Bass v. Richards
Opinion of the Court
I. INTRODUCTION
Appellants Richards, Hebert, and Evans are police officials of Archuleta County, Colorado. Appellee Bass brought suit against them under 42 U.S.C. § 1983 alleging that they had violated his First Amendment speech and association rights. Appellants moved for summary judgment asserting a qualified immunity defense. They appeal the district court’s denial of that motion. This court has jurisdiction under 28 U.S.C. § 1291 over several, but not all, of Appellants’ claims. We affirm in part and dismiss in part.
II. BACKGROUND
Pagosa Lakes Property Owners Association (“Pagosa Lakes”) is a resort community of approximately 4,500 residents near the town of Pagosa Springs in Archuleta County, Colorado. Because of the limited manpower of the Pagosa Springs and Ar-chuleta County police forces, Pagosa Lakes maintained its own police department, the Public Safety Office. Larry Bass worked as the Chief of the Office. The Public Safety Office worked closely with the Archuleta County Sheriffs Office. To give Bass and other public safety officers at Pagosa Lakes the authority to make arrests and investigate crimes, the Sheriff deputized the Pagosa Lakes officers. Each held the title of “reserve deputy” in the Sheriffs office. Though Bass and the other Pagosa Lakes officers were based at the Public Safety Office at Pagosa Lakes, as reserve deputies they were under the direct supervision of employees of the Sheriffs office.
Sometime prior to the summer of 1997, Bass talked with his friend, Lee Vorhies, about Vorhies’ interest in running for Ar-chuleta County Sheriff in the November 1998 election. During the summer of 1997, Bass began privately supporting Vo-rhies to run against the incumbent Sheriff Richards. Bass never campaigned for Vo-rhies or otherwise publicly supported Vo-rhies’ campaign. The Sheriffs office became aware of Bass’ private support for Vorhies sometime that summer. Under-sheriff Hebert was informed by another individual that Bass was supporting Vo-rhies and had said that “the money and machinery are in place.” Hebert decided to approach Bass about his political activities and arranged several meetings with Bass throughout the summer. In a June 1997 meeting, Hebert “cautioned Bass ... about politics against the Sheriff.” In a
In November 1997, Bass testified in an unrelated state criminal trial. After several days of testimony, the state judge granted the defendant’s motion to dismiss the charges. In his minute order, the judge stated that Bass “withheld information within his knowledge, even when he found out about its importance to the case and was requested to provide any pertinent information to the case.” The judge also stated that Bass had improperly marked evidence bags after learning of their importance to a suppression motion. Because of these improprieties, the judge dismissed the charges. The Sheriffs office suspended Bass’ reserve deputy commission in December 1997 and conducted an investigation into Bass’ role in the dismissed criminal case. Following the investigation, Bass’ reserve deputy commission was revoked permanently in January 1998. For purposes of summary judgment and this appeal, however, Appellants concede that Bass’ commission was revoked because of his support for Vorhies, not because of Bass’ conduct in the criminal trial. Following Bass’ suspension, he became interested in running for Sheriff. Consequently, Bass, Vorhies, and supporters of both men held a meeting in which they discussed which man would make a better candidate against Sheriff Richards in the November 1998 election. The meeting concluded with a decision that Vorhies alone should run against Richards. Vo-rhies’ candidacy became official then or shortly thereafter. Bass supported Vo-rhies through the primary in August 1998 in which Vorhies was defeated.
Bass brought suit in federal district court alleging that Appellants violated his free speech and association rights when they removed his commission because of Bass’ comments about his preference for Vorhies and his association with Vorhies. Appellants moved for summary judgment on the basis of qualified immunity. Among other things, they argued that Pickering v. Board of Education only prohibited employee termination based on speech about a matter of public concern. See 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). They contended that Bass had only privately supported an unannounced candidate, and it was not clearly established that such speech was about a matter of public concern. The district court rejected this argument, ruling that because Appellants admitted they knew Bass was supporting Vorhies, the support was not private speech. The district court also rejected Appellants’ argument that Bass’ right to associate with an unannounced candidate was not clearly established.
III. APPELLATE JURISDICTION
This is an interlocutory appeal of the denial of Appellants’ summary judgment motion. This court has no jurisdiction over appeals to non-final orders ab
Appellants raise four general issues: (1) whether it was clearly established that the mere removal of a commission is sufficiently punitive to infringe upon Bass’ speech and association rights; (2) whether it was clearly established that Bass’ speech was on a matter of public concern and thus protected; (3) whether Bass’ right to associate with an unannounced political candidate was clearly established; and (4) whether the evidence presented was sufficient to demonstrate that Appellant Evans participated in a conspiracy to deprive Bass of his constitutional rights.
Appellants’ fourth contention is a factual one over which we have no jurisdiction. Appellants argue that Evans has qualified immunity because the “facts are completely insufficient” to show that he knowingly participated in a conspiracy to violate Bass’ rights.
The first three issues, however, are purely legal and we have jurisdiction to consider them. Bass contends
Bass points out that the district court also determined that a genuine issue of fact existed whether the loss of his commission led to his dismissal from his job as Chief of Police at Pagosa Lakes. Again, Appellants do not challenge this factual issue on appeal. Rather, they appeal the district court’s ruling that merely removing Bass’ commission amounts to retaliation violating Bass’ speech and associational rights. We have jurisdiction to review this determination.
IV. DISCUSSION
We review the denial of a summary judgment motion raising qualified immunity de novo. See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). To successfully resist a motion for summary judgment based on qualified immunity, the plaintiff must allege sufficient facts to demonstrate that his constitutional rights were violated and demonstrate that the rights were clearly established at the time defendants acted. See Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). As stated, Appellants raise three arguments over which we have jurisdiction: (1) whether the district court erred in concluding that it was clearly established that mere removal of his commission infringed upon Bass’ speech and association rights; (2) whether the district court erred in concluding that it was clearly established that Bass’ speech was on a matter of public concern and thus protected; and (3) whether Bass’ right to associate with an unannounced political candidate was clearly established.
A. Removal of the Commission
Appellants argue that Bass’ speech and association rights were not violated by the removal of his commission. They contend that Bass lost his job with Pagosa Lakes ten months after the removal of his commission, and since the removal had no immediate effect on Bass’ employment it could not infringe on his constitutional rights.
B. Speech Claim
In Pickering v. Board of Education, the Supreme Court held that the government as an employer does not have unchecked power to limit its employees’ speech on matters of public concern. See 391 U.S. at 568, 88 S.Ct. 1731.
Such speech involves a matter of public concern. Generally, speech involves a matter of public concern when it is “of interest to the community, whether for social, political, or other reasons,” rather than a matter of a mere personal interest to the speaker. See Horstkoetter, 159 F.3d at 1271 (quotation omitted). Speech relating to internal personnel disputes and working conditions does not touch upon matters of public concern. See David v. City & County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996). Speech about political elections, however, undoubtedly does. See Cragg v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir. 1998). Bass’ speech had no relation to matters such as working conditions. Instead, his speech relates to his assessment of the viability of a potential candidate’s campaign and his belief about the relative merits of two potential candidates for public office. Such political speech is at the core of protected speech. See id. Furthermore, it is irrelevant that Bass only spoke to employees of the Sheriffs office and not the public at large. Speech not broadcast to the public but made in private to the government employer may still be speech about a matter of public concern. See Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).
Simply because the facts as alleged and supported on summary judgment demonstrate that the Appellants violated Bass’ right to free speech does not end the qualified immunity analysis. Rather, Bass’ right to comment upon his assessment of potential candidates for sheriff must be clearly established at the time his commission was removed. Jantzen v. Hawkins, 188 F.3d 1247, 1258 (10th Cir. 1999). A right is clearly established when “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. (quotation omitted). All the plaintiff need show is “that there is a Supreme Court or Tenth Circuit decision on point.” Horstkoetter, 159 F.3d at 1278 (quotation omitted).
The citizenry’s ability to make known their assessment of a candidate’s qualifications for public office is “integral to the operation of the system of government established by our Constitution.” Buckley v. Valeo, 424 U.S. 1, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Accordingly, “[t]he First Amendment affords the broadest protection to such political expression.” Id. (emphasis added). It is thus clear that one has a right to speak one’s mind on the fitness of candidates for public office. See Gardetto v. Mason, 100 F.3d 803, 812 (10th Cir. 1996); see also Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (invalidating state prohibition of endorsement of candidates in primaries by political parties). Appellants make much of the fact that Vorhies had not announced his candidacy at the time Bass spoke about his preference for
Bass’ speech touched on more than his preference for one unannounced candidate over another; he endorsed one individual’s political philosophy over another’s. It is well-established that freedom of expression encompasses the freedom to opine generally on “public questions” and to engage in political discussion. New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The First Amendment “embodies our profound national commitment to the free exchange of ideas.” Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002) (emphasis added) (quotation omitted). While the right to comment on a candidate is an important component of such a discussion, it is not the only speech protected by the Amendment. See Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (observing that the free discussion of “all matters relating to political processes” is protected, one of which is a discussion of political candidates). Bass’ expression of his preference for one philosophy over another is the type of pure political opinion that has been long protected. Consequently, a reasonable official would understand that removing Bass’ commission based on his expressed preference for one individual’s philosophy over another and his assessment of Vorhies’ campaign violated Bass’ free speech rights.
C. Association Claim
An employee can establish a violation of his association rights if he demonstrates that “(1) political affiliation and/or beliefs were substantial or motivating factors behind [his] dismissal; and (2)[his] position[ ] did not require political allegiance.” Jantzen, 188 F.3d at 1251 (quotations omitted).
It is clear that the First Amendment protects employees from “official pressure ... to work for political candidates not of the worker’s own choice.” Connick, 461 U.S. at 149, 103 S.Ct. 1684; see also O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 720, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996) (observing that “[t]here is no doubt” employee could not be discharged for refusing to contribute to incumbent’s campaign). It is also clearly established that the First Amendment prohibits the dismissal of an employee because of his privately held political beliefs. See Branti v. Finkel, 445 U.S. 507, 516-17, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Thus, support of or membership in a political party is not a valid ground for
Bass, like the partisans in Elrod and Branti suffered an adverse employment action because his political alignment and beliefs were at odds with his employer’s. The plaintiffs in those cases were not required to demonstrate that they suffered an adverse employment action because of their support for an actual candidate. Rather, it was sufficient that they were fired for failing to endorse or pledge allegiance to a particular political ideology. See Branti 445 U.S. at 517, 100 S.Ct. 1287; Elrod, 427 U.S. at 351, 357, 96 S.Ct. 2673 (plurality opinion); see also Rutan, 497 U.S. at 76, 110 S.Ct. 2729 (holding denial of “promotions, transfers, or rehires for failure to affiliate with and support the Republican Party” violates First Amendment). Bass was fired for the same reason: he did not change his personal belief that an individual with Vorhies’ philosophy would make a better sheriff than Sheriff Richards. Because a reasonable official would understand that Bass’ commission could not be removed simply because of his political alignment and beliefs, Appellants are not entitled to qualified immunity from the association claim.
Y. CONCLUSION
This court concludes that it does not have appellate jurisdiction over Appellants’ claim that the evidence is insufficient to demonstrate that Evans participated in a conspiracy to deprive Bass of his constitutional rights. Therefore, that portion of the appeal is DISMISSED. We further conclude that Appellants are not entitled to qualified immunity from Bass’ speech and association claims. The judgment of the District Court for the District of Colorado is AFFIRMED.
. The district court did not explicitly consider this argument. The order denying summary judgment, however, must be read as an implicit denial of the motion on this basis.
. Bass withdrew his jurisdictional objections at oral argument. This court must nevertheless satisfy itself as to jurisdiction. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).
. The district court determined that a genuine issue of fact existed regarding whether the removal of Bass’ commission caused Pagosa Lakes to terminate his employment. To the extent Appellants are arguing that the removal of his commission did not lead to the loss of Bass' job with Pagosa Lakes, the argument is factual and we will not consider it in this interlocutory appeal.
. Both parties agree that Pickering applies. Cf. Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 676-79, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (holding restrictions on independent contractor speech governed by Pickering analysis).
. Again, both parties agree that this is the proper analytical framework to apply to Bass' association claim. Cf. O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 721, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996) (holding Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), line of cases applies to restriction on independent contractors' association rights).
Reference
- Full Case Name
- Larry T. BASS v. William T. RICHARDS, Sheriff Russell Hebert, Undersheriff and Tim Evans, Deputy Sheriff, and The Board of County Commissioners of the County of Archuleta, State of Colorado
- Cited By
- 25 cases
- Status
- Published