The opinion of the court was delivered by: Reagan, District Judge
Defendants in this 42 U.S.C. § 1983 case have filed a motion for summary judgment based on a qualified immunity defense. (Doc. 81.) Because Plaintiffs raise issues of fact as to whether a constitutional right was violated, and because the Defendants fail to meet their burden of persuasion on the second part of the qualified immunity analysis, the Court will deny Defendants' motion.
Plaintiffs were police officers in the Police Department of Defendant Village of Cahokia, Illinois, with Steinkamp beginning his service in 1994, Heine in 1997 and Bastilla in 2002. Steinkamp was an officer of the Fraternal Order of Police, the police officers' union, and Bastilla and Heine were members. Defendant Watson is the Chief of Police; before being appointed to his position by then-newly-elected mayor Frank Bergman in April 2003, he was a sergeant on the force. Defendants Sample, Callahan and Wood are members of Defendant Cahokia Board of Fire and Police Commissioners. In hearings before the Board on October 26, 2003 and December 23, 2003, on the complaint of Watson, Plaintiffs were terminated from their positions as police officers. The board stated that it based its decision on the fact that Plaintiffs resided outside the village limits despite a requirement to reside within village limits.
Plaintiffs believe that the stated reason for the termination, the residency requirement, was a pretense to terminate them for their opposition to the residency requirement in union meetings, a residency requirement that had become political due to the support of the newly elected mayor, newly promoted Watson, and the chairman of the Board, Callahan. Plaintiffs then brought this 42 U.S.C. § 1983 case against Watson, the Village and the Board and its members, seeking damages for retaliatory termination in violation of their rights under the First Amendment. The case was stayed in this Court for several years while collateral but related state cases were resolved.
The standard on a summary judgment motion is well established. Courts should grant summary judgment to the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party that moves for summary judgment "bears the initial responsibility of informing a court of the basis for its motion," meaning that it must identify the materials listed in Rule 56(c) that "demonstrate the absence of a genuine issue of material fact." Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may do so by "pointing out . . . that there is an absence of evidence to support the non-moving party's case." Id. (quoting Celotex Corp., 477 U.S. at 325).
Once the moving party satisfies its burden, "the non-moving party must do more than raise a metaphysical doubt as to the material facts" if it wants to defeat summary judgment. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-moving party cannot rest on the pleadings but must respond, with affidavits or other materials under Rule 56(c), setting forth specific facts that show a genuine issue for trial. Fed. R. Civ. P. 56(e); Oest v. Ill. Dep't of Corrections, 240 F.3d 605, 610 (7th Cir. 2001) (quoting Fed. R. Civ. P. 56(e)). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-moving party must also be careful as to what Rule 56(c) materials it proffers to the Court, as "conclusory allegations and selfserving affidavits, if not supported by the record, will not preclude summary judgment." Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir. 1999) (citing Darnell v. Target Stores, 16 F.3d 174, 176--77 (7th Cir. 1994)). The non-moving party does have one benefit, though, in that the Court must construe the Rule 56(c) materials in the non-moving party's favor, including all reasonable inferences from those materials. Keri, 458 F.3d at 628.
As Plaintiffs raise issues of fact as to whether a constitutional right has been violated, summary judgment is inappropriate.
The defense that Defendants raise, qualified immunity, is a defense available to government officials that perform discretionary functions. The defense balances two important policy concerns: holding governmental officials accountable for the irresponsible exercise of power without exposing them to harassment, distraction, or liability when performing their duties reasonably. Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). The immunity comes into play if the official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This immunity is not simply from liability but from suit. Id. As "[t]he driving force behind creation of the qualified immunity doctrine" was to resolve insubstantial claims before discovery began, the Supreme Court has repeatedly "stressed the importance of resolving immunity questions at the earliest possible stage in litigation."*fn1 Id. (internal quotation marks omitted) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam); Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). Traditionally, qualified immunity is evaluated under a two-pronged test, evaluated in order. Id. at 815 (citing Saucier v. Katz, 533 U.S. 194 (2001)). First, the Court looks to see if, depending on the stage of the litigation at which the defense is asserted by motion, the plaintiff has alleged enough facts or the record supports enough facts to conclude that a constitutional right has been violated. Id. at 815--16 (citing Saucier, 533 U.S. at 201). Second, the Court looks to see if that constitutional right is one that has been clearly established at the time of the misconduct. Id. at 816 (citing Saucier, 533 U.S. at 201). Pearson changed the mandatory nature of the order of inquiry, allowing the Court to exercise discretion in deciding which prong of the test to examine first. See id. at 821 ("Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking will best facilitate the fair and efficient disposition of each case.").
Taking a cue from Pearson, Defendants urge the Court to evaluate the issue under the second prong. Oddly enough, however, they do not argue the second prong. Even though they say that they are arguing that the Defendants did not violate a clearly established Constitutional right, the only arguments they actually raise are the following: first, that the supposed protected speech was part of the Plaintiffs' job duties and is therefore not protected; second, that the speech addressed matters of private, not public, concern, and is therefore not protected; and third, that the evidence demonstrates that the motivation behind Plaintiffs' termination was "because Plaintiffs failed to comply with a residency requirement that Defendants believed was in force and effect and because Plaintiffs made misleading statements to the Police Chief about their residency." (Mem. of Law 4.)
These arguments attack two of the three elements that the Plaintiffs must prove in their § 1893 claim. SeeSpringer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008) ("To prevail on their § 1983 retaliation claim, the [plaintiffs] need to prove (1) that they were engaged in constitutionally protected speech . . . and (3) that the adverse actions were motivated at least in part as a response to the plaintiffs' protected speech." (citing Mosely v. Bd. of Educ. of Chi., 434 F.3d 527, 533 (7th Cir. 2006))). Defendants are not arguing that the asserted violated constitutional right-employment retaliation due to protected speech-was not clearly established. Instead, the Defendants argue that there was no constitutional violation in the first place, pointing to both their version of events in the record and arguing that Plaintiffs version of events would not be a constitutional violation even if true. Defendants' arguments are really first prong arguments in second-prong-argument clothing. Accordingly, the Court will treat their argument under the first prong of Saucier.
The Seventh Circuit recently examined a First Amendment retaliation case involving a police union. Bivens v. Trent, No. 08-2256, 2010 WL 22369 (7th Cir. Jan. 6, 2010). Bivens was assigned to be range officer in charge of a firing range of the Illinois State Police and was in charge of all aspects of the range's operation, including keeping the range clean and in good working order. Id. at *1. During his tenure at the range, he contracted lead poisoning. Id. After reporting the lead contamination up the chain of command, he also reported his concerns to his union. Id. The range was closed for cleanup for several years, and the cleanup received media attention. Id. The Illinois State Police soon terminated Bivens, and he brought suit accusing them of retaliatory termination due to his report to the union causing the range closure, which in turn embarrassed the department. Id. at *2. In defense, the Bivens defendants argued a lack of a Constitutional violation. The Bivens defendants argued that Bivens was foreclosed under the doctrine of Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that there is no Constitutional violation when the retaliated speech was part of the plaintiff 's official job duties. Bivens, 2010 WL at *3 (citing Garcetti, 547 U.S. 410). The defendants also argued that Bivens's grievance was purely private and was thus not protected as a matter of public concern. Id. at *3. The Seventh Circuit agreed on both counts. First, the condition of the firing range was part of Bivens's job, so he had a duty to report on its condition. Id. at *4. ...