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Morgan v. Robinson

United States Court of Appeals, Eighth Circuit

March 29, 2019

Donald Morgan Plaintiff - Appellee
Michael Robinson, Washington County Sheriff, an individual Defendant-Appellant Washington County, Nebraska Defendant

          Submitted: September 25, 2018

          Appeal from United States District Court for the District of Nebraska - Omaha

          Before SMITH, Chief Judge, WOLLMAN, LOKEN, COLLOTON, GRUENDER, BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, and STRAS, Circuit Judges, En Banc. [1]


         Donald Morgan sued his boss Michael Robinson for First Amendment retaliation under 42 U.S.C. § 1983. Robinson moved for summary judgment based on qualified immunity. The district court denied the motion. This court reverses and remands.


         Morgan is a deputy in the Washington County, Nebraska Sheriff's Department. Robinson is the elected sheriff. In 2014, Morgan ran against Robinson in the primary election. During the campaign, Morgan publicly made statements about the sheriff's department and his plans to improve it. Robinson won. Six days later, Robinson terminated Morgan's employment, claiming his campaign statements violated the department's rules of conduct.

         Morgan sued Robinson for retaliatory discharge in violation of the First Amendment. Robinson moved for summary judgment based on qualified immunity. The district court denied the motion, finding "genuine issues of material fact regarding the constitutionality of the termination, and whether Robinson should have reasonably known the termination was unlawful." Morgan v. Robinson, 2016 WL 10636372, at *5 (D. Neb. Dec. 8, 2016). On appeal, a panel of this court affirmed. Morgan v. Robinson, 881 F.3d 646, 650 (8th Cir. 2018), reh'g en banc granted, opinion vacated (Mar. 21, 2018). This court granted rehearing en banc, vacated the panel decision, and now reverses.


         Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Ordinarily, this court lacks jurisdiction over a denial of summary judgment "because such an order is not a final decision." Division of Emp't Sec. v. Board of Police Comm'rs, 864 F.3d 974, 978 (8th Cir. 2017). However, if the moving party claims qualified immunity, "an immediate appeal is appropriate . . . because immunity is effectively lost if a case is erroneously permitted to go to trial." Id. This court reviews de novo denials of summary judgment based on qualified immunity. Id. See Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667, 670 (8th Cir. 2013) ("This court reviews de novo a grant of summary judgment, construing all facts and making all reasonable inferences favorable to the nonmovant.").

         Qualified immunity shields officials from civil liability in § 1983 actions when their conduct "'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "Qualified immunity analysis requires a two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct." Nord v. Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014) (internal quotation marks omitted). "Unless both of these questions are answered affirmatively, an appellant is entitled to qualified immunity." Id. "And, courts are 'permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.'" Id. at 738-39, quoting Pearson, 555 U.S. at 236.


         The district court found "a genuine issue of material factors" on "the first prong of the qualified immunity analysis." Morgan, 2016 WL 10636372, at *5. A panel of this court found that Morgan's termination "violated a right secured by the First Amendment." Morgan, 881 F.3d at 656. This court need not decide the issue because Robinson did not violate a "clearly established statutory or constitutional right[] of which a reasonable person would have known." Pearson, 555 U.S. at 231.

         A clearly established right is one that is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alteration omitted). "[T]he longstanding principle" is that "'clearly established law' should not be defined 'at a high level of generality.'" White v. Pauly, 137 S.Ct. 548, 552 (2017), quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). Instead, "the clearly established law must be 'particularized' to the facts of the case." Id., quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987). There need not be a case "directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 563 U.S. at 741. See District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018) (requiring that the "clearly established standard" be defined with a "high degree of specificity" (internal quotation marks omitted)). In other words, qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Stanton v. Sims, 571 U.S. 3, 6 (2013) (per curiam) (internal quotation marks omitted). Morgan has the burden to demonstrate that the law is clearly established. Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002).

         To determine whether the law was clearly established at the time of Morgan's termination, this court needs to look no further than Nord v. Walsh. Nord, 757 F.3d 734. There, a deputy sheriff in Walsh County, North Dakota, ran against his current boss. Id. at 737. During the campaign, he made comments critical of the sheriff. Id. at 742. The sheriff won. Id. at 738. The next day, after consulting the county attorney and human resources consultant, he fired the deputy. Id. The deputy sued under § 1983 for violations of the First and Fourteenth Amendments. The district court denied the sheriff's motion for summary judgment based on qualified immunity. Id., citing Nord v. Walsh Cnty., 2012 WL 12848433 (D.N.D. Aug. 30, 2012), rev'd, 757 F.3d 734 (8th Cir. 2014). This court reversed, finding the sheriff entitled to qualified immunity. Id. at 745. This court said, "considering North Dakota law and well-established state and federal jurisprudence, and especially the advice given by the Walsh County attorney and its human resources consultant, Sheriff Wild could have logically and rationally believed that his decision to terminate Nord was well within the breathing room accorded him as a public official in making a reasonable, even if mistaken, judgment under the circumstances." Id. at 743, citing Stanton, 571 U.S. at 6.

         The facts of this case are similar to Nord. Here, as there, the Washington County Sheriff's Department enforces the police powers in the county. Compare Neb. Rev. Stat. § 23-1701.02 ("It shall be the duty of every sheriff to apprehend . . . all felons and disturbers and violators of the criminal laws of this state, to suppress all riots, affrays, and unlawful assemblies . . . and generally to keep the peace in his or her proper city."), with Nord, 757 F.3d at 740 (noting that the "sheriff manages and enforces a substantive portion of the sovereign's policing powers"). Both departments are relatively small. In Washington County, three deputies typically work each shift, with two working one half of the county and the third working the county at large. This "presumably means that there will be times when a single deputy will present the face of the sheriff in the county, at least in the assigned district." Nord, 757 F.3d at 741. The deputies thus represent the sheriff in public, executing the duties and responsibilities of the department.

         The Washington County sheriff, like the sheriff in Nord, has the power to appoint and terminate deputies. See Neb. Rev. Stat. § 23-1704.01 ("The sheriff may appoint such number of deputies as he or she sees fit for whose acts he or she will be responsible."); Neb. Rev. Stat. § 23-1734 ("Any deputy sheriff may be removed, suspended with or without pay, or reduced in either rank or grade or both rank and grade by the sheriff . . . ."). This power necessitates deference "in executing . . . official duties, including the hiring and firing of employees-especially subordinate officers." Nord, 757 F.3d at 741. In both counties, the sheriff "has an interest in maintaining the efficient operation" of the office. Morgan, 881 F.3d at 653-54, citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

         There are two distinctions between the cases, but neither warrants a different outcome. One is the speech at issue. In Nord, the speech focused on the sheriff, including comments that his health was poor, his wife did not want him to run, and he planned to resign. Nord, 757 F.3d at 742. The sheriff contended these statements were lies and not matters of public concern. Id. Here, the speech focused on the county and the sheriff's department. During the campaign, Morgan said: (1) the county communications center had not been completed; (2) rural fire departments lacked adequate radio systems; (3) the county needed more deputies on the road; (4) the office budget did not consider the public's needs; (5) department morale was poor; (6) the department was not doing well; and (7) people were leaving the office because they did not feel respected. The parties dispute whether all of Morgan's statements were true; but they agree some involved matters of public concern.

         Morgan argues this difference "render[s] Nord irrelevant for purposes of determining whether the law was clearly established in this case." Specifically, he contends Nord is inapplicable because the speech there was untruthful, not a matter of public concern, and undeserving of First Amendment protection. This argument has no merit. Although the speech here arguably is entitled to greater protection-an issue this court need not decide-the speech does not necessarily override the sheriff's interest in maintaining the "discipline and harmony" of the office. Id. at 743. The Nord court said that "even if" the deputy's speech "was fully protected by the Constitution," the sheriff "could have reasonably believed that the speech would be at least potentially damaging . . . and disruptive" and thus the sheriff "could have logically and rationally believed that his decision to terminate Nord was well within the breathing room accorded him as a public official in making a reasonable . . . judgment under the circumstances." Id.

         Another difference is the impact of the speech. In Nord, apparently there was no evidence of disruption or potential disruption. The sheriff there "testified that, during the campaign period, there were no complaints about how the office was run nor were there any communication problems between the employees." Id. at 748 (Shepherd, J., dissenting). Here, Robinson testified he believed Morgan's statements were detrimental to the office, harmful to morale, and adversely impacted the public's trust of the office. Deputies expressed similar concerns. They said Morgan's statements bred "uneasiness," made some employees feel uncomfortable, contributed to lack of morale, and created turmoil. Five of these deputies-the entire command staff-recommended his termination. The termination letter said Morgan had "violated the trust" of the administration and his fellow officers and created "disharmony in the office."

         Morgan argues that Robinson "has not proven any disruption" and thus should have known that firing him would violate a clearly established right. The dissent also advances this argument, claiming that Robinson provides "no evidence" of "actual disruption," "actual impact," "demonstrated impact," or "indicators of poor morale" created by Morgan's speech. This argument misstates the record. The termination letter and the deposition testimony of Robinson and the command staff about the effect of Morgan's statements are evidence of "actual disruption" and "demonstrated impact."

         Even without this evidence, however, Robinson could claim qualified immunity. As the Supreme Court has said, there is no "necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Connick v. Myers, 461 U.S. 138, 152, 154 (1983) (holding that Myer's First Amendment interest did "not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships"). See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) ("A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.") (emphasis added); Waters v. Churchill, 511 U.S. 661, 673 (1994) ("[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large. Few of the examples we have discussed involve tangible, present interference with the agency's operation. The danger in them is mostly speculative. . . . But we have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved is on a matter of public concern."); Hara v. Pennsylvania Dep't of Educ., 492 Fed.Appx. 266, 268 (3d Cir. 2012) (citing Garcetti and noting that "[a]ctual disruption is not necessary").

         This is particularly true here given the "latitude the courts accord a managing law enforcement officer in executing his official duties, including the hiring and firing of employees-especially subordinate officers." Nord, 757 F.3d at 741. See Buzek v. County of Saunders, 972 F.2d 992, 995 (8th Cir. 1992) ("[L]aw enforcement agencies, more than other public employers, have special organizational needs that permit greater restrictions on employee speech."); Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1411 (8th Cir. 1990) ("More so than the typical government employer, the [Missouri Highway] Patrol has a significant government interest in regulating the speech activities of its officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution.") (internal quotation marks omitted).

         The termination letter, Robinson's testimony, and the testimony of five other deputies, show-even more so than in Nord-that Robinson "could have reasonably believed" that Morgan's speech was "at least potentially damaging to and disruptive of the discipline and harmony of and among co-workers in the sheriff's office and detrimental to the close working relationships and personal ...

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