Brian W. SWETLIK, Plaintiff-Appellant,
Kevin CRAWFORD, Former Mayor, individually and in his official capacity, et al., Defendants-Appellees.
Argued Nov. 1, 2012.
[Copyrighted Material Omitted]
William Rettko, Rettko Law Offices, Brookfield, WI, for Plaintiff-Appellant.
Gregg J. Gunta, Kevin P. Reak, Gunta & Reak, S.C., Wauwatosa, WI, for Defendants-Appellees.
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
Brian Swetlik is a police detective in Manitowoc, Wisconsin. Swetlik sued the City of Manitowoc, its mayor, and members of its Common Council, alleging that they violated his First Amendment rights by voting to file a termination charge against him with the Manitowoc Police and Fire Commission. The voted after an outside
investigation recommended Swetlik's termination based on its finding that he had been untruthful in statements about the police chief. Swetlik argues that the charges were actually in retaliation for his public criticism of the chief, which he made in his capacity as a union member supporting the union's demands for the chief's resignation. The Police and Fire Commission later dismissed the charges against Swetlik and he was reinstated after a period of paid administrative leave. In the end, it was actually the chief who lost his job.
The district court granted summary judgment for the finding that Swetlik's statements were not protected speech because they did not address a matter of public concern and, alternatively, that the were justified in bringing the charge against him based on the recommendation of the investigation. We agree with the district court on the second ground and affirm on that basis.
I. Factual and Procedural Background
Because we are reviewing a grant of summary judgment, we must view the evidence in the light reasonably most favorable to Swetlik as the non-moving party, and we must give him the benefit of reasonable inferences in his favor. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012). In November 2005, the Manitowoc police brought into custody a man suspected of stabbing a police officer. The central controversy in this case begins with an odd incident involving this suspect's custody. The suspect was apparently refusing to eat, and police officers believed he was mentally unstable. For reasons that are unclear, Police Chief Perry Kingsbury arranged for the suspect's mother to bring him a home-cooked meal at the police station. But the chief's wishes were not relayed to the officers taking the suspect to jail, including Swetlik. Before the home-cooked meal arrived, Swetlik and other officers had already taken the suspect to the county jail for booking. When Chief Kingsbury discovered this, he called the jail and spoke with Swetlik.
This telephone call is at the heart of this dispute. Swetlik said a great deal about this telephone call, both publicly and privately, before he eventually learned that it had been recorded. The actual contents of the conversation are no longer disputed. During the call, Chief Kingsbury explained that he wanted to get the suspect the home-cooked meal, but Swetlik said the jail would not permit outside food. After Kingsbury learned that the suspect's booking process had already begun, the conversation proceeded as follows:
Chief: Okay. Stop the process, bring him back, we've got some more questions to do.
Swetlik: Okay. Should I ask him if he wants to— if he wants to, he might not?
Chief: Well, just— just— why— why can't we just say that hey, we— I'm sorry, we forgot, we've got a few more questions to ask and is there— do you— do you mind coming back over to the department to answer the question?
[Swetlik then asked the suspect if he wanted to come back to the station for food from his mother; the suspect said he did not want any food; Swetlik got back on the telephone with Chief Kingsbury]
Chief: So you didn't do what I asked you to do. You started talking about the food. What I asked you to do is say hey, you mind coming back over and ask a few questions, we forgot about something. And that's okay, you went about it your way, but— and now he doesn't want anything so just let him get booked—
... Just let him get booked and whatever— whatever happens, happens. Okay?
Swetlik: Okay. He'll— he'll— he'll visit with her later, he just—
Swetlik:— he don't— he don't want to eat anything.
Chief: Well, I understand that but we— we— we might have been able to get him a meal, okay. But that's ...