Jackson v. Besecker , 700 F. App'x 792 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 5, 2017
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
RICHARD SCOTT JACKSON,
Plaintiff - Appellee,
v. No. 16-1392
(D.C. No. 1:15-CV-01182-JLK)
RICHARD BESECKER, in his official (D. Colo.)
capacity as Sheriff of Gunnison
County, Colorado,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and BACHARACH, Circuit Judges.
Defendant-Appellant Richard Besecker (“Sheriff Besecker”) appeals from
the district court’s denial of his motion for summary judgment based on qualified
immunity. Order, Jackson v. Besecker, No. 15-cv-1182-JLK (D. Colo. Sept. 15,
2016) (unpublished), ECF No. 50; see also 3 Aplt. App. 611–14. We dismiss this
appeal for lack of jurisdiction.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Background
In February 2014, Plaintiff-Appellee Richard Jackson, a deputy sheriff in
Gunnison County, Colorado, announced that he was running for sheriff. This
position was occupied by his boss, Sheriff Besecker, who opted to run for
reelection. Sheriff Besecker won the election and then fired Mr. Jackson in
March 2015. Mr. Jackson instituted this action under 42 U.S.C. § 1983. He
claims that Sheriff Besecker terminated him in retaliation for running against him
in violation of his First Amendment rights of free speech and freedom of
association. Sheriff Besecker moved for summary judgment on the basis of
qualified immunity.
The district court held that Sheriff Besecker was not entitled to qualified
immunity because material facts were disputed. 3 Aplt. App. 612–13. But the
district court did not assume any facts regarding any disruption the election may
have caused in the sheriff’s office. Nor did the court conduct any sort of legal
analysis to that end. Sheriff Besecker filed a notice of interlocutory appeal.
Discussion
We generally only have jurisdiction over final orders made by district
courts. 28 U.S.C. § 1291. However, we may review a non-final order denying
qualified immunity if it “turns on an issue of law.” Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). We “lack interlocutory jurisdiction to review a district court
-2-
ruling denying summary judgment for a defendant on a qualified immunity
defense on the ground that there are disputed issues of material fact.” Sevier v.
City of Lawrence, 60 F.3d 695, 700 (10th Cir. 1995); see also Johnson v. Jones,
515 U.S. 304, 319–20 (1995). Qualified immunity appeals are appropriate for
“neat abstract issues of law.” Id. at 317. They are not appropriate when the issue
revolves only around whether a party can prove a set of facts supporting his or
her claim.
There are genuine issues of material fact regarding any potential or actual
disruption at the sheriff’s office. Compare Aplt. Br. at 13–15, with Aplee. Br. at
18–26. These factual disputes prevent resolution of this matter under the multi-
factored Garcetti/Pickering test. See Dixon v. Kirkpatrick, 553 F.3d 1294,
1301–02 (10th Cir. 2009). See generally Garcetti v. Ceballos, 547 U.S. 410
(2006); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). This was why the district
court denied qualified immunity. 3 Aplt. App. 612–13. We therefore do not have
jurisdiction. See Johnson, 515 U.S. at 319–20.
The dissent suggests conducting a de novo review of the record because the
district court did not discuss whether a reasonable fact-finder could conclude that
the campaign caused disruption in the sheriff’s office. See Dissent Op. at 3–5
(citing Lewis v. Tripp, 604 F.3d 1221, 1224–26 (10th Cir. 2010) (Gorsuch, J.)).
Johnson suggests that we may review the record de novo to determine what facts
the district court likely assumed, but only “when it denied summary judgment for
-3-
[a] (purely legal) reason.” 515 U.S. at 319. Our reading of the district court’s
orders is that a reasonable jury could find there was no disruption in the sheriff’s
office, and the termination was therefore motivated by Mr. Jackson’s decision to
run against Sheriff Besecker. While it is true that we can address whether a right
is clearly established, Sheriff Besecker does not argue that he is entitled to
qualified immunity under the facts developed by Mr. Jackson, but only that there
was not an evidentiary basis supporting those facts.
Application of the doctrine of qualified immunity requires identifying the
constitutional violation and the clearly established law with precision. The
problem with the dissent’s approach is that we would be completely replacing the
district court’s first pass with one of our own. The district court did not apply the
multi-factored test, making the reverse engineering of the dissent inappropriate.
APPEAL DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-
Jackson v. Besecker, No. 16-1392,
BACHARACH, J., concurring in part in the judgment and dissenting in
part.
A sheriff’s deputy (Mr. Scott Jackson) wanted his boss’s job and ran
for Sheriff of Gunnison County against the incumbent (Sheriff Richard
Besecker). Sheriff Besecker won and fired Mr. Jackson roughly four
months after the election. Mr. Jackson viewed the firing as retaliation for
his campaign against Sheriff Besecker. As a result, Mr. Jackson sued
Sheriff Besecker under 42 U.S.C. § 1983, claiming violation of the First
Amendment. 1
Sheriff Besecker moved for summary judgment, asserting qualified
immunity. In a skeletal order, the district court denied this motion,
concluding that a fact-finder could reasonably find facts supporting a
violation of a clearly established constitutional right.
Sheriff Besecker appealed, arguing that the district court had erred in
 denying his motion for summary judgment based on qualified
immunity and
 failing to adequately identify the facts that a reasonable fact-
finder could find.
Sheriff Besecker contends that based on the district court’s failure to
adequately identify the facts that could be found, we can review the record
1
Mr. Jackson also brought other claims against Sheriff Besecker. On
appeal, Sheriff Besecker urges us to review the rulings on three of those
claims. But as discussed below, we should decline to exercise pendent
appellate jurisdiction over these rulings. See Part I(B), below.
de novo and arrive at our own conclusions about what a fact-finder could
justifiably find.
I agree with Sheriff Besecker that the district court failed to
adequately identify the facts that a reasonable fact-finder could find. In
light of this failure, a de novo review of the record is appropriate.
Upon conducting a de novo review, I would affirm the ruling on the
personal-capacity claim under § 1983, concluding that a fact-finder could
justifiably find facts supporting a violation of clearly established law. The
dispositive issue is whether a reasonable fact-finder could find that Mr.
Jackson did not significantly disrupt the Sheriff’s Office. In my view, this
finding would be reasonable under the summary-judgment evidence.
The majority takes a different approach, dismissing the appeal for
lack of jurisdiction. According to the majority, disputed material facts
prevent our resolution of this appeal under the applicable legal test. I
respectfully disagree with this approach, which I view as a deviation from
our precedent.
I. Appellate Jurisdiction
In my view, we have jurisdiction over the ruling on qualified
immunity. But we should not exercise jurisdiction over the rulings
involving Sheriff Besecker’s official capacity and state law.
2
A. We have jurisdiction over the ruling on qualified immunity.
We have jurisdiction over the ruling on qualified immunity. This
jurisdiction exists under 28 U.S.C. § 1291, which creates appellate
jurisdiction over “final decisions” of district courts. 28 U.S.C. § 1291.
Typically, the denial of summary judgment does not constitute a final
decision for purposes of § 1291. Fancher v. Barrientos, 723 F.3d 1191,
1198 (10th Cir. 2013). But under the collateral-order doctrine, we can
immediately review the denial of qualified immunity. See Weise v. Casper,
507 F.3d 1260, 1263 (10th Cir. 2007). Thus, we may review whether the
district court properly rejected Sheriff Besecker’s summary-judgment
argument on qualified immunity.
Ordinarily, in reviewing the denial of a summary-judgment motion
based on qualified immunity, we cannot reconsider a district court’s
assessment of the facts that a reasonable fact-finder could find. Lewis v.
Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010). Rather, we accept the court’s
assessment even if we might have assessed the evidence differently. Id. We
then examine whether the facts identified by the district court would show
the violation of a clearly established constitutional right. See Allstate
Sweeping, LLC v. Black, 706 F.3d 1261, 1267 (10th Cir. 2013).
In some circumstances, however, we may not be able to rely on the
district court’s assessment of the facts that a reasonable fact-finder could
find. For instance, we cannot rely on this assessment when the district
3
court fails to “‘set forth with specificity the facts . . . that support a
finding that the defendant violated a clearly established right.’” Lewis, 604
F.3d at 1227 (ellipsis in original) (quoting Armijo v. Wagon Mound Pub.
Schs., 159 F.3d 1253, 1259 (10th Cir. 1998)); see id. at 1226-27 (“The
problem with [the district court’s] discussion is that it doesn’t tell us what
[the defendant] did or where, when, or why he took any action that might
have violated [the plaintiff’s] Fourth Amendment rights.”). Faced with this
type of failure, we “‘review the entire record . . . and determine de novo
whether the plaintiff in fact presented sufficient evidence to forestall
summary judgment on the issue of qualified immunity.’” Id. at 1223
(ellipsis in original) (quoting Armijo, 159 F.3d at 1259).
Here the district court failed to adequately identify the facts that a
reasonable fact-finder could find. The entirety of the court’s discussion on
these facts consisted of two sentences:
Viewing the record in the light most favorable to Jackson,
Sheriff Besecker considered Jackson’s performance
commendable until Jackson ran what Besecker considered a
dirty campaign against him for Sheriff. After Besecker won,
Besecker colluded with County officials and set about papering
a trail that would justify Jackson’s termination as a matter of
Sheriff’s Department policy.
Appellant’s App’x at 612. This discussion did not address whether Mr.
Jackson had caused significant disruption at the Sheriff’s Office. In light
of this omission, we have jurisdiction to conduct a de novo review of the
4
record and determine for ourselves what a reasonable fact-finder could
find. Lewis, 604 F.3d at 1225.
Mr. Jackson contests our jurisdiction to conduct a de novo review of
the record, pointing to an order entered during the pendency of the appeal.
In this order, the district court ruled on two motions: (1) Mr. Jackson’s
motion to certify the appeal as frivolous and (2) Sheriff Besecker’s motion
to stay proceedings during the appeal. In Mr. Jackson’s view, this order
sheds light on the facts that the district court relied upon in denying
summary judgment.
The parties appear to disagree over whether the district court’s initial
failure to identify facts is curable. For the sake of argument, I assume that
this type of error is cured when a subsequent order adequately identifies
the facts that a reasonable fact-finder could find. Even with that
assumption, we would still have jurisdiction to conduct a de novo review
of the record.
The subsequent order discusses the record more extensively than the
order denying summary judgment based on qualified immunity does. But
the subsequent order again fails to “‘set forth with specificity the facts . . .
that support a finding that the defendant violated a clearly established
right.’” Lewis v. Tripp, 604 F.3d 1221, 1227 (10th Cir. 2010) (ellipsis in
original) (quoting Armijo v. Wagon Mound Pub. Schs., 159 F.3d 1253,
1259 (10th Cir. 1998)). For example, the subsequent order does not
5
identify any facts bearing on whether Mr. Jackson disrupted the
functioning of the Sheriff’s Office.
The subsequent order states: “Mr. Jackson claims . . . bad blood . . .
[from the campaign for sheriff] spilled over into the day-to-day operations
of the Sheriff’s Department.” Appellant’s App’x at 666. But this statement
is immaterial for two reasons. First, the district court never indicated
whether a fact-finder could reasonably accept this factual assertion.
Second, the district court is simply mistaken: Mr. Jackson has never
claimed that bad blood from the campaign spilled over into the office’s
day-to-day operations. Indeed, Mr. Jackson alleges the opposite: that
whatever happened in the campaign did not spill over into the office’s day-
to-day operations.
In addition, the subsequent order states:
Besecker’s assertion that the Picerking/Connick [sic] analysis
required that I explicitly weigh his interest in carrying on an
efficient and effective workplace against Jackson’s protected
First Amendment rights before denying his qualified immunity
defense is not well taken where, as here, the record is devoid of
facts necessary to strike that balance in Besecker’s favor.
Id. at 668 (emphasis added). This general statement again omits any facts
that could be found. The Garcetti/Pickering test addresses whether an
employee’s free-speech interest outweighs the government’s interest in an
efficient workplace. See Part II(B), below. In some circumstances, this test
requires the court to examine whether the employee was disrupting the
6
workplace. See id. But the court failed to explain this legal framework or
how it applies. Thus, the court’s general statement is again deficient.
For these reasons, the subsequent order fails to adequately identify
the facts that a fact-finder could justifiably find. Thus, the subsequent
order does not preclude us from conducting a de novo review of the record.
The majority takes a different view, reasoning that disputed material
facts preclude us from exercising jurisdiction. But as our precedents
indicate, “‘[w]e need not . . . decline review of a pretrial order denying
summary judgment [in the qualified-immunity context] solely because the
district court says genuine issues of material fact remain.’” Henderson v.
Glanz, 813 F.3d 938, 948 (10th Cir. 2015) (second alteration and ellipsis in
original) (quoting Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir. 2001)).
Instead, when the district court says that a material fact-issue exists, we
may consider the legal question of whether the defendant’s alleged conduct
would violate a clearly established law. Henderson, 813 F.3d at 948. The
presence of that legal question triggers appellate jurisdiction.
7
B. We should not exercise pendent appellate jurisdiction over
the official-capacity and state-law claims.
The district court also denied summary judgment to Sheriff Besecker
on an official-capacity claim and two claims under state law. 2 Sheriff
Besecker appeals these rulings. We should decline to exercise jurisdiction
over the rulings on these three claims. 3
We could review the rulings on these claims only by exercising
pendent appellate jurisdiction. Pendent appellate jurisdiction allows us to
“‘exercise jurisdiction over an otherwise nonfinal and nonappealable lower
court decision that overlaps with an appealable decision.’” Cox v. Glanz,
800 F.3d 1231, 1255 (10th Cir. 2015) (quoting Moore v. City of
Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995)). Pendent appellate
jurisdiction may be appropriate in two circumstances: (1) when an
otherwise unappealable ruling is inextricably intertwined with a ruling that
is appealable and (2) when review of the otherwise unappealable ruling is
2
The first state-law claim is brought under Colo. Rev. Stat. § 24-34-
402.5. Under this statute, it is generally “a discriminatory or unfair
employment practice for an employer to terminate the employment of any
employee due to that employee’s engaging in any lawful activity off the
premises of the employer during nonworking hours.” Colo. Rev. Stat. § 24-
34-402.5(1). The second state-law claim is brought under Colo. Rev. Stat.
§ 30-10-506, which provides: “Before revoking an appointment of a
deputy, the sheriff shall notify the deputy of the reason for the proposed
revocation and shall give the deputy an opportunity to be heard by the
sheriff.”
3
The majority implicitly concludes that we lack jurisdiction over the
rulings on these claims. I agree with this conclusion.
8
necessary to ensure meaningful review of the ruling that is appealable.
Cox, 800 F.3d at 1256.
In his opening brief, Sheriff Besecker appeared to assert that Mr.
Jackson’s official-capacity claim “is intertwined with a determination of
Sheriff Besecker’s qualified immunity.” Appellant’s Opening Br. at 4-5. In
his reply brief, he elaborates: “If this Court finds that Sheriff Besecker
committed no constitutional violation and was wrongfully denied qualified
immunity, this also requires dismissal of the official capacity claims
against him.” Appellant’s Reply Br. at 17. For the sake of argument, I
assume that Sheriff Besecker is correct—that if Sheriff Besecker
committed no constitutional violation, dismissal of the official-capacity
claim would be required. Even with that assumption, it would not be
appropriate to exercise pendent appellate jurisdiction over the official-
capacity claim, for a fact-finder could reasonably find facts supporting a
constitutional violation. See Part II(B), below.
Sheriff Besecker has not argued that review of the official-capacity
claim is necessary to ensure meaningful review of the personal-capacity
claim. But if he had, I would reject that argument, for review of the
official-capacity claim is not necessary for meaningful review of the
personal-capacity claim. I would therefore dismiss this aspect of Sheriff
Besecker’s appeal for lack of jurisdiction.
9
Sheriff Besecker also has not argued that we should exercise pendent
appellate jurisdiction over the rulings on the two state-law claims. He
urges us to review those claims, but does not mention pendent appellate
jurisdiction or contend that those claims are intertwined with the personal-
capacity claim.
But even if Sheriff Besecker had asked us to exercise pendent
appellate jurisdiction over these claims, I would deny that request because
(1) these claims are not inextricably intertwined with the personal-capacity
claim and (2) review of the state-law claims is not necessary to ensure
meaningful review of Mr. Jackson’s personal-capacity claim under § 1983.
Thus, we lack any basis to exercise pendent appellate jurisdiction over the
state-law claims. For this reason, I agree with the majority’s decision to
dismiss the appeal on the state-law claims. See Cox v. Glanz, 800 F.3d
1231, 1257 (10th Cir. 2015).
* * *
In light of the collateral-order doctrine and the district court’s failure
to adequately identify the facts that a reasonable fact-finder could find, we
have jurisdiction to
 conduct a de novo review of the record for the personal-
capacity claim, deciding for ourselves the facts that a fact-
finder could reasonably find and
 analyze whether those facts would violate a clearly established
constitutional right.
10
But it would not be appropriate to exercise pendent appellate jurisdiction
over the official-capacity claim or the two state-law claims.
II. Qualified Immunity
On the personal-capacity claim under § 1983, I would affirm the
denial of summary judgment.
A. The Standard of Review and the Burden Associated with
Qualified Immunity
The district court concluded that Sheriff Besecker was not entitled to
summary judgment based on qualified immunity. We would review this
conclusion de novo. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th
Cir. 2014). In applying de novo review, we would consider the evidence in
the light most favorable to Mr. Jackson, resolving all factual disputes and
drawing all reasonable inferences in his favor. Id.
I apply not only this standard of review but also the substantive
burden of qualified immunity. That burden falls on Mr. Jackson, who must
demonstrate that
 a reasonable fact-finder could find facts supporting the
violation of a constitutional right 4 and
 the underlying right was clearly established.
Id. If this threshold burden is met, Sheriff Besecker must show that
4
Alternatively, Mr. Jackson could demonstrate that a reasonable fact-
finder could find facts supporting the violation of a statutory right. See
Deutsch v. Jordan, 618 F.3d 1093, 1099 (10th Cir. 2010). But Mr. Jackson
does not present an argument involving statutory rights.
11
 there are no genuine issues of material fact and
 he is entitled to judgment as a matter of law.
Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011).
B. The fact-finder could reasonably find facts supporting a
violation of the First Amendment.
The fact-finder could justifiably find facts supporting a First
Amendment violation.
In assessing whether a public employer violated an employee’s First
Amendment right to free speech, courts apply the Garcetti/Pickering test.
See Morris v. City of Colorado Springs, 666 F.3d 654, 661 (10th Cir.
2012). Under this test, courts consider “‘whether the government’s
interests, as employer, in promoting the efficiency of the public service are
sufficient to outweigh the plaintiff’s free speech interests.’” Id. (quoting
Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009)). Sheriff
Besecker argues that the government’s interest in efficient public service
outweighs Mr. Jackson’s interest in free speech. 5 I would reject this
argument because
5
This test also involves four other prongs:
1. whether the speech was made pursuant to an employee’s
official duties,
2. whether the speech was on a matter of public concern,
12
 Sheriff Besecker must prove actual disruption and
 the fact-finder could reasonably infer that no disruption had
taken place during or after the election.
1. Because the firing took place four months after the election,
actual disruption is required.
Sheriff Besecker’s argument requires proof of actual disruption,
rather than the mere potential for disruption, because the firing took place
four months after the election.
If the firing had taken place during the campaign, the sheriff might
have been able to rely on the mere potential for disruption. We addressed a
similar situation in Jantzen v. Hawkins, where a sheriff fired a deputy
immediately after he had announced that he was going to run against the
current sheriff. 188 F.3d 1247, 1256-58 (10th Cir. 1999). The sheriff
justified the firing based on a prediction of disruption to the Sheriff’s
Office. Id. at 1257-58. The deputy challenged this justification, suing the
sheriff under § 1983 for violating the First Amendment. Id. at 1250-51. We
held that the deputy had failed to satisfy his burden under the
3. whether the speech constituted a motivating factor in the firing,
and
4. whether the defendant would have fired the plaintiff in the
absence of the speech.
Leverington v. City of Colorado Springs, 643 F.3d 719, 724 (10th Cir.
2011). But Sheriff Besecker does not dispute satisfaction of these other
prongs.
13
Garcetti/Pickering test. Id. at 1256-58. 6 For this holding, we deferred to
the sheriff’s reasonable prediction of disruption. See id. at 1257-58.
We have approached the issue differently when the incumbent waited
until after the election to fire the unsuccessful opponent. For example, we
addressed this issue in Kent v. Martin, which involved a primary election.
252 F.3d 1141, 1142-44 (10th Cir. 2001). There the plaintiff was an
employee of a county clerk’s office who was fired six months after an
unsuccessful campaign to unseat the county clerk. Id. at 1142. After the
firing, the former employee sued, attributing the firing to a violation of the
right to free speech. See id. at 1143. The district court granted summary
judgment to the defendants, relying on what the court deemed to be the
defendants’ reasonable predictions of disruption. Id. at 1144.
We reversed, concluding that the defendants could not rely on a
prediction of disruption when firing a subordinate six months after the
election. Id. at 1144-46. We reasoned that “[i]f there has been no actual
disruption justifying termination during the six months following an
employee’s protected speech, it is nonsensical to rely ex post facto on a
6
At that time, we called the test the “Pickering/Connick” test. Id. at
1256. That test did not consider whether the speech was made pursuant to
an employee’s official duties. See id. at 1257. That prong arose later based
on the Supreme Court’s opinion in Garcetti v. Ceballos, 547 U.S. 410, 421
(2006).
14
‘prediction’ of disruption to tip the balance in favor of an employer’s
interest in an efficient workplace.” Id. at 1146.
Kent applies because Mr. Jackson was fired over four months after
the election. If Mr. Jackson had been significantly disrupting the Sheriff’s
Office since the start of his campaign, the government’s efficiency interest
would outweigh his free-speech interest. But if Mr. Jackson had not
significantly disrupted the Sheriff’s Office, the government’s interest in
efficiency would not have outweighed Mr. Jackson’s interest in free
speech. 7
In analyzing whether we have jurisdiction, the majority states that
“[t]here are genuine issues of material fact regarding any potential or
actual disruption at the Sheriff’s Office.” Maj. O&J at 2 (emphasis added).
But in my view, potential disruption would be irrelevant when the firing
occurred over four months after an election. 8
7
At oral argument, Sheriff Besecker seemed to argue that if actual
disruption occurred during the campaign, he could fire Mr. Jackson over
four months after the election. See Oral Arg. at 10:25-11:41. For the sake
of argument, I assume that Sheriff Besecker is correct. Even with that
assumption, Sheriff Besecker would not be entitled to qualified immunity,
for a fact-finder could justifiably conclude that no disruption had occurred
during the campaign. See Part II(B)(2), (4) below.
8
At oral argument, Sheriff Besecker appeared to agree, stating: “I
would agree . . . that under the facts in our case, they would be more akin
to . . . Kent v. Martin where actual disruption would be required.“ Oral
Arg. at 7:03-7:12. This statement appeared to deviate from Sheriff
Besecker’s position in his reply brief. There Sheriff Besecker had argued
15
2. The fact-finder could reasonably conclude that no
disruption had occurred during the campaign.
A fact-finder could reasonably find that Mr. Jackson had not
disrupted the Sheriff’s Office. See Part II(B)(2)-(4). With this finding, Mr.
Jackson’s interest in free speech would have outweighed the government’s
interest in efficient operation.
Sheriff Besecker argues that disruption occurred during the
campaign, and that argument is supported by seven groups of evidence. But
for each group of evidence supporting Sheriff Besecker’s argument,
contrary evidence exists. Viewing the conflicting evidence in the light
most favorable to Mr. Jackson, the fact-finder could reasonably find that
the Sheriff’s Office had not experienced disruption during the campaign.
The first group of evidence consists of general statements that
disruption was occurring as a result of Mr. Jackson’s campaign. See, e.g.,
Appellant’s App’x at 377 (Sheriff Besecker stating: “The atmosphere, the
enthusiasm, the concentration on duty, everything was different.”). But
according to some deputies, no disruption occurred. For instance,
Undersheriff Randy Barnes testified that there had been no instance of
disruption, “as opposed to people sort of feeling uncomfortable.” See id. at
453. Similarly, a former deputy stated under oath that Mr. Jackson’s
that he could rely on a reasonable prediction of disruption because Kent
was distinguishable.
16
campaign had not disrupted the Sheriff’s Office or negatively affected
operations.
The second group of evidence concerns meetings between patrol
supervisors and jail supervisors. Prior to the campaign, Mr. Jackson
attended these meetings as a patrol lieutenant. But some evidence suggests
that during the campaign, the joint meetings stopped and the patrol
supervisors and the jail supervisors began to meet separately. Sheriff
Besecker attributes this change to some supervisors’ discomfort in voicing
opinions out of fear that Mr. Jackson’s campaign might use these
comments as campaign fodder.
Other evidence paints a different picture. This evidence indicates that
 the joint meetings continued throughout the campaign and
 the joint meetings were not important, mandatory, or
consistently held.
The third category of evidence involves Mr. Jackson’s behavior at
the joint meetings when they were held. Undersheriff Barnes testified that
during the campaign, Mr. Jackson had begun to act boldly at the joint
meetings: “After he threw his name in the hat for the sheriff’s position he
became very bold in saying that: I would not like to do that. I wouldn’t
like to do that.” Id. at 433. In Undersheriff Barnes’ view, these bold
statements negatively affected the meetings.
17
But Undersheriff Barnes’s testimony was disputed by Mr. Jackson,
who testified that his behavior had not changed during the campaign. Id. at
344 (Mr. Jackson testifying that his “behavior at those meetings did not
change” after announcing his candidacy).
The fourth group of evidence concerns training sessions that Mr.
Jackson attended during the campaign. According to reports allegedly
received by Undersheriff Barnes, Mr. Jackson’s presence at these training
sessions made people uncomfortable. But as Undersheriff Barnes
recognized, merely making people feel uncomfortable is not tantamount to
disruption. In addition, the instructor at these training sessions testified
that he did not remember anything unusual about the training sessions
when Mr. Jackson was present. Thus, the fact-finder could justifiably infer
that Mr. Jackson’s presence at these training sessions was not disruptive.
The fifth group of evidence relates to a performance evaluation that
was never completed. In 2014, Mr. Jackson filled out a portion of his
evaluation for 2013, marking himself as exceeding standards in every
category. Undersheriff Barnes was supposed to complete the evaluation.
According to Undersheriff Barnes, he would have had to give Mr. Jackson
a lower mark in at least some categories. But Sheriff Besecker allegedly
instructed Undersheriff Barnes not to complete the evaluation, fearing that
the completed evaluation would be viewed as retaliatory or become an
issue in the campaign.
18
But again, contrary evidence exists. For example, some evidence
indicated that Undersheriff Barnes had failed to complete Mr. Jackson’s
2012 evaluation. That evidence suggests that the failure to complete Mr.
Jackson’s 2013 evaluation had nothing to do with the campaign.
The sixth group of evidence concerns Sheriff Besecker’s alleged
direction to Undersheriff Barnes not to address any of Mr. Jackson’s
performance or disciplinary issues. According to Sheriff Besecker, this
instruction was necessary to avoid the appearance of retaliation and to
avoid creating a campaign issue.
Later Mr. Jackson allegedly failed to adequately perform a duty he
had been assigned: monitor and regulate the holiday, vacation, and comp
time of the deputies. According to Undersheriff Barnes, he alerted Sheriff
Besecker, who said not to address the issue.
But Mr. Jackson stated under oath that he had always performed this
duty adequately. The fact-finder could reasonably credit this statement.
And the fact-finder could justifiably question the reason for Sheriff
Besecker’s instruction. For example, the fact-finder could reasonably infer
that Sheriff Besecker had given this instruction to Undersheriff Barnes to
create an unresolved performance issue that could later be used as a reason
to fire Mr. Jackson. This inference would be reasonable, for some other
evidence suggests that Sheriff Besecker retaliated against Mr. Jackson by
19
firing him and then pretended that the firing was based on performance
issues. See Part II(B)(4), below.
The seventh group of evidence concerns Sheriff Besecker’s
statements about his relationship with Mr. Jackson. According to this
evidence, the relationship between Sheriff Besecker and Mr. Jackson
degenerated once the campaign began. For instance, Sheriff Besecker
stated under oath that his
relationship with Jackson after he announced his candidacy was
stifled. Jackson was my Lieutenant, my third in command, and I
no longer felt that I could approach him or speak freely with
him regarding what I needed him to do both as a law
enforcement officer and as a leader within the Sheriff’s Office.
Appellant’s App’x at 219. Sheriff Besecker added that Mr. Jackson’s
misrepresentations of his own qualifications had resulted in distrust.
But the fact-finder could justifiably reject this testimony and rely
instead on contrary evidence. For instance, Sheriff Besecker indicated in
an interview that he had a healthy relationship with Mr. Jackson:
Besecker acknowledged that he was not surprised by
Jackson’s announcement, but is dedicated to maintaining a
solid working relationship with the officer.
. . . .
Besecker says he has almost daily communication with
Jackson and by doing so, the department can be reassured of its
stability.
“It’s not for show’s sake, I know that Scott’s sincere and
I am sincere,” Besecker said.
20
Id. at 573. In addition, Mr. Jackson denied misrepresenting his
qualifications. Thus, the fact-finder could reasonably infer that Sheriff
Besecker had not lost trust in Mr. Jackson.
In sum, for each group of evidence supporting Sheriff Besecker’s
version of the facts, contrary evidence supports Mr. Jackson’s version.
Thus, a genuine factual dispute exists on whether the Sheriff’s Office was
actually disrupted during the campaign. At this stage of the proceedings,
this factual dispute must be resolved in Mr. Jackson’s favor. See Part
II(A), above.
3. The fact-finder could reasonably conclude that no
disruption had occurred after the election.
Sheriff Besecker also alleges disruption after the election. For this
allegation, Sheriff Besecker
 points to considerable evidence that arguably does not show
actual disruption and
 ignores contrary evidence.
Viewing the evidence in the light most favorable to Mr. Jackson, the fact-
finder could reasonably conclude that disruption had not occurred after the
election.
Mr. Jackson discusses a private meeting that he allegedly had with
Sheriff Besecker after the election. According to Mr. Jackson, he explained
at the meeting that he had run only because he thought that he could do a
better job, not out of animosity. Sheriff Besecker appears to view this
21
explanation as a challenge to his competence and authority, suggesting that
this challenge was disruptive. But the fact-finder could justifiably take a
different view of Mr. Jackson’s explanation, seeing it as an attempt to ease
tensions with Sheriff Besecker.
At another meeting after the election, Sheriff Besecker allegedly
asked about Mr. Jackson’s plans for the next couple of years. According to
Mr. Jackson, he answered that he wanted to improve the department and to
obtain greater authority “to tweak things” as a patrol supervisor.
Appellant’s App’x at 348. Sheriff Besecker treats Mr. Jackson’s answer as
a demand for greater authority. But a fact-finder could reasonably conclude
that Mr. Jackson was merely stating that he wanted greater authority; the
fact-finder would not be compelled to find actual disruption from Mr.
Jackson’s answer.
In an affidavit, Sheriff Besecker stated under oath that after the
election, Mr. Jackson took “no steps to outwardly show regard and respect
to me in front of the deputies and I felt this had a negative impact on the
overall morale of the department.” Id. at 222. But other evidence indicates
that the Sheriff’s Office was not disrupted in the aftermath of the election.
For instance, Mr. Jackson stated under oath that he had not seen a “change
in the enthusiasm or concentration of patrol deputies after the election.
Officers continued to work and fulfill their duties as they previously had.”
Id. at 348.
22
In addition, the record indicates that following the election, the joint
meetings with the patrol supervisors and jail supervisors resumed (if they
had ever stopped in the first place). Describing a joint meeting after the
election, Mr. Jackson stated that the “meeting was held without incident”
and that “[t]he meeting appeared to me to be no different than any of the
other meetings I attended with or without someone representing the
detention unit present.” Id. at 345. Absent actual disruption, Mr. Jackson’s
alleged failure to outwardly show respect for Sheriff Besecker would be
irrelevant.
Sheriff Besecker also stated that after the election, “it was clear that
Jackson did not trust my judgment.” Id. at 222. And during one post-
election meeting between Sheriff Besecker and Mr. Jackson, Sheriff
Besecker allegedly opined that the two individuals distrusted each other’s
judgment. In Sheriff Besecker’s view, this lack of trust was disruptive.
Sheriff Besecker adds that “conversations between Plaintiff and
Sheriff Besecker after the election conclusively show that their
relationship was no longer built on any loyalty or confidence.” Appellant’s
Reply Br. at 9. In his view, “the very fact that Plaintiff’s ‘personal loyalty’
to Sheriff Besecker had deteriorated was enough to justify his
termination.” Appellant’s Opening Br. at 37. But the fact-finder could
justifiably infer that (1) Mr. Jackson had trusted Sheriff Besecker’s
judgment and remained a loyal employee and (2) Sheriff Besecker had
23
fired Mr. Jackson based on retaliation rather than disruption of the
Sheriff’s Office. See Part II(B)(4), below (discussing evidence suggesting
that Sheriff Besecker retaliated against Mr. Jackson by firing him).
In sum, a genuine factual dispute exists on whether the Sheriff’s
Office experienced disruption after the election. Some evidence supports
Sheriff Besecker’s version of the facts; other evidence supports Mr.
Jackson’s version. Ultimately, the fact-finder may side with Sheriff
Besecker. But at this stage of the proceedings, the factual dispute must be
resolved in Mr. Jackson’s favor. See Part II(A), above.
4. Evidence also suggested that the firing was retaliatory.
Viewing the evidence favorably to Mr. Jackson, I believe that the
fact-finder could reasonably (1) attribute the firing to retaliation for the
campaign and (2) find use of performance issues as a pretext.
Sheriff Besecker kept a diary and made multiple entries expressing
displeasure with Mr. Jackson’s campaign. One entry described a post-
election meeting between Sheriff Besecker and Mr. Jackson. Sheriff
Besecker wrote that at the meeting, he found Mr. Jackson’s “attitude poor
and his demeanor arrogant. It seemed that he felt that he was entitled to go
on with his career without a hiccup.” Appellant’s App’x at 122. At his
deposition, Sheriff Besecker indicated that he had anticipated that Mr.
Jackson would do something “between pleading for his job and groveling.”
See Dist. Dkt. Doc. 42-2, at 37-39.
24
The summary-judgment record also contains an email from a county
attorney to Sheriff Besecker:
Linda provided me with the attached time sheets in
response to our discussion regarding erroneous time sheets
provided by Scott Jackson. Unfortunately, I think the
timesheets are going to be less compelling than we intended, as
they appear to be signed by Randy Barnes and not Scott
Jackson. While we could still make the argument that Scott
submitted the erroneous sheets, it does create an argument that
Randy bore the responsibility for the sheets since he signed off.
That said, it does not change all that we discussed on
Friday or our intended course of action.
Appellee’s Supp. App’x at 1. From this email, a fact-finder could
reasonably infer that Sheriff Besecker was searching for a performance
issue that he could use to justify the firing.
This inference is supported by another document, which purports to
list a series of Mr. Jackson’s performance issues. At his deposition, Sheriff
Besecker admitted that he had worked on this document.
Sheriff Besecker ultimately fired Mr. Jackson through a letter. The
letter did not elaborate on why Mr. Jackson was being fired. It simply
stated: “Your continued employment as a Deputy Sheriff undermines the
effective discharge of my duties as Gunnison County Sheriff, negatively
impacts morale of the employees of the Sheriff’s Office, and overall
impedes the efficient performance of this Office’s obligations.” Dist. Dkt.
Doc. 36-2, at 13. Sheriff Besecker subsequently met with Mr. Jackson, but
refused to provide any further explanation for the firing.
25
After the firing, Mr. Jackson filed charges with the Equal
Employment Opportunity Commission for age discrimination and
retaliation. In connection with these charges, Sheriff Besecker told the
EEOC that he had fired Mr. Jackson because of performance issues. And
early in this litigation, Sheriff Besecker represented in district court that
he had fired Mr. Jackson based partly on deficiencies in his performance.
For example, Sheriff Besecker stated in one district court filing that
personnel from other law enforcement agencies and an emergency dispatch
agency had complained about Mr. Jackson. According to this filing, the
complaints contributed to Mr. Jackson’s firing. But according to a private
investigator, all of the alleged complainants later denied that they had
complained about Mr. Jackson.
Sheriff Besecker ultimately abandoned the argument that Mr. Jackson
had been fired because of performance issues, with Sheriff Besecker
confirming that Mr. Jackson’s employment had not been “revoked because
of any performance issues.” Appellant’s App’x at 398.
In light of this evidence, a fact-finder could reasonably infer that (1)
Sheriff Besecker had concocted a false explanation, attributing the firing to
performance issues as a pretext for retaliation and (2) the current
explanation, based on disruption of the Sheriff’s Office, is also pretextual.
Of course, the fact-finder could instead conclude that Mr. Jackson had
disrupted the Sheriff’s Office. But at this stage of the proceedings, we
26
must draw all reasonable inferences in Mr. Jackson’s favor. See Part II(A),
above.
* * *
Sheriff Besecker denies violating Mr. Jackson’s right to free speech,
arguing that the government’s efficiency interest outweighed Mr. Jackson’s
free-speech interest because of the disruption to the Sheriff’s Office. But
viewing the evidence in the light most favorable to Mr. Jackson, the fact-
finder could justifiably conclude that Mr. Jackson had not disrupted the
Sheriff’s Office. If the fact-finder had drawn this conclusion, Mr.
Jackson’s free-speech interest would have outweighed the government’s
efficiency interest. Thus, the fact-finder could reasonably find facts
constituting a violation of the right to free speech.
C. The underlying right was clearly established.
In my view, Mr. Jackson’s right to free speech was clearly
established.
A constitutional right is clearly established when a Tenth Circuit
precedent is on-point, making the constitutional violation readily apparent.
Mascorro v. Billings, 656 F.3d 1198, 1208 (10th Cir. 2011). Here two
Tenth Circuit precedents are on-point: (1) Jantzen v. Hawkins, 188 F.3d
1247 (10th Cir. 1999) and (2) Kent v. Martin, 252 F.3d 1141 (10th Cir.
2001).
27
In Jantzen, a deputy was fired who ran for sheriff. In assessing
whether the deputy’s right to free speech was violated, we applied the
Garcetti/Pickering test. See Jantzen, 188 F.3d at 1256-58. And in Kent, we
expressly stated that “[s]ix months after the employees’ expression [of
protected speech], a so-called ‘prediction’ of disruption would be
meaningless to justify their termination, and under our case law evidence
of actual disruption would be required to outweigh the employees’ interest
in their speech.” 252 F.3d at 1144. Thus, under Jantzen and Kent, any
reasonable sheriff would know that when a deputy who had run for sheriff
is fired over four months after the election, actual disruption is required
for the government’s efficiency interest to outweigh the deputy’s free-
speech interest.
Taken together, these precedents placed the alleged constitutional
violation beyond debate. White v. Pauly, 137 S. Ct. 548, 551 (2017). Thus,
a fact-finder could reasonably find facts supporting the violation of a
clearly established constitutional right. 9
9
In his reply brief, Sheriff Besecker suggests that we may consider
only those cases that the district court considered. But because our review
is de novo, we must consider the applicable cases regardless of whether
they were considered by the district court. See Part II(A), above.
28
III. Conclusion
In two orders, the district court failed to identify facts indicating the
violation of a clearly established right. In light of this failure and the
collateral-order doctrine, we have jurisdiction to
 review the summary-judgment record de novo and identify the
facts that a fact-finder could reasonably find and
 determine whether those facts would show the violation of a
clearly established constitutional right.
But it would not be appropriate to exercise pendent appellate
jurisdiction over the official-capacity claim and the two state-law claims.
These claims are not inextricably intertwined with the personal-capacity
claim under § 1983, and review of these claims is not necessary to ensure
meaningful review on the personal-capacity claim.
On the merits, the dispositive issue is whether a reasonable fact-
finder could reject Sheriff Besecker’s allegation of actual disruption. In my
view, a fact-finder could reasonably reject this allegation. As a result, I
would affirm the district court’s denial of summary judgment based on
qualified immunity.
Because the majority instead dismisses the entire appeal for lack of
jurisdiction, I respectfully dissent from the majority’s disposition on the
personal-capacity claim under § 1983.
29