RICHARD CROUSE; GEORGE T. WINNINGHAM v. TOWN OF MONCKS CORNER; JAMES CHAD CALDWELL, Chief of Police
US Court of Appeals for the Fourth Circuit, Wilkinson, Feb. 17, 2017,
First Amendment – Chief of Police had qualified immunity for forcing two officers to resign after they told a citizen to file a complaint and lawsuit against their supervisor, with whom they had had issues in the past

(Concur- Motz- Officers were not within scope of employment, but qualified immunity should still apply with regard to character of speech)

Facts:
Then-Sgt. Crouch and Cpl. Winningham worked for Lt. Michael Roach in Moncks Corner, SC.
Crouch and Winningham had issues with Lt. Roach, culminating in an incident that occurred in 2013.
Lt. Roach arrived on-scene for an unconscious individual and was seen by the backup officer arguing with the man once he woke and “making the situation more difficult.”
The male was found to have an arrest warrant, so Lt. Roach and the backup officer attempted to place him in a squad car. When the suspect would not put his leg in the car, Lt. Roach attempted to use a knee strike to get him to move his leg. The suspect claimed that Lt. Roach struck him in the groin, but Lt. Roach claimed it struck him in the outer thigh. The suspect then lept out of the car and was eventually taken into custody.
When Crouch and Winningham heard about this a few days later, they decided to drive to the suspect’s house and talk to him during their lunch break. They were in plainclothes and driving an unmarked car, but their guns and badges were visible.
Crouse and Winningham encouraged the suspect to file a complaint about Lt. Roach. They told him that other officers supported his version of the story, and suggested that he get an attorney. Crouse handed Berkeley a departmental citizen complaint form.
Crouse and Winningham made several efforts to conceal their visit to the suspect, including holding the citizen complaint form with a separate piece of paper to keep prints off of it, telling the suspect to pretend not to recognize them if they saw each other, and agreeing to say that the suspect had flagged them down.
The suspect went to another officer and told her about his visit.
The chief of police gave Crouse and Winningham the opportunity to resign in lieu of termination and they did so.
They then filed suit, claiming infringement of their 1st Amendment rights.
Held:
Because Crouse and Willingham could reasonably have been seen by the Chief as acting in their official capacity because of personal issues with their supervisor, the Chief of Police was entitled to qualified immunity.

Government Employee Speech
Government Speech- Government employees do not have a
constitutional “right to perform their jobs however they see fit.”
1st Amendment Test- To determine whether a government employee’s First Amendment rights were violated, a court will consider:
– Did the employee’s speech cause the disciplinary action?
– If not, there is no violation
– Was the speech as a citizen or an employee?
– The First Amendment does not protect speech made pursuant to a government employee’s official duties
– Was the speech about a matter of public concern? Or personal “complaints over internal office affairs”?
– The greater the public interest, the more protection
– If the speech was made as a citizen and addressed a matter of public concern, the court balances the interest of the employee in speaking freely with the interest of the government in providing efficient services.
Public Concern Speech- Speech such as a letter to a newspaper, online posting with regard to a public discussion, and testimony at a public meeting has been viewed as “an effort to participate in a larger public dialogue,” entitled to greater protection.
Police Speech- as paramilitary organizations, “greater latitude is afforded to police department officials in dealing with dissension in their ranks.” “The chain of command would be left in tatters if subordinates tried to stir up litigation against supervisors with whom they, for whatever reason, did not get along.”

Qualified Immunity
Government Employer – An employer is entitled to qualified immunity if the 1st Amendment issue does not fall under “clearly established law.”
Government Officials- “[Q]ualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”
Employee Speech- From the case: “Because it was reasonable for Chief Caldwell to believe that Crouse and Winningham acted in their public roles as police officers, it was reasonable for Caldwell to believe that their speech was not protected, and he is thus entitled to qualified immunity”
Private Speech- From the case- The Chief was also entitled to qualified immunity as he could reasonably have seen Crouse and Willingham’s actions as part of their ongoing, private dispute instead of related to a legitimate concern about excessive force (they didn’t wait for the department to conclude its investigation, they etc).