United States Court of Appeals

Fifth Circuit

FILED

December 7, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-11141

_______________

TERRELL BOLTON,

Plaintiff-Appellant,

VERSUS

THE CITY OF DALLAS, TEXAS,

AND

TEODORO BENAVIDES,

IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 3:04-CV-0501-K

______________________________

Before SMITH, BENAVIDES, and PRADO,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

TerrellBoltonappeals a summaryjudgment

in favor of the defendants, the City of Dallas

and its city manager, Teodoro Benavides.

Bolton sued under 42 U.S.C. § 1983, alleging

that the city had terminated him from his position as Chief of Police in violation of the due

process clause of the Fourteenth Amendment.
2

The district court concluded that Bolton

lacked a constitutionally-protected property

interest in further employment with the Dallas

PoliceDepartment(“DPD”). Because Chapter

XII, § 5 of the Dallas City Charter creates a

constitutionally-protected property interest,

we reverse and remand. We also conclude

that Benavides’s successful defense of

qualified immunity requires dismissal of Bolton’s claims against Benavidesin hisindividual

capacity.

I.

Bolton served as an executive-rank officer

of DPD for fifteen years and in August 1999

was promoted from assistant chiefto chief. In

August 2003 city manager Ted Benavides terminated his employment. Benavides acknowledges that the dismissal was not for

cause. Bolton claims the city charter mandates

that he be restored to the rank and grade he

held before being appointed chief.

II.

We review a summary judgment de novo,

applying the same standard as did the district

court. Morris v. Powell, 449 F.3d 682, 684

(5th Cir. 2005), cert. denied, 2006 U.S. LEXIS 8734 (U.S. Nov. 13, 2006). All justifiable

inferences to be drawn from the underlying

facts must be viewed in the light most favorable to the nonmoving party. Minter v. Great

Am. Ins. Co., 423 F.3d 460, 465 (5th Cir.

2005). Summary judgment is appropriate

where the record demonstratesthat there is no

issue of material fact and the moving party is

entitled to judgment as a matter of law. Martinez v. Bally’s La., Inc., 244 F.3d 474, 476

(5th Cir. 2001).

III.

To succeed on a due process claim in the

context of public employment, a plaintiff must

show that (1) he had a property interest/right

in his employment and (2) his termination was

arbitrary or capricious. Moulton v. City of

Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)

(citing Honore v. Douglas, 833 F.2d 565, 568

(5th Cir. 1987)). Because the district court

granted summary judgment based on its finding that Bolton lacked a property interest in his

employment, we address only the first prong.

Although public employees can be endowed

with constitutionally-protected property

interests in their employment,1a property

interest is not incidental to public employment

and must be located in an independent source,

such as state law. Perry v. Sinderman, 408

U.S. 593, 601 (1972). “A property interest is

created where the public entity has acted to

confer, or alternatively, has created conditions

that infer [sic, imply?], the existence of a property interest by abrogating the right to

terminate an employeewithout cause.” Muncy

v. City of Dallas, 335 F.3d 394, 398 (5th Cir.

2003). A public entity can confer a property

interest in public employment through a local

ordinance. Bishop v. Wood, 426 U.S. 341,

344 (1976).2

1 Gilbert v. Homar, 520 U.S. 924, 928-29

(1997) (stating that “employees who can be discharged only for cause have a constitutionally protected property interest in their tenure and cannot

be fired without due process”); Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532 (1985).

2 Under Texas law, home rule cities “may determine by charter whether employment in certain

city offices is at will or continuous absent just

cause for dismissal, and Texas courts will give effect to such charter provisions.” Henderson v. Sotelo, 761 F.2d 1093, 1096 (5th Cir. 1985) (citing

Ratliff v. City of Wichita Falls, 115 S.W.2d 1153

(Tex. Civ. App.SSAmarillo 1938, writ dism’d),

(continued...)
3

Bolton claims that Chapter XII, § 5 of the

charter grants him a property interest in continued employment. It states,

If the chief of the police department . . .

wasselected to that position fromthe ranks

of the police department and is removed

from the position on account of unfitness

for the discharge of the duties of the position, and not for any cause justifying dismissal from the service, the chief . . . shall

be restored to the rank and grade held prior

to appointment to the position, or reduced

to a lower appointative rank.

DALLAS, TEX., CITY CHARTER ch. 12, § 5

(2006).

We examined this section in Muncy, 335

F.3d 394. In that case, two executive-rank

DPD officers challenged demotions to the

highest-rank appointments they had held before receiving their executive appointments.

They contended that a myriad of sources, including § 5, granted thema protected property

interest in their executive-rank positions. In

examining § 5, we noted that “unfitness for

duty” is “a nebulous status which conceivably

could encompass political unsuitability or any

number of other reasons that fall short of the

property-interest conferring, termination-forcause standard.” Id. at 399. We found this

particularly true given that the statute internally defines “unfitness for duty” as “not for any

cause justifying dismissal.” Id. Interpreting

the provision as a whole, we noted that it

“contemplates that high level officials will be

removed from time to time, and in those instances in which the removal is not for a cause

warranting dismissal, then the official will be

reassigned within the department.” Id.

Although the city points to language in

Muncy indicating that § 5 serves primarily as a

limit on the city’s ability to retain former executives, id. at 399-400, it is evident that Muncy does not control the instant case. Unlike

the plaintiffs in Muncy, Bolton claims a property interest not in his executive-rank position,

but rather in continued employment at the rank

and grade held before his appointment to the

executive position. His argument does not

rely on the “unfitness for duty” language, but

rather on the “for any cause justifying dismissal” language. He asserts that § 5, by its

reference to “any cause justifying dismissal

fromthe service,” creates a propertyinterest in

continued employment.

The plain language of the charter supports

Bolton’s reading. “If the chief . . . is removed

. . . not for any cause justifying dismissal from

the service,” tracks language that elsewhere

has been found to create a property interest.3

The word “shall” implies that restoration to a

2

(...continued)

and City of San Benito v. Cervantes, 595 S.W.2d

917 (Tex. Civ. App.SSEastland 1980, writ ref'd

n.r.e.)).

3

See Perry, 408 U.S. at 600-03 (holding that

guidelines stating that an employee “may expect to

continue in his academic position unless adequate

cause for dismissal is demonstrated in a fair

hearing” create a protected property interest); Aiello v. United Air Lines, Inc., 818 F.2d 1196, 1199

(5th Cir. 1987) (finding a protected property interest where an employee handbook “contained a provision that employees would be discharged only for

good cause”); United Transp. Union v. Brown,

694 S.W.2d 630 (Tex. App.SSTexarkana 1985,

writ ref’d n.r.e.) (finding a protected property

interest where “the manual of working conditions

provides that no employee will be demoted without

good cause”).
4

lower rank and grade is mandatory.4

Even if we were to look beyond the plain

language, thisinterpretationmakessense. The

chief of police is a political position, and a

chief might be removed for any number of

reasons beyond his control. Through this

charter provision, Dallas is ensuring officers

with considerable length of service that accepting an unstable job will not force them to

forfeit their long tenure within the DPD. It reflects a balance between the cty’s interest in

attracting high quality applicants and its interest in ensuring effective oversight of the officers who fill executive positions.

The city responds by claiming that the two

groundsfor removalin the charterSS“unfitness

for duty” and “for cause justifying dismissal”SS do not exhaust the field of possible reasons for removal of an executive officer.

Although admitting that Bolton was not removed for cause, the city alleges that he was

discharged because his continued presence

would be “disruptive” rather than because he

was unfit for duty, a reason for removal that

would not trigger § 5. We do not ascribe the

same talismanic significance to “unfitness for

duty.” The language that creates a property

interest is “not for any cause justifying dismissal.” If a chief promoted from within the ranks

is not removed for cause, bythe plain language

of the charter he must be restored to his

previous position.5

IV.

Benavides assertsin the alternative that any

claims against him in his personal capacity

should be dismissed because he is entitled to

qualified immunity. Although the district court

did not address the qualified immunity claim,

Benavides asserted the defense in his answer

and raised it in this appeal, so we may address

it. 

Once a public official hasraised the defense

of qualified immunity, the burden rests on the

plaintiff to rebut it.

6 On a motion for summary

judgment, the disputed facts to which the

plaintiff points must be sufficient, if plaintiff’s

version is accepted, for a reasonable trier of

fact to determine (1) that the defendant

violated the plaintiff’s constitutionalrights and

(2) that the violation was objectively

unreasonable. See Fraire v. City of Arlington,

957 F.2d 1268, 1273 (5th Cir. 1992). The

inquiry into reasonableness asks “whether

‘[t]he contours of the right [are] sufficiently

clear that a reasonable official would understand that what he is doing violatesthe right.’”

Id. (citing Anderson v. Creighton, 483 U.S.

4

See, e.g., Valdez v. Cockrell, 274 F.3d 941,

950 (“Theword ‘shall’ismandatory inmeaning.”).

5 TheCity raises alternative groundsfor affirmance: that § 5 does not apply to Bolton, because he

was not selected chief from “the ranks of the

department” and that the city is immune from suit

(continued...)

5

(...continued)

under § 1983 because Bolton has not pointed to a

policy or custom that violates his rights. Because

the district court concluded thatBolton did not possess a protected property right, it did not address

the factual disputes raised by the city or whether

the city’s policy or custom played a role in the

violation of Bolton’s rights. We leave these arguments for the district court on remand. See Sanders v. English, 950 F.2d 1152, 1159 n.13 (5th

Cir. 1992).

6 See Pierce v. Smith, 117 F.3d 866, 871-72

(5th Cir. 1997) (“We do not require that an official

demonstrate that he did not violate clearly established federal rights; our precedent places that

burden upon plaintiffs.”). 
5

635, 640 (1987)). If reasonable public officials

could differ as to whether the defendant’s

actions were lawful, the defendant is entitled

to immunity. Malley v. Briggs, 475 U.S. 335,

341 (1986).

Although we now conclude that § 5 of the

Dallas City Charter creates a vested property

right in employment at a former rank for executive-level officials, this decision is not apparent from Muncy. There we were considering

a due process claim in the context of demotion, but we stated that executive rank officials

are “employees at will, and the city wasfree to

discharge them without cause.” Muncy, 335

F.3d at 402. If we are to respect the principle

underlying qualified immunityto the effect that

officials must be able reasonably to “anticipate

when their conduct may give rise to damages,”

we cannot hold an official liable for taking action that was arguably supported by decisions

of this court. See Davis v. Scherer, 468 U.S.

183, 195-96 (1984). Bolton’s claim against

Benavides in his personal capacity must be

dismissed based on qualified immunity,

because reasonable public officials could have

differed on whether discharging Bolton would

violate his constitutional rights.

In summary, because the charter createsfor

Bolton a constitutionally protected property

interest in further employment, the judgment is

REVERSED. Bolton’s claims against

Benavides in his individual capacity are

DISMISSED based on qualified immunity.

The remaining claims are REMANDED for

further proceedings not inconsistent with this

opinion.