By: Loyd Willaford and Clive Pontusson
In Finley v. City of Colby, Police Officer Lance Finley claimed that the Chief of Police and the County Sheriff acted together to get him fired after he reported that a Sheriff’s Deputy was a threat to public safety. The Court dismissed the officer’s claim of tortious interference by the County Sheriff and dismissed the claim that he was retaliated against for statements his brother (an employee of the Sheriff’s Office) had made. But the court allowed the Officer’s claim that he was fired for speaking out on an issue of public safety to continue.
Officer Lance Finley was a Police Officer in Colby, Kansas. His brother Marc was an Undersheriff in surrounding Thomas County. In September 2015, Marc submitted a letter to numerous local and state agencies alleging that Sheriff Rod Taylor had committed multiple forms of misconduct. In January 2016, Officer Finley observed a Sheriff’s Deputy driving erratically, and reported it to the Chief of Police, Ron Alexander. In February, Chief Alexander told Officer Finley that he had reviewed the dashcam footage, the Sheriff’s Deputy was not driving erratically, Officer Finley could be charged with filing a false police report, and finally, that Officer Finley was going to be fired because of “politics.” He was fired by Chief Alexander the next day. In August 2017, Finley filed a lawsuit in Federal Court alleging that Undersheriff Nickols, Chief Alexander and the City of Colby had violated his rights under the U.S. Constitution and unlawfully retaliated against him for reporting the Deputy’s alleged bad behavior.
Officer Finley made three different arguments that he was fired for inappropriate reasons. He argued that his termination was retaliation for his reporting of the deputy’s erratic driving. He also argued his termination was retaliation for the letter his brother sent in 2015 regarding wrongdoing by the County Sheriff. Both claims relied on the idea that either Officer Finley or his brother were speaking on matters of “public concern” when they made these statements, which would constitute speech protected by the First Amendment. Finally, Officer Finley claimed that Undersheriff Nickols unlawfully interfered with his employment by threatening criminal charges against him, wherein he head to hire an expert like a criminal defense lawyer to represent him in court. It’s important to have an experienced criminal defense lawyer on your side to help build your defense strategy. A criminal defense lawyer has extensive courtroom experience in every phase of the criminal case process, including winning suppression hearings and jury trials in serious felony cases. If you also found copies of your mugshots online, you may hire a company that offers busted mugshot removal services.
The Chief of Police, the City of Colby and the Sheriff met these arguments in turn. The City and Chief Alexander argued that Marc Finley’s statements could not form the basis of Officer Finley’s retaliation claim, because Marc Finley was able to protect his own First Amendment rights without Officer Finley intervening on his brother’s behalf in the courts. The three Defendants also argued that Officer Finley’s reporting of the Deputy’s erratic driving behavior was not protected speech on a matter of public concern. Instead, Officer Finley made these statements in the normal course of his duty to report erratic driving on the roads. Undersheriff Nickols also argued that Finley had not established that Nickols’ actions were part of the reason Finley was fired: whatever Nickols had said, Chief Alexander was intending to fire Finley anyway. Finally, Chief Alexander and Undersheriff Nickols asserted a defense of qualified immunity—the legal concept that government officials cannot be personally sued for actions on the job unless they violated a clearly established statutory or constitutional right.
The Court rejected Officer Finley’s argument that he could base a retaliation claim on the speech of his brother as a third party. While it is possible to have a retaliation claim based on the speech of a third party, such a claim must prove 3 things:
When analyzing whether a plaintiff may pursue a First Amendment retaliation claim based on the protected speech of a third party—as opposed to the plaintiff’s own speech—Courts require the plaintiff to demonstrate (1) that he suffered an injury, (2) a close relationship exists between the plaintiff and the third party who possessed the First Amendment rights, and (3) some hindrance to the third party’s ability to protect his or her own interests.
Here, the Court saw no reason why Marc Finley couldn’t protect his own free speech interests. The Court pointed to the fact that Marc Finley had filed a lawsuit against the same Defendants for the same conduct.
The Court also rejected Officer Finley’s claim for tortious interference and agreed with Undersheriff Nickols that Finley hadn’t proved a connection between Nickols’ threat of criminal charges and the decision to fire Finley. The court concluded that,
Simply stated, even assuming Undersheriff Nickols asked for Plaintiff’s termination, Plaintiff has failed to plead facts sufficient to support a finding that this request impacted Chief Alexander’s decision to terminate Plaintiff, and has failed to plausibly plead a First Amendment retaliation claim against Undersheriff Nickols.
Whatever Undersheriff Nickols may have said, it was clear to the Court that Nickols did not cause Officer Finley’s termination: there was evidence on the record that Chief Alexander was going to fire him no matter what.
However, the Court found that Finley’s concern about the Sheriff’s erratic driving was indeed speech on a matter of public concern. Therefore, his lawsuit could continue on that basis. The Court was unconvinced by the City’s argument that Officer Finley’s statement were just an “internal report.” Instead, the Court ruled that,
Statements revealing official impropriety usually involve matters of public concern. Further, the fact that a plaintiff selects “a private forum within the police department and the district attorney’s office, rather than a public forum, does not remove the speech from First Amendment protection.”
Relying on previous cases, the Court found that speech about any evidence of wrongdoing by government officials is of concern to the public. Officer Finley’s statement about erratic driving by the Sheriffs’ Deputy was therefore protected by the First Amendment. Because this right was “clearly established,” Chief Alexander could not assert a qualified immunity defense.
This case is a good example of a Court doing a thorough analysis of a claim of violation of the First Amendment in an employment setting There are five things that a plaintiff must prove to establish a such a violation.
1. The protected speech was not made pursuant to an employee’s official duties.
2. The protected speech addressed a matter of public concern.
3. The government’s interests as an employer did not outweigh the employee’s free-speech interests.
4. The protected speech was a motivating factor in the adverse employment action.
5. The defendant would not have made the same employment decision in the absence of the protected speech
The Court here engaged in detailed analysis of these factors and concluded the Officer Finley had stated a claim that could prevail before a jury.
The dismissal of the claim of retaliation for speech Officer Finley’s brother made is interesting because it seems unfair. How can it be ok to fire someone because of the speech of third person? The reason is, as the Court noted, is that the First Amendment is not a protection against unlawful firing, it is protection against being punished for one’s own speech. Only Officer Finley’s brother would be able to sue for violations related to his speech, as he apparently did.
The Court’s dismissal of the Chief’s qualified immunity defense is instructive because it makes the point that it is well established that there is a right to report illegal activities and therefore government official cannot claim immunity from prosecution related to retaliation for such reports.
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