Argued: May 8, 2015.
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Defendant Margaret Ackley, Police Chief of New London, Connecticut, appeals from the order of the United States District Court for the District of Connecticut (Shea, J.) denying her motion for summary judgment to have the suit dismissed by reason of her qualified immunity. The suit, brought by a police officer under 42 U.S.C. § 1983, claims unconstitutional retaliation for his criticisms of the defendant's performance as chief. Held, the district court erred in denying qualified immunity because there was no clearly established precedent at the time of the defendant's conduct that her conduct violated constitutional norms.
REVERSED and REMANDED.
MICHAEL J. ROSE, Rose Kallor, LLP, Hartford, CT, (Allison L. Pannozzo, on the brief), for Defendant-Appellant.
CHRISTINE S. SYNODI, Synodi & Videll, LLC, Waterford, CT, for Plaintiff-Appellee.
Before: LEVAL, LOHIER, and DRONEY, Circuit Judges.
Leval, Circuit Judge.
Defendant Margaret Ackley, Chief of the New London Police Department (" NLPD" ), appeals from the order of the United States District Court for the District of Connecticut (Shea, J. ) denying her motion for summary judgment on the ground of qualified immunity. The plaintiff, Todd Lynch, a police officer and a member and officer of the police union, alleges under 42 U.S.C. § 1983 (as well as making claims based on Connecticut law) that Ackley violated his First Amendment rights by retaliating against him for various episodes of speech critical of Ackley's performance as Chief. Ackley moved for summary judgment dismissing the § 1983 claims by reason of qualified immunity. The district court concluded that Lynch made a prima facie case for unconstitutional retaliation and that factual issues in dispute prevented the court from ruling on whether Ackley was entitled to qualified immunity under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The court therefore reserved decision on Ackley's qualified immunity defense until a jury could resolve the factual issues at trial.
The court did not correctly apply the law for determining whether a state actor is entitled by reason of qualified immunity to dismissal of a suit charging her under § 1983 with unconstitutional conduct. The defendant was entitled to have the court construe disputed facts in the light most favorable to the plaintiff and dismiss the claim if, at the time of the defendant's conduct, the law was unclear whether the facts, so construed, constituted a violation of the plaintiff's constitutional rights. We conclude that Ackley established her entitlement to summary judgment on Lynch's § 1983 claims by reason of her qualified immunity.
I. Factual Background
Plaintiff Lynch has been a New London patrolman and canine handler (K-9) since 2007, having previously served in the Connecticut State Police. In March 2011, he became Vice President of the New London Police Union, AFSCME Local 724 (the " Union" ), and became President in November 2011. Defendant Ackley has been
Chief of the NLPD since June 2009. Lynch submitted evidence showing that over a period of roughly three years beginning in August 2010, he spoke on eight occasions, either publicly or in union meetings, criticizing Ackley's performance of her responsibilities, and evidence sufficient for a factfinder to find that Ackley retaliated. Those episodes of speech and associations by Lynch and Ackley's alleged retaliatory actions were as follows.
(1) In August 2010, Lynch advocated among the union membership that the Union assert a grievance protesting Ackley's uninvited presence at a union meeting convened to discuss the NLPD's flex-time policy. Lynch asserts that, as retaliation, the department, claiming to be acting in compliance with the terms of the Union's collective bargaining agreement (the " CBA" ), revoked compensation time accrued by him and by two other K-9 officers.
(2) At a September 2010 union meeting, Lynch asked that the Union consider a no-confidence vote against Ackley, expressing lack of confidence in her leadership. Later that month, Lynch was denied paid leave to attend the funeral of a former state police classmate, and was not allowed to attend a K-9 conference. He was also advised in October that he would not receive a $500 insurance stipend because he had not properly opted out of his insurance plan during the open enrollment period.
(3) In June 2011, the Union, with Lynch now serving as Vice President, endorsed the mayoral candidacy of City Councilor Michael Buscetto, who was an openly avowed critic of Ackley. In August and September 2011, in alleged retaliation Ackley sent emails to Kathleen Mitchell, a local political commentator, suggesting that Mitchell submit Freedom of Information requests to obtain civilian complaints filed against Lynch and the NLPD's K-9 unit.
(4) In September 2011, the Union sponsored a paid advertisement in The Day, a New London newspaper, titled " Open Letter to the Citizens of New London," which questioned Ackley's leadership and asserted that her lack of judgment was negatively affecting police operations and public safety. The following day, Ackley sent Mitchell an email suggesting that she investigate Lynch's time sheets from the time of his service in the Connecticut State Police. In October, Ackley eliminated the day shift to which Lynch was assigned. Ackley later ordered Deputy Chief Marshall Segar to investigate Lynch's use of union-business leave.
(5) In February 2012, Lynch wrote to the mayor accusing Ackley of violating New London Executive Order No. 004, which prohibits officers from inquiring ...