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

_______________



### T ERRELL 

### B OLTON 

### , Plaintiff-Appellant,

VERSUS


### T HE 

### C ITY OF 

### D ALLAS 

### , T EXAS 

### ,

AND 

### T EODORO 

### B ENAVIDES 

### , IN H IS O FFICIAL AND I NDIVIDUAL C APACITIES , 

### Defendants-Appellees.



## _________________________ Appeal from the United States District Court fo r the Northern District of Texas 

### m 3:04-CV-0501-K



## ______________________________

Before S MITH , B ENAVIDES , and P RADO , Circuit Judges.
J ERRY E. S MITH , Circuit Judge:
Terrell Bol

ton appeals a summary judgment in favor of the defend ants, the Ci ty of Dallas and it s cit y manager, Teodoro Benavides. Bol ton sued under 42 U.S.C. § 1983, alleging th at the cit y ha d terminat ed him from his posit io n as Chief of Pol

ice in vio lat io n of the due process clause of the Fourteenth Amendment

.2

The dis t rict court concluded th at Bol ton la c ked a constitutionally-protected property int erest in further employment wit h the Dallas Pol ice Depart ment (“DPD”). Because Chapter XII, § 5 of the Dallas Cit y Charter creates a constitutionally-protected property int ere s t, w e reverse and remand. We also conclude th at Benavides’s successful defense of qualified immunit y requires dismissal of Bol

ton ’s claims against Benavides in his individual capacity.
I. Bol ton served as an executive-rank of ficer of DPD fo r fift een years and in August 1999 was prom oted from assistant chief to chief. In August 2003 cit y manager Ted Benavides terminat ed his employ ment. Benavides acknowledges th at the dismissal was not fo r cause. Bol

ton claims t he city charter mandates th at he be restored to th e 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 just ifiable infere nces to be drawn from th e underlying facts must be viewed in the light m ost favorable to the nonmoving party

. Minter v. Great Am. Ins. Co. , 423 F.3d 460, 465 (5 th Cir. 2005). Summary judgment is appropriate where the record demonstrates th at there is no issue of material fact and the moving party is entitled to judgment as a mat ter of law. Martinez v. Bally’s La., Inc. , 244 F.3d 474 , 476 (5th Cir. 2001).
III. To succeed on a due proces s cl aim in t he context of public employment , a plaint iff must show th at (1) he had a property int erest/right in his employment and (2) his term inat io n was arbitrary o r capricio us. M oulton v. City of Beaumont , 991 F.2d 227, 230 (5th Cir. 1993) (citing Honore v. Douglas , 833 F.2d 565, 568 (5th Cir. 19 87)). Because the di strict court granted summary judgment based on it s finding th at Bol

ton lacked a property int erest in his employment , we address only the first prong.
Alt houg h public emplo yees can be endowed wit h constitutionally- protected property int erests in their employment, 1 a property int erest is not incidental to public employment and must be lo cated in an independent source, su ch as state l aw. P erry v. Sinderman , 408 U.S. 593, 601 (1972). “A property int erest i s created where the publ

ic entity has acted to confer, or alt ernatively, has created conditions th at infer [ sic , imply?], the existence of a property int erest by abrogating the right to term inat e an employee wit hout cause.” Muncy v. City of Dallas , 335 F.3d 394, 398 (5th Cir. 2 003). A public entity can confer a pro perty int erest in public employment th rough a lo cal ordinance. B is hop v. Wood , 426 U.S. 341, 344 (1976). 2

1 Gilbert v. H

omar , 520 U.S. 924, 928-29 (1997) (stating that “employees who ca n be discharged only for cause have a constitutionally protected property interest in their tenure and cannot be fired without due process”); Cl eveland Bd. of Educ. v. Loudermill , 470 U.S. 532 (1985).

2 Under Tex as 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.” H enderson 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. SS

Ama rillo 1938, writ di sm’d),

(continued...)3

Bol ton claims t hat Chapter XII, § 5 of the charter grants him a property int erest in continued employment. It states, If the chief of the police department . . . was selected to th at position from the ranks of the pol

ice departm

ent and is removed from the position on account of unfit ness fo r the discharge of the duties of the posi

tion, and not f

or any cause justifying dismissal from the servic e, the chief . . . shall be restored to the rank and grade held prior to appoint ment to the position, or reduced to a lower appoint ative rank.
D ALLAS , T EX ., C ITY C HARTER ch. 12 , § 5 (2006).
We examined this section in Muncy , 335 F.3d 394. In that case, two executive-rank DPD of ficers challenged demotions to the highest-rank appoint ment s they had held befo re receiving their exe cutive appointments. They contended that a myriad of sources, including § 5, granted them a protected property int erest in their ex ecutive-rank positions. In exam ining § 5, we noted that “unfitness for duty” is “a nebulous status which conceivably could encompass political unsuitability or any number of other reasons t hat fall sho rt of the property -int erest conferring, term inat io n-forcause standard.” I

d

. at 399. We fo und this particularly true given th at the statute int ernally defines “unfit ness for duty” as “no t fo r any cause justifying dismissal.” I d

. Interpreting the provision as a whole, we noted th at it “contemplates that high level officials will be removed from time to ti me, and in those instances in which the removal is not fo r a cause warranting dismissal, then the of ficial will be reassigned within the department.” Id

. Alt hough the city points to language in Muncy indicating th at § 5 serves primarily as a limit on the city’s ability to retain former executives, id

. at 399-400, it is evident th at Muncy does not control the inst ant case. Unlike the plaintiffs in Muncy , Bol ton claims a property int erest not in his executive-rank position, but rather in continued employment at the rank and grade held before his appoint ment to the exe cutive position. His argument does not rely on the “unfit ness fo r duty” language, but
r ather on the “fo r any cause justifying dismissal” language. He asserts that § 5, by its reference to “any cause justifying dismissal from the service,” creates a property int erest in continued employment. The plain language of the charter supports Bol ton ’s reading. “If the chief . . . is removed

. . . not fo r any cause justifying dismissal from the service,” tracks language that elsewhere has been fo und to create a property int erest. 3 The word “shall” implies t hat restoration to a

2 (...continued) and City of San Benito v. Cervantes , 595 S.W.2d 9 17 (Tex. Civ. App. SS

Eastland 1980, writ ref'd n.r.e.)). 3 See Perry , 408 U.S. at 600-03 (holding tha t guidelines stating that an employee “may expect to continue in his academic position unless adequate
cause for dismissal is demonstrated in a fair hearing” cre ate a protected property interest); A iello 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. SS Texarkana 1985, writ ref’d n.r.e.) (finding a protect ed property i nterest where “the ma nual of working condit ions provides that no employee will be demoted without good cause”).4

lo wer rank and grade is mandatory. 4

Even if we were to look beyond the plain language, this int erpretation makes sense. The chief of pol

ice is a political position, and a chief might be removed for any number of reasons beyo nd hi s control . Through this ch arter provi sio n, Dallas is ensuring officers wit h considerable length of service that accepting an unstable jo b will no t f orce them to fo rfeit their lo ng tenure wit hin the DPD. It reflect s a bal ance between the cty’s interest in attracting high quality applicants and it s int erest in ensuring effective oversight of the of

ficers who fill executive positions. The city responds by claiming th at the two grounds fo r removal in the charter 

### SS “unfit ness fo r duty” and “fo r cause justifying di smissal” 

### SS do not exhaust the field of possible reasons fo r removal of an executive officer. Alt hough admit ting th at Bol ton was not remo ved fo r cause, the ci

ty alleges that he was discharged because his continued presence would be “disruptive” rather th an becau se he was unf it fo r duty , a reason for removal that would not trigger § 5. We do not ascribe the same tal ismanic significance to “unfitness for duty .” The language that creates a property int erest is “no t fo r any cause justifying dismissal.” If a chief promoted from within the ranks is not removed fo r cause, by the plain language of the charter he must be restored to his previous position. 5 IV. Benavides asserts in the alt ernative th at any claims ag ainst him in his personal capacity should be dismissed because he is entitled to qualified immunit y. Alt hough the district court did not address the qualified immunit y claim, Benavides asserted the defe nse in his answer and raised it in this appeal, so we may address it

. Once a public of

ficial has raised the defense of qualified immunit y, the burden rests on the plaint iff to rebut it

. 6 On a motion for summary judg ment , the disputed facts to which the plaint iff point s must be sufficient , if plaint iff’s versio n is accepted, for a reasonable trier of f a ct to determ

ine (1) th at the defendant vio lat ed the plaint iff’s constitutional rights and (2) th at the vio lat io n was objectively unreasonable. S ee Fraire v. City ofArlington , 957 F.2 d 1268, 1273 (5th Ci r. 1992). The inquiry int o reasonablene s s asks “whether ‘[t]he contours of the right [are] sufficient ly clear th at a reasonable of ficial would understand th at what he is doing vio lat es the right.’” Id. (citing Anderson v. Creighton , 483 U.S.

4 See, e.g., Valdez v. Cockrell , 274 F.3d 94 1 , 950 (“The word ‘shall’ is ma ndatory in mea ning.”).

5 The City raises alternative grounds for affirmance: that § 5 does not apply to Bolton, because he was not select ed 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 that Bolton did not possess a pr otected property right, it did not address the factual di sputes 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 cou rt on remand. S ee 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 def endant’s actions were lawful, the defe ndant i s entitled to immunit y. M

alley v. Briggs , 475 U.S. 335, 341 (1986).
Alt hough we now conclude that § 5 of the Dallas Cit y Charter creat es a vested property right in employment at a fo rm er rank fo r executive-level of

ficials, this decision is not apparent from Muncy

. There we were considering a due process cl aim in t he context of demotion, but we stated th at executive rank of ficials are “emplo yees at will, and the cit y was free to dis charge them without cause.” Muncy , 335 F.3d at 402. If we are to respect the principle underlying qualified immunit y to the effect th at of ficials must be able reasonably to “anticipate when their conduct may give ri se to damages,” we cannot hold an of

ficial liable fo r taking action th at was arguably supported by decisions of this court. See Davis v. Scherer , 468 U.S. 183, 195-96 (1984). Bol ton ’s claim against Benavides in his personal capa city must be dismissed based on qualified immunit y, because reasonable public of ficials could have differed on whether discharging Bol ton would vio lat e his constitutional rights.
In summary, because the charter creates fo r B ol ton a constitutionally protected prope rty int erest in further employment , the judgment is REVERSED. Bol

ton ’s claims against Benavides in his individual capaci ty are DISMISSED based on qualified im m unit y. The remaining cl aims are REMANDED for further proceedings not inco nsist ent wit h this opinio n.