Mayor entitled to qualified immunity in First Amendment employment case; Police chief’s report to outside agency was not his action as a citizen but remained within his job duties

Gibson v. Kilpatrick, No. 12-60905 (5th Cir. December 11, 2014).

This is a First Amendment in employment matter case where the 5th Circuit reversed the denial of the Mayor’s qualified immunity defense.

Chief of Police Gibson reported Mayor Kilpatrick of Drew, Mississippi to outside law enforcement for the misuse of the City gasoline card for personal trips. Kilpatrick was ordered to repay approximately $3000 to the City by the Office of State Auditor. Afterwards Kilpatrick issues reprimands to Gibson for alleged employment deficiencies which ultimately lead to his termination. Gibson filed a lawsuit alleging First Amendment retaliation individually against Mayor Kilpatrick.  The Mayor asserted his entitlement to qualified immunity which the trial court denied and he appealed. After the 5th Circuit issued an initial opinion granting him immunity, the U.S. Supreme Court issued its opinion in Lane v. Franks, 573 U.S. —, 134 S. Ct. 2369 (2014) and abated the judgment to reconsider in light of Lane.

In Lane, essentially, the Supreme Court held “[t]ruthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes.”  However, Lane’s ordinary job duties in no way included testifying in court proceedings. The panel stated that it could not discern any alteration from the already established standard of the court, save for the modifier “ordinary” articulated in Lane.  As a result, even if the modifier does somehow alter the standard (which the panel does not believe is the case) such alteration cannot be “clearly established” at the point of the alleged actions to deny an official his qualified immunity.  The panel rejected Gibson’s argument that the subject to public corruption makes any speech by a public employee that of a citizen, noting that such a wide interpretation would run afoul of other Supreme Court precedent. Lastly, the central issue remains whether or not Gibson was speaking as a citizen or employee. Gibson relies on the fact he reported to law enforcement outside of the City’s chain of command.  However, as the Chief of Police, his job duties often require him to do that on a regular basis.  In fact, those he reported to were officers he had dealt with in the past on other matters. As a police officer, his job duties include the detecting and reporting of crime.  Additionally, since Gibson was reporting his supervisor, who was the Mayor, there was nowhere else to go but outside the City for such a report. As a result, Gibson was acting as an official when he reported Kilpatrick, not as a citizen. Therefore the reprimands were tied to his employment and Kilpatrick was entitled to qualified immunity.

If you would like to read this opinion click here. Panel: Chief Justice Steward, Justices King, and Prado. Opinion by Justice King. Attorney for Appellant – Gary Erwin Friedman, Jackson. Attorney for Appellee – Jim D. Waide, III, Tupelo.

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