United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 ___________

 No. 99-1511

 ___________

R. SCOTT SEXTON; CYNTHIA W. *

SEXTON; KRIS KISTLER; *

PATRICIA KISTLER; GARY *

DUDLEY; JOSEPH FIORINO; *

RICHARD POMEROY; JOHN *

REIFSCHNEIDER; MYRNA *

DUDLEY; CAROLYN FIORINO; *

JANICE POMEROY; * Appeal from the United States

LEE REIFSCHNEIDER; * District Court for the Eastern

 * District of Missouri

Plaintiffs/Appellees * 

 * [PUBLISHED]

v. * 

 * 

RONALD MARTIN, * 

*

Defendant/Appellant *

*

CITY OF DES PERES, MISSOURI *

 *

Defendant. *

 ___________

 Submitted: December 14, 1999

 Filed: April 19, 2000

 ____________
1The Honorable Michael J. Melloy, United States District Court for the Northern

District of Iowa, sitting by designation. 

2The Honorable Lawrence O. Davis, United States Magistrate Judge for the

Eastern District of Missouri, hearing the case by the consent of the parties.

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Before RICHARD S. ARNOLD and HANSEN, Circuit Judges, and MELLOY,1

District Judge. 

 ___________

MELLOY, District Judge

Ronald Martin (“Martin”), former Director of Public Safety for the City of Des

Peres Department of Public Safety (“DPS”), appeals the district court’s2 denial of his

request for qualified immunity in this civil rights action filed by R. Scott Sexton

(“Sexton”) and Kris Kistler (“Kistler”). We affirm the district court’s ruling.

I. BACKGROUND

Sexton and Kistler are former Public Safety Officers for the DPS. The DPS

provides police, fire, and ambulance services to the residents of the City of Des Peres,

Missouri. Martin served as the Director of Public Safety for the DPS during the entire

period of Sexton’s and Kistler’s employment. Immediately below Martin in the

department hierarchy were William Bridges and Keith Krumm, both of whom held the

rank of Captain.

The DPS was originally located at 1019 North Ballas Road in the City of Des

Peres (“the old building”). In approximately 1974, the DPS began recording telephone

conversations that took place in the DPS building. Martin asserts conversations were

recorded for purposes of security, safety, and quality control. The recording device

was located in the dispatch area of the building and recorded telephone and radio

conversations twenty-four hours a day. The recording was done by instrument rather
3The Missouri Wiretap Act, Rev. Mo. Stat. §§ 542.400 et seq., prohibits illegal

wiretapping, which includes in its definition a person who “[k]nowingly intercepts,

endeavors to intercept, or procures any other person to intercept or endeavor to

intercept, any wire communication.”

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than by line; that is, every conversation that took place on a particular telephone was

recorded, regardless of which line was being used on that telephone. All the telephones

in the building were recorded except for the telephone in the kitchen. The kitchen

telephone was reserved for Public Safety Officers to make private calls to their families

or to make other personal calls while on duty.

In July of 1992, the DPS moved into a new building. Like the old building, the

new building utilized a recording device which recorded incoming and outgoing

telephone calls. Unlike the old building, however, the recording in the new building

was done by line rather than by telephone, and every line was recorded, including the

private line in the kitchen. Sexton and Kistler maintain that the Public Safety Officers

were not notified that their conversations were being recorded.

On April 8, 1995, Kistler drove his police vehicle through a supermarket

window. An investigation was conducted and on October 17, 1995, Kistler was

charged with several city regulatory violations. 

On October 22, 1995, Sexton and Kistler investigated the telephone recording

system and discovered that the telephone in the kitchen was being recorded. On

October 24, 1995, Sexton, Kistler, and their attorney went to city hall to disclose to the

public the private line in the DPS building was being recorded illegally and request that

it be taken off the recording system.3 On October 26, 1995, the recording of the private

line ceased. 
4Count III, which purported to allege a cause of action under 42 U.S.C. § 1985,

was dismissed for failure to state a claim. 

5Count II also alleges retaliatory discharge based on plaintiffs’ union activities.

However, neither party briefed this issue on appeal. Thus, this Court will only address

the claim as it relates to plaintiffs’ speech concerning the wiretap. 

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Kistler was terminated October 30, 1995, and Sexton was terminated December

11, 1995. Martin asserts that he recommended Sexton’s termination because Sexton

failed to account for his activities on October 22, 1995, and he failed to follow direct

orders of superiors on that same date. Martin contends that he recommended Kistler’s

termination for gross negligence in the operation of a motor vehicle on April 8, 1995,

the failure to obey and promptly execute orders of superiors, and sleeping on duty.

Their terminations were affirmed after hearings by the City of Des Peres Board of

Aldermen. Sexton and Kistler subsequently brought a six-count complaint4 which

asserted that the City of Des Peres and Martin, among others, placed an illegal wiretap

and illegally recorded private telephone conversations on a telephone designated for

personal calls. 

This appeal concerns Count II of the plaintiffs’ Third Amended Complaint. In

Count II, Sexton and Kistler filed a claim pursuant to 42 U.S.C. § 1983, asserting that

Martin improperly recommended the plaintiffs’ termination in retaliation for the

exercise of their First Amendment free speech rights – namely, making public the

City’s potentially illegal wiretap.5 In a motion for summary judgment, Martin sought

protection from liability under the doctrine of qualified immunity. After the district

court denied Martin’s claim of qualified immunity as to plaintiffs’ retaliatory discharge

claims, Martin renewed his claim of qualified immunity in a supplemental motion for

summary judgment. The district court again rejected his request, and Martin appeals

the district court’s ruling. 

II. DISCUSSION
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“A district court’s denial of a motion for summary judgment based on qualified

immunity is immediately appealable.” Collins v. Bellinghausen, 153 F.3d 591, 595 (8th

Cir. 1998). We review the district court’s denial of summary judgment de novo,

viewing the evidence in the light most favorable to the nonmoving party. Id.

Under the doctrine of qualified immunity, state actors are protected from civil

liability when “their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotations omitted); McCaslin v.

Wilkins, 183 F.3d 775, 778 (8th Cir. 1999). The qualified immunity inquiry is a twostep process. First, this Court must ascertain whether the plaintiffs have asserted a

violation of a constitutional or statutory right. See Munz v. Michael, 28 F.3d 795, 799

(8th Cir. 1994) (citing Beck v. Schwartz, 992 F.2d 870, 871 (8th Cir. 1993) (per

curiam)). Second, we must determine whether that constitutional right was clearly

established at the time that the plaintiffs were discharged. See Munz, 28 F.3d at 799.

“This court has . . . taken a broad view of what constitutes ‘clearly established law’ for

the purposes of a qualified immunity inquiry. . . ” Boswell v. Sherburne County, 849

F.2d 1117, 1121 (8th Cir. 1988), cert. denied, 488 U.S. 1010 (1989). “For a right to be

deemed clearly established, the ‘contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’”

Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). However, “[i]t is only necessary that the

unlawfulness of the official's act [be] apparent in view of pre-existing law.” Hall v.

Lombardi, 996 F.2d 954, 958 (1993), cert. denied, 510 U.S. 1047 (1994). Therefore,

if the law claimed to have been violated was clearly established, the qualified immunity

defense ordinarily fails, “since a reasonably competent public official should know the

law governing his conduct.” Harlow, 457 U.S. at 818-19. 

A.
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Plaintiffs have properly alleged a violation of a constitutional right -- Martin

recommended their discharge in retaliation for exercising their right to free speech.

See, e.g., Rankin v. McPherson, 483 U.S. 378, 383 (1987) (“[i]t is clearly established

that a State may not discharge an employee on a basis that infringes that employee’s

constitutionally protected interest in freedom of speech.”). The dispute in this case

centers around the Court’s second inquiry – whether the plaintiffs’ free speech rights

were clearly established at the time of discharge. To determine whether this right was

clearly established, the Court must first determine whether the speech is protected by

the First Amendment. This determination is also a two-step inquiry. See Kincade v.

Blue Springs, Mo., 64 F.3d 389, 395 (8th Cir. 1995), cert. denied, 517 U.S. 1166

(1996). The threshold question this Court must answer is whether the speech can be

fairly characterized as constituting “speech on a matter of public concern.” Id.

(quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983)). If this Court finds the

speech to be a matter of public concern, we turn to the second step, the Pickering

balancing test, which “involves balancing the employee’s right to free speech against

the interests of the public employer.” Id. (citing Pickering v. Board of Educ., 391 U.S.

563, 568 (1968)). Pickering requires we strike a “balance between the interests of the

[employee], as a citizen, in commenting upon matters of public concern and the interest

of the [public employer] in promoting the efficiency of the public services it performs

through its employees.” Pickering, 391 U.S. at 568. 

(1) Threshold Inquiry – “Matters of Public Concern”

As to the first step of the inquiry – whether it was clearly established that

Sexton’s and Kistler’s speech was a matter of public concern at the time they were

terminated – this Court has held that speech concerning potential misconduct by public

officers is a matter of public concern. See Barnard v. Jackson County, Mo., 43 F.3d

1218, 1225 (8th Cir.), cert. denied, 516 U.S. 808 (1995); Brockell v. Norton, 732 F.2d

664, 668 (8th Cir. 1984). In Barnard, this Court found “[s]peech disclosing allegations

of criminal activity allegedly committed by elected public officials and allegations of

official misconduct by an incumbent elected official are matters occupying the highest
6Martin attempts to distinguish Brockell by noting that the police officer was

terminated after he revealed wrongdoing to a captain, rather than a direct supervisor,

which was in fact a violation of the chain of command. See Brockell, 732 F.2d at 665.

Martin correctly notes that while the court found discharging an officer for a violation

of a chain of command policy is a violation of the First Amendment, the court went on

to conclude that the mayor and the city council members asserted a good faith belief

in the reasonableness of their conduct which entitled them to qualified immunity. Id.

at 668-69. However, after the Brockell ruling, such a belief would no longer be

reasonable because the law is now established that a termination on those grounds

would be in violation of the First Amendment. 

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rung of hierarchy of First Amendment values . . . Such speech is of inherent public

concern.” 43 F.3d at 1225 (internal quotations omitted). Likewise, in Brockell this

Court found allegations that a police officer improperly possessed a copy of the

certification test, prior to his taking the test, were a matter of public concern. See 732

F.2d at 668. The Brockell Court reasoned that the “public has a vital interest in the

integrity of those commissioned to enforce the law.”6 Id. 

Other courts have also held that allegations of potential criminal conduct are a

matter of public concern. See, e.g., Voigt v. Savell, 70 F.3d 1552, 1562 (9th Cir. 1995),

cert. denied, 517 U.S. 1209 (1996) (noting “statements regarding criminal misuse of

public funds, wastefulness, and inefficiency in managing and operating government

entities [are] matters of public concern.”); Walter v. Morton, 33 F.3d 1240, 1243 (10th

Cir. 1994) (finding “statements of perceived illegal activities [by the Chief of Police]

are a matter of concern for the community”); Gillum v. Kerrville, 3 F.3d 117, 120-21

(5th Cir. 1993), cert. denied, 510 U.S. 1072 (1994) (noting “[t]o be sure, corruption in

[a police] internal affairs department is a matter of public concern”); Brawner v.

Richardson, Tex., 855 F.2d 187, 190 (5th Cir. 1988) (holding that “[t]he disclosure of

misbehavior by public officials is a matter of public interest and therefore deserves

constitutional protection, especially when it concerns the operation of a police

department”); Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6th Cir. 1988)
-8-

(holding that “speech disclosing public corruption is a matter of public interest and

therefore deserves constitutional protection”); McMurphy v. Flushing, 802 F.2d 191,

196 (6th Cir. 1986) (stating “[o]bviously, the public is concerned with how a police

department is operated, and efforts to give public exposure to alleged misconduct are

protected.”).

Martin contends that there is no case law specifically holding that speech

announcing a city official’s potentially illegal recording of private telephone

conversations is a matter of public concern. Therefore, he maintains, a reasonable

official in his position would not have known he was violating the plaintiffs’

constitutional rights by terminating them for such conduct. Martin’s strict reading of

the “clearly established law” requirement is unsupported by the case law. Indeed, in

Buckley, this Court explained that “[i]n order to determine whether a right is clearly

established, it is not necessary that the Supreme Court has directly addressed the issue,

nor does the precise action or omission in question need to have been held unlawful.

In the absence of binding precedent, a court should look to all available decisional law,

including decisions of state courts, other circuits and district courts.” 133 F.3d at 1128

(citing Norfleet v. Arkansas Dep’t of Human Services, 989 F.2d 289, 291 (8th Cir.

1993)). In examining our own case law, as well as that of other circuits, we conclude

that at the time the plaintiffs were terminated, the law was clearly established that the

disclosure of potential illegal conduct of public officials was a matter of public concern.

(2) The Pickering Balance Test

Having ascertained it was clearly established that plaintiffs’ speech was a matter

of public concern at the time of their discharge, we turn to the second step of the

judicial inquiry – the Pickering balancing test. As stated earlier, under this test we must

balance the interest of Sexton and Kistler, as citizens, “in commenting upon matters of

public concern [against] the interests of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.” Shands v. Kennett,
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993 F.2d 1337, 1342 (8th Cir. 1992), cert. denied, 510 U.S. 1072 (1994) (quoting

Pickering, 391 U.S. at 568). “Factors relevant in conducting this test are whether the

speech creates disharmony in the workplace, impedes the speaker’s ability to perform

his duties or impairs working relationships with other employees.” Kincade, 64 F.3d

at 397. 

Before the Court commences the Pickering balancing test, however, it is critical

to determine whether the defendant has produced sufficient evidence that the speech

had an adverse effect on the efficiency of the employer’s operations. See Burnham,

119 F. 3d at 678. In other words, to put the Pickering balancing test at issue, the public

employer must proffer sufficient evidence that the speech had an adverse impact on the

department. See id. The more the employee’s speech reflects matters of public

concern, the greater the employer’s showing must be that the speech was disruptive

before the speech can be punished. See id. at 679. 

To this end, in his supplementary motion for summary judgment, Martin offered

his own affidavit and the deposition testimony of the City Administrator, Douglas

Harms, to demonstrate that the speech adversely affected Martin and the department.

Specifically, Martin states in his affidavit that “[s]uch reporting adversely affected

department morale because the supervisors were angry -- and expressed their anger

directly to me – that Sexton and Kistler had taken their criticism of the recording of the

kitchen line outside the Department’s normal chain of command. Further, by accusing

the Department of violating their constitutional rights, and directing that accusation to

the press, such conduct damaged the Department’s reputation and created significant

political problems.” 

Martin is correct that when a public employee’s exercise of free speech right

affects the morale of the work force and damages the program’s reputation, it may

affect the efficiency of the operation of the public service. See Grantham v. Trickey,

21 F.3d 289, 295 (8th Cir. 1994). However, “a simple assertion by the employer that
7Harms’ deposition testimony states that in 1993 “the Board of Aldermen had

expressed to [Martin] in his performance evaluation and pay raises some dissatisfaction

with the level of his performance of the department for which they held him responsible

and some dissatisfaction of the level of communication between him and elected

officials about the performance of the department.” Harms was asked to suggest to

Martin that he explore the option of resigning because of the Board’s dissatisfaction.

Thus, according to Harms, the Board of Aldermen was already dissatisfied with

Martin’s performance well before the protected speech occurred. Martin apparently

caused his own political problems with the Board and the allegations of misconduct by

Sexton and Kistler were merely the last straw. 

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contested speech affected morale, without supporting evidence,” is not enough to

support a grant of qualified immunity. Id. at 295 n.4. Mere allegations of disruption

are insufficient to put the Pickering balance at issue. See Kincade, 64 F.3d at 398.

Thus, while DPS supervisors’ anger may have impaired working relationships between

the supervisors and Martin, Martin does not say that in his deposition. Indeed, Martin

has not provided any evidence in support of these conclusory statements. See Kincade,

64 F.3d at 398-99 (finding mere assertion that contested speech “adversely affected the

efficiency of City’s operations and substantially disrupted the work environment” with

no supporting evidence is insufficient to place Pickering balance at issue). In further

support of his claim of workplace disruption, Martin asserts that “[t]heir report

threatened my authority with the Board of Alderman to run the office of the Department

of Public Safety and I eventually resigned.” Yet Harms’ deposition testimony notes

that Martin was not in good political standing with the Board even before this incident,

and his termination or requested resignation was inevitable.7 

Likewise, Harms’ testimony does not bolster Martin’s contention that the

department’s efficiency was jeopardized by the actions of Sexton and Kistler. Harms’

testimony states only that “some citizens” appeared before the Board to express

outrage, concern, or support. Yet, Harms could not discern “how many folks were

there or how many fell on which side of the issue.” Harms said those who spoke were
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either “in support of the other officers or upset that the City was in the news.” Harms

did not testify that Sexton’s and Kistler’s speech damaged the reputation of the

department or affected the department’s efficiency. 

We find that the statements by Martin and Harms are insufficient to put the

Pickering balance at issue. Martin’s vague and conclusory statements do not

demonstrate with any specificity that the speech created disharmony in the workplace,

impeded the plaintiffs’ ability to perform their duties, or impaired working relationships

with other employees. See Kincade, 64 F.3d at 397-98. A “government employer must

make a substantial showing that the speech is, in fact, disruptive before the speech may

be punished” and Martin has simply failed to make this showing. Burnham, 119 F. 3d

at 680. For these reasons, Martin’s failure to establish workplace disruption is fatal to

his claim of qualified immunity. See id.

Even were this Court to apply the Pickering balancing test, Martin’s defense of

qualified immunity would still fail. As previously stated, the Pickering balance test

requires this Court to strike a balance between the plaintiffs’ interest in their speech

conveying a matter of public concern and the employer’s interest in promoting

efficiency in the workplace. The issue becomes does Martin’s “interest in suppressing

the speech, to purportedly control workplace disruption, outweigh[] plaintiffs’ First

Amendment rights . . .” Burnham, 119 F.3d at 679. “[W]hen balancing an employee’s

interest against an employer’s interest, the constitutional standard takes proportionality

into account. ‘[T]he closer the employee’s speech reflects on matters of public

concern, the greater must be the employer’s showing that the speech is likely to be

disruptive before it can be punished.’” Id. (quoting Jeffries v. Harleston, 52 F.3d 9, 13

(2d Cir.), cert. denied, 516 U.S. 862 (1995)). 

Bearing in mind the issue of proportionality, we examine the juxtaposition of

Martin’s meager showing of workplace disruption and plaintiffs’ interest in revealing

potentially illegal conduct of public employers. As explained supra, speech alleging
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potentially illegal misconduct of public officials occupies the “highest rung of First

Amendment hierarchy.” Barnard, 43 F.3d at 1225. Martin counters plaintiffs’ interest

with mere allegations of disruption, such as their “conduct damaged the Department’s

reputation and created significant political problems.” Yet Martin proffers no evidence

to support this claim. For this reason, we find the balance weighs heavily in favor of

the plaintiffs’ protected speech. 

Although no case law applying the Pickering balancing test to allegations of

illegal conduct of police officers existed in the Eight Circuit at the time the plaintiffs

were discharged, we may look to other jurisdictions in order to determine whether this

law was clearly established at that time. See Buckley, 133 F.3d at 1129. Our finding

that the plaintiffs’ speech in this case outweighs the public employer’s interest in

containing workplace disruption is consistent with the case law in many jurisdictions

at the time of the plaintiffs’ terminations. See, e.g., Williams v. Kentucky, 24 F.3d

1526, 1537 (6th Cir.), cert. denied, 513 U.S. 947 (1994) (finding where allegations of

illegal conduct of public employers have only minimal effect on the efficiency of the

office the balance weighs in favor of the speech); Oladeinde v. Birmingham, 963 F.2d

1481, 1487 (11

th Cir. 1992), cert. denied, 507 U.S. 987 (1993) (finding defendants’

assertions of disruption were not outweighed by plaintiffs’ police officers’ speech);

Bieluch v. Sullivan, 999 F.2d 666, 672-73 (2d Cir. 1993), cert. denied, 510 U.S. 1094

(1994) (finding allegations that speech concerning town budgets, school construction

and tax expenditures “‘posed a potential threat’ to police operations” was insufficient

to outweigh protected speech); Biggs v. Dupo, 892 F.2d 1298, 1303-04 (7th Cir. 1990)

(finding police officer’s interest in critiquing role of politicians in police department

policies outweighed allegations of workplace disruption); Frazier v. King, 873 F.2d

820, 827 (5th Cir.), cert. denied, 493 U.S. 977 (1989) (finding generalized allegations

of disruption at state correctional infirmary does not outweigh plaintiff’s interest in

exposing unethical medical practices affecting hundreds of inmates); Wulf v. Wichita,

883 F.2d 842, 867 (10th Cir. 1989) (finding purely speculative allegations of disruption

do not outweigh police officer’s protected speech); Rode v. G. Dellarciprete, 845 F.2d
8Plaintiff Sexton contends Martin failed to raise this claim in the context of

qualified immunity in the district court, and is thus barred from raising it now. We

disagree. In Martin’s supplementary motion for summary judgment, Martin argues in

the qualified immunity portion of this brief that he “is entitled to qualified immunity

because it was not clearly established that he could be guilty of unconstitutional

retaliation when he would have recommended plaintiffs’ terminations even had they

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1195, 1202 (3d Cir. 1988) (finding employee of police department’s allegations of

racial animus within department did not affect state’s interest in efficiency and

performance of department).

Martin correctly asserts that “when Pickering's fact-intensive balancing test is

at issue, the asserted First Amendment right can rarely be considered clearly

established for purposes of the Harlow qualified immunity standard.” Grantham, 21

F.3d at 293 (internal quotations omitted). We agree that in many free speech cases the

outcome of the Pickering balancing test would be unclear to a reasonable official. In

the instant case, however, where the employees have spoken out on a matter of great

public concern, and the evidence that the speech caused disruption in the workplace is

minimal at best, the imprecision of the Pickering balance makes little difference in our

determination. We conclude that at the time of the plaintiffs’ termination, the law was

clearly established that the balance would have weighed heavily in favor of the

plaintiffs’ exercise of free speech. 

B.

Alternatively, Martin argues that he relied on independent, legal reasons for

terminating the plaintiffs’ employment, and he would have reached the same the

decision irrespective of their protected speech activity. Citing Mt. Healthy v. Doyle,

429 U.S. 274 (1977), Martin maintains that where there are undisputed facts that a

public official would have carried out the same decision to terminate absent any illegal

motive, he is entitled to qualified immunity as a matter of law.

8

 
engaged in no protected conduct or speech.” While Martin did not rely on Mt. Healthy

v. Doyle in making this argument at the district court level, he sufficiently raised the

issue such that it was preserved for appeal. 

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As an initial matter, we note that to the extent Martin is merely requesting this

Court to determine whether the facts support his assertion that he discharged the

plaintiffs based on legal reasons, his request is denied. Our jurisdiction in the appeal

of qualified immunity is limited to “abstract issues of law and does not extend to

arguments concerning the sufficiency of evidence.” Mueller v. Tinkham, 162 F.3d 999,

1002 (8th Cir. 1998). That is to say, “if what is at issue in the sufficiency determination

is nothing more than whether the evidence could support a finding that particular

conduct occurred,” that claim is not immediately reviewable by this Court. See

Behrens v. Pelletier, 516 U.S. 299, 313 (1996). If, however, a public official is

claiming “on appeal that their actions were objectively reasonable in light of their

knowledge at the time of the incident” their claim of qualified immunity is reviewable.

See Lyles v. Barling, 181 F.3d 914, 917 (8th Cir. 1999) (quoting Mueller, 162 F.3d at

1002). 

In Martin’s appellate brief, his argument reads like a sufficiency of the evidence

question. He spends the majority of his analysis arguing that the facts giving rise to his

legal, independent grounds are undisputed by the plaintiffs, and they constitute

independent, sufficient grounds for the plaintiffs’ termination. However, at the close

of his argument Martin does state “there is no clearly established law that a reasonable

official in Chief Martin’s position would have known he was violating plaintiff[s’] First

Amendment rights by recommending termination.” (emphasis in the original). Martin

is entitled to qualified immunity if his actions were “objectively reasonable in light of

the clearly established law and facts known by the officer at the time of his actions.”

McCaslin, 183 F.3d at 778 (quoting Lyles, 181 F.3d at 917); Anderson, 483 U.S. at

639 (finding question of whether qualified immunity is warranted generally turns on

objective reasonableness of public employer’s action). Because Martin concludes his
9

In making this argument, Martin relies heavily on the district court’s finding that

the “defendant City had shown by uncontroverted evidence that plaintiffs Sexton and

Kistler would have been fired, regardless of whether they engaged in their protected

activity.” Sexton v. Martin, No. 4:95 Civ. 2026 (E.D. Mo. Jan. 21, 1999). Martin’s

reliance on this finding by the district court is without merit. The district court’s finding

was based on the notion that the City was unaware of any improper retaliation by

Martin at the time the Board of Alderman approved the decision to discharge the

plaintiffs. The same can not be said for Martin. Indeed, the district court went on to

find that there is ample evidence that Martin was keenly aware of Sexton’s and

Kistler’s public criticism of the DPS’ conduct prior to his decision to recommend their

discharge.

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argument in these terms, we find this Court does have jurisdiction to address his

defense. See McCaslin, 183 F.3d at 778 (finding review appropriate where defendant

officer alleged his decision to use deadly force was objectively reasonable in light of

his knowledge at the time); Collins, 153 F.3d at 595 (finding review appropriate where

defendant, a state-employed psychiatrist, alleged her decision to use particular

procedure was objectively reasonable). 

Martin asserts he recommended the plaintiffs’ termination on the basis of

legitimate, unrelated conduct. Specifically, Martin alleges his decision to terminate

Sexton was premised on Martin’s claim that Sexton failed to account for his activities

of October 22, 1995 and failed to follow direct orders of superiors on that same date.

As for Kistler, Martin contends that he recommended his termination for gross

negligence in the operation of a motor vehicle, the failure to obey and promptly execute

orders of superiors, and sleeping on duty. Martin argues these proffered reasons went

undisputed by the plaintiffs, and he would have recommended the plaintiffs’

termination regardless of their protected speech.9

However, there is sufficient evidence for a reasonable juror to conclude that

Sexton and Kistler were discharged for their disclosure of the wiretap on the private

line and not for the reasons stated by Martin. For example, the record shows that
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Martin was aware of the plaintiffs’ exercise of First Amendment protected speech and

that this speech caused Martin some problems personally. Additionally, the timing of

the terminations is suspiciously close to the protected speech activity in October of

1995. Kistler was discharged six days after the disclosure of the wiretap, purportedly

for an accident that occurred some six months prior. Three days after the disclosure

of the wiretap, Martin instigated an investigation into Sexton’s actions. Sexton was

discharged six weeks later for charges including minor violations such as using his

patrol car to call his attorney in violation of a policy which states department equipment

is not to be used for personal use, and failing to notify his supervisor of his

whereabouts when he went to his patrol car to call his attorney. Moreover, these two

terminations took place in a department where terminations, by Captain Bridges’ own

account, “were not very routine.” There are questions of material fact concerning

whether Martin recommended the plaintiffs’ terminations on the basis of their speech

alone or on the basis of some legitimate reason. A question of material fact precludes

a grant of qualified immunity. 

III. CONCLUSION

In sum, we agree with the district court’s conclusion that Martin is not entitled

to summary judgment based on qualified immunity on plaintiffs’ First Amendment

retaliatory discharge claims.

 

For the reasons stated herein, the district court’s ruling is affirmed. 

A true copy.

 

 Attest:

 

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.