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Mogard v. City of Milbank

United States Court of Appeals, Eighth Circuit

August 8, 2019

David Mogard Plaintiff - Appellee
v.
City of Milbank, Boyd Van Vooren, in his individual capacity; Jason Kettwig, in his individual capacity Defendants - Appellants

          Submitted: March 12, 2019

          Appeal from United States District Court for the District of South Dakota - Aberdeen

          Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

          BENTON, CIRCUIT JUDGE

         David Mogard sued the City of Milbank, police chief Boyd Van Vooren, and city administrator Jason Kettwig, alleging termination without due process and in retaliation for his exercise of First Amendment free speech rights. He also asserted state-law wrongful termination. The district court denied the defendants' motion for summary judgment based on qualified immunity. Having jurisdiction under 28 U.S.C. § 1291, this court reverses in part, affirms in part, and remands.

         I.

         Mogard was hired as a Milbank patrol officer in 2008. In April 2016, after a high-speed chase, he complained to police chief Van Vooren about the patrol vehicle's tires and seatbelts. Mogard later complained to the assistant police chief, then to city administrator Kettwig and to a city council member. He also tried to schedule a meeting with the mayor. The following month, the city council-on recommendations from Van Vooren and Kettwig-voted to terminate him.

         Mogard sued the City, Van Vooren, and Kettwig under 42 U.S.C. § 1983, alleging they terminated him without due process and in retaliation for his First Amendment right to publicly raise safety concerns. He also alleged wrongful termination under South Dakota law. The district court denied defendants' motion for summary judgment, concluding they were not entitled to qualified immunity because (1) Mogard's right not to be retaliated against for speaking on matter of public concern was clearly established; (2) Mogard was denied due process prior to the deprivation of a clearly-established, constitutionally-protected interest in employment and his reputation; and (3) there are issues of disputed fact about the reason for Mogard's termination. Defendants appeal the denial of qualified immunity.

         "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.'" Morgan v. Robinson, 920 F.3d 521, 523 (8th Cir. 2019) (en banc), quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity doctrine "'permit[s] the resolution of many insubstantial claims on summary judgment'" and "avoid[s] 'subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery' in cases where the legal norms the officials are alleged to have violated were not clearly established at the time." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). It is important to "resolv[e] immunity questions at the earliest possible stage in litigation." Pearson, 555 U.S. at 232, quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). "[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell, 472 U.S. at 530. This court reviews de novo a denial of qualified immunity on summary judgment and views the evidence most favorably to the nonmoving party. Bearden v. Lemon, 475 F.3d 926, 929 (8th Cir. 2007).

         Qualified immunity analysis requires courts to determine whether (1) the plaintiff has alleged or shown a violation of a constitutional right, and (2) the right was clearly established at the time of the defendants' alleged misconduct. Nord v. Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014). "Unless both of these questions are answered affirmatively, an appellant is entitled to qualified immunity." Id. "[C]ourts 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.

         A right is clearly established if-at the time of the alleged violation-"the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (internal quotation omitted). A case directly on point is not required, "but existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). "This demanding standard protects all but the plainly incompetent or those who knowingly violate the law." Wesby, 138 S.Ct. at 589 (internal quotation omitted). It is Mogard's burden to demonstrate that the law is clearly established. See Morgan, 920 F.3d at 524.

         II.

         The district court denied defendants qualified immunity from Mogard's First Amendment retaliation claim, finding a genuine issue of material fact whether he was terminated because of his statements. Viewing the facts most favorably to Mogard, even if he were terminated in retaliation for his speech, the defendants "did not violate a 'clearly established statutory or constitutional right[ ] of which a reasonable person would have known.'" Id. at 523 (granting defendants qualified immunity on § 1983 First Amendment retaliation claim because it was not clearly established that plaintiff's termination violated his First Amendment rights). Here, the disputed facts do not preclude summary judgment because the dispute does not "affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("Factual disputes that are irrelevant or unnecessary will not be counted.").

         Plaintiffs claiming employer retaliation in violation of First Amendment rights must show that they "engaged in activity protected by the First Amendment." Groenewold v. Kelley, 888 F.3d 365, 371 (8th Cir. 2018). "A public employee's speech is protected under the First Amendment if he spoke as a citizen on a matter of public concern, but a public employee's speech is not protected if he spoke pursuant to his official duties." Id., citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The district court concluded that ...


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