Summary
holding officer's speech was entitled to First Amendment protection because whistleblowing was not within officer's official duties
Summary of this case from Hunter v. Town of MocksvilleOpinion
No. CV 04-1920-PHX-NVW.
August 22, 2006
ORDER
The court has considered Defendants' Motion for Summary Judgment (doc. # 66), Plaintiff's Response (doc. # 69), and Defendants' Reply (doc. # 71).
Plaintiff Dale Walters, a Sergeant with the City of Chandler Police Department, brought this action against former Maricopa County Attorney Richard Romley, Mike Faull, and the County of Maricopa, Arizona (collectively "Defendants"), alleging defamation, violation of Walters' First Amendment rights, and other claims. Specifically, Walters alleged (1) that Romley defamed Walters, including by asserting that Walters was a liar, (2) that Romley and Faull retaliated against Walters for Walters' whistleblowing in violation of the First Amendment, and (3) that the County of Maricopa is liable for Romley's actions. Defendants now move for summary judgment.
Walters' other claims were previously dismissed. (Doc. # 20.) The defamation and First Amendment retaliation claims are set forth in Counts 1, 2, 5, 6, 9 and 11 of the Complaint.
I. Legal Standard For Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be entered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that there is no genuine dispute regarding the material facts of the case and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c) (2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (citations omitted). The Court must evaluate a party's motion for summary judgment construing the alleged facts with all reasonable inferences favoring the nonmoving party. Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001).
The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citations omitted). Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (citations omitted). Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322; accord Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). Although the initial burden is on the movant to show the absence of a genuine issue of material fact, this burden may be discharged by indicating to the Court that there is an absence of evidence to support the nonmoving party's claims. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995).
II. Background
As required by the standard of review on a motion for summary judgment, the recitation of facts that follows takes the disputed evidence most favorably for Walters. Many of the factual assertions that follow are contested by Defendants.
This case arose after a marijuana investigation by the Chandler Police Department, led by Walters, criss-crossed with a separate investigation by the Maricopa County Attorney's Office (the "County Attorney's Office"). A drug buy orchestrated by the Chandler Police Department fell apart just short of the two departments' teams arresting each other. After the mix-up, at a follow-up meeting on May 27, 2003, Walters made certain statements in response to inquiries from Romley. Romley's later characterizations of Walters' statements as untruthful and misleading are the subject of this action.
A. The Law Enforcement Agency Overlap
In May of 2003, Walters and Detective Jesus Deanda of the Chandler Police Department negotiated a large-scale undercover drug transaction at a South Phoenix location. (Doc. # 66 at 3:14-19.) To determine whether any other law enforcement agencies were currently conducting investigations at the South Phoenix location — and to thereby protect against friendly fire — Walters and Deanda used the computerized deconfliction system MADCAP (DSOF Ex. G at 140) by contacting Jim Cope at the City of Phoenix Police Department. (Doc. # 66 at 3:14-19; DSOF Ex. H at 20:4-18.) Cope informed them on May 22, 2003, that an informant (the "Informant"), previously used by Joe Soto of the County Attorney's Office and also by the City of Phoenix Police Department, was known to be involved with the South Phoenix location to be searched. (Doc. # 66 at 3:21-25.) Cope further informed them that the Informant was "dirty" and that Soto had been over-protective of this Informant in the past. ( Id. at 4.) Cope insinuated to Walters that the Informant in the past had been "playing both sides," meaning taking advantage of his role as an Informant in an illegal or inappropriate way. (DSOF Ex. G at 90:13-14.) Not knowing whether Soto was still actively using the Informant, and given that if Soto were to plan anything at the South Phoenix location Soto would see Walters' MADCAP entry, Walters proceeded with the plan. (DSOF Ex. G at 140.) As for the Informant, Walters figured that "[i]f he's not involved, he doesn't have anything to worry about. If he's involved, then he gets arrested, like everybody else." (DSOF Ex. G at 138:20-22.)
MADCAP stands for "Metro Area Deconfliction Coordinated Action Program." (DSOF Ex. H at 23:19-20.)
The Informant, however, caught wind of the large-scale drug transaction set to occur and passed the information along to Soto, who set up surveillance at the location without using MADCAP. ( Id.; doc. # 66 at 5:11-13.) On May 23, 2003, while Soto was performing surveillance, Walters and his team arrived to execute a search warrant. ( Id.) The drug bust was a failure, netting only 10.5 pounds as opposed to the expected 300 pounds of marijuana. (PSOF at ¶ 11; DSOF at ¶ 58.)
Walters felt uneasy about Soto generally and the way Soto had handled this engagement specifically. It was a 300-pound marijuana deal, but unlike Walters — who had brought along two tactical teams, two squads of detectives, and a couple of other lieutenants and sergeants — Soto had brought only "a couple old buddies from the PD." (DSOF Ex. G at 172:17-24.) Soto, moreover, had not deconflicted his operation through MADCAP. ( Id.) When combined with the indications Cope originally had provided to Walters about Soto and the Informant ( see DSOF Ex. I at 7-20), Soto's approach to the engagement left Walters concluding that something about Soto was amiss. ( See DSOF at ¶ 43.)
Walters' sentiments were soon revealed to Soto and the rest of the County Attorney's Office, including Romley. Walters interrogated the Informant — who had been arrested in the raid — at the Chandler Police Department station and asked some questions about the Informant's relationship with Soto. (DSOF Ex. G at 173:12-22; doc. # 66 at 6:1-5.) Later that day the Informant described the interrogation to Soto, who believed that the questioning implied that the Chandler Police Department suspected Soto of wrongdoing. ( Id. at 6:12-17.) Soto advised his superiors at the County Attorney's Office, who relayed the character of the questioning up to Romley. ( Id.)
Walters also had spoken to Soto on the phone about the botched investigation and secretly tape recorded the conversation. (Doc. # 66 at 6:7-11.) Walters did so because he had serious concerns about Soto and felt he should document their interactions to protect himself. ( Id.) The fact that Walters had tape recorded a conversation with Soto was revealed to Romley later, at the May 27, 2003 meeting.
B. The May 27, 2003 Meeting Between the Chandler Police Department, the City of Phoenix Police Department and the County Attorney's Office
Romley conducted a meeting between Chandler Police Department, City of Phoenix Police Department and Maricopa County Attorney's Office personnel on May 27, 2003. Upon entering the meeting room, Romley immediately lashed out at Silverio Ontiveros, the Assistant Police Chief of the City of Phoenix Police Department. (DSOF Ex. G at 182:3-8.) Romley was angry, table-pounding angry, because he believed Cope, Walters, the City of Phoenix Police Department and the Chandler Police Department were conspiring to investigate Soto without notifying him. (DSOF Ex. G at 182:3-14; see also id. at Ex. D at 30:19-21.) Romley believed that Cope and Walters were trying to embarrass the County Attorney's Office. ( See id. at Ex. I at 30-31; id. at Ex. D at 24:17-22, 34:12-15.) Shocked, Walters began to realize that significant friction between the City of Phoenix Police Department and the County Attorney's Office predated his entry onto the scene. ( Id. at Ex. G at 182:15-24, 190:13-19.) When Romley finally turned to question Walters, Walters tried to explain that nobody was investigating Soto at all. ( Id. at Ex. G at 183:8-18.) However, Walters did take the opportunity to note Soto's improprieties, even going so far as to say that if he were in the position of Soto's superior, he'd "fire his ass." ( Id. at Ex. G at 185.) The meeting ended shortly thereafter, with Romley demanding a full Management Review investigation. (PSOF Ex. 7 at 91:10-17.)
Defendants' account of the conversation between Romley and Walters during the May 27, 2003 meeting is contested by Walters but is necessary for understanding this case in context. According to Defendants, Ontiveros declined to answer Romley's questions related to a City of Phoenix Police Department wiretap, and Walters took Ontiveros' lead and decided not to disclose information either. (Doc. # 66 at 7:16-18.) In the course of the discussion, Romley specifically asked Walters, "Did you know that Joe Soto and the Informant worked for the County Attorney's Office?" ( Id. at 7:19-25.) Walters responded, "No." ( Id.) Romley then said, "[L]et me make this really clear and simple. . . . You're telling me that you were not told by Cope or anybody that Soto and his CI worked for us?" ( Id.) Walters again responded, "No." ( Id.) Mark Faull, who was also at the meeting, then reiterated, "Did you know Soto was working with the Informant?" ( Id. at 8:1.) Walters again responded, "No." ( Id.) Walters, however, submits evidence that the conversation proceeded differently.
Substantial evidence supports Walters' version of the story. It is sufficient for the court on this motion to rely solely on Walters' own testimony about what answers were provided to which questions at the meeting, as Walters is the non-moving party and a jury could reasonably credit his testimony. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999) (discussing T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626 (9th Cir. 1987), and McLaughlin v. Liu, 849 F.2d 1205 (9th Cir. 1988)). According to Walters, he made it "blatantly clear in that meeting" that he did not know anything about Joe Soto or the Informant until speaking with Cope about the South Phoenix location. (DSOF Ex. G at 192:17-24.) Walters made it clear that before meeting with Cope on May 22, 2003, he did not know about Soto and the Informant, but that afterward, he did. Walters' version is markedly different from the Defendants' account of the meeting, wherein Walters denied in blanket fashion any awareness at all of Soto, the Informant, or their relationship. Walters' testimony about the discussion, moreover, is collaterally supported in the record. ( See, e.g., PSOF Ex. 11 at 3; DSOF Ex. H at 70:13-71:24.) The court must accept Walters' version on this motion.
The record indicates and Walters acknowledges that he did not disclose in the May 27, 2003 meeting all that he knew regarding a parallel City of Phoenix Police Department wiretap investigation simultaneously proceeding at the South Phoenix location. To the extent the parties have submitted evidence and argued about Walters' nondisclosure regarding that subject, however, their efforts are misspent: Assistant Chief Ontiveros had indicated at the meeting that the wiretap should not be discussed there (DSOF Ex. L at 12-13), and the factual details of that investigation are irrelevant to the assertedly dishonest statements made by Walters in this case. (DSOF Ex. A at 107:6-108:6 (Romley's testimony that in making the statements that are the basis for this case, he did not rely on other statements by Walters aside from those relating to Walters' knowledge of Soto); see also DSOF Ex. G at 201-02.) A jury could readily believe Walters' testimony that, despite not discussing the details of the wiretap, he had nevertheless "answered fully every question they had and it wasn't necessary to even dive into that realm." ( Id. at Ex. G at 201:20-22; see also PSOF Ex. 7 at 82:5-13 (Howard's testimony that he remembered Walters at the meeting referring all questions about the wiretap to the City of Phoenix Police Department).)
C. The Subsequent Management Review Investigation
On Walters' account of the conversation, Romley had no legitimate reason to doubt Walters' truthfulness in responding to Romley's questions. Nevertheless, Romley commissioned the Management Review investigation to determine whether Walters had been untruthful, as well as to determine whether Soto had acted improperly. (PSOF Ex. 7 at 90:18-24.) Romley delegated responsibility for the investigation to Ray Howard, who delegated responsibility to Bill Heath. (Doc. # 66 at 8:19-20.)
Herein lies another factual dispute which must be taken in favor of Walters for purposes of this motion. Under Defendants' version of the facts, Romley was provided a reason to doubt Walters' honesty: Immediately after the May 27, 2003 meeting, Ontiveros told Faull (who then relayed it to Romley) that Walters had been dishonest during the meeting in answering Romley's questions. (DSOF at ¶ 104.) Faull so testified. (DSOF Ex. C at 62:11-63:14.) However, the court must assume that Ontiveros did not make such a statement to Faull, for two reasons.
First, Ontiveros testified that although he likely spoke to Faull, he could not recall making any such statement and would have no reason to make such a statement. (DSOF Ex. H at 77:15-78:2.) Second, a jury could discredit Faull's testimony regarding the scope and motives behind the Management Review, including whether there were initial doubts about Walters' veracity. Faull's testimony about the purposes for the Management Review is plainly inconsistent with the testimony of County Attorney's Office supervisor Raymond Howard. Howard, who was placed in charge of the Management Review by Romley (doc. # 66 at 8:15-16), testified that the Management Review investigated the allegations about Soto but also — and to large extent — investigated whether Walters had been honest in the May 27, 2003 meeting ( see PSOF Ex. 7 at 91:18-92:2), yet Faull testified that Walters was never a focus of the Management Review. (DSOF Ex. C at 161:17-20.)
On this motion, the court must view the facts in the light more favorable to Walters. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). Defendants have provided no other reason for Romley's doubting of Walters' veracity.
In the investigation, Heath interviewed Walters, and Walters explained again that Walters knew Soto and the Informant worked with the County Attorney's Office as of Walters' May 22, 2003 meeting with Cope. Upon reading the transcript of Walters' interview, however, Romley says that he concluded that Walters had lied in the May 27, 2003 meeting. (DSOF at ¶ 118.)
D. The Defamatory Statements
On September 2, 2003, Faull met with officials from the Chandler Police Department and informed them that the County Attorney's Office believed Walters had been untruthful to Romley in the meeting. (DSOF at ¶ 145.) Faull suggested that the matter probably could be handled informally if Walters would write a letter of apology. (DSOF Ex. C at 186:6-188:17.) Faull also suggested that if a formal investigation (in addition to the Management Review Investigation) were required, someone was going to get Brady-listed. ( Id.) " Brady-listed" means placing the officer's name into the Officer Integrity Database, which is a list of officers whose veracity is questionable and must be disclosed to defense attorneys pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Needless to say, being Brady-listed has a significant negative effect upon a law-enforcement officer's career.
On September 3, 2003, Faull explained to Assistant Chief Nash that Romley would be willing to let the Brady issue drop if Walters were transferred out of the narcotics unit. (PSOF Ex. 20 at ¶¶ 6-7.) Faull stated that Walters would not be Brady-listed if transferred out of narcotics until Romley's term as County Attorney expired. ( Id. at ¶ 5.) Faull presented this option to Nash in the form of an ultimatum. ( Id. at ¶ 7; see also PSOF Ex. 22 at ¶¶ 5-6; PSOF at ¶ 137.) Nash responded that Walters "wanted a full investigation, including he wanted to be polygraphed, and that that was the answer of the [Chandler] police department." (DSOF Ex. C at 186:15-17.)
On September 4, 2003, Romley sent a letter to Acting Chandler Police Chief Dave Neuman, Acting Chandler City Manager Patrick McDermott, and the Mayor of Chandler. In relevant part, the letter stated:
I am writing to inform you that the Maricopa County Attorney's Office has determined that on May 27, 2003, Sgt. Dale Walters of the Chandler Police Department provided misleading, inaccurate and incomplete information in response to questions raised by my office. We also have serious concerns that Sgt. Walters failed to properly supervise an investigation conducted by the Chandler Police Department from May 22, 2003 through May 24, 2003.
The conduct of Sgt. Walters has damaged the professional relationship previously existing between our offices. As a result of these findings, this office shall no longer accept any submittal in which the investigation was conducted or supervised by Sgt. Walters.
Additionally, and pursuant to our duty under Brady v. Maryland, the findings in this matter will be made part of the permanent files of the Maricopa County Attorney's Office and shall be disclosed to defense attorneys in any case where Sgt. Walters is a potential witness.
. . .
It is unfortunate that I have had to take this action; however, I am sure you would agree that Sgt. Walters' false information in response to a direct question by myself raises issues that cannot be overlooked.
(Compl. at Attach.) Romley explains that he sent the letter to Patrick McDermott and the Mayor because Dave Neuman and Patrick McDermott were serving only in "acting" positions, and Romley sought to assure that someone with permanency was informed of the matter. (DSOF at ¶ 142.) According to Romley, copying important letters to the mayor and city council was a common practice of his. (DSOF at ¶ 143.) However, neither the Mayor or Patrick McDermott recall ever receiving such a letter in the past (PSOF Ex. 27-28), and Romley himself could only recall sending one other letter regarding an officer's veracity to the mayor and city council, a letter which admittedly was not on "all four corners" with the letter about Walters. (DSOF Ex. C at 16:13-17:7.)
Walters cites the testimony of two other relevant witnesses who were also unaware of any such letters in the past but fails to provide the court with those transcripts. (PSOF ¶¶ 163-164 (citing the depositions of Ahler and Moore.)
Romley also entertained the idea of placing Cope on the Brady list. (PSOF Ex. 9, 19, 17, 18.) Faull gave the City of Phoenix Police Department a similar ultimatum about transferring Cope as that given to the Chandler Police Department about Walters. ( Id.) However, the County Attorney's Office did not follow through against Cope; as explained by Romley, it was clear "right at the very beginning, there was absolutely nothing that we had that would be able to allow Cope to be put on the Brady list." (DSOF Ex. A at 130:20-25.)
On September 5, 2003, after the Chandler Police Department asked the County Attorney's Office to reconsider its decision to Brady-list Walters, Faull again met with Chandler Police Department officials. (DSOF Ex. C. at 186:6-188:17.) Faull indicated at this meeting that in order to reconsider the decision, any informal resolution would require Walters being transferred out of the Narcotics division. ( Id.)
On October 9, 2003, Romley attended a law enforcement association meeting. (PSOF Ex. 30.) At the meeting, Romley told other officers that Walters had been untruthful. ( Id.)
Romley denies having made this statement, but Walters submits affidavit testimony of an officer present at the meeting in support of this fact. The court therefore must take it that Romley made this statement. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). Walters also cites the testimony of two other witnesses to Romley's statements at the law enforcement association meeting but again fails to provide the court with those transcripts. (PSOF ¶ 166 (citing the depositions of Robinson and Benjamin).)
E. Further Results and Investigations
As a result of the Management Review investigation, Soto was given written counseling, a form of discipline. (DSOF Ex. P at 73:10-17.)
Following the Management Review investigation, with the agreement of the County Attorney's Office, the Chandler Police Department and the City of Phoenix Police Department, the Arizona Department of Public Safety, an outside law enforcement agency, performed an independent review of Walters' case. (PSOF Ex. 32, 33.) The Arizona Department of Public Safety's investigation found no evidence to substantiate Romley's accusations against Walters. ( Id.; DSOF Ex. G at 17:21-18:4.) Nevertheless, the County Attorney's Office declined to remove Walters from the Brady list. The County Attorney's Office's Officer Integrity Committee, from which Romley and Faull recused themselves, determined that sufficient evidence supported the decision to keep Walters on the Brady list. (DSOF at ¶¶ 169-174.)
III. Analysis
Defendants move for summary judgment on Walters' defamation and First Amendment claims. The court first addresses the defamation claim in Part A and then the First Amendment claim in Part B. Finally, in Part C, the court addresses Defendants' motion regarding punitive damages.
A. Defamation
The court first addresses the defamation claim against Romley and then addresses the claim for liability against Maricopa County.
Romley's claim for defamation against Faull was dismissed. (Doc. # 20 at 16:22-26.)
1. Defamation Claim Against Romley
Romley argues that Walters' defamation claim must fail (1) because Walters has insufficient evidence of actual malice, (2) because the claim is barred by qualified immunity or conditional privilege, and (3) because Romley's statements were substantially true.
i. Evidence of Actual Malice
The parties agree that Walters was a public figure and that he therefore must prove actual malice on the part of Romley in making the defamatory statements. "The actual malice standard is reached when there is clear and convincing evidence that defendant published either knowing that the article was false and defamatory for that it published with `reckless disregard of whether it was false or not.'" Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 487, 724 P.2d 562, 573 (1986) (citing New York Times v. Sullivan, 376 U.S. 254, 279-86 (1964)); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986) (holding that the facts establishing actual malice must be proven by clear and convincing evidence). To satisfy the "clear and convincing" standard, a plaintiff must present "significant probative evidence" of actual malice. Dombey, 150 Ariz. at 488, 724 P.2d at 574 (citations omitted). However, application of the "clear and convincing" standard in ruling on summary judgment
does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.Anderson, 477 U.S. at 255 (citations omitted). Circumstantial evidence alone can suffice to establish actual malice under this standard. Selby v. Savard, 134 Ariz. 222, 225, 655 P.2d 342, 345 (1982) (citing Herbert v. Lando, 441 U.S. 153, 160 (1979)) ("Proof of the necessary state of mind [can] be in the form of objective circumstances from which the ultimate fact could be inferred."). Here, a jury could find by clear and convincing evidence that Romley made the defamatory statements about Walters knowing them to be false.
A reasonable jury could find that Romley made the defamatory statements about Walters in order to harm Walters or in order to justify Romley's decision to place Walters on the Brady list. Evidence of ill-will toward a plaintiff is relevant in determining whether a statement about the plaintiff was made with actual malice. Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 594-95, 477 P.2d 840, 852-53 (1968). Here, taking the evidence in the light most favorable to Walters, Romley was very angry at Cope and Walters and felt that they were conspiring to humiliate the County Attorney's Office. Friction between the County Attorney's Office and officers of the City of Phoenix Police Department, with whom Romley believed Walters to be conspiring, provided the backdrop for Romley's anger. Additionally, Walters spoke bluntly to Romley, even suggesting that Romley should fire his investigator. Especially in light of the Department of Public Safety's investigation, which found no evidence suggesting Walters had been dishonest, a reasonable jury could find by clear and convincing evidence that Romley wanted to punish Walters and Cope, and that he did so by inventing Walters' alleged lies. As noted above, this evidence is sharply disputed.
ii. Immunity/Privilege
Defendants here are not federal officials, so their immunity defenses to the state-law defamation claim are governed by state law. Martinez v. California, 444 U.S. 277, 282 (1980) ("[W]hen state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law."); R. Fallon, D. Meltzer D. Shapiro, Hart Wechsler's the Federal Courts and the Federal System 1122 (5th ed. 2003) ("The immunity of state officials in actions based on state law is itself governed by state law, for absent wholly arbitrary action by the state, there is no distinctive federal interest." (emphasis omitted)).
Under Arizona law, the conditional privilege is abused, and therefore does not shield against liability, if the defendant acted "for an improper purpose or in an improper manner." Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986) (citing Restatement (Second) of Torts § 619, comment b (1977)). "An abuse through `actual malice' occurs when the defendant makes a statement knowing its falsity or actually entertaining doubts about its truth." Green Acres Trust v. London, 141 Ariz. 609, 616, 688 P.2d 617, 624 (1984) (citations omitted). However, in cases involving alleged defamation by a public official, a "modified form of qualified immunity" limits the plaintiff's ability to establish abuse of the privilege in this way. W. Tech., Inc. v. Neal, 159 Ariz. 433, 438, 768 P.2d 165, 170 (App. 1989). To show an abuse of privilege due to malice, plaintiffs suing public officials for defamation "are required to establish proof of objective malice." Chamberlain, 151 Ariz. at 559, 729 P.2d at 913 (emphasis in original). Under this standard, "qualified immunity will protect a public official if the facts establish that a reasonable person, with the information available to the official, could have formed a reasonable belief that the defamatory statement in question was true and that the publication was an appropriate means for serving the interests which justified the privilege." Id. at 559, 913 (citations omitted) (emphasis added); see also Western Technologies, 159 Ariz. at 439-40.
The requirement that Walters prove "objective" malice has not been raised or briefed by either party and must be left for trial. To decide whether an official in Romley's position could have formed a reasonable belief that Walters had lied, Romley's circumstances must be evaluated. Because the evidence is in dispute on what those circumstances were, summary judgment on this ground is inappropriate.
Defendants assert that Walters cannot show that Romley acted with actual malice. Aside from pursuing the wrong inquiry, this assertion is also incorrect. As discussed above, a jury could find by clear and convincing evidence that Romley acted with actual malice in making the defamatory statements about Walters. The motion for summary judgment is therefore denied.
iii. Substantial Truth
"[S]ubstantial truth is sufficient to defeat an action for defamation." Fendler v. Phoenix Newspapers, Inc., 130 Ariz. 475, 479, 636 P.2d 1257, 1261 (App. 1981). "It is well settled that a defendant is not required in an action of libel to justify every word of the alleged defamatory matter; it is sufficient if the substance, the gist, the sting of the libelous charge be justified, and if the gist of the charge be established by the evidence, the defendant has made his case." Id. at 479, 1261 (citations omitted).
This is not a case, however, in which the defamatory statements were "true in substance" but entailed "slight inaccuracies of expression," id., such that the court may decide as a matter of law that Romley's statements were not actionable. The evidence taken in the light most favorable to Walters is that Walters "answered fully every question" posed to him by Romley. (DSOF Ex. G at 201:20-22.) Yet Romley stated in his September 4, 2003 letter that Walters had "provided misleading, inaccurate and incomplete information in response to questions raised by my office." (Emphasis added). The "gist" and substance of Romley's statement was that Walters lied, and the evidence taken in the light most favorable to Walters is that Walters was truthful.
Because a jury could determine that Romley's defamatory statements were false and made with actual malice, summary judgment in favor of Romley on Walters' defamation claim would be improper.
2. Defamation Claim Against Maricopa County
Walters concedes that Maricopa County cannot be liable under the theory of respondeat superior for the actions of Romley. (Doc. # 69 at 25:8-9.) However, Walters argues that the county may still be liable under A.R.S. § 11-261. That statute grants counties the authority to procure liability insurance for officers, agents and employees of the county but in no way makes the county liable for the acts of its officers. Defendants' motion for summary judgment as to Maricopa County is therefore granted.
B. First Amendment Retaliation
Defendants move for summary judgment on Walters' First Amendment retaliation claims. Before delving into the issues specific to each defendant, however, it will be useful first to clarify what conduct Walters properly has alleged was retaliatory.
Walters provided in his Complaint the following factual basis: "Defendants punished Plaintiff for raising the matter by investigating Plaintiff and then threatening to place Plaintiff on the Brady list if the Chandler Police Department did not transfer Plaintiff from Plaintiff's current position in narcotics. When the Chandler Police Department did not transfer plaintiff, the Defendants placed Plaintiff on the Brady list." (Compl. at ¶ 225.) The only acts of retaliation before the court, then, are the investigation, the threats to Brady-list Walters, and the actual Brady-listing of Walters.
The decision to place Walters on the Brady list and to communicate that decision, however, were acts for which these Defendants have absolute immunity. In Botello v. Gammick, 413 F.3d 971 (9th Cir. 2005), the Ninth Circuit held on similar facts that the prosecutors' "decision not to prosecute [plaintiff's] cases and their communication of that decision is intimately tied to the judicial process and is thus entitled to absolute immunity." Id. at 977 (citations omitted). The factual basis for Walters' First Amendment retaliation claim, then, is reduced to the investigation of Walters and the threats to Brady-list Walters if he did not transfer out of the narcotics unit or apologize to Romley.
The court now turns to the issues raised in Defendants' motion, addressing Walters' claim against each defendant in turn.
1. Defendant Romley
The general framework for determining if a plaintiff has established his case for First Amendment retaliation is set forth in Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (2001):
To prevail, an employee must prove (1) that the conduct at issue is constitutionally protected, and (2) that it was a substantial or motivating factor in the punishment. If the employee discharges that burden, (3) the government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct.
(Citing Board of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996); alterations omitted). With respect to Romley, Defendants argue (i) that there is no evidence that Walters' speech was a substantial or motivating factor in Romley's decisions, (ii) that the evidence shows that Romley would have reached the same decision in the absence of Walters' protected conduct, and (iii) that qualified immunity bars Walters' claim.
i. Substantial or Motivating Factor
Defendants argue that Walters has provided insufficient evidence to create a jury question on whether Walters' protected speech was a substantial or motivating factor in the punishment. "When intent is an element of a constitutional violation . . . the primary focus is not on any possible animus directed at the plaintiff; rather, it is more specific, such as an intent to disadvantage all members of a class that includes the plaintiff or to deter public comment on a specific issue of public importance." Crawford-El v. Britton, 523 U.S. 574, 592 (1998) (internal citations omitted). Walters concedes that his submission with regard to Romley's motivations consists of only circumstantial evidence. (Doc. # 69 at 1:20.)
More accurately, Defendants argue that Walters cannot show that his statements were a "substantial and motivating factor" for the retaliation, misciting Coszalter, 320 F.3d at 973. (Doc. # 66 at 21:20 (emphasis added; boldface omitted).)
The Ninth Circuit has identified three kinds of circumstantial evidence which, in combination with evidence that the defendant knew of the protected speech, will create a jury issue on this element in a First Amendment retaliation case. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751-52 (9th Cir. 2000).
In the free speech cases in which we have held that circumstantial evidence created a genuine issue of material fact on the question of retaliatory motive, the plaintiff, in addition to producing evidence that his employer knew of his speech, produced evidence of at least one of the following three types. First, we have held that a plaintiff created a genuine issue of material fact where he produced the additional evidence that the proximity in time between the protected action and the allegedly retaliatory employment decision was one in which a jury logically could infer that the plaintiff was terminated in retaliation for his speech. Second, we have held that a plaintiff created a genuine issue of material fact where he produced the additional evidence that his employer expressed opposition to his speech, either to him or to others. Third, we have held that a plaintiff created a genuine issue of material fact where he produced the additional evidence that his employer's proffered explanations for the adverse employment action were false and pretextual.Id. (citations, alterations and internal quotations omitted). Keyser further made clear that one of these three kinds of evidence is necessary for a plaintiff to defeat summary judgment. See id. at 752-53.
Here, although Walters arguably has provided all three kinds of evidence, Walters' evidence of proximity in time is sufficient to satisfy this requirement. There is no question that Romley knew of Walters' speech, given that Walters' speech was directed to Romley at the May 27, 2003 meeting. The period of time between that meeting and the alleged retaliatory conduct by Romley was less than one day. Accepting Walters' evidence as true, Romley began a thorough investigation into Walters on the day after the meeting. ( E.g., PSOF Ex. 7 at 90:18-24.) Moreover, the threats to place Walters on the Brady list occurred in early September, roughly three months after the meeting. Even excluding the investigation as a separate form of retaliation, under the circumstances presented, three months is a short enough period to support an inference of retaliation. Coszalter, 320 F.3d at 977 ("Even if elapsed time, considered without regard to other circumstances, were the criterion, three to eight months is easily within the time range that supports an inference of retaliation. As we recently held in another § 1983 First Amendment employer retaliation case, `An eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.'" (citing Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002); alterations omitted)).
On the other hand, this circuit held in Erickson v. Pierce County, 960 F.2d 801, 805 (9th Cir. 1992), that a period of three months between protected activity and termination was not sufficient — in and of itself — to create a triable issue on retaliatory motivation. In Erickson, the plaintiff had a personal relationship with her boss, an elected official, and supported him in his bid for reelection. Id. at 803. After his defeat, her new boss gave her a new position, in which she performed very poorly. Id. After three months of exhibiting "poor attitude" and improper behavior, she was terminated. Id. At trial, she provided no evidence that her new boss was motivated to fire her for her political views, instead providing only the fact of her discharge in support of her claim that her new boss had acted out of a retaliatory motive. Id. at 805. Although the district court permitted her First Amendment retaliation claim to go to the jury, which found in her favor, the Ninth Circuit reversed. Id. at 803.
The facts of this case better align with Coszalter, 320 F.3d at 977. In Coszalter, the whistleblowing plaintiffs had undergone swift retaliation upon each of several exercises of their First Amendment rights. Id. at 970-72. Noting that "[t]here is no set time beyond which acts cannot support an inference of retaliation, and there is no set time within which acts necessarily support an inference of retaliation," the court explained that retaliatory intent "is a question of fact that must be decided in light of the timing and the surrounding circumstances. In some cases, the totality of the facts form such a clear picture that a district court would be justified in granting summary judgment, either for or against a plaintiff, on the issue of retaliatory motive." Id. The court went on to hold that the magistrate judge had erred in holding that time periods of between three and eight months were too long to support an inference of retaliation. Id. at 977.
The picture painted by Walters' evidence, if believed, requires denial of Defendants' motion for summary judgment. As with the plaintiffs in Coszwalter, Walters underwent swift retaliation for his whistleblowing, with an investigation into his truthfulness beginning the day following his protected activity. Unlike the plaintiff in Erickson, Walters has offered a cogent, evidenced rationale in support of his theory for why he was retaliated against; Romley felt that his authority had been undermined and that Walters and Cope were plotting to embarrass the County Attorney's Office by exposing the wrongdoing of one of its agents. Considering the "clear picture" otherwise shown by Walters' evidence, the periods of one day and three months are short enough to support an inference of retaliation here. See Ulrich v. City and County of San Francisco, 308 F.3d 968, 980 (9th Cir. 2002) (holding that adverse action came "close on the heels" of the protected speech where the plaintiff "received notice that the peer review investigation was being initiated against him the week after he signed a letter of protest about the layoffs at the hospital and two weeks after his comments at a staff meeting sparked other staff members' concern").
ii. Whether Romley Would Have Reached the Same Decision
Summary judgment on the theory that Romley would have reached the same decision in the absence of Walters' protected speech would require the court to accept as true Defendants' version of the facts. Defendants' argument in this regard takes as given, for example, that Walters lied in the May 27, 2003 meeting or at least that Romley sincerely believed as much. (Doc. # 66 at 23:5-10.) On a motion for summary judgment, the facts must be taken in the light most favorable to the non-moving party. Pa. State Police v. Suders, 542 U.S. 129, 134 n. 1 (2004); see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (holding that district court erred in resolving the disputed fact of motivation at the summary judgment stage because "[a]ll that can be said on the record before us is that motivation was in dispute"). Walters has presented evidence that would permit a rational factfinder to find that Romley knew Walters actually had been truthful. Defendants' motion therefore cannot succeed on this ground.
iii. Qualified Immunity
Defendants' qualified immunity on a claim of First Amendment retaliation is governed by federal law. Tower v. Glover, 467 U.S. 914, 920 (1984) (explaining that the Court has developed immunities limiting relief available in § 1983 litigation); R. Fallon, D. Meltzer D. Shapiro, Hart Wechsler's the Federal Courts and the Federal System 1122 (5th ed. 2003) ("[Here we discuss] immunity rules in actions based on federal law, especially constitutional tort actions. Federal law governs the immunity in such actions, even when brought against state officials."); see also Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 404 (1979) ("[T]he absolute immunity for state legislators recognized in Tenney reflected the Court's interpretation of federal law. . . ."). Under federal law, "government officials performing discretionary functions generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). In determining whether qualified immunity bars an action for damages, the court must first decide whether, taken in the light most favorable to the party asserting the injury, the facts alleged show that the official's conduct violated a constitutional right. Hope v. Pelzer, 536 U.S. 730, 736 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001). "[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Saucier, 533 U.S. at 201. Finally, the third step is to ask whether "the officer's mistake as to what the law requires [wa]s reasonable." Id. at 205; Ceballos v. Garcetti, 361 F.3d 1168, 1181 (9th Cir.), rev'd on other grounds, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).
a. Constitutional Violation
Defendants' challenge to Walters' alleged constitutional violation is discussed and partially resolved above. In order to determine if Romley's alleged conduct — taken in the light most favorable to Walters — would amount to a violation of Walters' constitutional rights, the court must address two remaining questions. First, the court must determine the impact, if any, of the Supreme Court's recent decision in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). Second, the court must decide if Walters' evidence suffices as an adverse employment action under the First Amendment.
(1) The Impact of Garcetti v. Ceballos
The plaintiff in Garcetti, a lawyer and calendar deputy in the Los Angeles County District Attorney's office, brought an action against his superiors for retaliation based on an internal memo he wrote recommending dismissal of an ongoing prosecution. Id. at 1956. As calendar deputy, Plaintiff Ceballos "exercised certain supervisory responsibilities over other lawyers," and investigating aspects of pending cases and writing such disposition memos was an integral part of Ceballos' employment duties. Id. at 1955; id. at 1960 ("Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do."). Ceballos based his recommendation of dismissal on the fact that the affidavit used to obtain a critical search warrant in the case contained "serious misrepresentations" not satisfactorily explained by the officer on the case. Id. at 1955-56. After Ceballos' supervisors declined to follow his recommendation, Ceballos testified in the case for the defense regarding his observations. Id. at 1956. However, Ceballos' First Amendment claim relied solely on the theory that his supervisors had retaliated against him for the position he took in the internal memo. Id.
In holding that the memo was not protected First Amendment speech, the Supreme Court was careful to note that neither Ceballos' audience nor the subject matter of Ceballos' speech were dispositive factors in its decision. Id. at 1959 ("That Ceballos expressed his views inside the office, rather than publicly, is not dispositive."); id. ("The memo concerned the subject matter of Ceballos' employment, but this, too, is nondispositive."). Instead, the Court held that "[t]he controlling factor in Ceballos' case" was that Ceballos had not spoken as a citizen in writing the memo. Id. Rather, "his expressions were made pursuant to his duties as a calendar deputy." Id. at 1959-60.
Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.Id. at 1960 (emphasis added); see also id. ("Refusing to recognize First Amendment claims based on a government employee's work product does not prevent them from participating in public debate."). Ceballos' speech was commissioned by his employment and owed its existence thereto, meaning Ceballos' employer was entitled to control it:
The significant point is that the memo was written pursuant to Ceballos' official duties. Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.Id. (emphasis added). While noting that Ceballos' speech nevertheless could be protected by whistle-blowing legislation or labor codes, the Court rejected "the notion that the First Amendment shields from discipline expressions employees make pursuant to their professional duties." Id. at 1962.
In light of Garcetti, then, bringing to light the misconduct of Soto in the May 27, 2003 meeting was not protected speech if such whistleblowing was part of Walters' employment duties. Unfortunately, the Court in Garcetti provided little guidance about how an employee's job duties are to be defined, noting only that the "proper inquiry is a practical one" and that "the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Id. at 1961-62.
Walters' whistleblowing here does not fall within the scope of employment duties that he "was employed to do," at least as those duties are regarded by the First Amendment. Walters was a police sergeant employed to investigate and assist in the prosecution of criminal drug offenders. Any attempt to inflate Walters' job description so as to include blowing the whistle on other officers would likely exceed the "practical inquiry" suggested by the Supreme Court. The Supreme Court's narrow "hold[ing] that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes," Garcetti, 126 S. Ct. at 1960, should not be read to overrule all First Amendment whistleblower protection cases by generally categorizing whistleblowing as part of employees' employment obligations. Most importantly, though, even if Walters' job duties could be so perceived, it cannot be said that his employment duties for First Amendment purposes would encompass reporting misconduct to higher-ups in a separate governmental agency who do not have employment authority over Walters.
The court recognizes that although the Ninth Circuit has not yet addressed this issue, some courts have interpreted employees' job duties in an expansive light that would encompass Walters' whistleblowing. See Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir. 2006); Springer v. City of Atlanta, Civ. No. 05-0713, 2006 WL 2246188, *3-*4 (N.D. Ga. Aug. 4, 2006). In light of the "practical" inquiry suggested by the Supreme Court on this issue, the court finds other authority more persuasive. See Day v. Borough of Carlisle, Civ. No. 04-1040, 2006 WL 1892711, *6 (M.D. Pa. July 10, 2006) (holding that employment duties of police Corporal did not include reporting misconduct by fellow officers).
Defendants also contend that the court's previous holding that Walters' speech dealt with a matter of public concern (doc. # 20 at 5-6) should be reexamined in light of Garcetti. (Doc. # 72.) As discussed above, however, Garcetti held that employee speech made pursuant to an employee's job duties was not made "as a citizen," but rather as an employee, Garcetti, 126 S. Ct. at 1960, and did not suggest that whistleblowing was other than speech on a matter of public concern. The court's previous determination that the subject matter of Walters' speech was of public concern is therefore unaffected.
Because Walters' whistleblowing here cannot be viewed under the First Amendment as part of his job responsibilities, Garcetti does not leave Walters' speech unprotected.
(2) Adverse Employment Action
In determining whether Walters' alleged facts amount to a constitutional violation, the second remaining question is whether Walters' factual allegations constitute an "adverse employment action" under the First Amendment cases. The phrase "adverse employment action" may be misleading in this context, given that Romley was not Walters' employer and exercised no employment authority over Walters. Nonetheless, the parties here have assumed that employer First Amendment retaliation cases apply. ( E.g., doc. # 69 at 25:16-18.) Walters must show under those cases not only an uneffectuated, unlawful motive in the abstract but some adverse effect accruing to Walters from that motive.
"To constitute an adverse employment action, a government act of retaliation need not be severe and it need not be of a certain kind. Nor does it matter whether an act of retaliation is in the form of the removal of a benefit or the imposition of a burden." Coszalter v. City of Salem, 320 F.3d 968, 75 (2003). "The denial of even a `trivial' benefit may form the basis for a First Amendment claim where the aim is to punish protected speech." Ulrich v. City and County of San Francisco, 308 F.3d 968, 977 (9th Cir. 2002) (citing Rutan v. Republican Party of Ill., 497 U.S. 62, 75-76 (1990), Elrod v. Burns, 427 U.S. 347, 359 n. 13 (1976) (explaining that First Amendment rights are violated "both where the government fines a person a penny . . . and where it withholds the grant of a penny" to punish or suppress protected speech), and Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992)). Most fundamentally, an adverse employment action is established where an action is taken that is "reasonably likely to deter employees from engaging in protected activity." Coszalter, 320 F.3d at 976 (adopting this standard). As previously noted, Walters' operative factual allegations consist of Romley's investigation, to the extent it focused on Walters, and the alleged threats to place Walters on the Brady list unless Walters transferred out of the narcotics unit.
Given the circumstances of this case, that portion of Romley's investigation which explored Walters' credibility cannot be viewed as unwarranted. In general, unwarranted criminal or disciplinary investigations may satisfy the requirement of adverse action, at least when combined with other retaliatory measures. See Coszalter v. City of Salem, 320 F.3d 968, 976-77 (9th Cir. 2003) (holding that "some, perhaps all, of the following acts, considered individually, were adverse employment actions for purposes of plaintiffs' First Amendment retaliation suit: . . . an unwarranted disciplinary investigation . . . and two consecutive ninety-day `special' reviews of work quality."); Ulrich v. City County of San Francisco, 308 F.3d 968, 977 (9th Cir. 2002) (holding that plaintiff had been subjected to more than trivial adverse employment actions when defendant "subjected him to an investigation that threatened to revoke his clinical privileges" in addition to refusing to accept his revocation of resignation). However, at the same time, managers have some investigatory discretion under the First Amendment. See Waters v. Churchill, 511 U.S. 661, 678 (1994). As noted by the Supreme Court in Churchill,
[T]here will often be situations in which reasonable employers would disagree about who is to be believed, or how much investigation needs to be done, or how much evidence is needed to come to a particular conclusion. In those situations, many different courses of action will necessarily be reasonable. Only procedures outside the range of what a reasonable manager would use may be condemned as unreasonable.Id.; cf. also Malik v. Carrier Corp., 202 F.3d 97, 106 (2nd Cir. 2000) (noting that the employer's duty to investigate harassment complaints is not subordinated even to the victim's desire to let the matter drop); McDonnell v. Cisneros, 84 F.3d 256, 261 (7th Cir. 1996) (refusing to interpret the law in a way that would punish employers for undertaking serious investigations into sexual harassment claims, even when such an investigation "oversteps the proper bounds"). In this case, Romley had to investigate Walters to some extent in order to evaluate Walters' statements about Soto. Dispensing punishment to Soto without exploring Walters' allegations, which entailed inquiry into Walters' credibility, would potentially have been unfair to Soto. Romley's decision to include Walters in the investigation cannot be deemed "outside the range" of what a "reasonable manager" would do and therefore may not be "condemned as unreasonable." Churchill, 511 U.S. at 678.
Romley's threatened Brady-listing of Walters unless Walters transferred from the narcotics unit similarly cannot, when divorced from Romley's ability to satisfy that threat, suffice as an adverse employment action. Romley has absolute immunity for his decision to Brady-list Walters and for his "communication of that decision." Botello v. Gammick, 413 F.3d 971, 977 (9th Cir. 2005). Although Romley allegedly used that immunity to try to bully Walters, the Chandler Police Department stood by Walters and demanded a full investigation. Walters remained in the narcotics unit and refused to write an apology letter.
Verbal threats do not generally qualify as adverse employment actions under the First Amendment. Nunez v. City of Los Angeles, 147 F.3d 867, 874-75 (9th Cir. 1998) (holding where plaintiff's "superiors retaliated by scolding him and threatening to transfer or to dismiss him" that plaintiff had not satisfied the adverse employment action requirement under the First Amendment); compare Moore, 275 F.3d at 848 (holding that proposals to transfer plaintiff and other proposals were adverse employment actions for purposes of Title VII, the False Claims Act and Major Fraud Act even though the proposals were not acted upon). Given that Romley performed a reasonable investigation, Walters finds himself in a situation analogous to the plaintiff in Nunez: "All he has shown is that he was bad-mouthed and verbally threatened. It would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation." Id. at 875.
In summary, looking to Romley's alleged actions that are not otherwise immune from suit, Walters has not shown an adverse employment action. The investigation of Walters was necessary to the investigation of Soto and to be expected by Walters, and the threats to Brady-list Walters, even if improper, cannot alone satisfy the adverse action requirement.
Although Walters' claim against Romley fails in this respect, the court analyzes the remaining elements of Romley's qualified immunity claim in the interest of thoroughness.
b. Clearly Established
Under the "clearly established" element of qualified immunity, the test is whether the official's conduct "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 979 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of this standard is to ensure public officials freedom from liability for conduct which they lacked fair warning was prohibited. As explained by the Supreme Court in Hope v. Pelzer, 536 U.S. 730, 741 (2002):
[It is thus] clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly rejected a requirement that previous cases be "fundamentally similar." Although earlier cases involving "fundamentally similar" facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with "materially similar" facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of [Plaintiff] was unconstitutional.
Here, Romley had fair notice that retaliation against a police officer for having brought to light investigatory misconduct of another officer was unconstitutional. In 2000, this circuit plainly noted that a police officer "has the right under the First Amendment to inform his superiors of misconduct in the police department." Blair v. City of Pomona, 223 F.3d 1074, 1079 (9th Cir. 2000) (citing Manhattan Beach Police Officers Ass'n, Inc. v. City of Manhattan Beach, 881 F.2d 816, 818-819 (9th Cir. 1989). Moreover, a month and a half before the protected speech in this case, the Ninth Circuit reiterated that an employer could be liable for retaliating against whistleblowers — including by intiating retaliatory investigations against them — and held that these protections had been "clearly established" since at least 1989. Coszalter, 320 F.3d at 979, 976-77; see also Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 748 (9th Cir. 2000) ("There is a series of cases in the Ninth Circuit establishing that the public's interest in learning about illegal conduct by public officials and other matters at the core of First Amendment protection outweighs a state employer's interest in avoiding a mere potential disturbance to the workplace.").
There does exist a factual nuance in this case, namely that Walters was an employee of the Chandler Police Department, not of the County Attorney's Office. Romley appropriately does not rely on this nuance, however, as any inference arising from it works in favor of Walters. The assumed, fundamental premise in First Amendment employer retaliation cases is "that the government as employer . . . has far broader powers than does the government as sovereign." Walters v. Churchill, 511 U.S. 661, 671 (1994) (citations omitted); accord Ulrich v. City and County of San Francisco, 308 F.3d 968, 977 (9th Cir. 2002) ("Although the government has a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large, public employees do not lose their rights as citizens to participate in public affairs by virtue of their governmental employment." (citations and internal quotations omitted)). The additional leeway accorded governmental employers over their employees — necessary to effective and efficient governmental operation, e.g., Walters, 511 U.S. at 673 — is at least reduced where the speaker does not work for the employer. See Hyland v. Wonder, 117 F.3d 405, 412 (9th Cir. 1997) (holding that an ex-employee, after having been terminated, was protected under the First Amendment and that the law was sufficiently clearly established so as to make qualified immunity improper). Under the circumstances presented, Walters was more like a member of the general public, and was entitled to a correspondingly greater amount of First Amendment protection, than even Romley's County Attorney's Office subordinates.
Finally, the Supreme Court's recent decision in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), does not retroactively make Walters' rights as of 2003 any less clearly established. As discussed above, this circuit accorded whistleblowers of all kinds clear First Amendment protection as of 2003. To be sure, Garcetti changes the law in this circuit, and if Romley acted today, he could persuasively argue that Walters's rights are not currently clearly established. But as noted above, the law has not changed enough to deprive Walters of First Amendment protection in this case. And although the policy of protecting officials from liability for their actions may suggest a different outcome where the law changes in a way favorable to defendants, the general touchstone for determining qualified immunity is fair notice, Hope, 536 U.S. at 741; Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000), meaning the relevant test is "whether t[he] law was clearly established at the time an action occurred." Harlow, 457 U.S. at 818 (emphasis added); accord Siegert v. Gilley, 500 U.S. 226, 231 (1991); Anderson v. Creighton, 483 U.S. 635, 653 n. 5 (1987); Schwenk, 204 F.3d at 1196; Elder v. Holloway, 984 F.2d 991, 994 (9th Cir. 1993). Romley had fair notice in 2003 under Ninth Circuit precedent that retaliatory action based on Walters' good-faith whistleblowing was impermissible. The Supreme Court's overrule of Ceballos on the ground that Ceballos' particular job required the speech involved does not detract from the fair notice provided by those cases to Romley in 2003.
c. Possibility of Reasonable Mistake of Law
Assuming that the defendant infringed a right that was clearly established, "the court must consider whether, under the facts alleged, a reasonable official could have believed that his conduct was lawful." Hyland v. Wonder, 117 F.3d 405, 410 (9th Cir. 1997) (citations omitted); accord Saucier v. Katz, 533 U.S. 194, 205 (2001). "It is the defendant's burden to show that a reasonable officer could have believed, in light of the settled law, that he was not violating a constitutional right." Saucier, 533 U.S. at 205 (citations and alterations omitted).
Romley makes no reasoned argument that it was objectively reasonable, in light of this circuit's clearly established law, to believe that retaliatory conduct against Walters was lawful in 2003. Romley has therefore failed to carry his burden of showing that a reasonable officer in his situation in 2003 could have made a mistake of law.
2. Defendant Faull
The evidence is undisputed that Romley commissioned the investigation of Walters (DSOF at ¶ 111), and that Howard and Heath were in charge of the investigation. The only factual basis for the First Amendment retaliation claim against Faull is therefore the threat to place Walters on the Brady list.
In making the ultimatum to the Chandler Police Department that Walters needed to be transferred or else Romley would place Walters on the Brady list, Faull did not purport to have the power to carry out that threat. At best, the evidence indicates that Faull acted merely as a go-between, effectuating the wishes of Romley or perhaps surmising those wishes. In light of this limited role, and for the reasons previously stated concerning Romley, the retaliatory behavior of Faull would not itself constitute an adverse employment action. A third-party's conveyance of such a failed threat cannot alone be deemed "reasonably likely to deter employees from engaging in protected activity." Coszalter, 320 F.3d at 976; see also Nunez v. City of Los Angeles, 147 F.3d 867, (9th Cir. 1998) (noting that to establish and adverse employment action, "[m]ere threats and harsh words are insufficient" (citations omitted)).
Finally, Walters provides the court with no authority on aiding and abetting or accomplice liability in support of his claim against Faull for "participat[ing] in just about every aspect of the matter." (Doc. # 69 at 28:9.) The motion for summary judgment as to Faull is therefore granted.
3. Defendant Maricopa County
Walters bases his claim of municipal liability solely on the theory that Romley was a final policy-maker on behalf of the County Attorney's Office. (Doc. # 69 at 28-29.) A municipality may be liable for a constitutional tort under § 1983 if a plaintiff establishes "that the individual who committed the constitutional tort was an official with `final policy-making authority.'" Hopper v. City of Pasco, 241 F.3d 1067, 1083 (9th Cir. 2001) (citations omitted). Because, as discussed above, Walters' has not established that Romley committed a constitutional tort, Walters' claim against Maricopa County on this theory cannot succeed. The motion for summary judgment as to Maricopa County is therefore granted.
C. Punitive Damages
Walters' claims for punitive damages on claims other than the First Amendment claim were dismissed pursuant to the court's order of May 23, 2005. (Doc. # 20.) The grant of summary judgment against Walters on the First Amendment claim also entitles Defendants to summary judgment on the remaining punitive damages claim.
IT IS THEREFORE ORDERED that Defendants' Motion for Summary Judgment (doc. # 66) is granted in part and denied in part. Defendants' motion is granted as to Counts 5, 6, 9 and 11. Defendant's motion is denied as to Counts 1 and 2.
IT IS FURTHER ORDERED that Defendants' Motion to Amend Case Management Order (doc. # 72) is denied as moot.