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March 11, 2015
  Seifert v. Unified Government -- Tenth Circuit
Case Name: Seifert v. Unified Government -- Tenth Circuit

Headline: Tenth Circuit holds that sworn testimony of law enforcement officers in civil lawsuits about matters observed while on duty is protected speech under the First Amendment.

Areas of Law: Constitutional Law

Issues Presented:

1. Is sworn testimony by a law enforcement officer in a civil lawsuit about matters observed while on duty protected by the First Amendment to the United States Constitution?

2. Did the Wyandotte County Sheriff's Department, through the Sheriff and Undersheriff, unlawfully retaliate against the Plaintiff for testifying against other law enforcement officers in a civil lawsuit?

Brief Summary:

The Plaintiff, a former officer of the Kansas City, Kansas Police Department and former Reserve Deputy of the Wyandotte County Sheriff's Department, provided sworn testimony in a civil lawsuit against several Drug Enforcement Administration agents. The testimony centered on the Plaintiff's investigation of the agents' use of excessive force against a criminal suspect. During the course of this civil trial, several of the Defendants removed the Plaintiff from investigations and revoked his reserve commission, effectively terminating his employment. The Plaintiff filed a lawsuit against the Sheriff, Undersheriff, and the Unified Government representing the Wyandotte County Sheriff's Department (WCSD), arguing that they retaliated against him because of his testimony and that this retaliation violated his First Amendment rights. The district court granted summary judgment for the Defendants, holding that the Plaintiff's testimony in the civil trial against the DEA agents was not legally protected speech and, therefore, the Defendants' actions were not unconstitutional.

The Tenth Circuit reversed the district court's award of summary judgment, holding that such testimony of a law enforcement officer can be (and was in this case) protected speech and that a reasonable finder of fact could find that the Defendants improperly retaliated against the Plaintiff because of his testimony.

Extended Summary:

The Plaintiff, Max Seifert, was a detective with the Kansas City, Kansas Police Department (KCKPD). He investigated a car accident in which a federal Drug Enforcement Administration (DEA) agent, Timothy McCue, illegally attempted to pass another vehicle driven by Barron Bowling. McCue sideswiped Bowling's vehicle, but Bowling did not stop. McCue called another agent for assistance and followed Bowling, who stopped his car once McCue turned on his sirens. McCue and the other agent pulled Bowling from the car, pinned him against the pavement, and "pummeled, kicked, insulted, and arrested" him. Despite calls from his colleagues and superiors to engage in a cover-up, the Plaintiff investigated McCue's conduct and testified as to Bowling's injuries during the trial against him. The Plaintiff was shunned by his colleagues and, ultimately, forced to retire from the KCKPD. He obtained a reserve commission from the WCSD that allowed him to work as a security guard. The commission required Plaintiff to volunteer 16 hours per month with the WCSD, which he did by assisting with criminal investigations.

The Plaintiff continued in his reserve capacity for three and a half years, until Defendant Donald Ash, who had previously served with the KCKPD for 34 years, was elected Sheriff. Ash appointed Defendant Larry Roland as Undersheriff. Shortly thereafter, Ash and Roland removed the Plaintiff from investigations, citing issues with the Plaintiff's credibility. Assistant U.S. Attorney Morehead and/or District Attorney Gorman allegedly told the Sheriff that, several years ago, the Plaintiff had provided testimony in federal court that the judge believed to be false. The judge expressed that belief in an order suppressing evidence.

Meanwhile, Bowling brought a civil lawsuit against the DEA agents involved in his arrest, various KCKPD members, and several other governmental entities. The Plaintiff in this case, Max Seifert, testified for Bowling. Five days after the Bowling trial concluded, the WCSD revoked the Plaintiff's reserve commission. Its stated reason for doing so shifted between arguments that the Plaintiff's commission violated "the Fair Standards Labor [sic] Act", that it was a purely administrative decision, and that it was in response to the Plaintiff's refusal to work at the short-staffed county jail.

The Plaintiff filed his lawsuit in the United States District Court for the District of Kansas, arguing that the acts of removing him from investigations and revoking his reserve commission were in retaliation against him for his Bowling testimony. His 42 U.S.C. § 1983 claim was that this retaliation violated his First Amendment rights, and his 42 U.S.C. § 1985 claim was that these actions were an unlawful conspiracy to deter him from testifying or injure him because of his testimony. The District Court dismissed part of the Plaintiff's claims, holding that the two-year statute of limitations precluded his 42 U.S.C. §§ 1983 and 1985 claims for any retaliatory actions preceding June 9, 2009. The district court granted Defendants' summary judgment motion on any remaining claims.

The Tenth Circuit reviewed the district court's award of summary judgment using a de novo standard of review. It began by considering the Plaintiff's 42 U.S.C. § 1983 claim. Under § 1983, a plaintiff is entitled to recover damages from a person who, while acting under the color of state law, violates the plaintiff's constitutional rights. The court noted that, as a reserve deputy, the Plaintiff did not enjoy First Amendment rights to the same extent that private citizens do. Citing the recent Supreme Court case of Lane v. Franks, 134 S. Ct. 2369 (2014), the court explained that the First Amendment protections for a government employee must balance that person's interest as a citizen in engaging in free speech against the government's interest, as an employer, in "promoting the efficiency of the public services it performs through its employees."

The court applied the Garcetti/Pickering test, which has five elements, to determine if the Plaintiff had a valid First Amendment retaliation claim. The Defendants only disputed three of the five elements, arguing that the speech was made pursuant to the Plaintiff's official duties (and was, therefore, not the protected speech of a private citizen), that the protected speech was not a motivating factor in the actions taken against the Plaintiff, and that the Defendants would have taken the same actions against the Plaintiff absent his testimony in the Bowling case.

The court first sought to determine whether the Plaintiff's testimony was speech made pursuant to his official duties. The court reviewed the holding in Lane, in which the Supreme Court held that "the First Amendment . . . protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities." The court noted that this protection might not be extended to law enforcement officers who are regularly called to testify in court as a part of their job duties, but concluded that the Plaintiff's testimony was not compelled by the WCSD as a part of his duties as a reserve officer. Though the Defendants argued otherwise, the court noted that they cited no evidence to suggest that the Plaintiff regularly provided court testimony as part of his official duties. The court also noted that, even if he were to regularly testify against criminal suspects in court proceedings, the testimony provided in the Bowling civil trial was not of the kind of testimony he would otherwise provide in his official capacity. The court held that the Plaintiff satisfied this element of the Garcetti/Pickering test. It further held that, as per Lane, the testimony was protected speech under the First Amendment.

The Defendants also argued that the Plaintiff's testimony in the Bowling trial was not a motivating factor in their decision to remove him from investigations and revoke his commission. The court considered each of these issues in turn, focusing its analysis on whether there was a sufficient evidentiary basis for a reasonable finder of fact to conclude that the Defendants' actions were in retaliation for the Plaintiff's Bowling testimony.

The court quickly dispatched the Defendants' argument that the Plaintiff was removed from investigations solely because he had a veracity issue that, as per the Supreme Court's holding in Giglio v. United States, 405 U.S. 150 (1972), precluded the Plaintiff from serving on investigations or testifying in either state or federal court. The court began its analysis by explaining the holding and implications of Giglio. That case involved a prosecutor who promised immunity from prosecution to a state witness but failed to disclose that promise to the defense. As the defense would almost certainly have used that information to impeach the witness, the Supreme Court ordered a new trial. The Supreme Court further held that "'[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility' will require a new trial." The Defendants argued that the Plaintiff had a Giglio issue because of the federal court order suppressing evidence, arguing that prosecutors would need to disclose that to the defense in any case the Plaintiff were to investigate. The court dispelled this notion and observed that, even if the prosecutors felt compelled to disclose the 1998 federal order to the defense counsel, there are evidentiary limits to what any defense counsel could do with such a disclosure. It reasoned that the order and any testimony about the judge's comments would be inadmissible in both federal court because of Fed. R. Evid. 608(b) and Kansas state court because of Kansas' own evidentiary rules. The court also noted that Undersheriff Roland had a similar Giglio issue arising from an opinion by the same federal judge who questioned the Plaintiff's credibility. The disparate treatment of Undersheriff Roland and the Plaintiff, as well as the other issues discussed, could allow a reasonably jury to find that the removal of Plaintiff from investigations was motivated by the Bowling testimony and not by any Giglio issue.

The court then considered the revocation of the Plaintiff's reserve commission. The Defendants had argued in the district court that the Plaintiff did not even have a commission to be revoked, as all such commissions are automatically revoked upon the election of a new Sheriff under Kan. Stat. Ann. § 19-805a (West 2008). The court quickly dismissed this argument because the Defendants waived the issue by failing to properly raise it on appeal. The court further explained that, even if it were to consider the issue, it would affirm the district court's rejection of the argument because it could well be inferred that the Sheriff reappointed those with reserve commissions by continuing to utilize them as reserve deputies indefinitely after taking office. Sheriff Ash's own testimony supported that inference.

Assuming that the Plaintiff had a commission that could be revoked, the court considered whether its revocation was motivated by the Plaintiff's Bowling testimony. The Defendants argued that their motive for revocation was purely based on the Plaintiff's refusal to work in a short-staffed county jail. The court noted the evolution of gross inconsistencies in the Defendants' explanations for why Plaintiff's commission was revoked and determined that a reasonable jury could find that the Defendants' explanations were mere pretext. The court held that the Plaintiff's evidence was sufficient to satisfy the motive element of the Garcetti/Pickering test for both his removal from investigations and the revocation of his reserve commission.

The court then considered whether the Plaintiff satisfied or could satisfy the but-for element of the Garcetti/Pickering test by proving that, but for his protected speech, he would have remained on investigations and retained his commission. The Defendants argued that the Plaintiff would have been removed from investigations in any event because prosecutors refused to take cases he had been involved in. The court found this argument to be without merit, noting that neither the Sheriff nor the Undersheriff could recall any reserve deputies ever testifying in a federal proceeding. It further noted that the only district attorney to raise the Giglio issue with the Sheriff did so months after the Plaintiff was removed from investigations and, even then, only said that he would consider the issue on a case-by-case basis. The court concluded that a reasonable jury could find but-for causation for the Plaintiff's removal from investigations.

Similarly, evidence provided by several witnesses demonstrated that the Defendants only asked the Plaintiff to volunteer in the county jail and the Plaintiff only refused to do so months after his commission had already been revoked. Even if this request was accompanied by an offer to reinstate his commission, his refusal at that time could not negate his cause of action for the prior revocation of his commission. The court held that the plaintiff provided sufficient evidence to allow a reasonable finder of fact to determine that his removal from investigations and the revocation of his commission was retaliation against him for his Bowling testimony.

The court turned its focus to the potential qualified immunity enjoyed by each of the Defendants. Turning first to the Unified Government, the court reviewed its prior decision in Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281 (10th Cir. 2007). In Simmons, the court held that "a municipality is responsible for both actions taken by subordinate employees in conformance with preexisting official policies or customs and actions taken by final policymakers, whose conduct can be no less described as the 'official policy' of a municipality." The Plaintiff argued that the Sheriff served as a final policymaker for the WCSD and that his conduct represented the official policy of that Department and, consequently, the Unified Government. In support of this argument, the Plaintiff cited several Kansas statutes that provide for the authority enjoyed by the Sheriff, impose upon him responsibility for the Undersheriff's conduct, and make his power coextensive with the county board. The Unified Government offered no argument in response to the Plaintiff's contentions, and so the court reversed the district court's award of summary judgment in favor of the Unified Government.

The court then considered the potential qualified immunity of Sheriff Ash and Undersheriff Roland. Citing the Supreme Court case of Pearson v. Callahan, 555 U.S. 223, 231 (2009), the court explained that "[t]he doctrine of qualified immunity protects government officials 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." The court noted that the Lane opinion was not handed down until June 2014 and, prior to that, the Tenth Circuit had not considered whether testimony such as the Plaintiff's Bowling testimony was protected speech under the First Amendment. Because the law was not clearly established when the Plaintiff was removed from investigations and his commission revoked, Sheriff Ash and Undersheriff Roland were entitled to qualified immunity. The court affirmed the district court's award of summary judgment on the Plaintiff's 42 U.S.C. § 1983 claims as they applied to Defendants Ash and Roland.

The court reviewed the district court's award of summary judgment in favor of the Defendants as to the Plaintiff's 42 U.S.C. § 1985 conspiracy claims. The court swiftly reversed this decision. It explained that the evidence considered in the 42 U.S.C. § 1983 claims could be enough to demonstrate a conspiracy to prevent the Plaintiff from testifying in the Bowling case or otherwise injure him for doing so. The court did not consider any sovereign immunity or qualified immunity defenses to the Plaintiff's conspiracy claims because the Defendants did not raise any. The court reversed the award of summary judgment relating to the Plaintiff's 42 U.S.C. § 1985 claim as to all Defendants.

Finally, the court affirmed the district court's dismissal of the Plaintiff's state common-law claim for retaliatory employment action. Under Kansas state law, that cause of action is suspended if there is an adequate alternative remedy under state or federal law. In this case, 42 U.S.C. § 1983 provided an adequate alternative remedy to the Plaintiff.

To read the full opinion, please visit:

Panel: Kelly, Lucero, Hartz

Date of Issued Opinion: February 27, 2015

Docket Number: No. 13-3153

Decided: Affirmed in part, reversed in part, and remanded for further proceedings.

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.

Author: Hartz

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 03/11/2015 09:37 PM     10th Circuit  

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