## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 26 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES A. WORRELL, Plaintiff-Appellant,

v. GARY L. HENRY, in his official capacity as District Attorney of the Twentieth Judicial District for the State of Oklahoma, and in his individual capacity; WILLIAM FLOYD "DUB" TURNER, in his individual capacity; FRANK KEATING, in his official capacity as Governer of the State of Oklahoma; ELAINE DODD, in her individual capacity; and MALCOLM ATWOOD, in his individual capacity, Defendants-Appellees No. 98-6219

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 96-CV-718-C)
D. Gregory Bledsoe, Tulsa, Oklahoma, for Plaintiff- Appellant. Lisa Tipping Davis, Assistant Attorney General, State of Oklahoma, for Defendant-Appellee Henry.* The Honorable Dale A. Kimball, United States District Judge for the

District of Utah, sitting by designation. 2 David Lee, Lee & Gooch, Oklahoma City, Oklahoma, (S cott Rowland, Oklahoma State Bureau of Narcotics and Dangerous Drugs, Oklahoma City, Oklahoma, with him on the brief) for Defendants-Appellees Turner, Dodd, and Atwood.

Before HENRY and MURPHY , Circuit Judges, and KIMBALL, District Judge. *

HENRY , Circuit Judge

James Worrell appeals the district court’s grant of summary judgment against him and in favor of the defendants Gary Hen ry, William Floyd “Dub” Turner, Elaine Dodd, and Malcom Atwood on his claim alleging a violation of his First Amendment rights pursuant to 42 U.S.C. § 1983. In the district court proceedings, Mr. Worrell chal lenged Mr. Henry’s withdrawal of an offer of employment to serve as the coordinat or of a drug task force, administered by Mr. Henry in his capacity as Distri ct Attorney for the Twentieth District of Oklahoma. According to Mr. Worrell, Mr . Henry withdrew the offer because of information he received from the defenda nt Mr. Turner, an agent for the Oklahoma Bureau of Narcotics and Dangerous Drug s (OBNDD): Mr. Turner informed Mr. Henry that Mr. Worrell had testified a s an expert witness for the defendant in a murder trial nine years earlier. Mr . Worrell maintained that the3

withdrawal of the job offer constituted retaliation for activity protected by the First Amendment—truthful testimony in the murder tr ial. Applying the balancing test first set forth by the Supreme Court in Pickering v. Board of Education , 391 U.S. 563 (1968), the district court rejected Mr. Worrell’s argument. Noting that Mr. Henry had received information from Mr. Turner that law enforcement officers did not tr ust Mr. Worrell, the court concluded that Mr. Worrell’s interest in testifying was outweighed by the defendants’ interest in administering an effective drug task force. For the reasons set forth below, we agree with the district court’s resolution of the Pickering balancing test with regard to Mr. Henry. However, because the Pickering balancing test has not been applied to individuals who are neither the plaintiff’s employer nor parties to a contract with him, we conclude that the district court erred in analyzing Mr. Worrell’s cla ims against Mr. Turner, Ms. Dodd, and Mr. Atwood. As to those claims, we vacat e the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND In January 1986, attorneys representing the defendant in a capital murder case pending in the District Court of Woodward, Oklahoma asked Mr. Worrell to1 The case was State v. Ellis , No. CRF-85-59, District Court of

Woodward County, Oklahoma. See Aplt’s App. at 313. 4 testify at trial. 1 At the time, Mr. Worrell was employed as a privat e investigator, but he had previously worked as an FBI agent. The lawyers informed him that the case involved the killing of an undercover ONBDD ag ent who had tried to make an arrest. They explained that they were exploring a theory of self-defense: that the murdered ONBDD agent had attempted to arrest th e defendant without displaying any indication of his official authorityand that, as a result, the defendant could have reasonably believed that the a gent was attempting to rob him. Mr. Worrell agreed to testify as a paid expert. On January 30, 1986, he gave the following testimony on direct examination by the defendant’s attorney:

Q: As to the undercover arrest itself, are [sic] th ere any type of standard operating procedure, or basic fund amental course that is taught the officer as to how he is t o go about identifying himself under those circumstances? A: Yes. Whoever is going to make the apprehension must have some form of identification to show that they are a law enforcement officer. They must either wear thei r badge, or they must be in uniform or they must have a jacket. In fact, the FBI have big black armbands w ith white letters on them in addition to their badge. B ut, they must have some identification so that the criminal will realize that you are a constituted authority when y ou make the arrest.

. . . .5 Q: Why would it be necessary for an undercover off icer to specifically show identification in addition to jus t saying that he is an officer? A: Because the criminal doesn’t know unless he sees a symbol of authority. Anybody could hollar [sic] the words [“]police,[”] and without the symbol of authority, the criminal can only assume that somebody is fixing to rip him off, take him down, and he doesn’t know who that is. Aplt’s App. at 242, 245.

The prosecution offered testimony from a supervisin g special FBI agent to rebut Mr. Worrell’s testimony. The FBI agent stated that proper arrest procedure required the law enforcement officer to identify hi mself as an agent but that he did not usually display a badge or other credentials. After hearing all the evidence, the jury convicted the defendant. Howeve r, it rejected the prosecution’s request for the death penalty and imposed a sentenc e of life imprisonment. Mr. Worrell’s testimony in the Ellis case generated considerable anger and resentment among ONBDD agents. Some agents speculated that it was Mr. Worrell’s testimony that kept the defendant from re ceiving the death penalty. Although Mr. Turner had not attended the trial and had not reviewed a transcript of Mr. Worrell’s testimony, he heard from other age nts that Mr. Worrell had testified that “the investigation was basically bot ched from the beginning . . . and . . . because of . . . the poor caliber of the inve stigators, this is what led to [the ONBDD agent’s] murder.” Id. at 111.6

In 1994, Mr. Henry was elected District Attorney fo r the Twentieth Judicial District of Oklahoma. Mr. Worrell applied for an i nvestigative position with Mr. Henry’s office, and some time between January and M arch 1995, Mr. Henry offered Mr. Worrell the position of coordinator of the District Attorney’s drug task force. Mr. Henry wanted the task force to han dle informants and conduct undercover drug investigations. Mr. Henry informedMr. Worrell that he had applied for a grant for the task force from the Vio lent Crime Grant Board and that the job offer was conditioned on the award of the g rant. Mr. Worrell accepted the offer, and Mr. Henry submitted Mr. Worrell’s résumé along with the grant application seeking funding for the task force. Mr. Henry also discussed the drug task force with the defendant Mr. Turner, who was the ONBDD agent in charge of the Ar dmore district. In their initial discussions, Mr. Turner offered the ONBDD’s assistance to task force personnel. He thought that the task force was a “[t]remendous idea,” id. at 115, and told Mr. Henry that ONBDD agents would assist i n training task force employees and getting them admitted into educationa l programs for law enforcement agents. Mr. Turner’s view of the task force soon changed. Although he had heard that Mr. Henry had offered the coordinator positionto Mr. Worrell, he had not initially recognized Mr. Worrell’s name. In May orJune of 1995, an FBI agent7

informed Mr. Turner that Mr. Worrell was the agent who had testified for the defense in the Ellis case. Mr. Turner contacted his supervisors, the d efendant Elaine Dodd (the ONBDD Director) and the defendant Malcom Atwood (the ONBDD agent-in-charge). He told them that he inten ded to withdraw his previous offers of ONBDD assistance if Mr. Henry hi red Mr. Worrell. He explained that he believed that Mr. Worrell had bee n deceitful, that he did not trust him, and that he would not work with him. Ms. Dodd and Mr. Atwood informed Mr. Turner that he would not be required t o work with someone whom he did not trust, and they agreed that he could tal k to Mr. Henry about Mr. Worrell. After speaking with Ms. Dodd and Mr. Atwood, Mr. Tu rner telephoned Mr. Henry. Mr. Henry summarized their conversation as follows:

[H]e had found out that Mr. Worrell was one and the same individual who testified in a murder trial in Woodw ard County, I believe, regarding the murder of an OBN[D D] agent . . . , that he felt like Mr. Worrell had who red himself out to the defense and that he did not trus t him and that he was agent in charge and that he was not goi ng to work with any agency or anybody that he did not trust and he would not put his officers in a position of work ing with anyone he didn’t trust and therefore, all offers, . . . were revoked if Mr. Worrell went to work for me. Id. at 146.

After conferring with a colleague at the District Attorney’s Council and an FBI agent, Mr. Henry decided to rescind the job off er he had made to Mr.8

Worrell. In explaining his decision, he told Mr. W orrell that he was concerned not with the testimony in the Ellis case but rather with the fact that the ONBDD “was not going to cooperate or coordinate with the Task Force and that [he] felt that cooperation and coordination was essential.” Id. at 149. In deposition testimony, Mr. Henry further explained: [T]he grant that was awarded was only $90,000, about half of what we asked . . . . I would be able to hire tw o agents and help fund possibly a third. But without the cooperation, coordination, assistance, and training , intelligence from the Bureau of Narcotics, I didn’tfeel it would be a viable task force.

. . . . The major brunt of our drug program in the 20th District Attorney’s District is confined to the Ard more area. When you’re doing a Task Force, you don’t want to hire as agents police officers that everybody in th e whole part of the state knows are cops and then put them in the field doing undercover work. You need to bring in p eople who are new and outsiders. Bringing in individuals such as Mr. Worrell and others who came in and had no knowledge of the operations, no knowledge of the people, no knowledg e of the drug community, who would then be thrown out th ere without any kind of cooperation or coordination fro m the one agency that specializes in that operation would be an impotent organization and would not be able to func tion. I was saddled with and was vested with the responsibility of tens and thousands of dollars of federal grant money that I wanted put into a viable operati on and I was not going to have it put into something where you have two agents sitting in an office and waiting an d hoping for the phone to ring, which is what would have bee n the9 situation had Mr. Worrell been there without the cooperation of these agencies, and I was not going to do that. Id. at 148.

In March 1997, Mr. Worrell filed the instant action . He named Mr. Henry, Mr. Turner, Ms. Dodd, and Mr. Atwood as defendants and alleged that the recission of the offer to serve as coordinator of the drug task force violated his right to free speech under the First Amendment. He also asserted state law claims for intentional interference with contractual relat ions and slander. After conducting discovery, the defendants moved fo r summary judgment. In March 1998, the district court granted the defen dants’ motion on Mr. Worrell’s First Amendment claim and dismissed his state law c laims without prejudice. The court began its analysis by assuming that Mr. H enry’s withdrawal of the job offer was based in part on Mr. Worrell’s testimony in the Ellis case. It then applied the balancing test first set forth in Pickering v. Board of Education , 391 U.S. 563 (1968). The court cited evidence thatMr. Worrell’s “presence would have had a detrimental impact on the working relationship between OBN[DD] and the task force” and that Mr. Henry beli eved that “without OBN[DD] cooperation, the drug task force would not be able to function.” Id. at 325. In light of this evidence, it concluded that “[Mr. Worrell’s] interest in exercising his first amendment rights nine years earlier is far outweighed by10

Henry’s interest in providing the citizens of the T wentieth District with an effective drug task force.” Id. at 326. Thus, Mr. Worrell had failed to present a viable First Amendment claim.

II. DISCUSSION
On appeal, Mr. Worrell first challenges the distric t court’s application of the Pickering balancing to the defendant Mr. Henry. He maintain s that the district court erred in finding Mr. Henry’s interests in adm inistering an effective drug task force outweighed Mr. Worrell’s interest in pro viding truthful testimony. Next, Mr. Worrell challenges the district court’s application of the Pickering balancing to the ONBDD defendants (Mr. Turner and h is two supervisors, Ms. Dodd and Mr. Atwood). As to those defendants, Mr. Worrell argues that the fact that they were not his prospective employer and wer e not parties to a contract with him renders the Pickering approach inapplicable. Finally, in the event that we reverse the district court grant of summary judg ment to the defendants, Mr. Worrell urges us to reject the defendants’ contenti on that they are entitled to qualified immunity, even though the district court did not consider that question. He maintains that the interests of judicial economy support the resolution of the qualified immunity issue in this appeal.11

We engage in de novo review of the district court’s grant of summary judgment to the defendants, applying the same stand ard as the district court pursuant to Fed. R. Civ. P. 56. McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir.1998). Summary judgment is warranted if there is no genuine issue as to any material fact and the movin g party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c); Williams v. Widnall , 79 F.3d 1003, 1005 (10th Cir. 1996). We examine the r ecord to determine whether any genuine issue of material fact is in dispute, c onstruing the factual record and reasonable inferences therefrom in the light most f avorable to the non-moving party. See Curtis v. Oklahoma City Pub. Schs. Bd. of Educ. , 147 F.3d 1200, 1214 (10th Cir.1998). If there is no dispute concerning a genuine issue of material fact, we determine whether the district court corre ctly applied the substantive law. Peck v. Horrocks Eng’rs, Inc ., 106 F.3d 949, 951 (10th Cir. 1997). We begin our analysis by reviewing the protections provided to witnesses who testify at trial. We then apply the Pickering balancing to the defendant Mr. Henry. Next, we consider whether the Pickering approach should be applied to defendants (like Mr. Turner, Ms. Dodd, and Mr. Atwo od) who are not the plaintiff’s employer. Finally, we address the ques tion of qualified immunity.

A. Protection of Witnesses’ Testimony12

In order to encourage truthful and uninhibited test imony, the law has long afforded certain protections to witnesses. Under the common law, witnesses were immune from suits for damages for testimony in judicial proceedings. See Briscoe v. LaHue , 460 U.S. 325, 331 (1983). The grant of immunity sought to forestall two kinds of self-censorship. First, abs ent immunity, witnesses might be reluctant to come forward. See id. at 333 (citing Henderson v. Broomhead , 157 Eng. Rep. 964, 968 (Ex. 1859)). Second, witnesses might distort their testimony out of fear of subsequent liability. The grant of immunity thus promoted full disclosure of the relevant facts:

Even within the constraints of the witness’s oath there may be various ways to give an account or to state an o pinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who kn ows that he might be forced to defend a subsequent laws uit, and perhaps to pay damages, might be inclined to sh ade his testimony in favor of the potential plaintiff, to m agnify uncertainties, and thus to deprive the finder of fa ct of candid, objective, and undistorted evidence. But the tr uth finding process is better served if the witness’ te stimony is submitted to the crucible of the judicial proces s so that the factfinder may consider it, after cross- examin ation, together with the other evidence in the case to det ermine where the truth lies. Briscoe , 460 U.S. at 333-34 (internal citations and quotat ions omitted). Considering the common law tradition and Congr essional intent, the Supreme Court has extended witness immunity to § 1983 actions. See id. at 345-46 (noting the “indispensable” role that witnesses play in the adjudicatory process).13

In the last few decades, federal courts have afford ed additional protection to witnesses who are employed by the government, co ncluding that truthful testimony is protected by the First Amendment and that a government employee may not be fired or subjected to other adverse acti on as a result of such testimony. See, e.g. , Melton v. City Oklahoma City , 879 F.2d 706, 714 (10th Cir. 1989), vacated on other grounds , 928 F.2d 920 (10th Cir. 1991) (en banc)); see also Pro v. Donatucci , 81 F.3d 1283, 1291 (3d Cir. 1996); Smith v. Hightower , 693 F.2d 359, 368 (5th Cir. 1982). Those decisions are part icular applications of the “modern ‘unconstitutional conditions doctrine,’ [wh ich] holds that the government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom of speech even i f he has no entitlement to that benefit.” Board of County Comm’rs v. Umbehr , 518 U.S. 668, 674 (1996) (internal citations and quotations omitted); see also Andersen v. McCotter , 100 F.3d 723, 727 (10th Cir. 1996) (explaining the unco nstitutional conditions doctrine and noting that “the Court has recognized a variety of benefits which cannot be denied solely because of the exercise of constitutional rights,” including the offer of a government job). The Fifth Circuit’s decision in Johnston v. Harris County Flood Control Dist. , 869 F.2d 1565 (5th Cir. 1989), provides an overvi ew of the reasons for protecting government employees’ testimony. Absentsuch protection, employers14

seeking to silence truthful testimony could presentemployees with a difficult choice. “Employees could either testify truthfully and lose their jobs or could lie to the tribunal and protect their job security.” Id. at 1578. Either choice would come at too high a price: “Those able to risk job security would suffer statesponsored retaliation for speaking the truth before a body entrusted with the task of discovering the truth.” Id. On the other hand, “[t]hose unwilling or unable t o risk unemployment would scuttle our efforts to arrive at the truth.” Id. Affording constitutional protection to the truthful testimonyof public employees protects both employees’ interest in free expression and the judicial system’s interest in arriving at the truth. Id. ; see also Smith , 693 F.2d at 368 (concluding that the “[F]irst [A]mendment protects the right to testify truthfully at trial” and that such protection is also supported by “the right of a def endant at trial to compulsory process and the goal of our criminal justice systemto arrive at the truth”). Nevertheless, First Amendment protection of public employees’ testimony is not absolute. There are instances in which gove rnment entities’ interests as employers outweigh employees’ interests in free exp ression and the policy of encouraging truthful and uninhibited testimony. See Waters v. Churchill , 511 U.S. 661, 674-75 (1994) (plurality opinion) (“When [an employee] . . . begins to do or say things that detract from the agency’s eff ective operation, the government must have some power to restrain [him].”); Tedder v. Norman , 16715

F.3d 1213, 1215 (8th Cir. 1999) (concluding that employer’s interest in avoiding disruption in the workplace outweighed employee’s i nterest in giving voluntary testimony); Green v. Philadelphia Housing Auth. , 105 F.3d 882, 887-89 (3d Cir. 1997) (same). A public employee’s testimony may impair discipline by supervisors or harmony among coworkers; it may unde rmine close working relationships based on loyalty and confidence; it m ay impede the performance of an employee’s duties or the regular operations of the enterprise. See Rankin v. McPherson , 483 U.S. 378, 388 (1987); Lytle v. City of Haysville , 138 F.3d 857, 863-64 (10th Cir. 1998). In order to assess these various concerns, courts u ndertake a four-part inquiry. See Lytle , 138 F.3d at 863; see also Connick v. Myers , 461 U.S. 138, 142 (1983). First, one considers whether the speech in quest ion addresses a matter of public concern. See Connick , 461 U.S. at 145-49. Only matters of public conce rn, “those of interest to the community, whether for so cial, political, or other reasons,” Lytle , 138 F.3d at 863, are protected by the First Amend ment in this context. Second, one considers the employee’s inte rest in freedom of expression and the “government employer’s interest in regulati ng the speech” of employees in order to maintain an efficient workplace. Id. ; see Pickering , 391 U.S. at 568 (1968). Employee speech is protected only if the e mployee’s interest in free expression outweighs the employer’s interest in restricting the speech. See Lytle ,16

138 F.3d at 863. This weighing of interests is known as “the Pickering balancing.” Third, if the speech is protected, the employee must show that the speech was “a substantial or motivating factor” in the challenged governmental action. Id. ; see Gardetto v. Mason , 100 F.3d 803, 811 (10th Cir. 1996). Fourth, if the employee meets this burden, the employer must b e given the opportunity to show that it would have taken the same action again st the employee even in the absence of protected speech. See Gardetto , 100 F.3d at 811; (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977)). In this case, the parties agree that Mr. Worrell’s testimony, which concerned proper arrest procedures, addressed a matter of public concern. See Lytle , 138 F.3d at 863 (concluding that testimony about properpolice procedures involves a matter of public concern). Moreover, because the d istrict court concluded that Mr. Worrell’s testimony was not protected speech, it di d not reach the third or fourth parts of the inquiry. Accordingly, we focus on the second part of the inquiry—the Pickering balancing. We begin with a review of our preceden t concerning First Amendment retaliation claims involving the testimony of law enforcement agents and then compare it to decisions in other circuits. In Melton v. City of Oklahoma City , 879 F.2d at 714-15, we applied the Pickering analysis to a police officer’s claim that he had b een wrongfully discharged for testifying on behalf of a judge who was the defendant in a criminal17

case. We acknowledged that, if the testifying offi cer’s colleagues disagreed with him as to the propriety of his testimony, then the officer’s testimony might cause disharmony in the workplace. The testimony might also damage close working relationships depending upon loyalty and confidence. However, we added that “truthful trial testimony is unlikely to impair dis cipline by immediate superiors, interfere with the regular operation of the enterpr ise or impede the officer’s performance of his daily duties.” Id. at 714. Significantly, we found the police officer’s interest in testifying at trial “compelling.” Id. at 715. Accordingly, “any disruption or impairment of the enterprise would have to be extreme in order to justify preventing trial testimony.” Id. (emphasis added). Because the municipality offered no evidence that the testimony affected the operations of the department, we concluded that the officer’s First A mendment interest in testifying “easily outweigh[ed]” the municipality’s interest i n preserving the efficiency and effectiveness of its police department. Id. In somewhat similar circumstances, other circuits h ave resolved the Pickering balancing differently. For example, in Green , 105 F.3d at 885, the Third Circuit rejected the plaintiff police officer ’s First Amendment challenge to his transfer out of a drug enforcement task force b ecause he had agreed to testify as a character witness at a bail hearing for the so n of a friend. The Third Circuit concluded that the police officer’s interest in tes tifying was entitled to less weight18

because he had appeared voluntarily. In contrast, the court characterized the interests of the police department as “very significant.” Green , 105 F.3d at 888. “They include successfully fighting drugs and crime , protecting the safety of its officers and other members of the community, foster ing trust and confidence among its officers and between its officers and oth er law enforcement drug units, and protecting the Housing Authority Police Department’s reputation.” Id. The court cited testimony that the police officer’s vol untary appearance had impaired his ability to work with his fellow officers. Beca use of the kind of work performed by the drug task force, “any perceived br each of trust and security could reasonably constitute a threat to the [task f orce], its officers, and its relationships with other police drug units and the community it serves.” Id. at 889. The court concluded that the risk of injury t o the police department outweighed the officer’s interest in providing volu ntary testimony and that, as a result, his transfer out of the task force did not violate the First Amendment. Similarly, in Tedder , 167 F.3d at 1215, the Eighth Circuit rejected a First Amendment challenge to the demotion of a deputy dir ector of a state law enforcement training agency who had given voluntarydeposition testimony that a deputy sheriff had used excessive force. The court resolved the Pickering balancing in favor of the employer, reasoning that the voluntary testimony substantially undermined the relationship between the plaintiff and his supervisor,19

that the supervisor reasonably believed that the te stimony was provided in violation of an agency policy, and that the testimo ny could disrupt the employer’s relationships with the other law enforcement agencies. See id. Melton , Green , and Tedder illustrate the case-specific nature of the Pickering balancing as applied to public employees’ testimony. In stating that the disruption of the workplace must be “extreme” in or der to outweigh the employee’s interest in giving truthful testimony, Melton imposes a somewhat higher burden on employers than the decisions of other circuits.
B. The Pickering Balancing Applied to the Defendant Mr. Henry

(The Plaintiff’s Prospective Employer) In this appeal, Mr. Worrell argues that the distric t court erred in assessing the degree of disruption of the drug agency task fo rce that would have resulted if Mr. Henry had hired him. He therefore maintains that his testimony in the Ellis case was protected by the First Amendment and that Mr. Henry improperly withdrew his offer to serve as the coordinator of the drug task force. Before assessing Mr. Worrell’s challenge to the district court’s Pickering balancing, we must consider his status as a prospective empl oyee. In his appellate brief, Mr. Henry suggests that because Mr . Worrell was not ultimately employed by him and because the subject testimony w as given nine years earlier (when Mr. Worrell was a private investigator), the case law concerning the First20

Amendment rights of public employees is inapplicable. We are not persuaded by this argument. This circuit has applied the Pickering balancing to hiring decisions. See Franklin v. Atkins , 562 F.2d 1188, 1190 (10th Cir. 1977) (“[T]he Rege nts need give no reason for a refusal to hire, and in fact n eed have no reason at all. However, it is equally obvious that they could not refuse to hire for a constitutionally impermissible reason.”) (citation omitted). Other circuits have taken the same approach. See Shahar v. Bowers , 114 F.3d 1097, 1102-03 (11th Cir. 1997) (en banc) (applying Pickering balancing to government employer’s withdrawal of a job offer); Hubbard v. EPA , 949 F.2d 453, 460 (D.C. Cir.1992) (applying the Pickering balancing to a hiring decision and observing that “[m]erely because an employer is hiring rather than firing , however, does not justify unconstitutional action”). These decisions are applicable here. When Mr. Henry decided to withdraw his offer to Mr. Worrell, he acted as an employer r esponsible for the functioning of the drug task force. Accordingly, we conclude that the Pickering balancing provides the appropriate framework for assessing th e parties’ interests and determining whether Mr. Henry violated Mr. Worrell’ s First Amendment rights. Mr. Worrell’s challenge to the district court’s ass essment of workplace disruption under Pickering is based on a distinction between internal and ext ernal21

operations. He maintains that the evidence submitted by the defendants concerned only the disruption of the drug task forc e’s external operations—its relationships with other law enforcement agencies. According to Mr. Worrell, only the disruption of an agency’s internal operati ons may be considered in conducting the Pickering balancing. Mr. Worrell’s argument derives from our decision in Flanagan v. Munger , 890 F.2d 1557 (10th Cir. 1989). In that case, we c onsidered a police chief’s reasons for prohibiting officers from renting sexua lly explicit films: “if members of the public knew that officers were renting them, negative public feelings about the distribution of sexually explicit films would e rode the public’s respect and confidence in the police department.” Flanagan , 890 F.2d at 1566. We noted that the police department had failed to produce any evi dence of actual or potential disruption of the department’s internal operations—because of discipline problems, disharmony, threats to working relationsh ips, or problems with work performance. See id. In that circumstance, we concluded that the disruption of the department’s external operations that might res ult because members of the public were offended could not justify the challeng ed disciplinary action against the police officers. Flanagan is distinguishable from this case. Here, Mr. Henry presented evidence that the effective functioning of the drug task force depended upon “the22

cooperation, coordination, assistance, training, [a nd] intelligence” of the ONBDD. Aplt’s App. at 148. With the support of his superv isors, Mr. Turner informed Mr. Henry that he intended to withdraw that cooperationif Mr. Worrell became the coordinator. Mr. Worrell did not present any evide nce to rebut Mr. Henry’s contention that the task force would be jeopardized . This case thus contains the very kind of evidence lacking in Flanagan

. Moreover, our prior decisions have acknowledged the appropriateness of Mr. Henry’s concerns about Mr. Worrell’s relationsh ips with other law enforcement officers. In particular, we have recog nized that personal loyalty and confidence among employees are especially important in law enforcement. See Lytle , 138 F.3d at 867; Moore v. City of Wynnewood , 57 F.3d 924, 934 (10th Cir. 1995); Wulf v. City of Wichita , 883 F.2d 842, 861 (10th Cir. 1989). These concerns are heightened in smaller offices and depa rtments, where relatively minor disturbances in morale may create significant problems. Lytle , 138 F.3d at 867; Moore , 57 F.3d at 934. Mr. Henry explained that his sta ff was small and that the presence of a coordinator with whom other offic ers would not work would have rendered the task force ineffective. We further note that the unusual and unfortunate ci rcumstances of this case heightened the disruption that might reasonably hav e resulted from the hiring of Mr. Worrell. In the drug task force position, Mr. Worrell would have been23

required to work closely with an agency (the ONBDD) that had employed the murder victim in the Ellis case. Mr. Turner reported, “[T]here were many law enforcement officers who greatly resented Mr. Worre ll for what he did, and who would have refused to work for him.” Aplt’s App. at 102. Although it may well be, as Mr. Worrell suggests in his appellate brief, that these officers’ reactions to Mr. Worrell represented a kind of displaced anger o ver the murder and the failure of the prosecution to obtain a death sentence, see Aplt’s Br. at 11, Mr. Henry was entitled to consider the fact that these officers w ould not cooperate with Mr. Worrell in deciding whether to hire him. Additionally, as Mr. Worrell’s prospective employer , Mr. Henry was not obligated to wait for an actual breakdown in the fu nctioning of the task force before taking action. Instead, he was entitled to rely on reasonable predictions of workplace disruption. See Jantzen v. Hawkins , 188 F.3d 1247, 1258 (10th Cir. 1999). Mr. Henry’s statement that the task force c ould not function effectively if Mr. Worrell were hired is not the sort of “purely speculative allegation[]” that we have condemned. See Moore , 57 F.3d at 934; see also Cragg v. City of Osawatomie, Kan. , 143 F.3d 1343, 1347 (10th Cir. 1998). Instead, M r. Henry’s statement was based on a specific assessment of the cooperation needed in order for the drug task force to serve its purpose. In acknowledging Mr. Henry’s interest in administer ing an effective drug2 Throughout this case, the defendants have noted t hat Mr. Worrell was

not subpoenaed to testify at the Ellis trial and that he appeared voluntarily as a paid expert witness. They have argued that these f acts indicate that Mr. Worrell’s testimony is entitled to less protection under the Pickering inquiry. Although the Eighth Circuit has considered the volu ntariness of testimony as one factor diminishing the employee’s First Amendment interests , see Tedder , 167 F.3d at 1215, we need not address the significance of that factor here. Mr. Henry presented evidence concerning the extreme disruptio n of the task force that would have resulted from the hiring of Mr. Worrell. As a result, Mr. Henry’s interests as an employer outweigh Mr. Worrell’s interests in testifying in the Ellis case— even without any diminishment of Mr. Worrell’ s interests because he testified as a paid expert. We do note that the Fifth Circuit has acknowledged the significant First Amendment protection afforded expert testimony in acase involving University of Texas faculty members. See Hoover v. Morales , 164 F.3d 221, 226 (5th Cir. 24 task force, we do not minimize the importance of Mr . Worrell’s First Amendment interest in providing testimony in the Ellis case. In reviewing the district court’s grant of summary judgment, we must presume that testimony to be truthful. See Curtis , 147 F.3d at 1214 (noting that the court must cons true the record in the light most favorable to the nonmoving party in revi ewing the grant of a summary judgment motion). Acting as a private citizen, Mr. Worrell had a First Amendment right to express his opinion about properarrest procedures. “[T]he goal of our criminal justice system to arrive at the truth, ” Smith , 693 F.2d at 368, and the interests of the parties in the case are furthered by witnesses who provide testimony to assist the trier of fact. Mr. Worrell ’s testimony is thus entitled to “heightened” protection under our precedent. See Lytle 138 F.3d at 867; Melton , 879 F.2d at 714. 21998). That case concerned policies barring state employees from acting as

consultants or witnesses on behalf of parties oppos ing the state in litigation. Applying Pickering , the court held that an employee’s interest in giv ing testimony outweighed the state’s interest as an employer. See id. (“In this case, the State has not identified how the State’s intere st in promoting efficiency of the public services it performs through its employees w ill be adversely affected by allowing state employees to serve as or be retainedas expert witnesses or consultants.”). 25 Nevertheless, those interests did not require Mr. H enry to hire a drug task force coordinator who could not obtain the necessary cooperation from other law enforcement officers. In these circumstances, Mr. Henry has established the degree of extreme disruption, see Melton , 879 F.2d at 714, in law enforcement operations necessary to outweigh Mr. Worrell’s interest in testifying at the Ellis trial. We, therefore, conclude that the district c ourt properly granted summary judgment to Mr. Henry on Mr. Worrell’s First Amendm ent claim.

C.. The Nonemployer Defendants (Turner, Dodd, and Atwood) Our conclusion that the district court properly applied the Pickering balancing to the defendant Mr. Henry does not neces sarily resolve Mr. Worrell’s First Amendment claim against the defendants Mr. Tu rner, Ms. Dodd, and Mr. Atwood. Those defendants all worked for the ONBDD, and, as they acknowledge in their appellate brief, they were not Mr. Worrell ’s prospective employer. They26

also had no direct contractual relationship with hi m.

1. Pickering and Nonemployer Defendants As the parties observe, the Pickering balancing has been most frequently applied to adverse actions taken by employers—indiv iduals like Mr. Henry who have the authority to make hiring and firing decisi ons and take other personnel actions. See, e.g. , Rankin , 483 U.S. at 388-92 (applying balancing approach t o claim against constable for firing deputy constable); Pickering , 391 U.S. at 568- 73 (applying the balancing approach to claim agains t a School Board that dismissed a teacher); Jantzen v. Hawkins , 188 F.3d at 1247, 1256-58 (10th Cir. 1999) (applying balancing approach to claim againsta sheriff who fired a deputy); Prager v. LaFaver , 180 F.3d 1185, 1191 (10th Cir.) (applying the bal ancing appoach to claim against Secretary of a state Department of Revenue who fired a senior tax attorney), cert. denied , 120 S. Ct. 404 (1999). Although courts have occasionally applied the Pickering approach outside the employment setting, those decisions have typically involved some kind of contractual relationship between the plaintiff and the defendant. See, e.g , Umbehr , 518 U.S. at 673-86 (applying the Pickering balancing to First Amendment claim by an independe nt contractor); Copsey v. Swearingen 36 F.3d 1336, 1343-45 (5th Cir. 1994) (applying Pickering to the termination of a vendor’s license); Davis v. West Community Hosp. , 75527

F.2d 455, 461-62 (5th Cir. 1985) (applying Pickering to hospital’s termination of surgeon’s staff privileges). As the plurality explained in Waters v. Churchill , it is the government’s powers and responsibilities as an employer that warrant restrictions on speech that would not be justified in other contexts:

The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as a s overeign to a significant one when it acts as employer . The government cannot restrict the speech of the public at large just in the name of efficiency. But where th e government is employing someone for the very purpos e of effectively achieving its goals, such restrictions may well be appropriate.
Waters , 511 U.S. at 675 (emphasis added). Similarly, whe n the government acts as a contractor, “its interests as a public service provider, including its interest in being free from intensive judicial supervision of its daily management functions, are potentially implicated.” Umbehr , 518 U.S. at 678.

In this case, although Mr. Henry wanted the coordin ator of the District Attorney’s drug task force to work closely with ONB DD agents, the ONBDD did not employ the coordinator. The authority to reest ablish the task force, to seek funding for it, to hire Mr. Worrell and then to res cind that offer of employment belonged to Mr. Henry, not the ONBDD defendants. T he evidence submitted by the ONBDD defendants indicates that they, like Mr. Henry, were concerned about28

providing effective law enforcement. However, the functioning of the drug task force was Mr. Henry’s responsibility. In instances in which a public employee alleges that an official outside the employing agency has engaged in retaliatory conduct , there are serious risks in applying the Pickering approach to define the scope of the employee’s Fir st Amendment rights. Our decision in Flanagan , 890 F.2d at 1566-67, suggests one such risk. There, we referred to the Supreme Court ’s rejection of “a heckler’s veto” in First Amendment cases. Id. We concluded that a police department could not justify disciplinary action against the p laintiff police officers simply because some members of the public found the office rs’ speech offensive and, therefore, might not cooperate with the police department in the future. See id. Applying Pickering to public officials outside the employing agency a nd not parties to a contract with the plaintiff would raise the possibility of an analogous kind of veto—a veto over personnel or contractual decisions. In particular, acting with retaliatory intent, a third party upon whose cooperation the employer depended could refuse to cooperate with th e employer unless a particular employee were fired, demoted, or transfe rred. By withholding cooperation, the third party could effectively create the very workplace disruption that, under the Pickering approach, could be used to justify the limitation of First Amendment rights. Cf. Hughes v.Whitmer , 714 F.2d 1407, 1434 (8th Cir. 1983)29

(McMillian, J., dissenting) (concluding that “[i]t would be anserine to permit the government to discipline its employees because of d isruption caused by the government’s repressive reaction to the employee’s first amendment activities”). Moreover, employer defendants like Mr. Henry and th ird party defendants like the ONBDD agents may have very different relat ionships to the speechengendered workplace disruption that is often central to the Pickering analysis. An employer defendant responsible for managing the workplace will often have first-hand knowledge of the degree of disruption caused by the plaintiff’s speech and its effects on the functioning of the agency. See Waters , 511 U.S. at 673 (noting the “substantial weight [afforded to] government employers’ reasonable predictions of disruption”). Additionally, employe r defendants will often be unable to avoid that disruption. In contrast, a no nemployer defendant, although able to cause disruption by refusing to cooperate w ith the plaintiff’s employer unless certain personnel action is taken, may have little first-hand knowledge about how the protected speech will affect the func tioning of the employing agency. Because a nonemployer defendant works for another agency, he or she may be able to avoid the effects of the disruption caused by the withdrawal of cooperation. These differences are illustrated by the contrast i n the evidence submitted by Mr. Henry and the ONBDD defendants regarding the effects of hiring Mr.30

Worrell for the drug task force position. As we have noted, Mr. Henry made a compelling case concerning the disruptive effect th at such a hiring decision would have had on the drug task force. He pointed to the fact that his small and underfunded drug task force depended on the cooperation of ONBDD agents and thus could not function with a coordinator (like Mr . Worrell) with whom the ONBDD agents would not work. In contrast, Mr. Turne r (who was not personally responsible for the operation of the task force) di d not testify as to the effect that Mr. Worrell would have had on the task force itself. Instead, Mr. Turner stated that “I could not trust [Mr. Worrell] and did not a nd do not believe that my agency could effectively carry out our mission of e nforcing drug laws and carrying out undercover operations if Mr. Worrell h ad been the Task Force Director.” Aplt’s App. at 101. That statement is open to some debate. The record indicates that the task force had not existe d for several years before Mr. Henry’s election as District Attorney, and there is no indication that the ONBDD’s operations were adversely affected during that period. Moreover Mr. Turner’s threat to withdraw the offer to cooperate with the task force appears to be based on the assumption that the ONBDD could fun ction independently of the task force. Because the ONBDD defendants did not themselves employ Mr. Worrell they were unable to present the persuasive evidence of workplace disruption that Mr. Henry presented.3 We acknowledge that there may be instances in whi ch the operations of a

third party agency are so intertwined with the oper ations of the employing agency that the Pickering balancing should be applied. In other contexts, c ourts have held that one company or agency may be held liable for another company or agency’s wrongful conduct if the companies or agenc ies constitute a “single employer.” See Knowlton v. Teltrust Phones, Inc. , 189 F.3d 1177, 1184 (10th Cir. 1999) (applying the single-employer test); Lockard v. Pizza Hut, Inc. , 162 F.3d 1062, 1070 (10th Cir. 1998) (same). “The sing le-employer test rests on four factors: (1) interrelation of operations; (2) centr alized control over labor 31 In distinguishing third party agencies from employe rs and contractors, we do not intend to discount the important interests n oted by the ONBDD in this case. We agree with the ONBDD defendants that thei r agency has a strong interest in providing effective law enforcement. I t is certainly conceivable that an outside agency’s hiring of a person whom ONBDD agents did not trust could have a detrimental effect on ONBDD operations. Neverthe less, under the Oklahoma law outlined by the parties, none of the ONBDD defe ndants had any authority over personnel decisions made by the District Attorney about the drug task force. When Mr. Turner spoke with Mr. Henry about Mr. Worr ell, he therefore acted neither as an employer nor as a contractor. Moreov er, as discussed below, there is a factual dispute as to whether Mr. Turner acted with retaliatory intent. To equate the ONBDD’s interests in these circumstances with the interests of agencies that possess the authority of an employer or contracting party would extend the Pickering approach beyond the limits that our precedent has recognized. 3relations; (3) common management; and (4) common ow nership or financial

control.” Knowlton , 189 F.3d at 1184. “[T]he heart of the inquiry is whether there is an absence of an arms-length relationship among the companies.” Id. Although this test has been most frequently applied to private co mpanies, some courts have adopted a similar approach with regard to government agencies. See E.E.O.C. v. State of Illinois , 69 F.3d 167,171-72 (7th Cir.1995) (rejecting alle gation that “the State of Illinois so extensively controls the emplo yment of teachers by the local school districts that are their nominal employers s o as to be the real . . . employer”). Here, the ONBDD defendants have not argued that the operations of the District Attorney’s office and the ONBDD were s o intertwined that they should be considered a single employer. Accordingl y, we need not decide whether a “single employer” approach may be applied such that nonemployer defendants may be afforded the benefit of the Pickering balancing. 32 2. A Framework for Analyzing First Amendment Claim s Against Nonemployer Defendants Accordingly, we conclude that an alternative to the Pickering balancing is warranted when allegations of retaliatory conduct a re directed at a defendant who is not the plaintiff’s employer and when there is n o contractual relationship between them. The Eighth Circuit’s decision in Helvey v. City of Maplewood , 154 F.3d 841 (8th Cir. 1998), suggests such an appr oach. In Helvey , the plaintiff alleged that, after she testified a bout an incident involving municipal police officers, the city manag er demanded that she be fired from her job as a bartender. According to the plai ntiff, her employer complied with the city manager’s request. Without applying the Pickering balancing, the Eighth Circuit reversed the grant of summary judgme nt to the city manager,33

concluding that there were controverted factual iss ues as to the city manager’s intent. The court concluded, “[The plaintiff’s] al legation that [the city manager] used his position of authority to cause [the employ er] to fire her in retaliation for the testimony she gave concerning the incident invo lving [the police officers] stated a claim under section 1983.” Helvey , 154 F.3d at 844. The Eighth Circuit’s approach in Helvey resembles one we have adopted in assessing First Amendment retaliation claims agains t defendants other than the plaintiff’s employer. We have stated that “[a]ny f orm of official retaliation for exercising one’s freedom of speech, including prose cution, threatened prosecution, bad faith investigation, and legal har assment, constitutes an infringement of that freedom.” Lackey v. County of Bernalillo , No. 97-2265, 1999 WL 2461, at **3 (10th Cir. Jan. 5, 1999). We have required proof of the following elements: (1) that the plaintiff “was en gaged in constitutionally protected activity”; (2) that the defendant’s actio ns caused the plaintiff “to suffer an injury that would chill a person of ordinary fir mness from continuing to engage in that activity”; and (3) that the “defendant’s ad verse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.” Id. That approach has been followed by other circuits. See, e.g , Mendocino Environmental Center v. Mendocino County , 192 F.3d 1283, 1300-01 (9th Cir. 1999); Bloch v. Ribar , 156 F.3d 673, 678 (6th Cir. 1998).34

In our view, this approach, rather than the Pickering balancing, provides the appropriate framework for assessing First Amend ment claims against a defendant who is neither an employer nor a party to a contract with the plaintiff. By focusing on the protected activity, the effect o f the defendant’s actions, and the defendant’s intent, this approach reduces the r isk of infringement of protected speech that might result from application of the Pickerin g balancing. Under this approach, a defendant who acts with retaliatory int ent to cause an employer to take adverse action will not be able to invoke workplace disruption caused by his or her own conduct to justify the infringement of p rotected speech. On the other hand, if the defendant’s intent in urging adverse a ction against the employee is not retaliatory (e.g., if the defendant identifies legitimate problems with employee’s qualifications or performance) or if the defendant’s conduct did not cause the adverse action, then the defendant may su ccessfully defend the retaliation claim. Thus, under this approach, defe ndants such as the ONBDD officials here may still invoke their interest in p roviding effective law enforcement: if they can show that their motive in allegedly causing the rescinding of the plaintiff’s job offer was to ensu re that the ONBDD could function effectively (rather than to retaliate agai nst the plaintiff for his testimony), then they may defeat the plaintiff’s Fi rst Amendment retaliation claim.35

We now apply this framework to Mr. Worrell’s claims against the ONBDD defendants. Viewing the record in the light most f avorable to Mr. Worrell, we first consider the claim against Mr. Turner and the n proceed to the claims against his two supervisors, Ms. Dodd and Mr. Atwood.

3. Claim Against the Defendant Turner With regard to the claim against Mr. Turner, we con clude that a reasonable factfinder could find for the plaintiff Mr. Worrell on the first element—that Mr. Worrell was engaged in constitutionally protected a ctivity. We have noted above that truthful testimony is protected by the First Amendment. See Melton , 879 F.2d at 714; Lytle , 138 F.3d at 864 n.2. Although Mr. Henry and the ONBDD defendants dispute the truthfulness of Mr. Worrell’ s testimony, we must afford him the benefit of all favorable inferences. See Curtis , 147 F.3d at 1214. Thus, a reasonable factfinder could conclude that, by testifying in the Ellis trial, Mr. Worrell engaged in constitutionally protected activ ity. As to the second element, a factfinder could conclu de that Mr. Turner caused Mr. Worrell “an injury that would chill a pe rson of ordinary firmness from continuing to engage in that activity.” Lackey , 1999 WL 2451, at **3. There is evidence in the record supporting the conclusion th at Mr. Turner caused the withdrawal of a job offer by refusing to cooperate with the fledgling task force if36

Mr. Henry hired Mr. Worrell. Moreover, a factfinde r could conclude that Mr. Turner’s statements that Mr. Worrell was not truste d by a significant section of the law enforcement community could adversely affec t Mr. Worrell’s ability to obtain other positions. The loss of a job and the adverse impact on Mr. Worrell’s career prospects are sufficient to establish the se cond element of the retaliation claim against Mr. Turner. See Suarez Corp. Indus. v. McGraw , 202 F.3d 676, 686 (4th Cir. 2000) (concluding that decisions relating to promotion, transfer, and hiring constitute sufficiently adverse actions to t rigger First Amendment protections). As to the third element (whether “[Mr. Turner’s act ion] was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct,” see Lackey , 1999 WL 2451, at *3 ), there is evidence in the r ecord from which a reasonable factfinder could find retaliatory motive. In particular, Mr. Turner informed Mr. Henry that, because of the Ellis testimony (which we must here assume to be truthful and, therefore, protecte d by the First Amendment), he would not cooperate with Mr. Worrell. Although the ONBDD defendants argue that there were other reasons for the negative asse ssment of Mr. Worrell, there is a factual question as to Mr. Turner’s motive. We emphasize that Mr. Turner may be able to rebut M r. Worrell’s contentions at trial. For example, he may be able to convince the trier of fact that4 At first glance, it may seem counterintuitive that Mr. Worrell has a

viable First Amendment claim against the ONBDD defe ndants, but not against Mr. Henry. However, a similar distinction between defendants is sometimes made in the analogous tort action of intentional in terference with contract. In particular, an at-will employee who has no wrongful termination action against his employer may still be able to assert an intenti onal interference claim against a third party. See Haddle v. Garrison , 119 S. Ct. 489, 492 (1998). 37 Mr. Worrell’s testimony in the Ellis case was not truthful, that his actions were motivated by a good faith belief that Mr. Worrell’s hiring would have an extreme detrimental effect on ONBDD operations, or that his negative assessment of Mr. Worrell was supported by factors other than the tes timony. However, because the record contains evidence from which a factfinder co uld conclude that Mr. Worrell has established each of the three elements of his r etaliation claim against Mr. Turner, we conclude that the district court erred i n granting summary judgment in favor of Mr. Turner on Mr. Worrell’s First Amendment claim. 4

4. Claims against the Defendants Dodd and Atwood With regard to the two other ONBDD defendants, the record is less developed. The evidence presented by the parties o n summary judgment indicates that Mr. Turner informed Ms. Dodd and Mr. Atwood of his plan to talk to Mr. Henry about the decision to hire Mr. Worrell and th at the two supervisors approved this course of action. In their affidavit s, Ms. Dodd and Mr. Atwood38

explain that they told Mr. Turner that they believe d that he should not be forced to work with people whom he did not trust. Under § 1983, a defendant may not be held liable un der a theory of respondeat superior. See Gagan v. Norton , 35 F.3d 1473, 1476 n.4 (10th Cir. 1994). Instead, to establish supervisory liability , a plaintiff must show that “an affirmative link exists between the [constitutional ] deprivation and either the supervisor’s personal participation, his exercise o f control or direction, or his failure to supervise.” Meade v. Grubbs , 841 F.2d 1512, 1527 (10th Cir. 1988) (quotation omitted) (alternation in original). However, in this case, neither the parties nor the district court have distinguished the roles played by each of the ONBDD defendants from the role played by Mr. Henry. More specifically, neither the parties nor the district court have add ressed the question of whether Ms. Dodd’s and Mr. Atwood’s approval of Mr. Turner’ s talking to Mr. Henry about Mr. Worrell constituted sufficient personal p articipation in the alleged retaliation to support a § 1983 claim against them. Additionally, the record contains little factual detail as to these two supe rvisors’ involvement in the challenged actions. Accordingly, we conclude that the resolution of the question of Ms. Dodd’s and Mr. Atwood’s liability, if any, under the retal iation framework set forth above requires further development of the record and an o pportunity by the parties to39

present their arguments. We, therefore, leave it to the district court to resolve the First Amendment claims against Ms. Dodd and Mr. Atw ood upon remand.

D. Qualified Immunity (of Defendant Turner) Finally, Mr. Worrell requests this court to address the issue of qualified immunity. He notes that all of the defendants rais ed the defense of qualified immunity in their summary judgment motions but thatthe district court, in ruling on the merits, did not address that defense. Mr. W orrell contends that, in the event that we reverse summary judgment as to one ormore of the defendants, the interests of judicial economy indicate that we should address the issue of qualified immunity in this appeal rather than allow ing the defendants to reassert the defense on remand. Our precedent allows us to reach the qualified immu nity issue if the parties have had an adequate opportunity to advance their arguments. See Andersen , 100 F.3d at 729 (“Because both parties fully argued the issue of qualified immunity before the district court and on appeal, and becaus e we find that the proper resolution of this issue is apparent, we will consi der this legal question.”). Here, the defendants raised the issue of qualified immuni ty in their summary judgment motions. However, because we have ruled in favor o f the defendant Henry on the40

merits and because we are remanding the claims agai nst Ms. Dodd and Mr. Atwood for further development, we will address onl y the defendant Mr. Turner’s qualified immunity claim. “Under the doctrine of qualified immunity, ‘governm ent officials performing discretionary functions generally are sh ielded from liability for civil damages insofar as their conduct does not violate c learly established statutory or constitutional rights of which a reasonable person would have known.’” Ramirez v. Oklahoma Dept. of Mental Health , 41 F.3d 584, 592-93 (10th Cir. 1994) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)); see also Workman v. Jordan , 958 F.2d 332, 336 (10th Cir. 1992) (“If [defendants’] actions are those that a reasonable person could have believed were l awful, defendants are entitled to dismissal before discovery.”). In order for a r ight to be “clearly established” for purposes of assessing entitlement to qualified immunity: [t]he contours of the right must be sufficiently clear thata reasonable official would understand that what he i s doing violates that right. This is not to say that an of ficial action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlaw fulness must be apparent. Anderson v. Creighton , 483 U.S. 635, 640 (1987) (citations omitted).

Here, Mr. Worrell has alleged that Mr. Turner violated his First Amendment right to testify at trial. Decisions of this circuit have held that the41

right to testify truthfully is clearly established. Langley v. Adams County, Colo. , 987 F.2d 1473, 1479 (10th Cir. 1993) (“The law is c learly established that the ‘First Amendment protects the right to testify truthfully at trial.’”) (quoting Melton , 879 F.2d at 714); see also Lytle , 138 F.3d at 864 n.2 (recognizing the heightened protection afforded trial testimony). As we have noted, we must here afford Mr. Worrell the benefit of the favorable inf erence that his testimony was truthful. Although decisions applying the Pickering balancing have concluded that an employer’s interests may sometimes outweigh the employee’s First Amendment interest in providing truthful testimony, Mr. Turner has identified no controlling authority applying the Pickering approach to the conduct of a third party who is not the plaintiff’s employer or prospe ctive employer and who is not a party to a contract with him. As set forth above, absent such authority, Mr. Turner’s conduct should be assessed under the frame work regarding allegations of retaliation outside the employment context. Under that framework, the defendant’s intent is the key element. “‘An act taken in retaliation for the exercise of a constitu tionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper.’” See DeLoach v. Bevers , 922 F.2d 618, 620 (10th Cir. 1990) (quoting Matzker v. Herr , 748 F.2d 1142, 1150 (7th Cir. 1984)). Moreover, “[t]he42

unlawful intent inherent in such a retaliatory acti on places it beyond the scope of [an official’s] qualified immunity if the right ret aliated against was clearly established.” DeLoach , 922 F.2d at 620. As explained above, viewing the evidence in the lig ht most favorable to Mr. Worrell, a trier of fact could conclude that Mr. Tu rner acted in retaliation for Mr. Worrell’s truthful trial testimony when he advised Mr. Henry that he would not cooperate with the drug task force if Mr. Worrell w as the coordinator. Because the right to testify truthfully is clearly established, see Lytle , 138 F.3d at 864 n.2; Langley , 987 F.2d at 1479; Melton , 879 F.2d at 714, Mr. Turner is not entitled to qualified immunity on this record.

III. CONCLUSION For the reasons set forth above, we conclude that the district court properly granted summary judgment in favor of the defendant Mr. Henry on the plaintiff Mr. Worrell’s First Amendment claim. However, the district court erred in granting summary judgment to the defendants Mr. Turner, Ms Dodd, and Mr. Atwood. On this record, Mr. Turner is not entitledto qualified immunity on Mr. Worrell’s First Amendment claim. Accordingly, the district court’s order is AFFIRMED in part, VACATED in part, and REMANDED for proceedings consistent with this opinion.43