Morgan v. Robinson, No. 17-1002

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: BENTON, Circuit Judge.
• Citation: 920 F.3d 521
• Docket Number: No. 17-1002
• Decision Date: 29 March 2019
• Parties: Donald MORGAN, Plaintiff - Appellee v. Michael ROBINSON, Washington County Sheriff, an individual, Defendant - Appellant Washington County, Nebraska, Defendant

920 F.3d 521

Donald MORGAN, Plaintiff - Appellee
v.
Michael ROBINSON, Washington County Sheriff, an individual, Defendant - Appellant

Washington County, Nebraska, Defendant

No. 17-1002

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2018
Filed: March 29, 2019

Amy S. Jorgensen, Benjamin Nicholas White, C. Thomas White, Thomas M. White, WHITE & JORGENSEN, Omaha, NE, for Plaintiff - Appellee.

Charles W. Campbell, ANGLE & MURPHY, York, NE, for Defendant - Appellant.

Before SMITH, Chief Judge, WOLLMAN, LOKEN, COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, and STRAS, Circuit Judges, En Banc.¹

BENTON, Circuit Judge.

Donald Morgan sued his boss Michael Robinson for First Amendment retaliation under 42 U.S.C. § 1983. Robinson moved for summary judgment based on qualified immunity. The district court denied the motion. This court reverses and remands.

I.

Morgan is a deputy in the Washington County, Nebraska Sheriff’s Department. Robinson is the elected sheriff. In 2014, Morgan ran against Robinson in the primary election. During the campaign, Morgan publicly made statements about the sheriff’s department and his plans to improve it. Robinson won. Six days later, Robinson terminated Morgan’s employment, claiming his campaign statements violated the department’s rules of conduct.

Morgan sued Robinson for retaliatory discharge in violation of the First Amendment. Robinson moved for summary judgment based on qualified immunity. The district court denied the motion, finding "genuine issues of material fact regarding

920 F.3d 523

the constitutionality of the termination, and whether Robinson should have reasonably known the termination was unlawful." Morgan v. Robinson , 2016 WL 10636372, at *5 (D. Neb. Dec. 8, 2016). On appeal, a panel of this court affirmed. Morgan v. Robinson , 881 F.3d 646, 650 (8th Cir. 2018), reh’g en banc granted, opinion vacated (Mar. 21, 2018). This court granted rehearing en banc, vacated the panel decision, and now reverses.

II.

Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) . Ordinarily, this court lacks jurisdiction over a denial of summary judgment "because such an order is not a final decision." Division of Emp’t Sec. v. Board of Police Comm’rs , 864 F.3d 974, 978 (8th Cir. 2017). However, if the moving party claims qualified immunity, "an immediate appeal is appropriate ... because immunity is effectively lost if a case is erroneously permitted to go to trial." Id. This court reviews de novo denials of summary judgment based on qualified immunity. Id.See Spirtas Co. v. Nautilus Ins. Co. , 715 F.3d 667, 670 (8th Cir. 2013) ("This court reviews de novo a grant of summary judgment, construing all facts and making all reasonable inferences favorable to the nonmovant.").

Qualified immunity shields officials from civil liability in § 1983 actions when their conduct " ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity analysis requires a two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct." Nord v. Walsh Cty. , 757 F.3d 734, 738 (8th Cir. 2014) (internal quotation marks omitted). "Unless both of these questions are answered affirmatively, an appellant is entitled to qualified immunity." Id. "And, courts are ‘permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.’ " Id. at 738-39, quoting Pearson , 555 U.S. at 236, 129 S.Ct. 808.

III.

The district court found "a genuine issue of material factors" on "the first prong of the qualified immunity analysis." Morgan , 2016 WL 10636372, at *5. A panel of this court found that Morgan’s termination "violated a right secured by the First Amendment." Morgan , 881 F.3d at 656. This court need not decide the issue because Robinson did not violate a "clearly established statutory or constitutional right[ ] of which a reasonable person would have known." Pearson , 555 U.S. at 231, 129 S.Ct. 808.

A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards , 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (internal quotation marks and alteration omitted). "[T]he longstanding principle" is that " ‘clearly established law’ should not be defined ‘at a high level of generality.’ " White v. Pauly , ––– U.S. ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017), quoting Ashcroft v. al–Kidd , 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Instead,

920 F.3d 524

"the clearly established law must be ‘particularized’ to the facts of the case." Id. , quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). There need not be a case "directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074. See District of Columbia v. Wesby , ––– U.S. ––––, 138 S.Ct. 577, 590, 199 L.Ed.2d 453 (2018) (requiring that the "clearly established standard" be defined with a "high degree of specificity" (internal quotation marks omitted)). In other words, qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Stanton v. Sims , 571 U.S. 3, 6, 134 S.Ct. 3, 187 L.Ed.2d 341 (2013) (per curiam) (internal quotation marks omitted). Morgan has the burden to demonstrate that the law is clearly established. Sparr v. Ward , 306 F.3d 589, 593 (8th Cir. 2002).

To determine whether the law was clearly established at the time of Morgan’s termination, this court needs to look no further than Nord v. Walsh . Nord , 757 F.3d 734. There, a deputy sheriff in Walsh County, North Dakota, ran against his current boss. Id. at 737. During the campaign, he made comments critical of the sheriff. Id. at 742. The sheriff won. Id. at 738. The next day, after consulting the county attorney and human resources consultant, he fired the deputy. Id. The deputy sued under § 1983 for violations of the First and Fourteenth Amendments. The district court denied the sheriff’s motion for summary judgment based on qualified immunity. Id. ,citing Nord v. Walsh Cnty. , 2012 WL 12848433 (D.N.D. Aug. 30, 2012), rev’d , 757 F.3d 734 (8th Cir. 2014). This court reversed, finding the sheriff entitled to qualified immunity. Id. at 745. This court said, "considering North Dakota law and well-established state and federal jurisprudence, and especially the advice given by the Walsh County attorney and its human resources consultant, Sheriff Wild could have logically and rationally believed that his decision to terminate Nord was well within the breathing room accorded him as a public official in making a reasonable, even if mistaken, judgment under the circumstances." Id. at 743, citing Stanton , 571 U.S. at 6, 134 S.Ct. 3.

The facts of this case are similar to Nord . Here, as there, the Washington County Sheriff’s Department enforces the police powers in the county. Compare Neb. Rev. Stat. § 23-1701.02 ("It shall be the duty of every sheriff to apprehend ... all felons and disturbers and violators of the criminal laws of this state, to suppress all riots, affrays, and unlawful assemblies ... and generally to keep the peace in his or her proper city."), with Nord , 757 F.3d at 740 (noting that the "sheriff manages and enforces a substantive portion of the sovereign’s policing powers"). Both departments are relatively small. In Washington County, three deputies typically work each shift, with two working one half of the county and the third working the county at large. This "presumably means that there will be times when a single deputy will present the face of the sheriff in the county, at least in the assigned district." Nord , 757 F.3d at 741. The deputies thus represent the sheriff in public, executing the duties and responsibilities of the department.

The Washington County sheriff, like the sheriff in Nord , has the power to appoint and terminate deputies. See Neb. Rev. Stat. § 23-1704.01 ("The sheriff may appoint such number of deputies as he or she sees fit for whose acts he or she will be responsible."); Neb. Rev. Stat. § 23-1734 ("Any deputy sheriff may be removed, suspended

920 F.3d 525

with or without pay, or reduced in either rank or grade or both rank and grade by the sheriff ...."). This power necessitates deference "in executing ... official duties, including the hiring and firing of employees—especially subordinate officers." Nord , 757 F.3d at 741. In both counties, the sheriff "has an interest in maintaining the efficient operation" of the office. Morgan , 881 F.3d at...