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Smith v. City of Mission

United States District Court, D. Kansas

May 15, 2015

Kenneth E. Smith, II, Plaintiff,
City of Mission, Kansas; and Benjamin J.M. Hadley, Defendants.


JOHN W. LUNGSTRUM, District Judge.

Plaintiff filed a one-count complaint under 42 U.S.C. ยง 1983 against the City of Mission, Kansas and Chief of Police Benjamin J.M. Hadley alleging that defendants suspended, demoted and constructively discharged plaintiff, a former police officer, in retaliation for plaintiff's exercise of his First Amendment right to speak on matters of public concern. Defendants move to dismiss plaintiff's complaint for failure to state a claim on the grounds that plaintiff's speech did not address a matter of public concern and, accordingly, is not entitled to First Amendment protection. In addition, defendant Hadley asserts that he is entitled to qualified immunity on plaintiff's claim against him in his individual capacity and that plaintiff's claim against him in his official capacity should be dismissed as duplicative of plaintiff's claim against the City. As will be explained, the motion is granted in part and denied in part.


Defendants' motion to dismiss is based on Federal Rule of Civil Procedure 12(b)(6). In analyzing that motion, the court accepts as true "all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff." Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007))). Consistent with this standard, the following well-pleaded allegations, taken from plaintiff's complaint, are accepted as true for purposes of defendants' motion.

Plaintiff Kenneth E. Smith, II was employed by the City of Mission, Kansas as a police officer from 2003 until mid-2014. Plaintiff possesses a Bachelor of Science degree in Criminal Justice, a Master's degree in Business Administration and a Master's Certificate in Criminal Justice Education. He is a graduate of the FBI's Law Enforcement Executive Development Program and the FBI National Academy. In early 2014, plaintiff self-published a non-fiction book entitled "Anyone Can Be Average: Leading a Law Enforcement Organization, " which provided expertise to the general public on organizational leadership. In his book, plaintiff provided anecdotes from plaintiff's own experience for illustrative purposes. As alleged in his complaint, plaintiff authored the book in his individual capacity as a private citizen. Plaintiff did not identify himself in the book as an employee of the City and did not identify any other employee of the City.

In August 2014, defendant Benjamin J.M. Hadley, the Chief of Police for the Mission Police Department, suspended plaintiff's employment; decreased plaintiff's compensation; and demoted plaintiff to the rank of Police Officer because he authored the book. Plaintiff alleges that he was constructively discharged at the conclusion of the 120-day suspension.


Defendants move to dismiss plaintiff's complaint for failure to state a claim on which relief can be granted. See Fed.R.Civ.P. 12(b)(6). According to defendants, plaintiff's speech is unprotected because it did not address a matter of public concern. In the alternative, defendant Hadley contends that he is qualifiedly immune from plaintiff's claim and that plaintiff's official capacity claim against him should be dismissed because it is duplicative of plaintiff's claim against the City.

Protected Speech

In their motion to dismiss, defendants urge that dismissal of plaintiff's First Amendment claim is required because the content of plaintiff's book is not protected speech. A "public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Leverington v. City of Colorado Springs, 643 F.3d 719, 723 (10th Cir. 2011) (quoting Connick v. Myers, 461 U.S. 138, 140 (1983)). "Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)). However, the interests of public employees in commenting on matters of public concern must be balanced with the employer's interests "in promoting the efficiency of the public services it performs through its employees." Id. (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

The Court in Pickering sought to achieve this balance through the adoption of a four-part test to be implemented in public-employee, free-speech cases. Id. at 724. In Garcetti, the court expanded on the Pickering test by adding a fifth, threshold inquiry that seeks to determine whether the speech at issue was made pursuant to the public employee's official duties. Id. (citing Garcetti, 547 U.S. at 421). Thus, after Garcetti, "it is apparent that the Pickering ' analysis of freedom of speech retaliation claims is a five step inquiry which we now refer to as the Garcetti/Pickering ' analysis." Id. (citations omitted). The Garcetti/Pickering test thus includes the following inquiries:

(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Id. (quoting Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009)). The first three inquiries are ordinarily matters of law for the court to decide, while the last two are for the factfinder. Fields v. City of Tulsa, 753, F.3d 1000, 1014 (10th Cir. 2014).

Defendants challenge only the second prong of this test-whether plaintiff's speech was on a matter of public concern. At the outset, the court rejects defendants' argument that plaintiff's speech, as a matter of law, is not protected because plaintiff, through his book, did not intend to "bring to light actual or potential wrongdoing or breach of public trust by a public official or to disclose any evidence of corruption, impropriety, or other malfeasance within a governmental entity." Contrary to defendants' suggestion, protected speech is not limited to speech concerning governmental wrongdoing. While protected speech certainly includes speech concerning governmental wrongdoing, see Eisenhour v. Weber County, 744 F.3d 1220, 1228 (10th Cir. 2014), the Circuit has never construed protected speech so narrowly. Rather, speech involves a public concern "if it involves a matter of interest to the community." Nixon v. City & County of Denver, ___ F.3d ___, 2015 WL 1935251, at *2 (10th Cir. Apr. 30, 2015); accord Lane v. Franks, 134 S.Ct. 2369, 2380 (2014) (speech involves matters of public concern "when it can be fairly ...

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