Tenth Circuit Rejects First Amendment Retaliation Claims

Steven D. Schwinn, John Marshall Law School

The Tenth Circuit ruled last week that a former sheriff and undersheriff enjoyed qualified immunity against claims that they retaliated against employees for exercising free speech. The ruling means that the case is dismissed.

The case underscores the power of qualified immunity and the challenges that plaintiffs sometimes face in overcoming it, especially when circuit law hasn't addressed the plaintiffs' precise claims.

The case arose when former Sheriff Terry Maketa and Undersheriff Paula Presley took employment actions against employees for their speech in order to influence an upcoming election for sheriff. In particular, Maketa and Presley transferred plaintiff Lieutenant Peck to the midnight shift after Peck refused to deliver to the media a false story concocted by Maketa regarding a missing Internal Affairs document. They opened a criminal investigation against plaintiff Sergeant Stone and Stone's two children (who were also employees of the Sheriff's Office) after Stone expressed political support for the candidate opposed by Maketa and Presley. And they put a group of commanders on administrative leave; confiscated their phones, tablets, weapons, badges, and vehicles; and had them escorted out of the building after they lodged EEO complaints against Maketa and Presley.

The court didn't rule on the merits of the plaintiffs' free speech claims. Instead, it ruled that the defendants didn't violate any of the plaintiffs' clearly established rights under the Garcetti/Pickering test for public employee speech.

As to Peck, the court said that in communicating a message to the media against Maketa's orders, she wasn't clearly speaking as a private citizen (rather than a public employee), as required for a public employee's free speech claim. The court noted that "[i]n some circuits, Lt. Peck's disobedience might affect whether she was speaking as part of her official duties." But because the Tenth Circuit hadn't ruled on this yet, it wasn't clearly established.

As to Stone, the court said that the investigations didn't clearly constitute adverse employment actions as required for a public employee's retaliation claim. Again, the court noted that other circuits have ruled differently--that "[o]ther circuits disagree with one another on the issue" whether a retaliatory criminal investigation "entails a constitutional violation." But because the Tenth Circuit "has not settled the question," the right wasn't clearly established.

Finally, as to the commissioners, the court said that the defendants' actions weren't clearly adverse employment actions.