Manhattan Beach Police Officers Ass'n, Inc. v. City of Manhattan Beach

• Decision Date: 08 August 1989
• Docket Number: No. 88-5671,88-5671
• Citation: 881 F.2d 816
• Parties: MANHATTAN BEACH POLICE OFFICERS ASSOCIATION, INC., et al., Plaintiffs-Appellees, v. CITY OF MANHATTAN BEACH; David J. Thompson; Harry L. Kuhlmeyer, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 816

881 F.2d 816

MANHATTAN BEACH POLICE OFFICERS ASSOCIATION, INC., et al Plaintiffs-Appellees, v. CITY OF MANHATTAN BEACH; David J. Thompson; Harry L Kuhlmeyer, Jr., et al., Defendants-Appellants.

No. 88-5671.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 31, 1988.

Decided Aug. 8, 1989.

Richard R. Terzian, Adams, Duque & Hazeltine, Los Angeles, Cal., for defendants-appellants.

George W. Shaeffer, Jr., Silver, Kreisler, Goldwasert & Shaeffer, Newport Beach, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER, REINHARDT and LEAVY, Circuit Judges.

SCHROEDER, Circuit Judge:

This is another appeal from the denial of a defense motion for summary judgment in an action seeking damages under 42 U.S.C. Sec. 1983. Because the motion for summary judgment was based upon the defense of qualified immunity, the denial is appealable under Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985).

The scope of our inquiry in such appeals is extremely narrow, but these appeals appear to have become a routine part of every section 1983 case surviving a defense motion for summary judgment. They often cause regrettable expense and delay. As we observed approximately one year ago, "[s]tate government defendants apparently now deem it mandatory to bring these appeals from any adverse ruling, no matter how clearly correct the trial court's decision." Schwartzman v. Valenzuela, 846 F.2d 1209, 1210 (9th Cir.1988). That observation remains valid.

The plaintiffs in this case are police officers who have alleged that the defendants abridged their first amendment rights. They allege that the defendants denied them consideration for a more desirable position, and that they based this decision on plaintiffs' public statements on matters of public concern.

There is an essentially factual dispute as to the nature of the position plaintiffs sought and the qualifications for that position. The parties further disagree as to whether the defendants justifiably took into account the plaintiffs' union activity, as opposed to political speech, in considering their qualifications for the desired position. The only issue before us, however, in reviewing the denial of defendants' claim of qualified immunity, is whether the plaintiffs have alleged the violation of norms that were clearly established at the time of the challenged actions. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816-17. We affirm.

Plaintiffs John Zea and William Sapp are policemen employed by the city of Manhattan Beach, California who hold the rank of sergeant. They have, at various times, served as officers and directors of their union, the Manhattan Beach Police Officers Association, which represents city police officers in employment matters.

The defendants include Police Chief Harry L. Kuhlmeyer and David J. Thompson, the City Manager. Some time in the latter part of 1984, the defendants established a new position within the City police department known as the "administrative sergeant." Plaintiffs allege that this position was more desirable than the other posts available to sergeants because it had a more desirable work schedule, it was viewed as an assignment that would lead to further promotion, and it had other advantages over the positions they then occupied. Plaintiffs Zea and Sapp allege that they were denied consideration for the position of administrative sergeant because of various public statements they made concerning the operations of the police department, including letters to the local newspaper criticizing the city council for failure to appoint more police officers, and other letters to local newspapers concerning police department staffing. Plaintiffs allege that their first amendment rights were violated because they were denied a job benefit as punishment for the exercise of those rights. See Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 284-86, 97 S.Ct. 568, 574-76, 50 L.Ed.2d 471 (1977).

The defendants moved for summary judgment, arguing that plaintiffs were rejected for the position for reasons unrelated to their speech. In the alternative, defendants argued that they were concerned only with plaintiffs' union activities, and that the position of administrative sergeant was a management post for which plaintiffs' union activities could be taken into account. Defendants also contended that they enjoyed qualified immunity from suit because of the "unsettled and unknown state of the law" as of the fall of 1984. The district court denied defendants' motion for summary judgment and this interlocutory appeal followed. In this appeal we properly consider only the question whether the district court should, as a matter of law, have granted the motion on grounds of qualified immunity. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816-17; Todd v. United States, 849 F.2d 365, 368 (9th Cir.1988).

The Supreme Court has stated that state and local officials are entitled to qualified immunity if "their conduct [did] 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, 2738, 73 L.Ed.2d 396 (1982). "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say 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) (citations omitted).

In this appeal, our task is not to determine whether defendants' conduct actually violated clearly established statutory or constitutional rights when the facts are in dispute. Rather the Supreme Court has said that in an interlocutory appeal from a denial of a motion for summary judgment on qualified immunity, our inquiry should be limited to deciding whether the "legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions." Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816. The Supreme Court's admonition placed in its immediate textual framework is as follows:

An appellate court reviewing the denial of the defendant's claim of immunity need not consider the correctness of the plaintiff's version of the facts, nor even determine whether the plaintiff's allegations actually state a claim. All it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, in cases where the district court has denied summary judgment for the defendant on the ground that even under the defendant's version of the facts the defendant's conduct violated clearly established law, whether the law clearly proscribed the actions the defendant claims he took.... We emphasize at this point that the appealable issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some cases, the defendant) support a claim of violation of clearly established law.

Id. at 528 & n. 9, 105 S.Ct. at 2816 & n. 9.

In this appeal, the defendants maintain that they could not have violated any clearly established rights, because there was no reported case in 1984 in which, on facts similar to those...