Submitted: March 12, 2019
from United States District Court for the District of South
Dakota - Aberdeen
GRUENDER, BENTON, and GRASZ, Circuit Judges.
BENTON, CIRCUIT JUDGE
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,
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.
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.
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).
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.
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.
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.").
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