### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60905

ANTHONY GIBSON, Plaintiff-Appellee Cross-Appellant
v. JEFFREY KILPATRICK, in His Individual Capacity, Defendant-Appellant Cross-Appellee

Appeals from the United States District Court for the Northern District of Mississippi

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges. KING, Circuit Judge: While serving as the Chief of Police in Drew, Mississippi, Anthony Gibson reported Mayor Jeffrey Kilpatrick t o o u t s i d e law enforcement agencies for misuse o f the c ity gasoline card. Months later, Kilpatrick b egan issuing written reprimands to Gibson for a panoply of alleged deficiencies. Gibson subsequently filed a lawsuit alleging unconstitutional retaliation as w ell as state tort law claims. Kilpatrick m o v e d f o r s u m m a r y j u d g m ent, raising the defense of qualified immunity and arguing that the state tort law c l a ims were barred b ecause Gibson fail e d t o c o m ply with state notice requirements. The d istrict court denied the motion with respect to qualified immunity, b u t granted i t with respect to the state tort c laims. Kilpatrick n ow brings this interlocutory appeal of t he district U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

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court’s order denying qualified immunity, a nd Gibson cross-appeals the district court’s dismissal of one of his tort claims. Kilpatrick moves t o dismiss the crossappeal for lack of jurisdiction. We hold that Kilpatrick is entitled t o qualified immuni t y and reverse the district court’s order to the extent that it denied qualified immunity. A dditionally, because we lack j urisdiction to hear G ibson’s cross-appeal, we grant Kilpatrick’s motion to dismiss the cross-appeal.

I. Factual and Procedural Background In 2006, Anthony Gibson applied t o be Chief of Police in Drew, Mississippi. Mayor Jeffrey Kilpatrick o p p o sed Gibson’s a pplication and supported another candidate. The city’s Board o f Aldermen (“ B o a r d ”) r ejected Kilpatrick’s recommendation a nd hired Gibson in A u g u st 2006. As Chief of Police, Gibson reported directly to Kilpatrick and the Board. S ometime within t he first four months o f Gibson’s employm e n t , a subordinate at the police d e p a rtment informed Gibson that Kilpatrick was misusi n g t he city gasoline card to fuel his v ehicle for personal trips. Gibson confidentially reported his suspicions to the Federal B ureau o f Invest i g a tion (“FBI”), Drug Enforcement A gency (“DEA”), 1 Mississippi O f f i ce o f the State Auditor (“OSA”), and Mississippi Attorney General’s Office. His reports to the FBI a nd DEA w ere through contacts with w hom he had w orked i n a n o f f icial capacity on prior occasions. The OSA initiated an investigati o n , and Gibson worked with Investigator Karen Swain to assist in the OSA’s efforts. Because Kilpatrick had to come to the police d epartment t o o btain the gasoline card, Gibson w as able to monitor Kilpatrick’s activities. Gibson instructed two police dispatchers to make l og entries every time Kilpatrick a sked to u se the card, and he ordered a p olice officer to observe Kilpatrick f o l l o w ing receipt of t he card.

1 G ibs on heard rum ors that Kilp atrick m ight be involved in illicit d rugs ; how ever, this allegation w as never inves tigated or s ubs tantiated

. I t d id p rom p t his d ecis ion to con t a c t a t leas t the DEA.
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Gibson and Swain a l s o d irected the city clerk to m onitor r eceipts from Drew’s gasoline provider t o compare them with the information recorded in the log. In September 2008, the investigation concluded, finding that Kilpatrick had misused the city gasoline card, and the O SA ordered Kilpatri c k t o r e pay approximately $3,000 to the City of Drew for his unauthorized use of the card. A p p r o x i m a t e l y n i n e m o n t h s a f t e r t h e c o n c l u s i o n of t h e i n v e s t i g a t i o n , Kilpatrick began entering written reprimands into Gibson’s personnel file. The first reprimand came on June 8, 2009, a nd the reprimand s c o n tinued for o ver two y ears. 2 In addition t o t h e reprimands, Kilpatrick recommended G ibson’s termination to the Board on several occasions, including for i ns u b o r d i nation, lack of visibility i n the community, and failure to work an adequate n umber of hours. On December 1, 2010, G ibson brought this action in federal court against Kilpatrick in his individual capacity, alleging violations of his First Amendment right to free expression under 42 U.S.C. § 1983, and malicious interference with employment and intentional infliction of emotional distress under Mississippi law. Less than a year l ater, o n O ctober 5, 2011, the B o a r d v oted to t erminate Gibson’s employment. Gibson subsequently a mended his complaint to add the City of Drew as a defendant, alleging that the c ity violated his First Amendment rights in retaliation for his filing suit against Kilpatrick.

2 The record contains nine d if f erent rep rim and s of G ibs on f rom Kilp atrick over this p eriod f or, inter alia, G ibs on’s tard ines s to a m eeting becaus e he was d riving to the em ergency room f or m ed ical care; as s is t i n g a neighboring p olice d ep artm ent with a d om es tic violence
s tand

- of f w ithout firs t obtaining p rior ap p roval f rom the Board ; hold ing a s taf f m eeting that
caus ed the city to incur overtim e p aym ents ; and allow ing citizens to p lay bas ketball in the new com m unity center af

ter the Board had ap p roved the cen t e r ’ s us e f or a luncheon f

or city
em p loyees

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Kilpatrick and the City of Drew j ointly moved for summary j udgment on G i b s o n’s First Amendment and state l aw claims. 3 Kilpatrick asserted that h e

was entitle d to qualified i mmunity as t o the First Amendment claim because Gibson’s speech was not constitutionally protected nor were Kilpatrick’s actions objectively unreasonable. As for the state law claims, Kilpatrick a nd the City of Drew argued that Gibson failed to file a notice of claim i n compliance with the Mississippi T o r t C laims Act (“MTCA”), so the claims were barred. See Miss. Code A nn. § 1 1-46-11 (2013). The court “reserved judg m e n t ” a s to whether Kilpatrick had violated G i b son’s constitutional rights and w hether Kilpatrick

was entitled to q u a l i f i ed immunity; however, it entered judgment in the defendants’ favor with respect to the state law tort claims. Kilpatrick m oved for reconsideration of his qualified immunity defense, a n d the c ourt held that Kilpatrick was not entitled to qualified immunity because Gibson’s speech was protected under the First Amendment and the right was clearly established. Kilpatrick timely appeal e d t h e district court’s summary judgment and reconsideration o r ders. Gibson timely c ross-appealed the district court’s dismissal of his state l aw tort claim f or malicious interference with e mployment. Kilpatrick move d to dismiss the cross-appeal for lack o f jurisdiction, and the court ordered that motion to be carried with the case. II. Qualified Immunity A. Standard of Review Typically, a p arty may not immediately appeal a district court’s decision to deny summary judgment, but the denial of a motion for summary judgment based on qualified immunity is a collateral order capable of immediate review. Brown v. Strain , 663 F.3d 245, 248 (5th Cir. 2011). This c ourt has j urisdiction

3 T h e d is trict court d enied s um m ary jud g m ent as to both Kilp atrick and the Cit y o f D rew
. Since the City o f Drew is not p arty to this ap peal, w e d o not ad d res s the m unicip al liability claim

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over such a n order o nly “to the extent that the district court’s order t urns on an issue of law.” Kovacic v. Villarreal , 628 F.3d 2 09, 211 (5th Cir. 2010). We m ay not review a d i s t r i ct court’s decision t o deny q ualified immunity b ased on evidentiary sufficiency on an interlocutory appeal, because such a d e t e r m i n a t i o n is not considered a “final decision.” Johnson v. Jones , 5 15 U.S. 3 04, 313 (1995); Gobert v
. Ca l d w ell , 463 F.3d 339, 344 (5th Cir. 2006). This court “consider[s] only whethe r t h e d istrict c ourt erred in assessing the legal s ignificance of the conduct that t he district court deemed sufficiently s upported for purposes of
summary judgment.” K i nney v. Weaver , 367 F.3d 337, 348 (5th Cir. 2004) (en banc). “Where factual disputes exist i n a n i n terlocutory appeal a sserting qualified immunity, we accept the p laintiffs’ version of the facts a s true.” Id. “In reviewing the district c o u r t ’ s c o n c l u s i o n s c o n c e r n i n g t h e l e g a l c o n s equences—the materiality—of the facts, our review is of course de novo .” Id. at 349. B. Discussion To rebut a defendant’s qualified immunity d e f e n s e, the plaintiff must show: “(1) that the official violated a statutory or co n stitutional right, and (2) that the right was ‘clearly est a b l i s h e d’ a t the time o f t he challenged c onduct.” Ashcroft v. Al-Kidd , 131 S

. Ct. 2074, 2080 (2011) (citation omitted). A court m ay consider either pron g o f the qualified immunity a nalysis first. Pearson v. Ca l l a h a n , 555 U.S. 223, 236 (2009). We begin by addressing the first prong

— whether Kilpatrick’s repriman d s v i olated Gibson’s First Amendment right to free expression. The Su p r eme Court has long held that government employees are not stripped of their right to f reedom of expression by virtue o f t heir e mployment. Connick v. Myers , 461 U.S. 138, 142 (1983); Pickering v. B d. of Educ ., 391 U.S. 563, 568 (1968). This right is not absolute, though, and we utilize a four-pronged test to determine w hether the speech of a public employee is entitled to constitutional p rotection. See Juarez v. Aguilar , 666 F.3d 325, 332 ( 5th Cir.

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2 0 1 1 )

. A plaintiff must establish that: (1) he suffered an a dverse employment decision; (2) his speech i nvolved a matter of public concern; ( 3 ) h i s interest in speaking outweighed the governmental d efendant’s interest in promoting efficiency; and (4) the protected speech motivated the defendant’s conduct. I d. (citations omitted). I n 2 0 0 6 , the Supreme Court added what we have characterized as a “threshold layer” to the second prong of the retaliation test. See Davis v. McKinney , 518 F.3d 304, 312 (5th Cir. 2008) (describing Garcetti v. Ceballos , 547 U .S. 410 (2006)). Under this prong, “ when p ublic employees make statements p ursuant to t heir official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discip l i n e
. ” G a rcetti , 547 U.S. at 421. Whil e t h e c o urt must consider factual circumstances to determine whether speech is official, t he determination is s till a question of law. Charles v. Grief , 522 F.3d 508, 513 n.17 (5th Cir. 2008). Functionally, th i s t h r e s h o l d l ayer has transformed our test, inserting an additional p rong at which we consider whether the s peech was pursuant to the employee’s duties o r as a citizen. In this case, o ur analysis b e g ins a nd ends at this new prong. 4 Because

4 Kilp atrick als o argues that a rep rim and is not an ad vers e em p loym ent action und er the firs t p rong. We as s um e w ithout d ecid ing that a rep rim and is a n a d v ers e em p loym ent action f or the purp os es of a § 1983 claim

. While the Sup rem e Court has clarif ied that, und er Title VII, a p laintif

f m u s t p r o v e that a reas onable em ployee would have f ound the alleged ad vers e em p loym ent action “m aterially ad vers e, ” Burl i ngton N

. & Sa nta Fe Ry. Co. v
. Whi te , 548 U

. S. 5 3 , 6 8 ( 2 006) , this court has not yet d ecid ed w hether the Burl i ngton s tand ard f or ad vers e em p loym ent actions als o ap p lies to F irs t Am end ment retaliation cas es , see D ePree v
. S a u nders , 588 F. 3d 282, 288 ( 5th Cir. 2009) ( exp laining that this circuit has not “ f o r m a l l y ap p lied Burl i ngton to Firs t Am end ment retaliation claim s ”)

. As f or the third p rong, Kilp atrick d id not challenge that in the d is trict court, but the d is trict court cond ucted a balancing of the p arties ’ interes ts and conclud ed that they f avored G ibs on. Kilp atrick d oes not rais e this p rong in his ap p eal. Regard ing the fourth p rong, Kilp atrick as s erts that there are ins uf f icient f acts in the record to s how that the s p eech m otivated his cond uct. We lack j uris d iction to cons id er Kilp atrick ’s argum ents regard ing the f ourth p rong, s ince is s ues regard ing the s uf f iciency of evid ence are f

actual is s ues that m ay not be cons id ered in an interlocutory ap p eal. See G obert , 463 F. 3d at 344. 6 Case: 12-60905 Document: 00512423273 Page: 6 Date Filed: 10/29/2013No. 12-60905

Gibson’s report to law enforcement a gencies was official s p e ech, we must

reverse. We turn fi r s t t o the source of this new prong— Garcetti

. In Garcetti , a deputy district attorney r eviewed an affidavit supporting a search warrant and

co n c l u d ed that t he affidavit contained misrepresentations. See 547 U.S. at 413–14, 421. The attorney reported his concerns to his s upervisors and p rovided

one with a m emorandum. Id. at 414. T h e supervis o r s h e ld a meeting on the matter, but they decided to proceed with the prosecution d espite the a ttorney’s

concerns. Id. The defense move d t o c h a l l enge the warrant and called the attorney to testify at the hearing regarding his observations. I d. at 414–15. The attorney complied, allegedly prompting retaliation from his supervisors. Id. The Supreme Court concluded that t he First Ame n d m e n t did not shield the attorney’s speech from discipline. The Court began i t s a nalysis by clarifying which facts were not dispositive. T he f act that t he attorney “expressed his views inside his office, rather t han publicly,” d id not r e nder his speech unprotected, since “ [m]any citizens do much of t heir talking i n s ide their respective workplaces.” Id. at 420. Likewise, the fact that the “memo concer n e d t h e subject ma t t e r of [ the attorney’s] employment

. . . i s nondispositive. The First Amendment protects some expressions related to the speaker’s job.” Id. at 421 (citations omitted). Ul t i m a t ely, “the controlling f actor

. . . [was] that his expressions were made pursuant to his duti e s as calendar deputy.” Id. As a calendar deputy, it was h is duty to advise his supervisors about h ow to proceed

w i t h p r o secutions, and the investigation of charges and preparation o f memoranda were pa r t o f h is “daily professional activities.” 5 Id. at 421–22. While Garcetti clearly added an additional inquiry into o ur freedom of

5 The Sup rem e Court w as not required to review f ind ings of f

act as to the s cop e of the attorney’s p rof

es sional duties since it w a s u n d i sp uted that the attorney p rod uced the
m em orand um p urs uant to his d uties as a p ros ecutor. G a rcetti , 547 U

. S. at 421. 7 Case: 12-60905 Document: 00512423273 Page: 7 Date Filed: 10/29/2013No. 12-60905

expression analysis, the Court “ did not e xplicate what i t means to speak
pursuan t t o o n e’s o fficial duties, although w e d o know that a f ormal job description is not dispositive

. . . [,] nor is speaking on the subject matter of one’s employment.” W

illiams v. Dallas Indep. Sch. D i st ., 480 F .3d 689, 692 (5th Cir. 2007) (per curiam) (internal citations and quotation m arks omitted) ( hereinafter

“ Williams”

). The Supreme Court acknowledged t hat Garcetti did not “articulate

a comprehensive f

r a m ework for defining the scope of an e mployee’s d uties in cases where there is room for serious debate,” thus signaling that lower courts

m ust flesh o ut t he distinction between official and citizen speech. 547 U.S. a t 424. We have since undertaken this task. I n Williams , we considered whether a memorandum s ent by a school athletic d irector to a scho o l principal about the misuse of athletic funds was official speech. 480 F.3d at 6 89–94. It was undisputed that the director was not required to write memoranda as part of his regular j o b d u t i es, but we nonetheless h e l d t h a t h is speech was m ade pursuant to his official duties. I d. at 693. We reasoned tha t “ [ a ]ctivities undertaken in the course of performing one’s job a re activities pursuant to official duties.” Id. The memorandum concerned matters immediately within his purview as the athletic director—the

use of funds f

or the school a thletic teams and the related accounting procedures. Thus, the speech was made as part of his official duties. Id. at 694. A year later, in Davis , w e held that an information systems auditor spoke pursuant to h er o fficial duties and as a citizen when she s ent a c o mplaint letter to h er supervisors and to the Chancellor of the University o f Texas. 518 F.3d at 307–16. D avis worked for the univers i t y , a nd she conducted an audit of university computers and discovered pornography. 518 F.3d at 307–08. Davis approached vari o u s a d m i n i s t r a tors to address the i ssue, but she considered their
response to be i nadequate. Id. at 308–09. She s ent a c o m p l a i n t l etter to her immediate supervisors and to the Chancellor, in which she noted that she had

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also filed complaints with t he FBI regarding possible child pornography and the EE O C a b o ut workplace discrimination. Id. at 309, 314. Since Davis’s complaints to the FBI and EEOC were clearly made o utside o f t h e c h a i n of

comm a nd, and since her d uties as a n auditor did not require that she communicate with law enforcement, we held that the compla ints constituted citizen speech. Id. at 316. Deciding whether the speech in the letter was made pursuant to Davis’s official duties r equired more careful deliberation since t he lett e r d i s cussed

m u ltiple t opics and had multiple recipients. Id. a t 314. We consider e d additi o n a l f

a ctors, including the relationship between t he speech and the employee’ s j ob, whether the speech w as made within the employee’s chain of command, and w hether the sp eech stemmed f rom special knowledge the employee gained as a result of the employee’s p osition. Id. A portion of Davis’s letter discussed the “ i n a d equate response to her investigation of employees accessing pornography,” which we held amounte d t o o f ficial speech since it involved work that she had performe d a s p a r t of h er duties. Id. at 315–16. However, the r emainder of the letter a ddressed university-wide d iscrimination, favoritism, and the compensation of executives, which constituted citizen speech since it did not concern Davis’s duties as an auditor. Id. at 316. I n a d d i t i o n t o o u r o w n p r e c e d e n t , Kilpatrick urges us to adop t t h e reasoning of the Ninth C ircuit in Huppert v
. City of Pittsburg , 5 74 F.3d 6 96 (9th Cir. 2 009), and apply it to Gibson’s speech. Huppert relied on a 1939 California appellate court decision t o conclude, as a matter of law, t h at a police officer acted pursuant to his official d uties in cooperating with the FBI and testifying before

a grand j ury. Id. at 706–10 ( relying on Christal v. Po l i c e Co m m ’ n of City and Cnty. of S .F. , 92 P.2d 416 (Cal. Dist. Ct. A pp. 1939)). Kilpatrick advocates for this analysis and argues that we may rely on Mississippi’s s tatutory d e finition

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of a law enforcement o fficer to d efine G ibson’s official dutie s as the Chief of Police. 6 In a recent e n banc decision, the Ninth Circuit o verruled Huppert “to the extent that it improperly relied o n a generic job description a nd failed to conduct the ‘practical,’ fact-specific inquiry r e quired by Garcetti .” Dahlia v. Rodriguez ,

— F.3d —, 2013 WL 4437594, at *7 (9th Cir. Aug. 2 1, 2013) (en banc). Garcetti clearly warned against the use of a w ritten j o b d e scription to define an employee’s duties, explaining that Formal job descriptions often b e ar little r esemblance to the d uties
an employee actually i s expected to perform, and the list i n g o f a given task in an employee’ s written job d e scription is neither necessary n or sufficient to demonstrate that conducting the task is within the scope of the employee’s professiona l duties for First Amendment purposes. Garcetti , 547 U.S. at 424–25. The Court was concerned that the u se of a written job description might le a d t o “ e m ployers

. . . [restricting] e mployees’ rights by creating excessively broad j o b d escriptions.” Id. at 424. In Dahlia , the Ninth Circuit hel d that H

uppert ’s reliance on “a b road court-created job description applicable to every member of a profession ” w a s equally as problematic as relying on an employer-created job description. 2 013 WL 4437594, at *7. Y e t , H u p p e r t ’s analysis raises a pertinent question—to what extent s h o u l d

a court c o nsider statutory duties of a police officer in identifying the scope of his

or her official duties? Garcetti was concerned w ith courts l i miting their analysis to the written description of a n occupation, d i vorced from the actual function of the employee. W e have since interpreted Garcetti ’s language as proscribing our exclusive reliance on an employer’s written de scription of duties when

6 M is s is s ip pi law d ef

ines a law enf

orcem ent of

f icer, w hich G ibs on und oubted ly w as , as “any pers on
. . . w hos e p r i m a r y r es p ons ibility is the p revention and detection of crim e, the ap p rehens ion of crim inals [ , ] and the enf orcem ent of the crim inal and traf fic law s of this s tate and / or the ord inances of any p olitical s ubd ivis ion thereof

. ” Mis s. Cod e Ann. § 45- 6- 3( c)

.

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evaluating the merits o f a First Amendment retaliation claim. See Williams v. Riley , 275 F. A pp’x 385, 389 (5 t h C i r
. 2008) (unpublished) (per curiam) (hereinafter “Riley ”). I n Riley , jailers a t a sheriff’s o ffice reported their supervisor’s abuse of an inmate. Id. a t 3 8 7

. T h e only f acts in the record concerning the jailers’ duty to report incidents of fo r ce came from a policy manual; outside of the manual, the job duties of the jailers were “scarcely mentioned.” Id. at 389. We could have “ presumed that an employee’s official job duties at a reasonable s h e r i f f ’s department w ould include reporting crimes perpetrated at work by departme n t m e m b ers,” but the record d id not actually include s uch facts, so we remanded t h e case for further proceedings. Id. at 389–90. Riley does not c ompletely preclud e t h e use of written job descriptions in

a First Amendment inquiry. In Da v i s , w e e xpressly considered a university memorandum that outlined the reporting procedures to be used by auditors in order to understand Davis’s duty to report as w ell as the chain o f command. 518 F.3d at 316. Unlike R iley , the record contained additional facts concerning the duties of auditors, s o our a nalysis was not limited t o the policy memorandum. The memorandum was important to our determination that some of the speech in D avis’s letter to the Chancellor was official, thus showing t h a t t h e re is a proper place for the use o f written descriptions of duties in a First Amendment retaliation analysis. Id. We decline to rely exclusively o n a statutory description of a generic law enforcement officer to d e t e r m i ne the scope of a specific police officer’s official duties. However, we do not exclude written d escriptions of duties or statutory definitions from our analysis. In order to heed Garcetti ’ s a d m o n i tion against solely relying on th e w r i t t e n description of an i ndividual’s occupation, we will consider Mississippi’s statutory l anguage, v iewing it as one factor among many. This is consistent with our holding in Davis

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Turning now to the present m atter, t h e district court concluded that Gibson had shown that Kilpatrick violated his F irst Amendment rights, and in

s o d o i n g , e x p l a i n e d t h at under Davis , Gibson’s reports c onstituted citizen s p e e c h

. The c ourt supported this l egal concl u s ion with the f ollowing f

acts: (1) Gibson

r e p o r ted his suspicions to agencies outside of h is chain of command; (2) t h e r e

was no evidence to show t hat Gibson’s d uties included making reports to the FBI

or D EA; and ( 3 ) t h ere was a lack of e vidence regarding the context in which Gibson reported h is suspicions other than that the reports were confidential. 7 These facts m ake t his c ase s uperficially resemble this court’s d ecision in Davis

. However, Gibson’s speech is complicated by additional factors not fully discussed b y the district court. Although Gibson’s precise job description is not contained in the record, we can consider surrounding facts t o determine whether his speech is related to a ny conceivable job duties. See Charles , 522 F.3d at 514. T h e circumstances s urrounding the i ncident, from how Gibson learned of t h e misuse of the g asoline card to his involvem e nt in the investigation, speak volumes about h is actual duties a s the Chief of Police. First, Kilpatrick’s use of the c ity gasoline card was brought to Gibson’s a ttention through a subordinate. The fact that t he complaint came to him in a professional capacity and through the chain of command reveals that m anaging and r e sponding t o allegations of the m i s u s e o f civic f

unds was likely within the scope o f h is employment. See Davis , 518 F.3d at 313 (citing Williams , 480 F .3d at 694) (considering whether the speech reflects a “special k nowledge” gained by virtue of one’s employment);

see also Briscoe v. Jefferson Cnty. , 500 F

. A p p ’ x 2 7 4, 278 ( 5th Cir. 2012) (unpublished) (per curiam) (holding that the appellant’s use of her “special

7 The d is trict court als o held that, i n t he abs ence of evid ence regard ing G ibs on’s d uties , he w as “m ore lik ely involved [ in] res p ond ing to com p laints f rom p rivate citizens than
m ak ing them him s elf .” H ow ever, this is s p eculation, and not bas ed on f acts in the record

. We
m ay not bas e our decis ions on pres um p tions , regard les s of how logical they m ay be. See Ri l ey , 275 F. Ap p ’x at 389. 12 Case: 12-60905 Document: 00512423273 Page: 12 Date Filed: 10/29/2013No. 12-60905

knowledge” of a record-keeping policy in order to substantiate a complaint is a factor indicating that her speech was official). Second, G i b s o n ’ s d e c i s i o n t o r e p o r t t o a gencies outside of his chain of command does not necessarily show t h a t h e s p o k e as a citizen. Given his position, there was arguably no one e lse t o whom Gibson could confidentially report the i nformation. Gibson was the “chief law e nforcement officer,” see Miss. Code Ann. § 21-21-1, and according to the district c ourt’s findings of fact, the only entities to w hich he could have reported within the chain of c o mmand were Kilpatrick and the Board. Reporting to Kilpatrick—the suspected perpetrator—clearly w a s u ndesirable, while reporting to the Board might have requir e d public disclosure of Gibson’s suspicions, perhaps endangering the subsequent investigation. Indeed, i t appears that once Board members learned of the i n vestigation, one of them informed Kilpatrick. The s tate agencies Gibson contacted may w ell h ave b een t he m ost appropria t e e n t i ties to receive the information, a f

act other courts have found instructive. See Patterson v
. City of Earlington , 650 F. Supp. 2d 674, 680 (W.D. Ky. 2009) (holding that a police

c h i e f ’s report of a mayor’s alleged election law violations to state police is n o t protected because state p olice were the most a ppropriate authority to carry out the investigation); Mantle v. City of Country Club Hills , No. 4:07-CV-55 (CEJ), 2008 WL 3853432, a t *4 (E.D. Mo. Aug. 15, 2008) (holding t hat a police chief’s report of a mayor’s criminal conduct to a municipal court judge is not protected because t he police chief had no departmental supervisor and the judge was the most appropriate authority to whom he could report). 8

8 Kilp atrick argues that G ibs on’s d ecis ion to contact ind ivid uals at the FBI and D EA
w ith w hom he had previous ly w ork ed ind icates that he w en t t hrough p rof es sional channels to m ak e the rep ort. H ow ever, this is unp ers uas ive. G ibs on coul d h a ve contacted thes e ind ivid uals becaus e he had a p ers onal relations hip w ith them by v irtue of the f act that they
m et w hile w ork ing together, w hich w ould ind icate that the s p eech w as p rivate. It is als o p os sible that thes e w ere the only p eop le that G ibs on could cont a c t d ue to a lim ited regional p res ence of thes e fed eral agencies

. We s im p ly d o not k now
. Since there is little evid ence as 13 Case: 12-60905 Document: 00512423273 Page: 13 Date Filed: 10/29/2013No. 12-60905

Third, it appears that Gibson was a ble t o monitor Kilpatrick’s use of the gasolin e c a r d only because Kilpatrick was required to c o me to the police department t o collect it. Gibson fully took advantage of the authority afforded to him as Chief of P o l i c e , and he instructed his police o fficers to participate in the i n vestigation by monitoring Kilpatrick’s activities; he e ven sent a copy of the official police l ogs t o the O SA. Although Gibson does not allege that hi s participation in the investigation is protected, we con s i d e r h i s involvement because it reflects his actu a l authority and ability t o investigate and detect crime. It supports our c onclusion that Gibson was a cting as a law enforcement officer doing his job, not as a private citizen fulfilling his civic duty. F i n a l l y, Mississippi law re i n f o r c e s w h a t t h e f

a c t s s u r r o u n d i n g t h e investigation s how—that his “primary responsibility [was] the prevention and detection of crime

. . . [and] t he apprehension o f criminals.” See Miss. Code Ann. § 4 5-6-3(c). Gibs o n , a s C h i e f of Police, was the City of Drew’s “chief law enforcem e n t o f

f icer” and had “control and supervision of all police officers employed by” the c ity. Id. § 21-21-1. While we are not exclusively relying on the statute’s definition to u nderstand the d u ties of th e C h i e f o f P olice, the statute

w e i g h s in f

avor of finding Gibson’s speech as part of his profession a l responsibilities. Gibson’s argument that reporting illegal activity is the duty o f all citizens, and therefore must c o n s t itute protected c i tizen s peech, does not alter our conclusion. See Garcetti , 5 47 U.S. at 419 (“So l ong as employees are speaking as citizens about matters of p ublic conc e r n , they must face o nly those speech restricti o n s that are necessary for their e mployers to operate efficiently and effectively.”). Other courts have r ightly rejected s i m i l ar arguments. In particular, the D.C. Circuit in Bowie v. Maddox stated that:

to how G ibs on k new thes e ind ivid uals and w hy he contacted them , w e cannot s ay that this f act
w eighs in f

avor of either of

f icial or citizen s p eech.

14 Case: 12-60905 Document: 00512423273 Page: 14 Date Filed: 10/29/2013No. 12-60905

Th e c r i t i cal question under G a rcetti is not w hether the speech at issue has a civilian analogue, but w hether it was performed “pursuant to

. . . official d u t i e s.” A test that a llows a First Amendment retaliation claim to proceed whenever t he government employee can identify a civilian analogue f or his speech is about as useful as a mosquito net made o f chicken wire: [a]ll official speech, viewed at a sufficient level of abstraction, has a civilian analogue. 653 F.3d 45, 48 (D.C. Cir. 2011) (citations omitted). Gibson’ s a r gument functionally reads an unsupported exception into Garcetti ’s holding that “when public e mployees make statements pursuant to their offic i al duties, the employees are n ot speaking as citizens for F irst Amendment purposes, and the Constitution does n ot insulate their communications from employer discipline.” 547 U .S. at 421. He would reverse thi s l a n g u a g e, and i nstead of looking to whether statements were made as p art of an employee’s o fficial duties, he would ask only whether the speech could be classified as citizen speech and, if so, end the inquiry. This is not Garcetti ’s holding. See Bowie , 653 F.3d at 48. Gibson acted as the Chief of Police when he contacted various federal and state law enfo r c ement agencies to report misuse of t h e c i ty g asoline card. Because we conclud e t h a t Gibson acted pursuant to his official j ob duties in making t he reports, we need not c onsider the remaining prongs of the First Amendment retaliation test, since he cannot show that Kilpatrick violated his First A mendment rights. In the a bsenc e of such a showing, Gibson cannot

overcome Kilpatrick’s qualified immunity defense. Thus, the district court erred in denying Kilpatrick’s motion for summary judgment premised on q u a l i fied immunity, and we reverse. I II. Motion to Dismiss The distri c t c o u rt dismissed Gibson’s t o rt claims without prejudice for failure to comply w ith the MTCA n ot ice requirement. Gibson cross-appeals, arguing that t he district c ourt erred i n dismissing his m alicious interference with employment claim, but he d oes not appeal the dismissal with respect to his

15 Case: 12-60905 Document: 00512423273 Page: 15 Date Filed: 10/29/2013No. 12-60905

other tort claims. Kilpatrick moved to dismiss t h i s a p peal for w ant of jurisdiction. We agree. See Finch v. Fort Bend Indep. Sch. Dist

. , 3 33 F .3d 555, 565 (5th Cir. 2003) (declining to e x e r c i s e p endent appellate jurisdiction over a state l a w tort claim in an interlocutory appeal of t he d istr i c t c o urt’s order denying qualified immunity). Accordingly, we grant Kilpatrick’s motion to dismiss Gibson’s cross-appeal for lack of jurisdiction. IV. Conclusion For the f oregoing reasons, we REVERSE the district c ourt’s order denying K i l p a trick’s motion for summary judgment based o n qualified immunit y a n d G R ANT the m otion to d ismiss Gibson’s cross-appeal for lack of jurisdi c t i o n
. Finally, we REMAND the case to the district court f or further proceedings consistent with this opinion. Gibson shall bear the costs of this appeal.

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