Stough v. Gallagher, 91-3913
| Decision Date | 07 August 1992 |
| Docket Number | No. 91-3913,91-3913 |
| Citation | 967 F.2d 1523 |
| Parties | John D. STOUGH, Plaintiff-Appellee, v. Walter J. GALLAGHER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
G. Yates Rumbley, Eubanks, Hilyard, Rumbley, Meier & Lengauer, P.A., Orlando, Fla., for defendant-appellant.
Alton G. Pitts, Orlando, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH and HATCHETT, Circuit Judges, and BROWN *, Senior Circuit Judge.
In this public employee demotion case, we affirm the district court's ruling that a sheriff is not entitled to qualified immunity for the demotion of a deputy based upon the deputy's political speech.
In 1988, Lawson L. Lamar, the Sheriff of Orange County, Florida, announced that he would not run for reelection. Walter J. Gallagher, a captain and sector commander with the Sheriff's Office announced his candidacy for sheriff. John D. Stough, another Sheriff's Office captain and sector commander, decided to support another deputy and candidate, Terry James. During off-duty hours, Stough worked and made speeches on James's behalf, contributed money to James's campaign, and solicited others to contribute money.
In the September party primary elections, Gallagher won the nomination as the Republican candidate, and James won the nomination as the Democrat candidate. After the primaries, Stough continued to speak on James's behalf and did so at a political forum which Gallagher attended. In his speech at this forum, Stough compared his background with that of Gallagher's and concluded that neither he nor Gallagher possessed the qualifications to be sheriff. Thus, Stough urged the audience to vote for James. Gallagher won the election in November, 1988, and upon assuming office demoted Stough two ranks, from captain to sergeant, despite Stough's thirteen years as an Orange County deputy sheriff. Sheriff Gallagher assigned Stough the duties of a lieutenant, but refused to promote Stough to the rank of lieutenant and refused to raise his salary and benefits to the level of lieutenant.
The former sheriff, Lawson Lamar, promulgated a career service policy and procedure manual (Series 7000) which became effective October 1, 1987. Section 7003.3 of the published policy established and recognized five levels of supervisory or managerial positions as being career service positions for deputies who met certain prerequisites. According to the manual, the rank of captain was the highest level career service position. It is undisputed that Stough, a captain in 1988, had met the prerequisites set forth in the Series 7000 policy.
Section 7007.1 provided that "[w]hen a newly elected or appointed Sheriff assumes office, the new Sheriff shall continue the status of current Career Service personnel unless cause for dismissal or demotion exists." The manual defined "cause" at section 7007.2 as "misfeasance, nonfeasance or malfeasance of office." The policy, however, also stated that "this policy shall not be held nor construed to create any property rights or any vested interest in any position in the career service and the right is hereby reserved to repeal, alter, or amend this policy or any provision thereof at any time." Sheriff Gallagher did not rescind, repeal, alter, amend, or abolish the career service policy, and in 1989, republished it in his manual.
On January 3, 1991, Stough filed this lawsuit against Sheriff Gallagher seeking money damages and injunctive relief pursuant to section 1983 for First Amendment and Fourteenth Amendment violations. Specifically, Stough alleged that Sheriff Gallagher demoted him from the rank of captain and subsequently failed to promote him from sergeant to lieutenant as retaliation for Stough's association with and political speech in support of Gallagher's political opponent in the sheriff's election of 1988. Sheriff Gallagher filed a motion for summary judgment alleging, among other things, qualified immunity. The district court denied Gallagher's motion for summary judgment.
On appeal, Sheriff Gallagher raises the following issues: (1) whether reducing Stough's rank due to his political speech and activities violated clearly established law; and (2) whether reducing Stough's rank constituted a deprivation of constitutionally recognized and protected property rights.
Sheriff Gallagher contends that even if the adverse personnel actions he took were due to Stough's speech and other activities on behalf of Gallagher's political opponent, such actions were not violative of clearly established First Amendment law. Additionally, Sheriff Gallagher also contends that Stough's claim that Gallagher deprived him of property rights is without merit because deputy sheriffs lack a property or liberty interest in their positions for purposes of the Fourteenth Amendment. On the other hand, Stough contends that his speech was on a matter of public concern and Sheriff Gallagher demoted him because of that speech, in violation of clearly established First Amendment law. Stough also contends that Sheriff Gallagher's actions violated clearly established due process law.
The Supreme Court held in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) that "government officials generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Additionally, the Supreme court held that a right is clearly established only if
[t]he contours of the right [are] ... 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 preexisting 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). This objective "reasonableness" standard affords qualified immunity protection to "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
The Supreme Court created the doctrine of qualified immunity to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court pointed out that the entitlement of qualified immunity "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. Thus, Harlow and its progeny share the common goal of "keep[ing] the public official out of the courtroom, free to exercise discretionary duties under clearly established law without the constant threat of lawsuits." Ansley v. Heinrich, 925 F.2d 1339, 1347 (11th Cir.1991).
In applying the objective reasonableness standard announced in Harlow, this court must "conduct its review through the eyes of an objective, reasonable government official." Nicholson v. Georgia Dept. of Human Resources, 918 F.2d 145, 147 (11th Cir.1990). We held in Nicholson that the relevant inquiry is "could a reasonable official have believed his or her action to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred." Nicholson, 918 F.2d at 147. The objective reasonableness standard is to be applied through the use of the following two-part analysis:
(1) The defendant public official must first prove that 'he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.' (2) Once the defendant public official satisfies his burden of moving forth with the evidence, the burden shifts to the plaintiff to show lack of good faith on the defendant's part. This burden is met by proof demonstrating that the defendant public official's actions 'violated clearly established constitutional laws.'
Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir.1988) (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983) (per curiam)). In Rich, this court also pointed out that the second prong of the objective reasonableness test poses two questions of law which must be answered: (1) what was the clearly established law at the time of the public official's actions, and (2) whether the public official's conduct violated that clearly established law. Rich, 841 F.2d at 1564. To determine whether, at the time of this incident, Stough had a clearly established right not to be demoted for his political speech, the court must look to established law in the area. See Greason v. Kemp, 891 F.2d 829, 833 (11th Cir.1990).
In applying the objective reasonableness standard to Sheriff Gallagher's conduct of demoting Stough, this court initially must determine if Sheriff Gallagher has satisfied the first part of the Rich analysis. This court noted in Rich that "a government official can prove he acted within the scope of his discretionary authority by showing 'objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.' " Rich, 841 F.2d at 1564 (quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir. Unit A 1981)). Sheriff Gallagher was clearly acting within the scope of his discretionary authority because as a Florida sheriff he had absolute control...
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