E-Alert Case Updates
The U.S. Court of Appeals for the Fourth Circuit holds that a police chief is entitled to qualified immunity when a government employee claims retaliation for exercising First Amendment rights.
Richard Crouse & George T. Winningham v. Town of Moncks Corner
Richard Crouse and George Winningham were detectives in the Moncks Corner Police Department until October 2013, when they were forced to resign. Winningham was a corporal who reported directly to Crouse, a sergeant. Crouse reported to Lieutenant Michael Roach, and overseeing the entire department was Chief Chad Caldwell.
Initially, Crouse and Winningham had “good” relationships with Roach, but over time, Crouse and Winningham complained about Roach’s management style, his treatment of criminal suspects, and other inappropriate behavior. The events leading up to Crouse and Winningham’s resignation began on October 4, 2013, when Roach arrested James Berkeley after falling asleep in his car in a Wal-Mart parking lot. Berkeley claimed that Roach pulled him from his car and threw him to the ground. A second Moncks Corner police officer, Shawnda Winder, arrived to find Berkeley and Roach arguing outside of his car. Shortly after the argument, Roach and Winder learned that Berkeley had an outstanding arrest warrant and placed him under arrest. In order to restrain Berkeley in the patrol car, Roach allegedly used a knee strike to force Berkeley’s leg in the car, hitting his groin. Continuing to resist arrest, Roach threatened to use his taser if Berkeley refused to cooperate.
On October 7, 2013, Crouse and Winningham learned about this incident. The next day, they decided to drive to Berkeley’s house to speak with him regarding the confrontation with Roach. Crouse and Winningham encouraged Berkeley to file a complaint about Roach, going so far as to give Berkeley a form that the police department gave citizens to submit complains about police officers. The officers also suggested that Berkeley should get an attorney. Before leaving, Crouse told Berkeley to pretend not to recognize the officers if they ran into one another at the police station.
Despite Crouse’s plea, Berkeley spoke with Officer Winder that same day and told her that Moncks Corner police officers had urged him to sue Roach and the entire department. Winder informed Chief Caldwell, who then assigned Lieutenant Mark Fields to investigate Berkeley’s claim of excessive use of force and the mysterious visit by unidentified officers. Based on Berkeley’s physical description of the two officers, Fields suspected that they were Crouse and Winningham.
Following an interview, Crouse and Winningham each admitted to speaking with Berkeley. Fields reported this information back to Chief Caldwell, who instructed Captain Mark Murray to give Crouse and Winningham the opportunity to resign. Captain Murray told the officers that if they didn’t resign, they would be terminated. Both officers resigned.
Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner in February 2014, raising a claim under 42 U.S.C. § 1983. They argued that their forced resignation was an unconstitutional retaliation for exercising their First Amendment rights. The district court found that Chief Caldwell was entitled to qualified immunity and Crouse and Winningham appealed.
When a government employee claims that he was disciplined because of his speech, the courts use a three-prong test to determine if the employee’s rights under the First Amendment were violated. McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998). The first prong determines whether the employee “was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest.” Id. If the speech was made as a citizen addressing a matter of public concern, the second prong requires the court to balance the interest of the employee in speaking freely with the interest of the government in providing efficient services. Pickering v. Bd. Of Educ., 391 U.S. 563, 568 (1968). If the court finds that the employee’s interest outweighed the government employer’s, the third prong requires a determination that the employee’s speech caused the disciplinary action. McVey, 157 F.3d at 277–78.
Because the first two prongs of the test are questions of law—whereas the third is a factual inquiry—an employer is entitled to qualified immunity if either prong cannot be resolved under clearly established law. To overcome a qualified immunity defense, a plaintiff must show “(1) that the official violated a statutory or constitutional right and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
Here, the Fourth Circuit found that Chief Caldwell is entitled to qualified immunity. The court determined that Crouse and Winningham were speaking in their capacity as employees of the police department, and therefore, do not satisfy prong one. While Crouse and Winningham went to Berkeley’s house in plain clothes and an unmarked car, Berkeley easily identified them as police officers from their guns and badges. Additionally, while they visited Berkeley during their unpaid lunch hour, both officers were expected to be on call at that time and remain prepared to do their job. Finally, Crouse and Winningham’s personal delivery of the citizen complaint form demonstrates an additional connection that their speech related to official police officer duties. Because Chief Caldwell believed Crouse and Winningham acted in their official capacity as police officers, it was reasonable for Caldwell to believe that this speech was not protected, thus entitling him to qualified immunity.
Even if the court found that Crouse and Winningham spoke as private citizens on a matter of public concern, Chief Caldwell would still be entitled to qualified immunity because the balancing test established in prong two is not “beyond debate.” al-Kidd, 563 U.S. at 741. The court determined that Crouse and Winningham’s speech was not an effort to participate in a larger public dialogue, but instead, the officers tried to hide their speech by asking Berkeley to pretend that he had never met them. Additionally, the officers weren’t providing an informed opinion. Crouse and Winningham did not witness the alleged use of excessive force against Berkeley, and in fact, they never witnessed Roach using excessive force at all. Based on these reasons, the Fourth Circuit affirmed the district court’s ruling, holding that Chief Caldwell is entitled to qualified immunity.
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