*Judge of the United States Court of International Trade,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-10046

_____________________

ARMANDO H. GONZALES,

Plaintiff-Appellee,

versus

DALLAS COUNTY, TEXAS, ET AL,

Defendants,

AURELIO CASTILLO and CONNIE KIRBY,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

_________________________________________________________________

May 4, 2001

Before JOLLY and DAVIS, Circuit Judges, and RESTANI* Judge.

E. GRADY JOLLY, Circuit Judge:

The district court denied qualified immunity to these

defendant-appellant Dallas County, Texas constables. They are

alleged to have discharged the plaintiff-appellee, Armando

Gonzales, in retaliation for his exercising his First Amendment

rights. We reverse the district court’s order. Although it is
2

true that Gonzales engaged in activity protected by the First

Amendment when he testified before a grand jury investigating

corruption in the constable’s department, the discharge was

objectively reasonable with regard to Gonzales’s constitutional

rights. We reach this conclusion in the light of Gonzales’s

subsequent conduct of using excessive force and because the record

demonstrates that the discharge was justified on grounds unrelated

to his First Amendment rights and would have occurred

notwithstanding his exercise of such rights.

I

A

In early 1997, Aurelio Castillo, the newly-elected Constable

of Precinct 6 of Dallas County, instructed several of his deputies,

including Armando Gonzales, to solicit “contributions” from several

bail bondsmen. The understanding, according to Gonzales, was that

the bondsmen who gave money to Castillo would receive assistance

from the constable’s department in locating and arresting bondjumpers. Fearing that he would be terminated if he refused to

solicit, Gonzales followed Castillo’s instructions.

By September 1997, Gonzales had become concerned about the

propriety of these contributions and reported the activity to an

assistant district attorney. The Dallas County Grand Jury then

began its investigation and subpoenaed Gonzales. When Castillo

learned of the grand jury investigation, he asked his mother to
 

1In his briefs on appeal, Castillo informed this court that he

was acquitted on the felony bribery charge following a jury trial

in February 2000. 

3

persuade Gonzales to sign a statement that he had no knowledge of

solicitations from the bail bondsmen. Gonzales refused to sign,

and when Castillo confronted him personally, Gonzales said that the

prepared statement was false and that he would not perjure himself.

Gonzales testified before the grand jury, which in October 1997

returned an indictment against Castillo for the felony offense of

bribery.1 

B

In mid-November, about six weeks after being indicted for

bribery, Constable Castillo learned that deputy Gonzales had been

involved in an altercation while working part-time as a uniformed

security guard at a large supermarket. The following facts are

undisputed: An unarmed man, who was shopping with his seven year

old son, shoplifted several pair of socks worth approximately $30.

While apprehending the shoplifting suspect, Gonzales drew his 9mm

semi-automatic pistol, struck the suspect on the head with his gun,

and twice sprayed the suspect in the face with pepper spray.

(Gonzales argues that such force was necessary under the

circumstances.) The Dallas City Police arrived at the scene and

took the suspect to a hospital where he was treated for his

injuries. Gonzales did not report this incident either to Castillo

or Kirby, but the supermarket manager contacted the constable’s
4

office several days after the incident. 

C

Chief Deputy Constable Connie Kirby was responsible for

investigating all allegations of inappropriate conduct and

submitting written findings and a recommendation regarding

disciplinary action to Constable Castillo. The supermarket manager

advised Kirby that officials from the store’s corporate office had

investigated the incident and determined that Gonzales’s conduct

(as well as that of the assistant store manager who was on duty

when the incident occurred) was inappropriate, dangerous, and

“stupid.” Specifically, they found that Gonzales had violated

store policy by employing excessive force in apprehending a

shoplifting suspect and by bragging about the incident afterwards.

The corporate office decided that neither the assistant manager nor

Gonzales should be allowed to work at the store again.

In the course of investigating this incident, Kirby

interviewed and obtained statements from Gonzales, the shoplifter,

and three store employees who witnessed the incident. Although

Gonzales contended that he had used force only because it was

necessary to defend himself, several store employees told Kirby

that Gonzales was not in danger. One employee stated that the

shoplifter “at no time tried to fight the officer or the manager.”

Another employee testified that the shoplifter was being detained

by a store employee and appeared to be trying to escape through the
5

door when Gonzales hit him. The shoplifter admitted that he was

“struggl[ing] to get loose” from a store employee but did not

attempt to harm Gonzales. The suspect also stated that he was

handcuffed and lying on the restroom floor when Gonzales sprayed

him with mace the second time. 

Perhaps the most damning account that Kirby heard during his

investigation came from another assistant store manager who arrived

at work shortly after the incident. The assistant manager stated

that Gonzales approached him, telling him that he had “missed all

the excitement.” Gonzales then explained, “in a bragging manner,”

that “A man stole something from the store and tried to escape. .

. . I hit him in the head with my pistol and maced the [expletive

deleted]. When he ran to the back of the store to the restroom to

wash the mace from his eyes, I followed him in there and maced him

again.” 

Chief Deputy Constable Kirby completed his investigation and

submitted a report to Constable Castillo on December 10, 1997. In

this report, Kirby suggested that Gonzales’s actions reflected a

serious lack of judgment and constituted an “unnecessary and

inappropriate use of force” because (1) the alleged offense was

minor and did not warrant the level of force that Gonzales used;

(2) by drawing the pistol, Gonzales increased the likelihood that

the suspect could become violent; (3) Gonzales easily could have

lost control of his weapon while wrestling with the suspect; and
 

2The supermarket incident was not the first problem. In

February 1997, Castillo suspended Gonzales for three days for

executing a recalled arrest warrant. During the course of this

investigation, Gonzales apparently admitted that he had not

carefully read the warrant, which had the word “recall” written

across it. Although Kirby recommended that Gonzales’s employment

be terminated, Castillo instead issued a formal reprimand and

suspended Gonzales for three days. Castillo also ordered Gonzales

to report immediately any future incident that could lead to a

complaint against the constable’s office. Gonzales did not contest

this disciplinary action.

6

(4) by using his pistol as a club, Gonzales ran the risk of having

the gun discharge in the supermarket. Moreover, Gonzales’s actions

were inconsistent with the spirit of the precinct’s “zero

tolerance” policy concerning police brutality as well as with the

rule that an officer’s weapon should be drawn only when human life

is endangered. Citing these reasons, as well as Gonzales’s prior

disciplinary problems,

2 Kirby recommended that Gonzales’s

employment be terminated. 

On December 12, 1997, approximately two months after being

indicted for bribery, Constable Castillo decided that Gonzales

should be discharged. In a document entitled “Notice of

Separation,” Castillo remarked that “Due to the nature of the

allegations brought upon Officer Gonzales, I do not have any faith

or confidence [in] him regarding the use of unnecessary . . .

force.” 

D

Gonzales not only disputes Kirby’s factual conclusions but

also raises questions about the manner in which Kirby conducted the
7

investigation. In his account of the incident, Gonzales contends

that the suspect “lowered his head and was attempting to knock me

down by physically striking me with his head and positively causing

bodily injury to me.” He argues that he used force only because it

was necessary to defend himself and arrest the shoplifter.

Although Gonzales was interviewed by Kirby during his investigation

of the incident, he contends that he was not allowed to furnish

evidence supporting his interpretation of the events at the

supermarket. His argument may be summarized as follows.

First, Kirby did not interview Stephen Bynum, the assistant

store manager who was involved in the incident. Bynum testified in

an affidavit that the shoplifter struggled with both of them.

Bynum stated that they were standing between the suspect and the

door and that Gonzales pulled his pistol only after the suspect

began moving quickly toward him. 

Second, according to Gonzales, Kirby interviewed Sergio

Alvarado, a produce clerk who witnessed the incident, but ignored

any statements that supported Gonzales’s account. In an affidavit,

Alvarado stated that the suspect charged at Gonzales with his head

down and began swinging his right arm: “From my view it looked like

he was going to strike Mr. Gonzales in the face.” Alvarado claims

that he told Kirby about the man charging at Gonzales, but when

Kirby prepared a written statement for him to sign, Kirby omitted

the part about the suspect’s attempt to strike Gonzales. 
8

Third, Gonzales faults Kirby for not investigating the

shoplifting suspect’s criminal record. If Kirby had done so,

Gonzales argues, he would have learned that the suspect had a prior

conviction for resisting arrest and attempting to strike a police

officer. 

Fourth, Gonzales was not allowed to interrogate or confront

witnesses whose statements were used to support the decision to

terminate his employment. 

In sum, Gonzales argues that a more complete investigation

would have revealed that he had not used unnecessary force. In his

view, such force was necessary considering that the suspect was

attempting to injure Gonzales.

E

Gonzales did not supinely accept his discharge. A few days

later, he filed a grievance with the Dallas County Civil Service

Commission, which has the authority to review the discipline and

discharge of county employees. On January 26, 1998, the Commission

ordered that Gonzales be reinstated as deputy constable with full

back pay, all benefits, and no break in service. The Commission’s

exact reasons for reinstating Gonzales are not clear. It appears,

however, that the commission found that the pre-termination hearing

did not comply with departmental or county regulations. Although

Gonzales was reinstated with full back pay, he argues that he has

not been reimbursed for his attorney’s fees or for certain
 

3Gonzales has voluntarily dismissed all charges against

Garcia, and the district court has granted partial summary judgment

for Dallas County.

9

consequential damages, such as his mental anguish and the loss of

part-time employment as a security guard. Moreover, Gonzales

claims that he has been “constantly harassed” since his

reinstatement. He alleges, for example, that Castillo and Kirby

have given him an excessive case load and extremely negative

performance evaluation reports. Throughout 1998 and 1999, Gonzales

continued to file grievances with the Civil Service Commission.

II

In April 1998, Gonzales filed the instant complaint under 42

U.S.C. § 1983 seeking damages against Dallas County, Constable

Aurelio Castillo, Chief Deputy Constable Connie Kirby, and Deputy

Constable Alex Garcia, who had assisted Kirby in his investigation

of the shoplifting incident.3 

Gonzales’s principal allegation is that the defendants

retaliated against him because he had testified against Castillo

before the grand jury. Gonzales also included claims for violating

his right to due process, conspiring to obstruct judicial

proceedings under 42 U.S.C. § 1985, violating the Texas

Whistleblower Act, and intentionally inflicting emotional distress.

In December 1999, the district court granted the defendants’

motion for summary judgment in part: (1) the due process claim

because Gonzales had no property interest in his continued
10

employment; (2) the section 1985 claim because there was no proof

of “class-based animus”; (3) the Texas Whistleblower Act claim

because the Act did not create a private cause of action; and (4)

the intentional infliction of emotional distress claim because such

causes of action generally cannot be sustained in the context of

employment disputes. 

Thus, the only remaining claim was Gonzales’s First Amendment

retaliation claim brought under section 1983. The district court,

however, limited Gonzales’s retaliation claim to injuries arising

from his temporary discharge that lasted from December 1997 to

January 1998. 

Castillo and Kirby argued that they were entitled to summary

judgment on the retaliation claim on the basis of qualified

immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 2738, 73 L.Ed.2d 396 (1982)(“[G]overnment officials

performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not

violate clearly established . . . constitutional rights of which a

reasonable person would have known.”). The district court denied

the motion, and Castillo and Kirby now appeal. Thus, the only

issue in this appeal is whether Castillo and Kirby are entitled to

qualified immunity from suit on the First Amendment retaliation

claim.
11

III

A

Gonzales first contends that, because there are disputed

issues of fact, we lack jurisdiction over this interlocutory

appeal. We disagree.

When a public official seeks interlocutory review of an order

denying qualified immunity, this court has jurisdiction to review

the order “to the extent that it turns on an issue of law.”

Lemoine v. New Horizons Ranch & Center, Inc., 174 F.3d 629, 633-34

(5th Cir. 1999). We may therefore determine whether all of the

conduct that the district court “‘deemed sufficiently supported for

purposes of summary judgment met the Harlow standard of “objective

legal reasonableness.”’” Coleman v. Houston Indep. Sch. Dist., 113

F.3d 528, 531 (5th Cir. 1997)(quoting Behrens v. Pelletier, 516

U.S. 299, 313, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996)).

Consequently, on interlocutory appeal the public official must be

prepared to concede the best view of the facts to the plaintiff and

discuss only the legal issues raised by the appeal. Berryman v.

Rieger, 150 F.3d 561, 562-63 (6th Cir. 1998).

The jurisdictional question, then, is whether the record

reflects undisputed facts upon which we may make a determination of

the legal question before us: whether a reasonable public official

could have believed, in the light of clearly established law, that

the specific conduct of discharging Gonzales did not violate his
 

4We emphasize that the legal question is not whether an

officer would have known, in the abstract, that an employee could

not be discharged in retaliation for protected First Amendment

activities. Instead, we must ask whether a reasonable officer

would have known that the specific conduct in issue violated the

plaintiff’s rights. See Anderson v. Creighton, 483 U.S. 635, 641,

107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Harlow, 457 U.S. at

819, 102 S.Ct. at 2739 (“Where an official could be expected to

know that certain conduct would violate statutory or constitutional

rights, he should be made to hesitate; and a person who suffers

injury caused by such conduct may have a cause of action.”). It is

not necessary that there be a prior case holding the particular

action in question unlawful, but “‘in the light of pre-existing law

the unlawfulness must be apparent.’” Petta v. Rivera, 133 F.3d

330, 334 (5th Cir. 1998)(quoting Anderson, 483 U.S. at 640, 107

S.Ct. at 3039).

12

constitutional rights.4 The mere existence of some factual dispute

is not enough to defeat this court’s jurisdiction over an

interlocutory appeal: If the disputed facts are not material to

this legal question, “the denial of summary judgment is reviewable

as a question of law.” Mendenhall v. Riser, 213 F.3d 226, 230 (5th

Cir. 2000). Because this interlocutory appeal turns on a question

of law that can be decided on undisputed material facts, we have

jurisdiction.

B

We begin our analysis by assuming that Gonzales engaged in

speech protected under the First Amendment. We will further assume

that Gonzales suffered an adverse employment action when he was

initially discharged, even though he was ultimately reinstated with

back pay by the county. See Harris v. Victoria Indep. Sch. Dist.,

168 F.3d 216, 220 (5th Cir. 1999)(listing the elements of a First
 

5Because we assume that Gonzales established the elements of

his retaliation claim, we need not address whether his prompt

reinstatement by a county administrative tribunal precludes a

finding of an adverse employment decision. Compare Benningfield v.

City of Houston, 157 F.3d 369, 377 (5th Cir. 1998), and Breaux v.

City of Garland, 205 F.3d 150, 158 (5th Cir. 2000), with Frazier v.

King, 873 F.2d 820, 824 (5th Cir. 1989).

 

6As this court has made clear, First Amendment retaliation

claims are governed by the Mt. Healthy “mixed-motives” framework,

not by the McDonnell Douglas pretext analysis. See Brady v. Fort

Bend County, 145 F.3d 691, 711-12 (5th Cir. 1998); Mooney v. Aramco

Serv. Co., 54 F.3d 1207, 1216 (5th Cir. 1995).

13

Amendment retaliation claim).

5 Assuming these points, we focus on

the principle that a public employer may escape liability by

proving that it would have taken the same adverse employment action

“even in the absence of the protected conduct.” Gerhart v. Hayes,

217 F.3d 320, 321 (5th Cir. 2000)(citing Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50

L.Ed.2d 371 (1977)).6 Thus, under the qualified immunity analysis,

the question is whether it would have been objectively reasonable

for an officer to conclude that terminating Gonzales’s employment

did not violate his rights under the First Amendment because his

November 1997 altercation with the shoplifter would have caused his

termination notwithstanding that he had testified against Castillo

before the grand jury. 

Even though there are some disputes as to what happened in the

supermarket in November 1997, it is not for us to have a factual

resolution of precisely what happened in the store; instead, we

need only determine whether Castillo and Kirby, in discharging
14

Gonzales, acted in an objectively reasonable manner, with respect

to his constitutional rights, notwithstanding the conflicting

accounts of the incident. We thus look to the “employer’s

knowledge, perceptions, and policies at the time of termination.”

Board of County Comm’rs v. Umbehr, 518 U.S. 668, 685, 116 S.Ct

1342, 1352, 135 L.Ed.2d 843 (1996). 

It is also worth noting that we do not require government

employers to make personnel decisions through methods that mirror

court procedures, nor do we necessarily require employers always to

resolve contradictory testimony in favor of the employee. See,

e.g., Waters v. Churchill, 511 U.S. 661, 676, 114 S.Ct. 1878, 1888,

128 L.Ed.2d 686 (1994)(plurality opinion)(recognizing that “there

will often be situations in which reasonable employers would

disagree about who is to be believed, or how much investigation

needs to be done, or how much evidence is needed to come to a

particular conclusion.”). Thus, the fact that Castillo and Kirby

may have relied on hearsay or made credibility determinations

(i.e., that the employees’ accounts of the events were more

credible than Gonzales’s) does not necessarily suggest that the

decision to terminate Gonzales’s employment was unreasonable.

We have also considered Gonzales’s argument that Kirby

carefully edited a witness’s statement in order to put the incident

in the worst possible light. One store employee, Sergio Alvarado,

has stated in an affidavit that he told Kirby that the shoplifter
15

was running toward Gonzales with his arm upraised, but Kirby did

not include this information in the written statement he prepared

for Alvarado to sign. Ultimately, we do not consider Alvarado’s

subsequent affidavit to create a disputed issue of material fact as

to whether Gonzales’s discharge was unreasonable. First, there is

no indication that it was unreasonable to give greater weight to

the several other statements than to Alvarado’s single account.

Kirby had obtained sworn statements from other witnesses who said

that Gonzales was not in danger and that the shoplifter was merely

trying to escape through the door. Second, and more important,

under established police procedures, Gonzales would not have been

justified in drawing his weapon even if the shoplifter had

attempted to strike him. 

Therefore, even assuming that Kirby omitted part of Alvarado’s

testimony when preparing his written statement, we conclude that

Gonzales has presented no material evidence suggesting that Kirby’s

investigation was so incomplete, biased, or otherwise untrustworthy

that a reasonable public official would have been “made to

hesitate,” Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2739, before

terminating Gonzales’s employment.

Likewise, Gonzales has presented no evidence suggesting that

Castillo’s decision to fire him was unwarranted or unusual in the

light of relevant departmental policies. On the other hand, there

is considerable undisputed evidence, as we have suggested above,
16

that Gonzales’s decision to draw his weapon on the shoplifting

suspect (even assuming that the suspect charged at Gonzales)

constituted improper conduct and was cause for termination.

Castillo and Kirby point out, with little or no contradiction from

Gonzales, that (1) in his two and a half years as a deputy

constable, Gonzales had made several questionable decisions,

including the February 1997 wrongful arrest on a recalled warrant;

(2) department policy dictates that officers should draw their

weapons only when life is threatened, and there was no evidence

that the shoplifter posed any serious danger to the store’s

employees or patrons; (3) most of the employees stated that the

suspect did not instigate the physical aggression with Gonzales;

(4) an assistant store manager told Kirby that Gonzales had bragged

about injuring the suspect; (5) the store manager informed Kirby

that she had conducted a thorough investigation and concluded that

Gonzales had used unnecessary force to subdue the shoplifter; (6)

Gonzales’s decision not to inform Kirby of the incident at the

supermarket probably violated Castillo’s direct order to inform him

of such occurrences; and (7) constables from other precincts

submitted affidavits stating that they would have terminated

Gonzales’s employment based on the information Kirby had obtained.

In the light of the record before us, we hold that a

reasonable public official would have believed that the decision to

terminate Gonzales’s employment would not “violate clearly
17

established . . . constitutional rights” because the same

employment action would have been taken even if Gonzales had not

testified against Castillo before the grand jury. Therefore,

Castillo and Kirby are entitled to qualified immunity from suit,

and the district court should have granted summary judgment to the

defendants on that basis with respect to the First Amendment

retaliation claim, which is the only claim before us in this

appeal.

IV

For the reasons set forth above, the district court erred in

denying the defendants’ motion for summary judgment on qualified

immunity grounds. We therefore REVERSE the district court’s order

denying qualified immunity and REMAND the case for further

proceedings not inconsistent with this opinion.

R E V E R S E D and R E M A N D E D.