Schad v. Jones, 04-3396.

• Decision Date: 15 July 2005
• Docket Number: No. 04-3396.,04-3396.
• Citation: 415 F.3d 671
• Parties: George C. SCHAD, Plaintiff-Appellee, v. Arthur L. JONES, Police Chief, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 671

415 F.3d 671

George C. SCHAD, Plaintiff-Appellee, v. Arthur L. JONES, Police Chief, Defendant-Appellant.

No. 04-3396.

United States Court of Appeals, Seventh Circuit.

Argued May 3, 2005.

Decided July 15, 2005.

William R. Rettko (argued), Rettko Law Offices, Brookfield, WI, for Plaintiff-Appellee.

Jan A. Smokowicz (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendant-Appellant.

Before FLAUM, Chief Judge, and KANNE and SYKES, Circuit Judges.

FLAUM, Chief Judge.

Plaintiff-appellee George C. Schad, a police officer with the Milwaukee Police Department ("MPD"), filed suit pursuant to 42 U.S.C. § 1983, alleging that the City of Milwaukee, Wisconsin, and Arthur L. Jones, former Chief of Police for Milwaukee, violated the First Amendment to the United States Constitution by transferring Schad in retaliation for his statements to a fellow officer. The district court denied defendants' motion for summary judgment, holding that Schad's speech was constitutionally protected and that Chief Jones was not entitled to qualified immunity. Chief Jones appeals and, for the reasons stated herein, we reverse.

I. Background

From November 1999 through February 2001, Officer Schad served as a member of the Warrant Squad of the MPD. The Warrant Squad, which is responsible for locating and arresting people wanted on outstanding warrants, is a desirable assignment within the MPD for which officers are specially selected.

In late January or early February 2001, the MPD's Tactical Enforcement Unit was in a 24-hour standoff with a suspect named Lesmes Rivera. Members of the Unit succeeded in arresting Rivera only after using teargas to draw him out of the house in which he had barricaded himself. On February 14, 2001, Rivera posted bail and was released.¹ The same day, Chief Jones transmitted Rivera's name to all MPD district stationhouses, stating that Rivera was wanted on three felony warrants.

At the February 14, 2001 Warrant Squad roll call, Schad and the other squad members on duty were instructed to locate and arrest Rivera. They were given Rivera's photograph and possible addresses where he might be found. Following roll call, the acting Criminal Investigation Bureau shift commander, Lieutenant William Jessup, called Schad and told him that he had received an anonymous tip about Rivera's location. When Lieutenant Jessup asked him to check the address located in Milwaukee's district no. 2, Schad responded that neither he, nor any of the other Warrant Squad officers on duty, were available to follow up on the tip at that time. The call ended with Lieutenant Jessup saying "we have to get somebody out there," or something to that effect.

Following Lieutenant Jessup's call, another Warrant Squad officer suggested that Schad call Officer Matthew Knight who was assigned to district no. 2 and who was familiar with the Rivera case. Rather than relaying this suggestion to Lieutenant Jessup, Schad called Knight directly. Knight agreed to follow up on the tip and, after receiving permission from his sergeant, went with his partner to the address provided by Schad. Upon entering the building at that address, Knight found Rivera in the hallway and told him that he was under arrest. When Rivera reached for a pistol in his waistband, Knight knocked it away and a "major struggle" ensued. Rivera eventually was subdued and taken into custody.

Soon after Rivera's arrest, Schad learned that Chief Jones was angry that he had disclosed the Rivera tip to Knight. The earlier standoff with Rivera made Chief Jones concerned about officer safety and he wanted the specially trained Tactical Enforcement Unit to make the arrest. Lieutenant Jessup had in fact contacted the Tactical Enforcement Unit after his call to Schad, but Knight and his partner arrested Rivera before officers from the Unit could arrive on the scene. Schad later heard rumors that the real reason Chief Jones had wanted the Tactical Enforcement Unit to make the arrest was that he hoped it would make up for the Unit's earlier standoff with Rivera that had made the chief look bad.

Two days after Rivera's arrest, Chief Jones transferred Schad from the Warrant Squad to patrol duty, a much less desirable assignment. Chief Jones stated that he transferred Schad because he had breached the MPD's confidentiality rule by disclosing Rivera's whereabouts to someone outside of the Warrant Squad. He said that he believed that Schad "placed officers' lives in danger by releasing information to those officers [to whom] he was not authorized to release [it]."

On June 4, 2002, Schad filed a First Amendment retaliation suit in federal court against Chief Jones and the City of Milwaukee. Defendants moved for summary judgment, arguing that Schad's speech was not protected by the First Amendment because it was not on a matter of public concern, and asserting Chief Jones's entitlement to qualified immunity. The district court held that Schad's speech was protected and denied Chief Jones's claim of qualified immunity.

II. Discussion

Although the denial of summary judgment did not end this case in the district court, we have jurisdiction to review whether the district court properly denied defendant-appellant Jones's claim of qualified immunity. See Kiddy-Brown v. Blagojevich, 408 F.3d 346, 352 (7th Cir. 2005); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ("[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment."). Where a defendant has asserted entitlement to qualified immunity, we review de novo a district court's denial of summary judgment. Leaf v. Shelnutt, 400 F.3d 1070, 1077 (7th Cir. 2005). Summary judgment is appropriate if the evidence presented by the parties "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Government officials enjoy qualified immunity and are shielded from civil liability, "as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To determine whether an official is entitled to qualified immunity, we ask: (1) whether the facts alleged, taken in the light most favorable to the party asserting the injury, demonstrate that the official's conduct violated a constitutional right; and (2) whether the right was "clearly established" such that it would have been clear to a reasonable official "that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We need not address the second question in this case because, for the reasons explained below, we answer the first in the negative. See id. at 201, 121 S.Ct. 2151 ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.").

Schad contends that Chief Jones violated his First Amendment right to freedom of speech by retaliating against him for disclosing the Rivera tip to Knight. "A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment." City of San Diego v. Roe, ___ U.S. ___, ___, 125 S.Ct. 521, 523, 160 L.Ed.2d 410 (2004). Because "the government as an employer has an interest in conducting its operations as effectively as possible," however, "public employees do not have an unfettered right to express themselves on matters related to their jobs, and courts must give due weight to the government's interest in efficient employment decisionmaking when evaluating retaliation claims." Brooks v. Univ. of Wis. Bd. of Regents, 406 F.3d 476, 479 (7th Cir.2005) (citing Cygan v. Wis. Dep't of Corr., 388 F.3d 1092, 1098 (7th Cir.2004); Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)). To establish a claim of First Amendment retaliation, a plaintiff must prove "that the speech in question is constitutionally protected and that it was a substantial, or motivating, factor in the employer's retaliatory actions." Brooks, 406 F.3d at 479. "If the plaintiff establishes these elements, the burden shifts to the government to prove that it would have taken the same action in the absence of the protected speech." Id. In this case, there is no dispute that Chief Jones transferred Schad to a less desirable assignment because he disclosed the Rivera tip to Knight, and that the transfer would not have occurred had Schad not done so. Therefore, the only issue before us is whether Schad's speech was constitutionally protected.

In determining whether a government employee's speech is constitutionally protected, we apply the two-step Connick-Pickering test. Cygan, 388 F.3d at 1099 (citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). First, under Connick, we must determine whether the employee spoke "as a citizen upon matters of public concern." Connick, 461 U.S. at 147, 103 S.Ct. 1684; see also Cygan, 388 F.3d at 1099. In making this determination, we examine "the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. Second, under Pickering, we balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731; see also Cygan, 388 F.3d at 1099. The parties, as well as...