Deputy claims termination violated First Amendment rights, 5th Circuit disagrees

Marilyn Tennissen Dec. 10, 2014, 12:35pm


A former Nueces County deputy claims the sheriff violated his First Amendment rights, but a federal appeals court only partly agreed.

Thomas Burnside alleged Sheriff Jim Kaelin first transferred him to a lower job in 2012 because Burnside did not support Kaelin’s campaign to be re-elected as sheriff, and then terminated him in 2013 because he shared a recording of the sheriff threatening another deputy. 

The U.S. Court of Appeals for the Fifth Circuit, in an opinion written by Circuit Judge E. Grady Jolly on Dec. 9, held that while Burnside alleged a constitutional violation concerning his 2012 transfer, he failed to state a violation with respect to his 2013 termination.

Case Background

Thomas Burnside was a deputy sergeant for the Nueces County Sheriff’s Department assigned to the patrol division. He also served as chairman of a law enforcement political action committee.

Burnside claims he maintained his association with the PAC and the campaign “separate and distinct” from his employment with the department, according to the court document.

In January 2012, Sheriff Jim Kaelin was up for re-election in a contested race. Burnside claims Kaelin approached him while he was on duty and told him the PAC should support Kaelin’s re-election bid.

Burnside said that he would not treat Kaelin any differently from any other candidate and that the PAC members would vote on the endorsement, free from outside pressure.

A few days later, Burnside alleges, Sheriff Kaelin told him that he would be moved to jail duty unless the PAC agreed to support his candidacy.

“Burnside personally supported Kaelin’s opponent, and Kaelin knew this,” court papers state. “Moreover, the PAC did not support or endorse Kaelin, a fact that was common knowledge by Jan. 12, 2012.”

Three weeks later, Kaelin transferred Burnside to the jail, and it was “typically considered by all in Burnside’s position” to be a demotion rather than a reassignment.

In March 2013, Burnside was terminated “because of the dissemination of a recording containing a threat from Sheriff Kaelin against another officer,” the papers state. Burnside gives no other details about the incident.

Burnside filed suit against the Sheriff’s Department and Kaelin in his individual capacity, alleging his First Amendment free speech rights had been violated by the retaliation against him.

Kaelin moved to dismiss, asserting qualified immunity. The district court denied the motion, and Kaelin filed an interlocutory appeal.

The three-judge panel for the Fifth Circuit wrote that to establish a First Amendment free-speech retaliation claim, a public employee must show that he suffered an adverse employment action, that the speech involved a matter of public concern, that the employee’s interest in commenting on matters of public concern outweighed the defendant’s interest in promoting workplace efficiency and that the speech was a substantial or motivating factor in the defendant’s adverse employment action.

Kaelin asserted that he is entitled to qualified immunity, and if Burnside wants to defeat that immunity he must show the official violated a statutory or constitutional right and the right was clearly established at the time of the conduct in question, the opinion states.

Citing previous 5th Circuit decisions, Judge Jolly wrote that “once a defendant invokes qualified immunity, the burden shifts to the plaintiff to show that the defense is not available.”

“The only protected activities in Burnside’s complaint occurred in January 2012, when Burnside and PAC he chaired failed to endorse Kaelin. But that occurred more than 13 months before his employment was terminated in March 2013. The complaint alleges no other facts linking the two events,” the court wrote.

Without the facts, the justices “cannot plausibly infer that the termination was causally related to Burnside’s First-Amendment conduct.”

They wrote that without the causal link, there can be no claim of a constitutional violation as a matter of law and Kaelin is entitled to qualified immunity on the termination claim.

In conclusion, the appeals court reversed the district court’s denial of qualified immunity on Burnside’s termination claim and affirmed the denial of qualified immunity as to the transfer claim. The also remanded the case for further proceedings.

Case No. 13-41344

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