Police Chief Not Protected by Qualified Immunity for Employee’s Free-Speech Retaliation Claim

A police department employee offered testimony in connection with a lawsuit which was filed by a co-worker against their employer. Thereafter, the Assistant Chief of Police terminated the employee. She sued under 42 U.S.C. 1983, claiming that her constitutional right to free speech was violated when she was terminated in retaliation for providing testimony about alleged government misconduct. The Assistant Chief of Police sought to defend against that claim on the grounds of qualified immunity. The U.S. District Court for the Western District of Washington denied his request for qualified immunity on the grounds that a supervisor cannot retaliate against a public employee for her subpoenaed deposition testimony when offered as a citizen in the context of a civil rights lawsuit. He then appealed.

The Ninth Circuit Court of Appeals agreed with the lower court, finding that the Assistant Chief of Police was not entitled to qualified immunity. To reach this determination, the Court first had to go back and evaluate the employee’s First Amendment retaliation claim by asking several questions: 1) did the employee speak on a matter of public concern; and 2) did the employee speak as a private citizen and not within the scope of her official duties, and, if so 3) did the employee suffer an adverse employment action, for which her protected speech was a substantial or motivating factor? Then, the Court considered: 1) whether the state’s established that its legitimate administrative interests outweigh the employee’s First Amendment Rights, or 2) whether the state would have taken the adverse employment action even absent the protected speech. Here, the Court found that the content, form, and context of the employee’s testimony demonstrate that her speech was a matter of public concern; that she provided testimony as a private citizen and not pursuant to her official job duties; and that the Assistant Chief of Police could not meet his burden of showing that the city would have fired the employee even in the absence of her protected speech activities.

The Court of Appeals therefore ultimately affirmed the lower court’s ruling that qualified immunity did not apply here. 

While specific immunities and privileges may exist to protect individuals in certain professions from claims, as this case demonstrates, the facts sometimes render those immunities and privileges inapplicable under the circumstances.