* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-30415

Summary Calendar

_______________

MICHAEL R. LIKER

and

GARY SAMPSON, SR.,

Plaintiffs-Appellees,

VERSUS

JOHNNY MARINO,

Sheriff of St. Charles Parish,

ROBERT DALE,

and

JULES TARULLO,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(93-1201-M)

_________________________

January 31, 1996

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM: *

I.2

Michael Liker and Gary Sampson, Sr., filed this civil rights

action against defendants-appellants Sheriff Marino and Deputy

Sheriffs Dale and Tarullo of St. Charles Parish. The defendants

appeal the denial of their summary judgment motion based upon

qualified immunity.

The factual allegations of the complaint may be summarized as

follows: Liker and Sampson were hired as deputies in 1990 and 1978,

respectively. In April 1992, the defendants subjected them to

false arrest and imprison ment and unlawful searches and seizures

and then caused them to be indicted for armed robbery, conspiracy,

extortion, and malfeasance. The defendants also suspended them

without pay, denial renewal of t heir deputies’ commissions, and

suspended their employee benefits. They did so based upon

Sampson’s bei ng a black man and in retaliation for “personal

political benefits” of the plaintiffs, which violated their First

Amendment rights.

The evidence shows that Liker and Sampson were accused of

stopping Vietnamese motorists for speeding and then demanding cash

payments on the spot to avoid receiving citations. In 1994, in

connection with the accusations, Liker pled guilty to one count of

malfeasance in office, and a jury convicted Sampson of extortion.

The parties consent ed to proceed before a magistrate judge.

In February 1995, the defendants moved for summary judgment on the

basis of qualified immunity. They observed that the plaintiffs,

since they had filed their complaint, had been criminally convicted

for their misconduct against Vietnamese motorists and do not argue3

that any stages of the criminal proceedings against them——the

arrest, incarceration, and in dictment——were unlawful. As to the

allegations of illegal employment actions, the defendants maintained that they were entitled to qualified immunity.

In response to the summary judgment motion, the plaintiffs

explicitly “abandon[ed] all claims except that of retaliatory

arrest

. . . and discharge.” They admitted that they had been

convicted of crimes for “shaking down” Vietnamese motorists. They

asserted that other officers also had engaged in the illegal

shakedowns but had no t been charged with any wrongdoing. In an

affidavit, they explained that they were open supporters of

Marino’s opponent in the sheriff’s race.

The magistrate judge ordered the plaintiffs to file affidavits

from persons with personal knowledge of facts showing that other

officers had engaged in the illegal activity. Then, without

waiting for the plaintiffs to comply with his order, the magistrate

judge denied the summary judgment motion with a one-sentence

ex planation: “There are contested issues of material fact as to

whether plaintiffs would not have been arrested and terminated from

employment ‘but for’ their support of the Sheriff’s political

opponent.”

In a motion for reconsideration, the d efendants stated,

“[W]hat the plaintiffs are arguing is that they have some sort of

bizarre immunity from prosecution because they are po litical

opponents of the sheriff.” Relying upon the analytical framework

prescribed in Mt. Healthy School Dist. Bd. of Educ. v. Doyle , 4291 Matherne involved a fired St. Charles Parish deputy sheriff who had

campaigned for the opponent of Marino’s predecessor. The deputy sued under

§ 1983 for violation of his First Amendment rights. 851 F.2d at 755. The

sheriff argued that he was entitled to qualified immunity. I d. Although the

court found that the sheriff was entitled to qualified immunity in his individual

capacity, the court affirmed a jury verdict in favor of the deputy against the

sheriff in his official capacity, finding that, where the deputy’s political

activities did not impair his professional judgment, the sheriff’s termination

of him violated his First Amendment rights. I d. at 757-58, 761. The deputy in

Matherne was not alleged to have engaged in any criminal wrongdoing.

4 U.S. 274 (1977), they contended that the plaintiffs’ criminal acts

were legitimate, nonpretextual grounds for termination.

The cou rt denied the reconsideration motion, observing only

that the plaintiffs alleged that they had been singled out for

retaliation and terminati on because they had supported Marino’s

opponent. Citing M atherne v. Wilson 851 F.2d 752 (5th Cir. 1988),

and not addressing the case authority cited by the defendants, the

magistrate judge found that their right not to be singled out for

such retaliation was clearly established. 1

II.

An order denying a summary j udgment motion based upon a

qualified immunity defense is immed iately appealable under the

collateral order doctrine to the extent that it turns on an issue

of law. M itchell v. Forsyth

, 472 U.S. 511, 530 (1985 ). The

plaintiffs concede that they can point to no case establishing that

a sheriff cannot, on the basi s of their political support,

selectively prosecute deputies for criminal activity. There being

no clearly established right, the defendants are entitled to

qualified immunity. This is a perfectly sensible result, for the

plaintiffs in fact were convicted of the serious offenses for which5

they were prosecuted. There is no issue of material fact, as the

“issue” of whether the plaintiffs would have been fired but for

their political support is immaterial in the absence of a clearly

established right.

The order denying summary judgment is REVERSED, and judgment

is RENDERED for defendants.