Milwaukee Deputy Sheriff's Ass'n v. Clarke

• Decision Date: 21 July 2009
• Docket Number: No. 08-3298.,08-3298.
• Citation: 574 F.3d 370
• Parties: MILWAUKEE DEPUTY SHERIFF'S ASSOCIATION and Michael Schuh, Plaintiffs-Appellants, v. David A. CLARKE, Jr., and Eileen Richards, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

574 F.3d 370

MILWAUKEE DEPUTY SHERIFF'S ASSOCIATION and Michael Schuh, Plaintiffs-Appellants, v. David A. CLARKE, Jr., and Eileen Richards, Defendants-Appellees.

No. 08-3298.

United States Court of Appeals, Seventh Circuit.

Argued February 13, 2009.

Decided July 21, 2009.

Linda S. Vanden Heuvel, Attorney, Graham P. Wiemer (argued), Vanden Heuvel & Dineen, S.C., Germantown, WI, for Plaintiffs-Appellants.

James R. Scott, Oyvind Wistrom (argued), Lindner & Marsack, Milwaukee, WI, for Defendants-Appellees.

Before KANNE, ROVNER, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

The dispute in this case is what one's mother might have in mind when she imparts the classic phrase, "Sticks and stones may break my bones, but words will never hurt me." Apparently, Milwaukee County Sheriff David A. Clarke, Jr., did not take this childhood lesson to heart. In the summer of 2005, Sheriff Clarke posted on a roll-call bulletin board a quote that at least one deputy, Michael Schuh, considered an offensive challenge to his and his fellow officers' courage. Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke's courage. Sheriff Clarke, apparently afraid that words would hurt him, quickly responded by reassigning Schuh to a newly created mission in one of Milwaukee's most crime-ridden neighborhoods.

Deputy Schuh sued Sheriff Clarke, claiming that Clarke retaliated against him for engaging in protected speech in violation of the First Amendment. Schuh also claimed that a recent change to the department's Confidentiality Policy constituted an unlawful prior restraint. We are sympathetic to Schuh's position, and we consider Sheriff Clarke's response against Schuh to be excessive. But there are limits to the First Amendment's protections when a public employee speaks, and because we find that Schuh was speaking on a matter of purely private concern, we agree with the district court that summary judgment in Sheriff Clarke's favor was appropriate.

I. BACKGROUND

In late May 2005, the Milwaukee County Deputy Sheriff's Association ("MDSA"), which represents deputies and sergeants employed by the Milwaukee County Sheriff's Office, learned that Sheriff Clarke was directing on-duty officers to escort him to and from the Milwaukee airport and to conduct personalized patrols of his home. Believing the conduct to be an improper personal use of the County's limited resources—particularly during a time when money was tight—MDSA president Roy Felber conveyed the Association's concerns to a reporter from the Milwaukee Journal Sentinel. The record is unclear whether the newspaper published a story about the Sheriff at that time.¹

A few weeks later, Sheriff Clarke posted a quote on a roll-call board at the department, visible to most Sheriff's Office employees. Sheriff Clarke had posted quotations and inspirational messages in the past, but this one had a notably confrontational tone:

If you are afraid or have lost your courage, you may go home, otherwise you will ruin the morale of others.

Deuteronomy, Chapter 20, Verse 8

One deputy who read Sheriff Clarke's "inspirational" post was Michael Schuh, an eighteen-year veteran officer who was then working as a bailiff. Schuh took offense to Sheriff Clarke's message, believing the Sheriff was personally challenging his own—and his brother and sister officers'— courage to perform their duties.

In response to the Sheriff's quote, Schuh submitted a two-sentence statement to the Star, an MDSA newsletter dedicated to publishing news and updates within the Sheriff's Office. The Star regularly contained editorials and commentary from deputies, including occasional criticism of Sheriff Clarke. The MDSA distributes the Star to approximately 700 current and retired MDSA members, as well as private businesses, sponsors, and the Milwaukee County Board of Supervisors, which controls the Sheriff's budget.

Deputy Schuh's article mirrored Sheriff Clarke's quote from Deuteronomy, with a few additions that Moses never uttered while outside of the Promised Land:

Union Member's Response:

If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you're out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).

According to Deputy Schuh, he learned of Sheriff Clarke's use of officers to patrol his home by viewing an order for that assignment on a roll-call board, and news of the Sheriff's personal escorts to the airport arrived through the "grapevine." Schuh testified that he construed the Sheriff's post as a challenge to his courage, and he wrote his response to "throw back at him what he threw at us." Schuh merely intended to make a sarcastic remark about the Sheriff's courage and did not believe that Clarke was in fact a coward.

On Friday, July 22, 2005, the MDSA distributed the edition of the Star containing Schuh's article. Sheriff Clarke, who did not know Deputy Schuh until this incident, was less than pleased by the statement. Later that evening, Clarke called his second-in-command, Inspector Kevin Carr, to discuss an appropriate response.

Clarke settled on reassigning Schuh to a new "Pilot Project," created just for Schuh, that required him to patrol a portion of Milwaukee on foot, in full uniform, and perform various tasks. One objective of the Project was to improve relations with the community, which Schuh would achieve by interviewing residents to determine "what plagues the neighborhood the most" and to "[c]onvince them that we're the good guys/we're on their side and can't succeed without their participation." Another of the stated objectives of the Project was simple: "Visibility." Clarke e-mailed the details of the new assignment to Carr on Saturday, July 23, stating that "We'll identify the census tract.... And order him to wear his uniform hat for greater visibility."

Any uncertainty that Sheriff Clarke harbored about where to send Deputy Schuh was resolved the next day, Sunday, July 24, when the Journal Sentinel printed a map of a crime-ridden section of Milwaukee's north side. The newspaper characterized the map as the "demographics of a high killing area," described the one-square-mile neighborhood as "the City's deadliest area," and demarcated recent "homicides in Milwaukee's `hot spot.'" Sheriff Clarke acknowledged reading the article; the reader can undoubtedly see where this tale is headed.

When Deputy Schuh arrived at work on Monday, July 25, he received his plum new assignment. The location to which Clarke assigned Schuh matched precisely the boundaries of "the City's deadliest area." Schuh was told that he must embark on this foot patrol campaign in full uniform, without a partner, and without a squad car. And unlike any other officer, he was required to ride a Milwaukee County Transit bus to and from his new "beat." He received no advance notice of his reassignment, as required by the parties' collective bargaining agreement. Not surprisingly, Schuh viewed the reassignment as punishment for his statement against Sheriff Clarke.

County authorities and the local media quickly learned of the Sheriff's conduct. On July 27, two days after Schuh's reassignment, the Milwaukee County Board of Supervisors, which oversees the Sheriff's budget, issued an open letter to the Sheriff. The Board expressed its "disgust at the reassignment of Deputy Michael Schuh," criticized the Sheriff's fiscal irresponsibility and "senseless approach" to combating violence, and concluded: "We urge you to reconsider the blatantly shortsighted, irresponsible, and potentially dangerous move of placing a Deputy as a one-man foot patrol in the streets." Deputy Schuh and the MDSA filed a federal lawsuit on the same day, and the media's focus then shifted to the litigation.

On July 29, the Journal Sentinel published an editorial cartoon depicting Sheriff Clarke (donning the obligatory ten-gallon cowboy hat) pointing a gun labeled "retaliation" at a picture of Deputy Schuh, only to have it backfire in the Sheriff's face, to which the Sheriff exclaims, "I guess I showed him!"

Schuh served on foot patrol for over one month, from July 25 to September 8, 2005. He was equipped with a radio and stated that he was neither afraid nor threatened while performing his duties. Schuh did not lose any pay or benefits during the Pilot Project, and he was eventually granted his request for a transfer.

On July 28, 2005, only three days after reassigning Deputy Schuh, Sheriff Clarke issued Directive No. 13-05, which formally revised the department's Confidentiality Policy. The original Confidentiality Policy was promulgated in 1984, and a revision had apparently been in the works for some time prior to the controversy surrounding Deputy Schuh. Sheriff's Office employees proposed an updated policy in 2002, although the revision was never implemented. In July 2005, Captain Eileen Richards, at Sheriff Clarke's direction, drafted the revised policy, relying in large part on the unimplemented 2002 proposal.

The new policy, which remains in effect, differed only slightly from the old. Rather than requiring employees to "keep departmental business confidential," employees now must "keep official agency business confidential." Employees are prohibited from imparting such information "to anyone except those for whom it is intended, or as directed by the Sheriff or his designee, or as ordered by law." The new rule also mandates that no one "shall speak on behalf of the" Sheriff's Office unless authorized to do so.

After Sheriff Clarke issued the revised Confidentiality Policy, Deputy Schuh spoke with the media on multiple occasions regarding his reassignment. He was never disciplined or threatened with discipline under the new Policy. In fact, MDSA president Roy Felber was unaware of any employee disciplined under ...