Gustafson, Rod v. Arreola, Philip ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-3557 and 00-4020
Rod Gustafson and Javier Cornejo,
Plaintiffs-Appellees,
v.
Arthur Jones and Philip Arreola,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 94-C-1392--Aaron E. Goodstein, Magistrate Judge.
Argued May 15, 2001--Decided May 17, 2002
Before Ripple, Manion, and Diane P. Wood,
Circuit Judges.
Diane P. Wood, Circuit Judge. This is
the second time we have been asked to
consider the legal ramifications of
certain actions that then-Chief of Police
of the Milwaukee Police Department Philip
Arreola, and then-Deputy Inspector Arthur
Jones, took in November 1993 with respect
to Officers Rod Gustafson and Javier
Cornejo. In our first opinion, Gustafson
v. Jones, 117 F.3d 1015 (7th Cir. 1997)
(Gustafson I), we concluded that the
officers had stated a claim for
retaliation in violation of their First
Amendment rights that was not subject to
dismissal on qualified immunity grounds.
That part of the case was remanded for a
trial, which took place in January 2000.
The result was a jury verdict in favor of
Gustafson and Cornejo, awarding each
$10,000 in compensatory damages and
$180,000 in punitive damages. Jones and
Arreola have now appealed from the
adverse verdicts. Bearing in mind the
deference we owe to the jury’s resolution
of the contested factual issues, we
affirm.
I
Because the background facts became
clearer at the jury trial, and because
some information that was merely assumed
for purposes of the Rule 12(c) judgment
on the pleadings was clarified, we think
it important to restate the facts in
light of the full record now before us.
During the summer of 1993, the Milwaukee
Police Department was concerned that it
lacked the resources to respond
adequately to the increased number of
service calls that typically occur during
the warmer time of the year. In an effort
to address that problem, it instituted a
policy under which officers assigned to
the elite Tactical Enforcement Unit (TEU)
would be split into two groups during
their shifts. Some were designated as so-
called "490" units, whose job would be to
patrol designated districts and respond
to service calls relayed through the
district dispatchers. The others would
retain their usual TEU designation as
"700" units and perform normal TEU
duties.
Prior to July 13, 1993, TEU officers
assigned to 490 duty were permitted to
take themselves off patrol duty to
conduct follow-up investigations of
crimes they had previously begun to work
on, if two prerequisites were met: first,
they had to have permission from their
TEU supervisors, and second, they had to
notify the appropriate district dispatch
er of their plans. All of that changed on
the night of July 13, and it is that
change whose character governs the
outcome of this suit. On the night of
July 13, 1993, Jones was on duty as the
"Field Deputy Inspector," which meant
that he was in charge of the entire
department. Cornejo and Gustafson were
officers assigned to the TEU and they
were working as partners on the night
shift, 7:00 p.m. to 3:00 a.m. At roll
call, they were designated squad 493 and
assigned to patrol District III. They
arrived in District III at approximately
8:15 p.m. Within minutes they were
flagged down by Lois McDougal, a woman
who a week earlier had reported to
Gustafson that she and her family had
been held at gunpoint by a 12-year-old
member of the Vice Lords gang named
Sidney. McDougal stopped the officers in
order to report that her son had since
told her that Sidney fired ten shots at
him in an incident that occurred around
July 1. McDougal then provided the
officers with a number of addresses at
which her son indicated Sidney might be
found.
Following standard follow-up
investigation protocol, Gustafson used
his low-frequency radio to contact his
TEU supervisors Sergeant William
Skurzewski and Sergeant Gerald Filut and
explained the situation. Skurzewski and
Filut cleared Cornejo and Gustafson to
conduct a follow-up investigation of
Sidney provided they received clearance
from the District III dispatcher. As
instructed, the officers then contacted
the dispatcher, who also cleared them to
look into McDougal’s information. Because
of heavy rains, there were very few calls
that evening. The officers visited
several addresses and conducted
interviews between 8:30 and 9:45 p.m.
Each time they changed locations, they
contacted the dispatcher and their TEU
supervisors as required.
Shortly before 10:00 p.m., Gustafson and
Cornejo arrived at 2453 W. Brown Street.
This turned out to be Sidney’s house,
although only his mother was home. Once
the officers explained why they were
looking for Sidney, his mother became
concerned that Sidney might hurt someone
or himself and permitted the officers to
search Sidney’s room for the gun he
reportedly had been wielding. Sidney’s
mother informed the officers that Sidney
would arrive home at around 11:00 p.m.
and asked that they return and arrest him
before he hurt someone. The officers
agreed that they would return if they
were not called away to another
assignment. They left the house at
approximately 10:15 p.m.
When they returned to their squad car,
Gustafson and Cornejo received a call
from the District III dispatcher telling
them to go on a side channel to talk to
squad 123 from the Detective Bureau. At
the same time, squad 713 called them on
the low-band radio. Both calls were about
the same incident; squads 123 and 713
were working an attempted homicide that
Cornejo had worked on a week earlier.
Squad 713 requested that Gustafson and
Cornejo join them in District VII. The
officers proceeded to a secure call box
to explain their situation to the
dispatcher.
As Cornejo got out of the car to use the
call box, Gustafson got a call from
Deputy Inspector Jones, squad 197.
Without explanation or inquiry into the
nature of their situation, Jones directed
Gustafson to "discontinue the follow-up
investigation and only take assignments
from the dispatcher. The dispatcher
relayed the same directive from Jones to
Cornejo through the call box.
The officers were surprised at the
no-questions-asked order, but they
complied with it and returned to regular
patrol status. They were particularly
concerned that they could not continue
with the Sidney investigation. Given what
they had learned about Sidney and the
dangers he posed, they were afraid that
dropping their effort to arrest Sidney
that night might put the community at
risk and might expose them to potential
departmental discipline or legal
liability should Sidney injure someone.
Gustafson and Cornejo requested that
squad 713 follow up the Sidney
investigation for them, but the officers
in that squad refused, saying they
understood Jones’s order to be a clear
directive to abandon the investigation.
At 11:47 p.m., Skurzewski and Filut
contacted Gustafson and Cornejo and set
up a meeting in District III. At the
meeting, the officers asked the sergeants
to follow up the Sidney investigation,
but they too declined, explaining that
they had been "chewed out" by Jones, that
his order was clear, and that he had even
directed Skurzewski to issue an order at
roll call that 490 squads in the future
were not to engage in follow-up
investigations without Jones’s express
permission. This order represented a
substantial departure from established
follow-up protocol.
Jones later testified that the revised
protocol was necessary to overcome the
resistance of TEU officers to doing
regular patrol. He issued the command to
Gustafson and Cornejo on the night of
July 13 because he considered the fact
that they had spent the first two hours
of their shift doing follow-up to be an
act of resistance to Arreola’s "rapid
response" program, even though he had no
knowledge of the nature of the follow-up
they were conducting, nor did he
apparently take into account the fact
that they had received proper
departmental authorization for every step
they had taken. To the contrary,
according to Skurzewski and Filut, Jones
issued his "no follow-up" roll call order
even after learning from the sergeants
that Cornejo and Gustafson had been on
the trail of a potentially armed suspect
who had already fired on citizens on an
earlier occasion and that they had
properly cleared their investigation with
the dispatcher and their supervisors.
Following their shift, Gustafson and
Cornejo returned to the Department.
Everyone in the TEU was talking about
Jones’s order to the officers and his
roll call order. Supervisors and officers
alike were confused and concerned about
the implications of Jones’s actions. The
TEU officers were concerned that the roll
call order put them in an untenable
position. They were duty-bound to do
proper follow-up investigations, and
follow-up of some kind was
frequentlynecessary. Despite that, they
now understood that in every case they
would be required to obtain express
permission to perform follow-up work from
a deputy inspector, who would likely not
always be reachable. As Sergeant Michael
Kuspa, one of the TEU supervisors on duty
that night put it, officers feared the
order "would cause problems with initial
investigation in that . . . there was a
need to call the deputy inspector who if
he was not working or we were unable to
get ahold of him, if there was a need for
immediateinvestigation to continue, we
would not be able to provide that."
The level of confusion and concern about
Jones’s initial order was sufficiently
great that the next day the TEU’s
commanding officer, Lieutenant Ronald
Rebernick, went over Jones’s head to
discuss it with Inspector Thomas Harker.
Acknowledging that the order was overly
restrictive, Harker permitted Rebernick
to modify it somewhat. The new order
prohibited 490 squads only from engaging
in "self-initiated" follow-ups without
first contacting their supervisors.
This revised order left both the
sergeants and the officers as confused as
ever. Gustafson and Cornejo remained par
ticularly concerned. Their follow-up
investigation was the result of being
flagged down by a citizen. Was this
"self-initiated"? Was it "self-
initiated" if they asked for both the
supervising sergeants’ and area
dispatcher’s permission before they
undertook it? And what about the
Department regulations requiring timely
and complete follow-up? Even under the
revised order, no follow-up could be
conducted without express permission from
Jones. What were the officers to do at
times when Jones could not be reached?
Gustafson testified that he and Cornejo
were also concerned that according to the
order "the tactical 400 cars that were
supposed to be patrol cars were not
allowed to operate like all the other
patrol cars in the district, . . . we
were just supposed to drive around and
take assignments from the dispatcher."
The officers approached their sergeants
with all these concerns, as well as with
their particular concern about the
implications of having prematurely
abandoned the Sidney investigation. What
if Sidney had shot someone that night?
Among other concerns, Gustafson, Cornejo,
and their sergeants were aware that just
over a year earlier two patrol officers
were fired after failing to properly
follow up on information suggesting
criminal conduct by Jeffrey Dahmer--a
failure that the Department determined
contributed to Dahmer’s grisly murder of
a boy. (See Balcerzak v. City of
Milwaukee, 163 F.3d 993 (7th Cir. 1998)
(upholding summary judgment in favor of
Chief Arreola and the Milwaukee Board of
Fire and Police Commissioners on claims
brought by two officers who were
disciplined for their failure properly to
investigate Dahmer’s conduct in 1991 with
respect to one of his victims).) Their
sergeants and Lieutenant Rebernick said
there was nothing they could do about the
Sidney investigation or the problems
created by Jones’s roll call order. As
one TEU sergeant testified, Rebernick
informed the officers "there was nothing
more to add. . . . The officers were to
follow [the order]."
Having consulted their superiors without
success, and still concerned about the
untenable position that Jones’s order put
them in, Gustafson and Cornejo went to
see the president of their union, Bradley
DeBraska, "to get some answers."/1 They
took with them their notebooks and a sup-
plemental investigation report on the
Sidney incident that they had prepared
after their July 13 shift. That report
explained what they had learned through
their investigation and stated that they
broke off the investigation under unusual
circumstances after receiving an order
from Deputy Inspector Jones. Gustafson
and Cornejo gave these materials to
DeBraska and explained their various
concerns.
After hearing out Gustafson and Cornejo,
DeBraska informed them that he would do a
"complete investigation" into their
allegations and that if they had merit he
would not only write a letter to Chief
Arreola, but he would send the letter to
local elected officials and the Milwaukee
press. As Gustafson testified, that
letter was to contain "[our] concerns
that we had been limited in doing our
investigation, and that the order
contradicted several department rules and
regulations. Although the officers were
uncomfortable with the idea of going
public, DeBraska convinced them that
permitting him to go public with their
concerns was the only way the officers
could protect [themselves] from any of
these things happening, department
repercussions, [and] criminal/civil
liability, in the event that Sidney hurt
someone.
On July 21, 1993, DeBraska sent Arreola
a two-page letter criticizing Jones’s
roll call order. The letter alleged that
the order "contravenes a number of
Milwaukee Police Department Rules and
Regulations and Standard Operating
Procedures" as well as the overall law
enforcement objective of the Department.
DeBraska expressed "confusion" regarding
the expectations for members given the
Department’s past terminations of
officers who did not adequately follow up
investigations. As an example of the kind
of problem created by the order, DeBraska
described the Sidney investigation and
suggested it represented a willingness by
the Department to "discontinue an
investigation of a serious offense, even
where a known suspect was about to be ar
rested." The letter did not identify
Gustafson, Cornejo, or Sidney, referring
instead only to Sidney’s alleged conduct
and the scope of the investigation. The
letter closed with a request that Arreola
revoke the roll call order, or at a mini
mum that he "obtain a legal opinion from
the Attorney General" regarding officers’
potential criminal liability for failing
to investigate pursuant to that order and
that the Department agree to hold
officers harmless for any civil
liability.
As he said he would, DeBraska sent
copies of his letter to local elected
officials and the press. In response,
eight alderpersons signed a letter
questioning the wisdom of Jones’s order
and suggesting that it be repealed. At
trial, Alderwoman Suzanne Breier, one of
the letter’s signatories, testified that
the order particularly concerned her
because even at that time Jones, who had
since replaced Arreola as Chief, "tried
to do what he felt like doing and got
away with it" and that in this case the
order appeared to impose an unwarranted
limitation on the investigation of
serious criminal activity and thus placed
Milwaukee’s citizens at an unacceptable
risk: "I have to say that when someone is
investigating something as serious as
[the Sidney incident], obviously the only
thing worse is to have a death . . . and
I certainly would not want [the
investigation] handled that way if it did
happen in my district. That puts everyone
in danger as far as I am concerned."
On July 22, 1993 both the Milwaukee
Journal and the Milwaukee Sentinel ran
articles under similar headlines, "Police
union questions rule on follow-ups" and
"Police union objects to order." The
letter and both articles identified the
order as having issued from Jones.
Arreola responded to the alderpersons’
letter and the newspaper articles by
instructing Inspector Harker to look into
the roll call order and the events of
July 13. Captain August Tjaaland was
given the task of gathering information.
He instructed Skurzewski and Filut to
file a report on the incident. They
interviewed Gustafson and Cornejo.
Neither sergeant could find any evidence
that the officers had violated any
departmental rules or orders the night of
July 13. Similarly, in reviewing the
sergeants’ report, Tjaaland found no
evidence of any rule or order violations.
Tjaaland’s investigation resulted in a
letter on July 23 from Arreola to the
Alderpersons explaining the order and re
assuring them that it merely reflected a
resource allocation decision. Initially,
it thus appeared that neither Gustafson
nor Cornejo would ever receive so much as
a verbal reprimand for their actions on
the night of July 13. To the contrary,
the investigation revealed only that they
had played everything by the book.
Following the publication of the
articles and Arreola’s reply letter,
everything remained normal in the TEU. No
one, including the Department’s Deputy
Chief Koleas, testified to noticing any
morale, disciplinary, or performance
problems following the public disclosure
of Jones’s order, the evident public
interest it had generated, and the
general descriptions of the Sidney
investigation. Koleas testified that he
had no indication that the incident had
any negative effect on morale, and that
he had "no indication that it affected
[the Department’s] efficiency." He had no
problems with either Gustafson or Cornejo
following the incident, and there was no
evidence that the publicity impaired the
Department’s investigation and ultimate
arrest of Sidney or any other criminal
suspect (Gustafson arrested Sidney on
August 10, 1993). Lieutenant Rebernick
testified that following the publication
of the articles, there were no unusual
disciplinary problems in the unit and
that he had no knowledge of any member of
the TEU who was less likely to follow or
obey an order issued by Deputy Inspector
Jones. Both Gustafson and Cornejo
remained "very competent" officers and
their actions had "no impact whatsoever"
on how the unit "functioned and conducted
its activity." Similarly, Sergeant Kuspa
testified that following the publication
of the information, the unit returned to
"business as usual." No tactical officer
was any less inclined to obey an order
from Deputy Inspector Jones and both
Gustafson and Cornejo remained
"outstanding officers."
Because everything had been going so
smoothly and neither Gustafson nor
Cornejo had received anything other than
positive performance reviews following
the July 13 incident and the July 22
newspaper publications, members of the
TEU--officers and supervisors alike--were
stunned when nearly four months later, on
November 12, Gustafson and Cornejo were
involuntarily transferred from the TEU.
Typically, officers left the TEU only if
they sought a transfer or if they engaged
in misconduct. Gustafson and Cornejo had
not sought the transfer and they had not
been formally disciplined for anything,
much less something that would have
merited a transfer. When they asked the
TEU’s new commanding officer, Captain
Bialk, why they were being transferred,
he told them it was "for the good of the
unit." In fact, as Bialk later admitted
at trial, the two were transferred
because Jones was embarrassed by the
newspaper articles questioning his order.
According to Bialk, Jones had been
talking to him for months on almost a
weekly basis about his desire to transfer
Gustafson and Cornejo.
When the involuntary transfer order came
down, both Bialk and Rebernick objected
to Jones and Arreola that Gustafson and
Cornejo were outstanding officers, that
there had been no problems in the TEU
since June, and that they ought not to be
transferred. The transfers occurred
nonetheless, and the TEU’s morale
suffered as a result. There had been
indirect threats from Arreola and Jones
immediately following the publication of
the articles that if the leaks to the
press did not cease they would disband
the entire TEU, but the officers assumed
that by November the storm had passed.
Following their transfer, Gustafson and
Cornejo repeatedly applied to be
reassigned to the TEU. They regularly
were ranked at the top of the list for
assignment to the TEU and yet each time
they were passed over for other officers
ranked below them. At the time this case
went to trial they continued to be barred
from the unit. With no other relief in
sight, they sued.
II
Gustafson and Cornejo’s theory of their
case was that Jones and Arreola
transferred them and continued to prevent
them from returning to the TEU in
retaliation for engaging in speech
protected by the First Amendment. At
trial, Jones and Arreola both denied that
the speech in question had anything to do
with the transfer and also downplayed the
significance of the speech.
Significantly, they did not suggest that
the speech related only to purely
internal police department affairs and
thus did not rise to the level of a
matter of public concern.
Jones testified that he approached
Arreola about transferring Gustafson and
Cornejo on July 15 because he believed
the officers had disobeyed orders and
resisted their patrol assignment the
night of July 13. He also testified that
he was upset because he thought that the
language in Gustafson’s supplemental
investigation report showed a disrespect
for Jones’s authority. Nevertheless,
Jones conceded that the only discipline
that could properly have been taken in
response to an infraction related to
disrespect was "remedial," "talking with
the officers . . . tell them it was
inappropriate." When asked about the
articles, Jones denied that it was even
possible that they had anything to do
with his recommendation to transfer the
officers, for the simple reason that they
were published well after he approached
Arreola. He testified he had no idea that
the information in those articles stemmed
from Gustafson and Cornejo, or that they
had spoken to their union. He even denied
being aware that Gustafson and Cornejo
had spoken about his order to other TEU
officers and TEU supervisors. Finally, he
testified that he was not at all
embarrassed by the newspaper articles.
Notably absent from Jones’s testimony
was any indication that he had, or even
feared, any difficulty with discipline in
the TEU following Gustafson and Cornejo’s
internal and public complaints about his
order. There was similarly no testimony
that Gustafson, Cornejo, or any other TEU
officer was resistant to his orders or
showed any less respect for the
Department’s managerial hierarchy between
July 22 and November 12, when the
officers were transferred. Jones did not
testify to any actual or anticipated
problems with morale, nor did he indicate
that the articles in any way inhibited
the Sidney investigation or any other
ongoing investigation.
Chief Arreola’s defense at trial was
that he merely rubber-stamped the formal
recommendation he received to transfer
Gustafson and Cornejo. He testified that
he had no knowledge that the two officers
took information to DeBraska or even that
they complained to other TEU officers and
supervisors about Jones’s order. With
respect to the letters from DeBraska and
the alderpersons, Arreola testified that
he frequently received such letters and
that he simply routed them to other
administrators for review. He testified
that he could not recollect having read
the report prepared by Captain Tjaaland
documenting the events of July13 and that
he had no role in drafting the letter re
sponding to the alderpersons. He denied
that the newspaper articles either
angered or embarrassed him because such
criticism was a regular occurrence.
According to Arreola, the whole affair
"was not a significant event in any
mind."
Like Jones, Arreola did not testify to
any particular impact that the articles
either had or that he thought they might
have on the Department. Upon reviewing
the information at trial he stated that
the disclosure of a Department order,
other than through the Department’s
Public Information Bureau, would be a
violation of Department rules but "in a
technical sense." He also testified that
the disclosure of information from an
ongoing felony investigation report
"could be detrimental" to "the successful
conclusion, if you will, of an ongoing
investigation." Arreola, however, offered
no testimony with respect to how he
perceived the particular disclosures made
by Gustafson and Cornejo. There is no
evidence that he at any time feared that
the articles compromised the Sidney
investigation, much less that they
actually did so. He also offered no
testimony suggesting that the articles
critical of Jones’s order undermined
discipline or morale in the Department or
the TEU. Again, Arreola testified that he
considered the publicity surrounding the
incident to be nothing unusual.
Similarly, he did not suggest that the
publicity around Jones’s order either
made, or risked making, the TEU patrol
squad program less effective in carrying
out its mission.
In the end the jury chose not to believe
Jones’s and Arreola’s claims that they
were either ignorant of, or not concerned
about, Gustafson and Cornejo’s speech
when they decided to transfer them and
returned a verdict in favor of the
officers. Whether or not we may find the
commanding officers’ accounts plausible,
it was unquestionably the jury’s
prerogative to decide whose version of
the entire incident to credit. After the
verdict, Jones and Arreola moved for
judgment as a matter of law or for a new
trial, in the alternative; the court
denied both motions. In this appeal, they
do not challenge the jury’s conclusion
that they caused the officers to be
transferred and kept out of the TEU
because of their speech, nor do they
challenge the jury’s finding that absent
the speech the officers would not have
been transferred. Instead, Jones and
Arreola contend that the district court
erred in concluding as a matter of law
that the officers’ speech was protected
from punishment by the First Amendment
and that they were not entitled to
qualified immunity. The trouble for Jones
and Arreola is that they must live with
the evidentiary record they created at
trial, and on that record we can only
affirm the district court’s ruling.
III
Whether a government employee’s speech
is protected by the First Amendment is a
question of law that the district court
properly withheld from the jury, even
though it may have required predicate
factual determinations. Biggs v. Dupo,
892 F.2d 1298, 1300 n.1 (7th Cir. 1990).
Although our review of the court’s legal
conclusions is de novo, we review the
record as a whole, and we will accept the
district court’s conclusions of
historical fact unless they are clearly
erroneous. Falanga v. State Bar of
Georgia, 150 F.3d 1333, 1335 (11th Cir.
1998) (disputes of constitutional fact,
as opposed to historical fact, reviewed
de novo); Ezekwo v. New York City Health
& Hosps. Corp., 940 F.2d 775, 780 (2d
Cir. 1991) (applying clearly erroneous
standard to factual determinations in
First Amendment retaliation case); Rankin
v. Independent School Dist. No. I-3, 876
F.2d 838, 842 (10th Cir. 1989)
(historical facts reviewed under
"traditional standard of review"). Cf.
Ornelas v. United States, 517 U.S. 690,
699 (1996) (requiring clear error review
of historical facts in Fourth Amendment
context). With respect to those issues
decided by the jury and not relevant to
the question whether the employees’
speech was entitled to First Amendment
protection, we view the facts in the
light most favorable to the jury’s
verdict. Taylor v. Carmouche, 214 F.3d
788, 791 (7th Cir. 2000).
There are four elements to a First
Amendment retaliation claim in the
employment context. First, the plaintiffs
must prove that their speech was a matter
of public concern. Next, they must prove
that their speech played at least a
substantial part in the employer’s
decision to take an adverse employment
action against them. If the plaintiffs
can carry their burden on these two
elements, the defendants can only prevail
if they prove by a preponderance of the
evidence that the government’s interest,
as an employer, in efficiently providing
government services outweighs the
employees’ First Amendment interests, or
if they can prove that they would have
disciplined the employees even in the
absence of the speech. Klunk v. County of
St. Joseph, 170 F.3d 772, 775 (7th Cir.
1999). See also Hellstrom v. United
States Dep’t of Veterans Affairs, 201
F.3d 94, 97 (2d Cir. 2000).
Because the jury’s verdict has not been
challenged, the only three questions
before us are (1) Did the officers’
speech touch on a matter of public
concern? (2) If so, did Jones and Arreola
carry their burden of demonstrating that
their interests as employers outweighed
the officers’ interests in speaking out
on this matter of public concern? (3)
And, even if the speech was protected,
was that fact sufficiently well
established in November of 1993 to
deprive the defendants of qualified
immunity? Applying the line of cases that
began with Pickering v. Board of
Education, 391 U.S. 563 (1968), we
conclude that the district court properly
answered all three questions in favor of
Gustafson and Cornejo.
A. Matter of Public Concern
Whether a government employee’s speech
addresses a matter of public concern
depends upon "the content, form, and
context of [the speech] as revealed by
the whole record." Connick v. Myers, 461
U.S. 138, 147-48 (1983). Of these three
factors, content is most important.
Button v. Kibby-Brown, 146 F.3d 526, 529
(7th Cir. 1998); Marshall v. Porter
County Plan Comm’n, 32 F.3d 1215, 1219
(7th Cir. 1994); Belk v. Town of
Minocqua, 858 F.2d 1258, 1264 (7th Cir.
1988). The "public concern" element is
satisfied if the speech can fairly be
said to relate to a matter of political,
social, or other concern to the
community, rather than merely a personal
grievance of interest only to the
employee. Connick, 461 U.S. at 146.
Gustafson and Cornejo contend on appeal
that we need not reach the merits of this
issue because we previously held that
their speech was on a matter of public
concern in Gustafson I. The decision
there, they suggest, creates binding law
of the case. What we said, however, was
that "[b]earing in mind that we are just
evaluating the pleadings, we find that
the plaintiffs adequately alleged both
the content of their speech and the
defendants’ awareness of it." 117 F.3d at
1018. We similarly emphasized the fact
that our conclusions were based on the
pleadings when we discussed the "public
concern" element specifically. Id. Given
the fact that the disposition of this
issue must rest upon all relevant aspects
of the speech, we conclude that we have
an obligation to revisit this issue in
light of the full record. See, e.g.,
Connick, 461 U.S. at 148. See also
Kokkinis v. Ivkovich, 185 F.3d 840, 844
(7th Cir. 1999) (legal question requires
that we "delve deeper into the precise
content, form, and context of speech");
Campbell v. Towse, 99 F.3d 820, 827 (7th
Cir. 1996) (public concern determination
made based on "record as a whole").
Although the final record differs in
some respects from the details of the
pleadings, it is the evidence at trial
that controls. Looking at that record in
its entirety, we conclude once again that
the officers’ speech was on a matter of
public concern. Indeed, it would require
some mental gymnastics to see it
otherwise, given the high level of public
interest this incident commanded in the
Milwaukee press and among its elected
officials--although we address the
relevance of that outside interest in a
moment. With respect to content, we have
long recognized that "[i]t would be
difficult to find a matter of greater
public concern in a large metropolitan
area than police protection and public
safety." Auriemma v. Rice, 910 F.2d 1449,
1460 (7th Cir. 1990) (en banc). More
specifically, "[i]ssues involving proper
allocation of police patrols and other
departmental resources . . . are
questions of serious public import."
Campbell, 99 F.3d at 828. Such issues
undoubtedly "benefit from a full airing
in the public marketplace of ideas and
opinions." Id.
In this case, Gustafson and Cornejo
spoke directly to their fellow officers
and their union president about Jones’s
direct order to suspend further
investigation into Sidney’s whereabouts
and his general order limiting follow-up
investigations by TEU officers on patrol
assignments; those reports in turn were
passed along to the press and local
elected officials. As we said in our
earlier opinion, "[t]his was not speech
about merely personal matters; it related
to how police investigations are to be
conducted, and what kind of balance
between individual officer initiative and
central control was to be struck."
Gustafson I, 117 F.3d at 1019. Although
evidence of actual public interest is not
dispositive of whether speech is on a
matter of public concern, the fact that
the press and elected officials took such
a keen interest in Jones’s orders is
certainly relevant to the issue. See
Auriemma, 910 F.2d at 1460. Alderperson
Breier’s testimony at trial reflected the
community’s concern about the possibility
that Jones’s orders might needlessly lead
to dangerous suspects like Sidney evading
capture, thereby "put[ting] everyone in
danger," as she expressed it.
On appeal, Jones and Arreola do not
contest that the content of the speech
was of interest to the public. (Their
tentative suggestion that Gustafson and
Cornejo were "recklessly indifferent" to
the accuracy of the information they gave
to DeBraska is neither supported by any
fair reading of the record, much less one
favorable to the officers, nor is it
relevant to the question whether the
issue was a matter of public concern).
Having conceded content, Jones and
Arreola face a difficult task. They turn
instead to the second step of the
Pickering analysis and argue that this is
a case in which the context of the speech
should trump its content. They urge us to
read the record to show that Gustafson
and Cornejo’s speech was motivated by
their frustration with the department’s
decision to have TEU officers perform
district patrol duty and by their fear
that they might suffer departmental or
legal consequences if Sidney committed
some crime while at large. These
motivations, appellants argue, are
"purely personal" and thus the speech
cannot be considered to have been on a
matter of public concern. After an
exhaustive review of the record, however,
we find that this argument is not
supported by the facts, nor is it
persuasive on the law.
As a legal matter, while motive is
relevant to the "matter of public
concern" inquiry, we have consistently
held that it is not dispositive. See,
e.g., Button, 146 F.3d at 529; Campbell,
99 F.3d at 827; Cliff v. Board of Sch.
Comm’rs of Indianapolis, 42 F.3d 403, 409
(7th Cir. 1994). Motive matters to the
extent that even speech on a subject that
would otherwise be of interest to the
public will not be protected if "the
expression addresses only the personal
effect upon the employee," Marshall, 32
F.3d at 1219 (emphasis added), or if the
only point of the speech was "to further
some purely private interest." Kokkinis,
185 F.3d at 844 (officer’s public
comments on sex discrimination in depart
ment were not protected where his sole
motivation was to further a personal
vendetta against police chief). We
emphasize the word "only" because, while
speech that is only motivated by private
concerns may not be protected, "[a]
personal aspect contained within the
motive of the speaker does not
necessarily remove the speech from the
scope of public concern." Greer v.
Amesqua, 212 F.3d 358, 371 (7th Cir.
2000) (quoting Marshall, 32 F.3d at
1219). See also Cliff, 42 F.3d at 410;
Button, 146 F.3d at 529. Thus, even if
Gustafson and Cornejo were advancing some
private interests when they raised
concerns about Jones’s orders, their
claim survives as long as they also
intended to bring to light what they
believed to be the negative law
enforcement consequences of the new
policy. The jury so found, and there is
ample evidence in the record to support
this conclusion.
When Gustafson and Cornejo talked to the
other TEU officers and then with
DeBraska, they were worried about
potential departmental and legal
penalties if Sidney committed some new
crime, but their testimony makes clear
that they were also concerned about the
fact that Jones’s order would thwart both
their efforts to get a dangerous suspect
off the streets and the department’s
efforts in such cases more generally. It
is telling in that connection that their
complaints to DeBraska about Jones’s
orders and the fact that Sidney was able
to avoid capture conveyed the concerns of
many of their fellow TEU officers that
Jones’s roll call order would force
officers to abandon future investigations
involving time-sensitive information and
potentially dangerous suspects.
Contrary to Jones and Arreola’s
assertions on appeal, this is not a case
like Kokkinis. In that case, an officer
with a personal grudge against his
supervisor took advantage of a sex
discrimination complaint he knew nothing
about to embarrass his supervisor in the
press. Gustafson and Cornejo had
personally experienced the consequences
of Jones’s orders, they had discussed
them with their fellow officers and
supervisors, and they had real and
legitimate concerns about the effect of
the orders on the ability of TEU officers
to carry out their law enforcement
duties. Unlike in Kokkinis, there was no
evidence of a malicious motive, and Jones
testified that the public knowledge of
his order did not embarrass him. Based on
the content of the speech, the public’s
demonstrated interest in the issues
raised by the speech, and the context
within which Gustafson and Cornejo spoke,
we agree with the district court that the
speech touched on a matter of public
concern.
B. Pickering Balancing
Even if an employee’s speech is on a
matter of public concern, a government
employer is entitled to restrict that
speech if it can carry its burden of
proving that the interest of the public
employee as a citizen in commenting on
the matter is outweighed by the interest
of the state, as employer, in promoting
effective and efficient public service.
See Pickering, 391 U.S. at 568; Waters v.
Churchill, 511 U.S. 661, 675 (1994). The
stronger the employee’s interest in
speaking, the more substantial a showing
the state must make to justify its
restriction of that speech. Waters, 511
U.S. at 675.
Pickering contemplates a highly fact-
specific inquiry into a number of
interrelated factors: (1) whether the
speech would create problems in
maintaining discipline or harmony among
co-workers; (2) whether the employment
relationship is one in which personal
loyalty and confidence are necessary; (3)
whether the speech impeded the employee’s
ability to perform her responsibilities;
(4) the time, place, and manner of the
speech; (5) the context within which the
underlying dispute arose; (6) whether the
matter was one on which debate was vital
to informed decision-making; and (7)
whether the speaker should be regarded as
a member of the general public. Greer,
212 F.3d at 371.
Pickering balancing is not an exercise
in judicial speculation. While it is true
that in some cases the undisputed facts
on summary judgment permit the resolution
of a claim without a trial, that means
only that the Pickering elements are
assessed in light of a record free from
material factual disputes. Here, after
the trial, we must conduct this inquiry
in light of the full record viewed in the
light most favorable to the jury’s
verdict. This is precisely what the
Supreme Court did in Connick, where its
Pickering analysis looked to the actual
testimony of the employee’s supervisor
regarding the potential impact of the
employee’s speech and then evaluated the
other evidence in the record to determine
whether it supported the employer’s
fears. 461 U.S. at 150-54. We are not
entitled to speculate as to what the
employer might have considered the facts
to be and what concerns about operational
efficiencies it might have had, once the
record shows what those concerns really
were. To put the point another way, this
is not like "rational basis" review of
state legislation, under which it is
enough to imagine any rational
underpinning for the law the legislature
chose to enact. First Amendment rights
cannot be trampled based on hypothetical
concerns that a governmental employer
never expressed.
This court, in Jungels v. Pierce, 825
F.2d 1127 (7th Cir. 1987), reversed a
district court’s 12(b)(6) dismissal of a
First Amendment retaliation claim because
its conclusion that the employee’s speech
could have unduly interfered with the
mission of his employer was based solely
on "speculation." Id. at 1132. We held
that while it was "plausible" that the
employee’s speech properly could have
been sanctioned, the dismissal could not
be sustained because "[no] substantial
showing" had been made indicating the
disruptive potential of the speech. Id.
Likewise in Kokkinis, we sustained a
grant of summary judgment in favor of the
employer only after finding that
"[e]vidence in the record . . . reflects
that Mr. Kokkinis’ statements caused
embarrassment to his superiors and co-
workers and that his relationships with
them deteriorated." On this basis we
found the chief of police’s testimony
that he thought Kokkinis’s comments
reflected negatively on the Department
and would affect morale among the
officers to be reasonable and
uncontested. 185 F.3d at 846.
Even accepting the proposition that a
police department is a paramilitary
organization built on relationships of
trust and loyalty, and as such the
judgment of police officials regarding
the disruptive nature of an officer’s
speech is entitled to considerable--
although by no means complete--deference,
Waters, 511 U.S. at 677, Jones and
Arreola offered no evidence at trial even
hinting that they were punishing the
officers for their speech. Moreover,
there is no evidence that Gustafson and
Cornejo’s speech had any disruptive
effect on the department, nor is there
evidence that, despite the absence of any
actual disruption, Jones and Arreola
reasonably believed it would have future
disruptive consequences. Numerous
witnesses, including the department’s
Deputy Chief, testified to the contrary
that following publication of the
articles, everything remained normal in
the TEU. The officers in the TEU,
including Gustafson and Cornejo,
continued to respect Jones’s authority,
they obeyed his orders, and the unit
functioned efficiently and effectively.
In response to this factual finding,
Jones and Arreola now argue on appeal
that an employer is allowed to act on the
basis of the "potential disruptiveness"
of an employee’s speech and that it need
not wait for "events to unfold to the
extent that the disruption of the office
and the destruction of working
relationships is manifest before taking
action." Connick, 461 U.S. at 151. This
is an accurate statement of the law, but
it comes too late in the day for this
case. At trial, neither Jones nor Arreola
testified that they decided to transfer
Gustafson and Cornejo because they feared
the speech would cause future
disruptions. (Had they done so, the
plaintiff officers would have had an
opportunity to present evidence to the
contrary.) Instead, Jones flatly denied
any knowledge that Gustafson and Cornejo
had ever complained about his order,
either to other officers, the union, or
the press. He also denied that the
articles embarrassed him, and he offered
no testimony that he considered the
public challenges to the orders (whether
made by Gustafson and Cornejo or anyone
else) to be a threat to his ability to
manage or to Department morale. He did
testify that Gustafson and Cornejo’s
supplemental investigation report
contained inappropriate implicit
challenges to his authority, but
according to his own testimony this
misdeed warranted no more than an
informal verbal reprimand.
Arreola, meanwhile, denied being fazed
at all by the articles or their content.
He told the jury that he was not even
certain he had read the articles.
According to Arreola, such criticisms
were commonplace and of no particular
consequence. Nowhere did he testify that
he feared that the public criticism of
Jones’s order would undermine the
efficiency or morale of the TEU or the
departmental command hierarchy. Although
he testified that public disclosure of
the order was "technically" a violation
of Department policy and that disclosure
of confidential information regarding an
ongoing investigation could be disruptive
to the successful conclusion of that
investigation, he did not testify that
such transgressions in general would
justify a transfer from the TEU, much
less that Gustafson and Cornejo’s
particular disclosures warranted a
transfer. He conceded he had no
indication that their disclosures of
information regarding the Sidney
investigation in any way hampered their
ability to apprehend Sidney.
The absence of any evidence that either
Jones or Arreola considered Gustafson and
Cornejo’s speech potentially disruptive
is particularly telling in this case,
given that four months had passed without
any evidence of ill effects from the
speech before the transfers took place.
Mere assertions of a generalized
potential for disruption are in any event
insufficient, see Hulbert v. Wilhelm, 120
F.3d 648, 655 (7th Cir. 1997) (explaining
that under Connick "mere incantation of
the phrase ’internal harmony in the
workplace’ is not enough to carry the
day"), but where, as here, substantial
time has passed without incident, it
naturally becomes more difficult for an
employer to satisfy its burden of proving
that punishment on the basis of
anticipated disruption was reasonable.
Had such evidence been presented, we
would obviously have a different case;
but it was not.
On appeal, Jones and Arreola pin their
hopes on Kokkinis. They offer a plausible
story about how, given that (1) Gustafson
and Cornejo are police officers, (2)
their speech challenged a lawful order of
one of their superior officers, and (3)
they disclosed confidential information
to non-Department personnel, the
Department might have believed the
officers’ speech would be disruptive even
after four months of calm. Once again,
the critical difference is that Kokkinis
did not rely on a story told for the
first time on appeal; it rested instead
on a proper summary judgment record that
contained testimonial evidence from the
chief of police that he was concerned
about the efficiency and morale of the
police department, as well as on the
testimony of other officers that
supported the reasonableness of the
chief’s beliefs. See also Lickiss v.
Drexler, 141 F.3d 733, 744 (7th Cir.
1998) (reversing district court’s grant
of summary judgment to plaintiffs because
reasonable inference could be drawn from
evidence in the record that police
supervisors were concerned about the
disruptive effects of the officer’s
speech). In the end, this a case of
failure of proof, and should be taken as
no more than that. Jones and Arreola did
not meet their burden of proving by a
preponderance of the evidence that any of
the first three elements of the Pickering
balancing test supported restricting the
officers’ speech.
The other critical elements of the
Pickering balancing test also weigh
against Jones and Arreola on this record.
In particular, we have said that "[t]he
manner and means of the employee’s
protestation are key considerations in
balancing an employer’s and employee’s
interests under Pickering." Greer, 212
F.3d at 371. Gustafson and Cornejo began
by raising their concerns about Jones’s
orders by going up the internal chain of
command, speaking first with their
sergeants and then with their lieutenant.
Not only could these supervisors not
address their concerns, they themselves
were confused and concerned that Jones’s
roll call order would interfere with TEU
officers’ ability to conduct appropriate
follow-up investigations. It was only
after Lieutenant Rebernick informed them
that there was nothing to be done about
the orders that Gustafson and Cornejo
went to DeBraska. The district court
concluded that Gustafson and Cornejo had
properly taken their concerns up the
chain of command before seeking out
DeBraska, and there is ample support for
this conclusion in the record. See Wright
v. Illinois Dep’t of Children & Fam.
Servs., 40 F.3d 1492, 1504 (7th Cir.
1994) (recognizing that an employee’s
position is stronger under Pickering
where she has followed authorized
procedures and appealed to appropriate
authorities).
The officers went to DeBraska to seek
his advice on how to respond to the
orders. They provided him with copies of
Jones’s roll call order and their Sidney
investigation report as well as an
accurate description of the events that
had transpired over the previous days.
Although they may have been mistaken,
neither believed that providing such
information to their union president
violated the Department’s confidentiality
policy, and the information they provided
was centrally relevant to their concerns.
They subsequently approved DeBraska’s
suggestion that he disclose portions of
that information to the press and public
officials, but only after concluding that
disclosure was necessary given the nature
of their concerns and their supervisors’
unwillingness to do anything further
about the orders.
Contrary to the appellants’ suggestion,
this case is not at all like Greer, in
which we found that a fire department was
entitled to punish a firefighter who
"fired off his news release" about his
boss’s alleged favoritism without taking
advantage of any of the available
internal complaint procedures and without
making any effort to learn the facts of
the situation he was complaining about.
212 F.3d at 371-72. Gustafson and Cornejo
might have tried other avenues before
agreeing to DeBraska’s plan to go public,
and they might have taken better care not
to disclose unnecessary specifics of the
Sidney investigation to their union chief
(details which notably were never
disclosed to elected officials or the
press), but unlike in Greer, the "manner
and means" of the officers’ speech in
this case was not so objectionable as to
weigh against them in the Pickering anal
ysis.
Like the district court, our review of
the evidence persuades us that Jones and
Arreola have not carried their burden
under Pickering of demonstrating that
their interest, as employers, in
punishing Gustafson and Cornejo for their
speech outweighs the officers’
considerable interest in speaking out
about the potential risks created by
Jones’s orders.
C. Qualified Immunity
Last, Jones and Arreola contend that
even if we find that transferring
Gustafson and Cornejo on the basis of
their speech was not justified, they are
entitled to qualified immunity because
there was no clearly established law that
would have put them on notice of this
fact in November of 1993. Again, we
disagree.
As we pointed out in Gustafson I, the
key elements of this case have been clear
for years: a public employer may not
retaliate against an employee who
exercises his First Amendment speech
rights, including in particular through a
transfer to a less desirable position,
and speech about police protection and
public safety raises a matter of public
concern. 117 F.3d at 1021. Indeed, this
court held as early as 1979 that a public
employer may not retaliate against an
employee’s exercise of First Amendment
rights by a retaliatory transfer to a
different position, even if there is "no
loss of pay, seniority or other rights."
McGill v. Board of Educ. of Pekin Elem.
School Dist. No. 108, 602 F.2d 774, 780
(7th Cir. 1979); see also Walsh v. Ward,
991 F.2d 1344, 1345 (7th Cir. 1993)
("McGill recognizes a proposition that
cannot be denied: an employer can
penalize past speech and discourage
future speech by assigning a worker to an
undesirable job. Dissenters exiled to
Siberia (or the equivalents found within
many bureaucracies) quickly get the
message, even though the new postings
carry the same salary and title."). As
for the "public concern" point, speech
related to law enforcement and police
policies that have an impact on public
safety was recognized as speech touching
on a matter of public concern, even if
the speaker was partly motivated by
purely personal concerns. Auriemma, 910
F.2d at 1460 (public safety is matter of
public concern); Belk, 858 F.2d at 1264
(collecting cases indicating that to be
motivated in part by personal stake in
outcome of dispute does not necessarily
deprive speech of First Amendment
protection). We repeat again that at all
times relevant to this case, the law with
respect to both the public concern and
the antiretaliation elements of these
claims was well established.
On a different record, there might have
been a question about how clear it was
that the public employer could not punish
employees who exercised First Amendment
rights, if the employer cited efficiency
concerns as its reason. But this case
does not present that question. Instead,
the issue is whether any employer could
have thought it was entitled to punish an
employee for speech on a matter of public
concern where the speech caused no actual
disruption of any kind for four months,
and where the employer neither
articulates a belief that the speech has
the potential to be disruptive in the
future, nor has evidence to support the
reasonableness of such a belief. We need
look no further than Connick to know that
the answer to that question is no. The
law to that extent was clearly
established, and thus the district court
properly denied qualified immunity to the
defendants.
III
We emphasize again that our decision to
affirm the district court’s ruling on the
First Amendment issue, and the jury’s
conclusions about the facts that gave
rise to this case, is a narrow one that
is driven in large part by the trial
strategy that the defendants themselves
chose. At trial, Chief Arreola and Deputy
Inspector Jones elected not only to deny
that they were motivated to transfer
Gustafson and Cornejo because of their
speech, but also to deny having any
knowledge of the speech (Jones) or any
concerns regarding it (Arreola) at the
time they recommended that the officers
be transferred. Both denied that the
speech embarrassed them and neither
offered any testimony suggesting that the
officers’ speech either created, or
created the potential for, the kind of
disruption that would have warranted
punishing speech that is on a matter of
public concern. Downplaying the
significance of the speech was consistent
with--although not necessary to--the
defenses they offered at trial. Having
created this record, they are stuck with
it. Gustafson and Cornejo established
that their speech was on a matter of
public concern and the weight of the
evidence supports the conclusion that
their speech could not justifiably be
punished under Pickering. We therefore
Affirm.
FOOTNOTE
/1 Jones and Arreola argue in their brief that
Gustafson and Cornejo pleaded falsely that an
anonymous source had leaked the relevant docu-
ments to the newspapers. In fact, the complaint
actually says only that Gustafson and Cornejo
spoke to officials and that, "not at their direc-
tion," actions were taken which resulted in
adverse publicity. We do not read Gustafson and
Cornejo’s statement as a sweeping denial of their
involvement in the publicization of the affair as
opposed to an allegation that another person
(DeBraska) took the lead in publicizing the
affair. At trial they admitted that they were the
ones who gave this information to DeBraska--a
position consistent with the statement in the
pleadings. While the jury could have concluded
otherwise, it had before it both the accurate
information and the arguably contrasting informa-
tion from the pleadings. Because the jury thus
made its decision upon a full record, we can find
no justification for rejecting its credibility
determination.