greatly disturbed by the recent news that [Hall and 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 writing "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 Chief's [sic] Association."...

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    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • June 20, 2017
    ...clear that a reasonable official would understand that the conduct here would violate the rights of plaintiff. Kinney v. Weaver, 367 F.3d 337, 356-57 (5th Cir. 2004) (allowing the question of qualified immunity to proceed to a jury). However, in light of the circumstances of this particular......
  • McKey v. August, Civil Action 16-13642-WBV-MBN
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • August 13, 2021
    ...S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)) (internal quotation marks omitted); Club Retro, LLC, 568 F.3d at 194 (quoting Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004) (en banc)). [81] Thompson, 245 F.3d at 457 (citing Anderson, 483 U.S. 635, 107 S.Ct. at 3040; Malley v. Briggs, 475 U......
  • Boston v. Harris Cnty., CIVIL ACTION H-11-1566
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 26, 2014
    ...the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.'" Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "The 'clearly established' standard does not mean that o......
  • McCollum v. Livingston, CIVIL ACTION NO. 4:14-CV-3253
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 3, 2017
    ...the conduct then at issue violated constitutional rights." Easter v. Powell, 467 F.3d 459, 465 (5th Cir. 2006) (citing Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)). A. 8th Amendment Conditions of Confinement Claim Plaintiff......
  • Request a trial to view additional results
662 cases
  • Pacheco v. St. Mary's Univ., Civil Case No. 15-cv-1131 (RCL)
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • June 20, 2017
    ...clear that a reasonable official would understand that the conduct here would violate the rights of plaintiff. Kinney v. Weaver, 367 F.3d 337, 356-57 (5th Cir. 2004) (allowing the question of qualified immunity to proceed to a jury). However, in light of the circumstances of this particular......
  • McKey v. August, Civil Action 16-13642-WBV-MBN
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • August 13, 2021
    ...S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)) (internal quotation marks omitted); Club Retro, LLC, 568 F.3d at 194 (quoting Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004) (en banc)). [81] Thompson, 245 F.3d at 457 (citing Anderson, 483 U.S. 635, 107 S.Ct. at 3040; Malley v. Briggs, 475 U......
  • Boston v. Harris Cnty., CIVIL ACTION H-11-1566
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 26, 2014
    ...the right must be sufficiently clear that a reasonable official would understand what he is doing violates that right.'" Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004), quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "The 'clearly established' standard does not mean that o......
  • McCollum v. Livingston, CIVIL ACTION NO. 4:14-CV-3253
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 3, 2017
    ...the conduct then at issue violated constitutional rights." Easter v. Powell, 467 F.3d 459, 465 (5th Cir. 2006) (citing Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)). A. 8th Amendment Conditions of Confinement Claim Plaintiff......
  • Request a trial to view additional results

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