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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 2:11-CV-02327-JTM-JPO).
Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri, for Plaintiff -- Appellant.
Carl A. Gallagher (Teresa A. Mata with him on the brief), of McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, for Defendants -- Appellees.
Before KELLY, LUCERO, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Plaintiff Max Seifert brings civil-rights claims under 42 U.S.C. § § 1983 and 1985 and state-law retaliation claims against Defendants Unified Government of Wyandotte County and Kansas City, Kansas (the Unified Government), Wyandotte County Sheriff Donald Ash, and Wyandotte County Undersheriff Larry Roland. Plaintiff, a former reserve deputy for the Wyandotte County Sheriff's Department (WCSD), alleges that Defendants removed him from investigations and revoked his reserve commission because of his testimony supporting allegations by a former criminal defendant of mistreatment by federal law-enforcement officers. The district court granted Defendants summary judgment, holding that Plaintiff's testimony was not legally protected speech, that Defendants' actions were not unconstitutionally motivated, and that Defendants would have taken the same actions regardless of his testimony. See Seifert v. Unified Gov't of Wyandotte Cnty./Kan. City Kan., No. 11-2327-JTM, 2013 WL 2631632, at *11?12 (D. Kan. June 12, 2013) (unpublished).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand. We affirm the dismissal of Plaintiff's state-law claims because federal law provides an adequate alternative remedy; and we affirm the qualified-immunity dismissal of the § 1983 claims against Sheriff Ash and Undersheriff Roland because at the time of the alleged retaliatory actions the law was not clearly established that the First Amendment protected Plaintiff's testimony. In all other respects we reverse and remand, holding that Plaintiff's testimony was constitutionally protected and a jury could reasonably find that the explanations Defendants gave for their actions were pretextual.
A. The Facts
On July 10, 2003, Barron Bowling was involved in a minor car accident with Agent Timothy McCue of the federal Drug Enforcement Administration (DEA). Bowling later sued McCue and other individuals and entities in federal district court for injuries that arose out of this incident, and our recitation of facts regarding the incident relies on the court's findings of fact in the bench trial of that suit (the Bowling findings). See Bowling v. United States, 740 F.Supp.2d 1240 (D. Kan. 2010). For the remaining facts, we recite the evidence in the light most favorable to Plaintiff. See Kramer v. Wasatch Cnty. Sheriff's Office, 743 F.3d 726, 731 (10th Cir. 2014) (" On review of summary judgment, we recite the facts in the light most favorable to . . . the nonmovant." ).
Bowling was driving his personal automobile near his house when Agent McCue in an unmarked vehicle attempted to pass him illegally on the right. Bowling accelerated, both because the street began to go uphill and to prevent McCue from passing him. McCue sped up as well to try to get around Bowling. A sideswipe collision resulted, which was McCue's fault. The vehicles did not stop after the collision. McCue radioed another agent who joined McCue in following Bowling. Bowling stopped after McCue activated his siren. McCue and the other agent rushed Bowling's car and pulled him from it. Bowling was forced face-down on the hot pavement while shirtless; and he was pummeled, kicked, insulted, and arrested. Plaintiff,
then a detective with the Kansas City, Kansas Police Department (KCKPD), investigated the incident and documented the agents' misconduct, despite pressure from others in the KCKPD to cover up the facts.
Bowling was prosecuted on a felony and a misdemeanor charge arising out of the incident. At the trial in 2005, Plaintiff, who was subpoenaed as a defense witness, testified about Bowling's injuries. Bowling was acquitted of the felony charge and convicted of the misdemeanor (possession of a marijuana pipe). According to the Bowling findings, " [F]or crossing the 'thin blue line,'" Bowling, 740 F.Supp.2d at 1262 n.75, Plaintiff " was shunned, subjected to gossip and defamation by his police colleagues, and treated as a pariah," id. at 1262. " He was castigated by his superiors, by the prosecutor, by the DEA, and upon his forced retirement [on December 21, 2005,] . . . denied a commission that would allow him to obtain work as a security guard, something police retirees typically rely upon to supplement their limited retirement income." Id. at 1262 n.75.
Plaintiff moved on, obtaining a reserve commission from the WCSD soon after his retirement. In exchange for his commission he was required, like other reserve deputies, to volunteer 16 hours per month with the WCSD. From January 2006 until June 2009, Plaintiff assisted the WCSD with criminal investigations to meet his reserve hours. He was also hired by the WCSD in June 2008 as a civilian employee in the jail classification unit, where he continues to work today. Meanwhile, as already mentioned, Bowling sued the DEA agents involved in his arrest, as well as the United States, the Unified Government, and various members of the KCKPD. As that case moved toward trial in 2009 and ultimately was tried in 2010, the events giving rise to this appeal occurred.
On April 7, 2009, Defendant Donald Ash was elected Wyandotte County Sheriff. He appointed Defendant Larry Roland as Undersheriff. Sheriff Ash had previously served in the KCKPD for 34 years, where he became close friends with the two KCKPD police chiefs in charge during the Bowling affair, both of whom, according to Plaintiff, were hostile toward his involvement in that affair. On June 5, 2009, the Unified Government and KCKPD defendants agreed to settle the claims against them in the Bowling civil case, but the claim against the United States was tried in April and May 2010, and Plaintiff was a witness. Additional relevant events are recounted differently by the parties and other witnesses.
1. Plaintiff's Removal from Investigations
a. Plaintiff's Account
According to Plaintiff's declaration in this case and his testimony at the Bowling civil trial, on June 11, 2009 (six days after the agreement to settle with the Unified Government and the KCKPD), he was summoned to meet with Undersheriff Roland in his office. Roland told him that he would no longer be permitted to serve on investigations. Roland explained that he and Sheriff Ash had met with Wyandotte County District Attorney (DA) Jerome Gorman, who told them that his office would not accept cases involving Plaintiff because of concerns about his credibility. Roland also told Plaintiff that he would be unable to testify in federal court and that a federal prosecutor, Assistant U.S. Attorney (AUSA) Terra Morehead, did not find him credible. These credibility concerns were ostensibly based on the judge's comments in a 1998 order in United States v. Elam, No. 98-20037-01 (D. Kan. Sept. 15, 1998). The order suppressed evidence obtained under a search warrant for drug
evidence because Plaintiff had seized a large number of allegedly stolen items not covered by the warrant. The judge stated that she did not believe Plaintiff's account of his conversation with the defendant concerning those items. Plaintiff asked Roland why the federal ruling would also prevent his testimony in state court, given that he had testified in state court many times since 1998 and Gorman himself had obtained search warrants for him. Roland responded that Gorman had just become aware that the ruling prevented Plaintiff's testimony in state court and that he (Roland) was going to receive a copy of the ruling from a federal prosecutor. Plaintiff thought Roland's decision puzzling because, only a week before, his superiors had accepted a high-level case from him that resulted in criminal charges.
Roland went on to state that he had been told by unnamed others that Plaintiff could not serve as a reserve deputy, a law-enforcement position, while working simultaneously as a classification technician in the jail, a civilian position. Even so, Roland said that Plaintiff could keep his commission and another reserve assignment would be found for him.
After the meeting Plaintiff encountered Sheriff Ash. Plaintiff said to Ash that Ash had never had problems with him before. Ash agreed, stating that he had never had problems with Plaintiff before and did not have any now. Plaintiff then met with Captain James Eickhoff to inquire regarding Roland's statements that Plaintiff could not work as both a reserve deputy and a civilian employee. Eickhoff told Plaintiff that there was no such rule, that several others worked as reserve deputies while holding other jobs, and that he would come to Plaintiff's defense if the issue came up again.
Less than a week later, Plaintiff saw DA Gorman at the courthouse. Plaintiff asked Gorman if he had told Ash and Roland that he would no longer accept cases involving him. Gorman became uncomfortable and stated that it was not his office that had problems with Plaintiff but prosecutors from other jurisdictions. Plaintiff took this as a reference to AUSA Morehead.
b. Undersheriff Roland's Account
Roland's account is largely consistent with Plaintiff's, although with less emphasis on Gorman's concerns. Roland recalled that sometime in the first half of 2009 he spoke with Chief Deputy Rickey Whitby, who told him that AUSA Morehead had some kind of problem with Plaintiff's credibility. Roland called Morehead, who confirmed that she had a problem with Plaintiff because of the Elam order. Morehead then sent Roland the order. Because Roland misplaced it, Morehead emailed him a second copy several months later, on June 29, 2009. It was prefaced with the following message:
Here is the order from the federal case. They have the hearing transcript on order and I'll forward that to you when we get it. I never knew about this ruling until I came over in 2002, but since I've been here, and before Max retired from KCKPD, we had several issues with him bungling investigations that he knew were going to be federal cases.
Id., Vol. V at 1188.
Before Plaintiff was removed from investigations, Roland had a conversation with Gorman, who said that Plaintiff had a problem with Morehead and that he had a concern that there might be a credibility issue if his office received cases from Plaintiff. (Roland said that Ash met with Gorman regarding Plaintiff but could not recall if he himself attended.)
The WCSD's executive staff, including Roland and Ash, decided that Plaintiff
should be removed from investigations, particularly because Morehead had said that federal prosecutors would not accept his cases. When Roland met with Plaintiff, he told him that he had a copy of the Elam decision and that a federal prosecutor, whom he may have named as Morehead, had concerns about his credibility issues in court and his having bungled a few cases. Roland informed Plaintiff that Ash had decided he should be removed from investigations.
c. Chief Deputy Whitby's Account
The testimony of Chief Deputy Whitby corroborates Roland's account of their interaction. According to Whitby, shortly after the election in early 2009 he spoke with AUSA Morehead. She spontaneously brought up the subject of Plaintiff, asking if he was still " doing cases" for the WCSD. Id. at 1272. When told that he was, Morehead advised Whitby that federal prosecutors would decline any case from Plaintiff because he had a " Giglio problem" that would require disclosure to defendants of evidence of his lack of veracity. Id. (In Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Supreme Court held that prosecutors should have disclosed to the defense information that contradicted the principal witness's testimony that he had received no promise of immunity from prosecution if he testified against the defendant.) Whitby reported the Giglio issue to Sheriff Ash and Undersheriff Roland.
d. Sheriff Ash's Account
Sheriff Ash's testimony tracks Roland's in most respects. He recalled that Roland had been informed by AUSA Morehead, DA Gorman, or both that there were concerns about Plaintiff's continuing to work as an investigator because of questions about his credibility in court. Morehead had forwarded information about Plaintiff to Roland that she viewed as Giglio material that would have to be disclosed to the defense if Plaintiff testified in a prosecution. Ash and Roland met with Gorman to discuss the issue. Gorman told them that they should not send his office any case files from Plaintiff because he also viewed Plaintiff as falling under the provisions of Giglio. Ash and Roland concluded that Plaintiff would no longer be able to work on cases. Thereafter, Roland or Sergeant David Thaxton met with Plaintiff and told him that he could no longer do investigative work but could retain his reserve-deputy position by performing volunteer work in the jail, which Plaintiff refused to do.
e. AUSA Morehead's Account
AUSA Morehead's testimony indicated that she had not taken any initiative regarding Plaintiff. She said that Roland called her to ask if there was a federal court opinion involving Plaintiff. Morehead replied that there was; and on June 29, 2009 (three weeks after Plaintiff was removed from investigations), she emailed the Elam order to him with the message about Plaintiff's " bungling" investigations. Aplt. App., Vol. V at 1188. Morehead did not recall speaking with anyone else at the WCSD before speaking with Roland and did not know why he had called her.
Morehead did say, however, that in 2009 she conducted a series of law-enforcement training sessions with the DA's office, including Gorman. The subject of the training was testifying in court. During these sessions she identified Plaintiff by name and used the Elam order to illustrate how an officer can develop a Giglio problem.
f. District Attorney Gorman's Account
Gorman's testimony calls into question the timing of events in the accounts of Roland and Ash and suggests that he was not the cause of Plaintiff's removal from
investigations. In May 2009 (a month before Plaintiff was removed), Gorman received a memorandum from one of his employees advising that Giglio obligations usually do not apply to police officers because they are not key witnesses at trial. After reviewing the memo at his deposition, Gorman stated his ...