By: Loyd Willaford and Clive Pontusson
In Mote v. Walthall, the U.S. Court of Appeals ruled that a Police Chief who threatened and intimated an Officer trying to form a policeman’s association could not assert a qualified immunity defense, because the Officer was engaging in Constitutionally-protected free speech. The lawsuit will therefore continue in a lower court.
Marcus Mote was a police officer in the city of Corinth, Texas. In January 2015, Mote and a fellow officer approached Chief of Police Debra Walthall about starting a policeman’s association in the City. Chief Walthall indicated that she would support the organization. Officer Mote then emailed all members of the department describing the mission of the new association and asking for their support. Later, Chief Walthall denied this meeting took place, and denied that she supported the organization. Officer Mote approached her again, and this time she restated her support, but warned that if the association did not “stay positive,” then things “would get ugly.” Officer Mote continued his efforts at organizing an association, but soon afterward, Officers who had signed up for membership began getting reprimands for petty violations. Officer Mote was fired for failure to follow proper investigation polices in October 2015, about ten months after he began his union organization efforts.
Officer Mote argued that he was fired for exercising his First Amendment right to free speech. He argued that this was the real reason he was fired, not his failure to follow investigation policies. Officer Mote argued that his right to participate in union organizing efforts was clearly established at the time Chief Walthall was seeking to prevent him from organizing a union. Therefore, Officer Mote argued that Chief Walthall was on notice that his speech about unionization efforts was protected by the First Amendment.
Chief Walthall argued that she could not be sued because as a government official, she was entitled to qualified immunity. This legal doctrine states that when a government official is conducting their ordinary duties, they cannot be sued. Chief Walthall agreed with Mote than unions are protected by the First Amendment, but Chief Walthall argued that no law established that “non-union” employee associations are protected by the First Amendment. Therefore, Chief Walthall argued that she was not put “on notice” by any court decisions that interpreted the First Amendment as protecting associations of public employees. She argued that she was therefore immune from liability.
The Court of Appeals decided Officer Mote was correct: Chief Walthall was not entitled to qualified immunity. The Court began with a clear statement of the law:
The right of association encompasses the right of public employees to join unions and the right of their unions to engage in advocacy and to petition government in their behalf. Thus, the First Amendment is violated by state action whose purpose is either to intimidate public employees from joining a union or from taking an active part in its affairs or to retaliate against those who do.
The Court noted that the Officer’s Associations goals “reflected the classic goals of an expressive association to further its members’ lawful interests.” That meant that the association was exactly the type of organization that was entitled to the protection of the First Amendment. For First Amendment purposes, an association is entitled to the same rights as a union. The Court also found that there was ample evidence of past cases which should have put Chief Walthall on notice that Officer Mote’s organizing efforts were protected by the First Amendment. In fact, past decisions had made clear that the rule applied to “associations” as well as unions. For these reasons, Chief Walthall could not assert a defense of qualified immunity.
This case is a good illustration of how the First Amendment works in the public workplace and how it provides protections to employees even where they are not otherwise protected by state law. In a state like Washington, Officer Mote would have statutory protections from being retaliated against for engaging in pro-union activity. However, in Texas, only some police officers and firefighter have the right to collectively bargain. Teachers and other public employees are prohibited from collectively bargaining and from striking.
The City in this case tried to argue that the right of free speech to advocate for an association of police officers was not clearly protected in states where there is no right to collectively bargain. In Texas, some but not all, police officers and firefighters have collective bargaining rights. Teachers and other public employees are prohibited from collectively bargaining and from striking. The Court quickly dismissed the City’s argument that there was no clear free speech right to advocate for a union where collective bargaining is prohibited by noting that the right of association and speech is not premised on a right to collectively bargaining.
All that is necessary is that association and speech be directed to a lawful interest. Courts across the country have ruled that pro-union speech and association even without a formal union or legal rights satisfies this test. Thus, the Chief was not immune from being sued for violating Officer Mote’s First Amendment rights by firing him for his pro-union speech.
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