Vose v. Kliment

• Decision Date: 26 October 2007
• Docket Number: No. 07-1792.,07-1792.
• Citation: 506 F.3d 565
• Parties: Ronald VOSE, Plaintiff-Appellee, v. Donald KLIMENT, Chief of Police of the City of Springfield, in his individual capacity, and William Rouse, Deputy Chief of Police of the City of Springfield, in his individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

506 F.3d 565

Ronald VOSE, Plaintiff-Appellee, v. Donald KLIMENT, Chief of Police of the City of Springfield, in his individual capacity, and William Rouse, Deputy Chief of Police of the City of Springfield, in his individual capacity, Defendants-Appellants.

No. 07-1792.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2007.

Decided October 26, 2007.

Howard W. Feldman, Stanley N. Wasser (argued), Feldman, Wasser, Draper & Benson, Springfield, IL, for Plaintiff-Appellee.

Angela M. Fyans (argued), Office of the Corporation Counsel, Springfield, IL, for Defendants-Appellants.

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

Defendants-Appellants Donald Kliment and William Rouse appeal from the district court's denial of their Motion to Dismiss on the basis of qualified immunity. They assert that they are entitled to qualified immunity against Plaintiff-Appellee Ronald Vose's § 1983 claims which allege violations of Vose's First Amendment free speech rights. Vose argues that his speech was protected, and therefore Kliment and Rouse's retaliation in response to that speech violated his constitutional rights. The district court determined that Vose's speaking out about fellow police officer misconduct was not part of his job duties, and thus was protected speech that was clearly established before the events of this case. Based on this, the district court held that Kliment and Rouse were not entitled to qualified immunity. We disagree with the district court's conclusion that Vose's speech was constitutionally protected, and therefore reverse its denial of qualified immunity to Kliment and Rouse.

I. Background

In 2004, Vose was a police sergeant in the narcotics unit of the City of Springfield Police Department and had been with the Department for more than 26 years, including over 13 years in the narcotics unit. At that time, Donald Kliment was the Chief of Police of the City of Springfield, and William Rouse was the Deputy Chief of Police in charge of the investigations unit. As a sergeant in the narcotics unit, Vose supervised the narcotics unit and reported directly to Lieutenant David Dodson, who in turn reported to Rouse.

While working in the narcotics unit, Vose learned that detectives in the major case unit were using alleged drug investigations as a means to gather evidence by searching garbage from specific residences or locations in order to have a lawful basis to obtain search warrants for those locations. This search technique is called a "trash rip." Vose was worried that the trash rips could compromise ongoing drug investigations being conducted by his unit, and he was also concerned with the lack of coordination between the narcotics unit and the major case unit. Vose reviewed various applications for search warrants made by the major case unit and discovered that the major case unit detectives were not following City of Springfield Police Department procedures for obtaining search warrants, that the detectives were violating laws applicable to the search warrant process, and that the detectives filed false or misleading affidavits with the courts in support of the search warrants. Vose also learned that search warrants were being obtained by major case unit detectives by claiming that the warrants were for the purposes of obtaining information on drug investigations; in fact, no such drug investigations were undertaken by the narcotics unit. Vose brought these concerns to the attention of his supervisors, including Rouse and Kliment during the summer or early fall of 2004. Vose also voiced his concerns about the detectives' apparent misconduct at Department meetings during the fall of 2004. To Vose's knowledge, neither Kliment nor Rouse had taken any action on his complaints.

On November 16, 2004, Vose told Rouse that some of the detectives from the major case unit were scheduled to testify at a criminal trial and that there may be a problem with their testimony. Rouse told Vose to attend the trial and report back to him. At the trial, Vose learned that documents possessed by the Springfield Police Department had not been turned over to the defense, as required by law. One of the detectives at the trial confronted Vose and accused him of working for the defendant. Vose reported back to Rouse what he had learned and the accusation made by the major case unit detective. Approximately two weeks later, Vose was served with an internal affairs complaint related to the incident at the trial. In December 2004, Rouse sent Vose a letter ordering him to report in writing about the alleged misconduct of the major case unit detectives, which Vose received immediately before he was scheduled for an approved vacation leave. Vose advised Rouse and Kliment that he would respond upon his return on January 3, 2005.

On February 14, 2005, Vose told Rouse that due to the sensitive nature of his written report on the detectives' alleged misconduct, which included criticism of Rouse's inaction, he would deliver the written report directly to Kliment. Vose delivered the report on March 2, 2005. Around that time, two newspaper articles were published regarding the alleged misconduct and perjury by the major case unit detectives.

Between the summer of 2004 and March 2, 2005, Rouse began interfering with the operations of the narcotics unit by revising work schedules and assigning another sergeant to the narcotics unit, which resulted in action taken by the narcotics unit without the supervision of Vose.

On April 12, 2005, Vose met with Kliment, Rouse, and two other police officers. Kliment told Vose to either "get along" with the detectives and supervisors about whom Vose had voiced concern or to request a transfer out of the narcotics unit to the patrol division. Vose was apparently instructed to make that decision and to report it to Kliment on Friday, April 15, 2005.¹ Worried that Kliment and Rouse were going to cover up his complaints about the misconduct, Vose met with the Mayor of the City of Springfield on April 14, 2005 to discuss his concerns.

At 4:50 pm on April 15, 2005, Vose delivered a memorandum to Kliment with his decision to transfer out of the narcotics division, noting that he considered the transfer to be involuntary. Four days later, Rouse issued a written reprimand to Vose for delivering his memorandum to Kliment later than ordered. Rouse ordered Vose to sign the reprimand, and on April 25, 2005, Vose sent another memorandum to Kliment contesting the reprimand. Pursuant to Kliment's directive, Rouse advised Vose that he would be transferred from the narcotics unit to the patrol division effective May 1, 2005. On May 14, 2005, Vose was issued a written reprimand arising out of the incident at the trial in November 2004.²

Three days after Vose delivered his decision to involuntarily transfer to the patrol division to Kliment, Vose found two empty boxes with his name on them outside his office, insinuating that Vose was to be "sent packing." After Vose transferred to the patrol division, a command officer advised other Springfield police officers that Vose's "career in [the criminal investigation division] is history" and that Vose had "burned his bridges." Vose felt forced to resign from the Springfield Police Department, and did so on January 19, 2006.

On February 1, 2006, Vose filed a complaint in the district court alleging violations of his constitutional rights. Specifically, Vose alleged that his First Amendment rights were violated when Kliment and Rouse retaliated against him for voicing his concerns about the conduct of the major case unit detectives. Vose claimed that Kliment and Rouse retaliated against him through the written reprimands, the interference with his role as supervisor of the narcotics unit operations, and the demotion to the patrol division. Kliment and Rouse moved to dismiss the case, asserting that they were entitled to qualified immunity against Vose's claims because the applicable law on the rights of government employees to speak out was not clearly established at the time of the events. Kliment and Rouse hinged this argument on the fact that the United States Supreme Court clarified and narrowed the applicable law in Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which was decided after the alleged violation in this case. On March 8, 2007, the district court denied their motion, finding that Vose's right to speak out on matters relating to police misconduct without being subjected to retaliatory employment actions was clearly established before the events of this case, and that Garcetti did not affect nor create this right. Therefore, the district court held that Kliment and Rouse were not entitled to qualified immunity against Vose's claims. Kliment and Rouse now appeal that determination, and additionally argue that Vose did not have a constitutionally protected right to speak.

II. Discussion

On appeal, Kliment and Rouse present two arguments in support of their position that they are entitled to qualified immunity. First, they assert that Vose's speech was not constitutionally protected. Secondly, they claim that the rights Vose alleges were violated were not clearly established at the time of the relevant events.

To determine whether an official is entitled to qualified immunity, we look to two issues. First, taken in the light most favorable to the plaintiff, the facts must show the official violated a constitutional right. Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir.2003) (citing Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Second, we look to see if the right was clearly established at the time of the alleged violation. Finsel, 326 F.3d at 906 (citing Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 616 (7th Cir.2002)).

We review the district court's ruling on a motion to dismiss de novo. Sigsworth v. City of Aurora, 487 F.3d 506,...