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Wallace v. Benware

October 13, 1995






Appeal from the United States District Court for the Western District of Wisconsin. No. 93 C 830 -- John C. Shabaz, Judge.

Before POSNER, Chief Judge, and BAUER and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.



Robert Wallace brought this action under 42 U.S.C. sec. 1983 against the Sheriff of Polk County Wisconsin, Craig Benware, alleging that Benware violated his First Amendment rights when he engaged in a campaign of retaliatory harassment after Wallace announced that he would run against Benware in an upcoming election. During and after his unsuccessful campaign, Wallace remained a full-time deputy sheriff and retained most of his former responsibilities. Wallace maintains, however, that Benware retaliated by subjecting him to a series of harassing incidents designed to chill his First Amendment rights. The jury found that Benware's retaliatory actions violated the Constitution and awarded Wallace $15,000 in punitive damages. The district court entered judgment on the jury's verdict but reduced the damages awarded to $5,000. In this appeal, Benware argues that a line of this circuit's decisions authorize the actions that he as sheriff took against a politically disloyal deputy. He contends that under those decisions, he is entitled either to judgment as a matter of law or to qualified immunity. Benware also challenges the sufficiency of the evidence to support the jury's liability finding and its award of punitive damages. For the reasons that follow, we find that Benware violated Wallace's rights under the First Amendment but that he is entitled to qualified immunity. *fn1 We therefore reverse the judgment below.


Wallace was hired as a full-time deputy sheriff of the Polk County, Wisconsin Sheriff's Department in the summer of 1990. Prior to that, Wallace had worked during the summer months on the department's boat patrol, which patrolled Polk County's lakes and waterways. Wallace's primary responsibility when hired as a full-time deputy sheriff was the implementation of a "D.A.R.E." program, which is an educational program for fifth and sixth grade students addressed to the hazards of drug use. *fn2 As the department's D.A.R.E. program coordinator, Wallace taught D.A.R.E. classes during the school year at various schools within Polk County. During the summer months, Wallace continued his work on the boat patrol and had other patrol responsibilities. Wallace received nothing but accolades for his performance during his first two years as a full-time deputy sheriff, and Benware conceded at trial that Wallace had done an exemplary job in implementing the department's D.A.R.E. program.

On June 4, 1992, Wallace publicly announced his candidacy for the office of Polk County Sheriff, and after that announcement and in the course of the campaign, Benware's attitude toward him changed appreciably. First, Benware refused to speak with Wallace for approximately ninety days. Wallace and other witnesses, including Benware's own chief deputy, testified at trial that Benware also began to subtly harass Wallace. That campaign of harassment is the subject of Wallace's section 1983 claim, as he maintains that the harassment was prompted solely by political speech during the campaign that was protected under the First Amendment.

Benware's most immediate reaction to Wallace's candidacy was to remove him from the department's boat patrol. Benware made that decision only one week after Wallace had released campaign literature highlighting his more than ten years of experience with the boat patrol, and despite Wallace's status as the department's only certified marine patrol officer.

Benware then undertook a series of actions that generally made life as a deputy sheriff more difficult for Wallace. For instance, like all other patrol officers, Wallace had been assigned a portable radio that enabled him to maintain contact with a dispatcher when he was away from his squad car. Yet Benware soon ordered Wallace to leave his radio at the office, although at the time, there were anywhere between one and five functioning spare radios available at the office for use by other deputies. No other full-time deputy was asked to leave his portable radio behind when performing patrol duties. Moreover, prior to June 1992, Wallace's squad car had been equipped with a radar unit, which again was consistent with his patrol responsibilities. During that summer, however, Wallace's radar unit malfunctioned and was sent away for repairs. In the interim, Wallace obtained the permission of Chief Deputy Sheriff Steven Moe to use the radar unit kept in the department's spare squad car. But when Benware learned of this, he ordered the unit returned and required Wallace to operate his vehicle without a radar unit. Once Wallace's own radar unit was repaired, it was not returned to him but was used instead by Benware for his own vehicle. Benware testified at trial that nearly every deputy who had patrol responsibilities was assigned a radar unit for his squad car. He conceded, moreover, that Wallace had been assigned patrol responsibilities during the summer of 1992.

Similarly, during his first two years as a full-time deputy sheriff, Wallace had been permitted to keep his squad car on his off-duty days. This was consistent with the department's general practice at the time. During the summer of 1992, however, Benware ordered Wallace to leave his squad car at the office on weekends. This required Wallace to unload his vehicle each Friday afternoon and to have an on-duty deputy drive him the thirty-five miles to his home, thereby taking the on-duty deputy away from his other law enforcement responsibilities. On Monday morning, then, on-duty deputies would again make the trek to Wallace's home to drop off his squad car. Only one other full-time deputy was required to leave his squad car at the office on off-duty days, and that deputy vocally supported Wallace's campaign. After Wallace had been chauffeured back and forth in this way for approximately three weeks, Benware rescinded his order and allowed Wallace to again retain his squad car on off-duty days.

Benware's conduct after June 1992 also hampered Wallace's ability to fulfill his D.A.R.E. responsibilities. During that summer, Wallace ordered materials necessary for his upcoming D.A.R.E. classes. Wallace had routinely placed such orders in the past, and Benware had routinely approved them, as the cost of the D.A.R.E. materials was relatively minor. This time, however, Benware instructed Moe not to order the D.A.R.E. materials Wallace had requested. When Wallace questioned Moe once the materials did not arrive, Moe told him to speak with Benware directly. Wallace did so, and Benware said only that "I will speak to you when I feel like speaking to you." Wallace was therefore required to begin his D.A.R.E. classes without any of the program materials. It eventually became apparent to Wallace that Benware did not intend to approve his purchase order, and Wallace then was able to obtain the necessary materials from a D.A.R.E. instructor employed by the National Parks Service. Benware admitted at trial to directing Moe not to order Wallace's D.A.R.E. materials, knowing full well that the materials were necessary for Wallace to carry out his assigned responsibilities as a D.A.R.E. program instructor.

Moreover, each semester during his first two years as a D.A.R.E. instructor, Wallace had sent a letter to the parents of participating students explaining the purpose of the program. The letter was necessary, he believed, because parents might raise questions with a school district about the presence of a deputy sheriff in the classroom. Benware had been aware of Wallace's practice and had never questioned the letter's propriety. In the late summer or early fall of 1992, however, when Wallace was prepared to distribute his customary letter, Benware would not approve it, explaining only that he would "do it when he felt like doing it." The participating school districts became anxious for Wallace to send the letter, which forced Wallace to explain that Sheriff Benware was withholding his approval. Each school district responded by transferring one of Wallace's earlier letters to its own letterhead and distributing the letter to parents of participating students.

Finally, Wallace previously had been active in a number of other events that were related to the department's D.A.R.E. program. For example, he would speak to student groups on the dangers of drug use and participate in fundraisers. After Wallace became a candidate for sheriff, however, the members of the department no longer informed him of such events, even if a school district or other event organizer had ...

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