Lorenzo Davis v. City of Chicago

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 16-1430 LORENZO DAVIS, Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al., Defendants-Appellees. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CV 7771 — Charles P. Kocoras, Judge. ____________________

ARGUED JANUARY 5, 2018 — DECIDED MAY 8, 2018 ____________________

Before KANNE, ROVNER, and HAMILTON, Circuit Judges. KANNE, Circuit Judge. Lorenzo Davis worked for Chicago’s Independent Police Review Authority. He alleges that his su- pervisor fired him because he refused to change his findings in a number of investigations into police misconduct. Davis sued the City of Chicago, arguing that his firing violated his First Amendment rights. The district court dismissed Davis’s claim. We affirm because Davis’s refusal to change his reports is not protected speech.

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I. BACKGROUND Chicago’s Independent Police Review Authority (“IPRA”) investigated 1 certain types of complaints against Chicago po- lice, including domestic violence, excessive force, and death in police custody. Chi., Ill., Municipal Code §§ 2-57- 020, -040(a)–(f). After investigating such allegations, IPRA made a disciplinary recommendation to the Chicago Police in the form of a report. The reports summarized the investiga- tion and included findings on the alleged misconduct: namely, whether the allegations were “sustained,” “not sus- tained,” “exonerated,” or “unfounded.” IPRA investigators played a key role in creating these re- ports. They interviewed police and civilian witnesses and procured and preserved other evidence. They also drafted the report. Nevertheless, IPRA’s Chief Administrator retained fi- nal responsibility for making recommendations to the Chi- cago Police. Id. § 2-57-040(h). The Administrator could also create “rules, regulations and procedures for the conduct of [IPRA’s] investigations.” Id. § 2-57-040(m). Lorenzo Davis began working for IPRA in 2008 as an in- vestigator. In 2010, he was promoted to supervisor. In both positions, Davis collected and reviewed evidence on com- plaints of police misconduct, then submitted draft reports. In 2014, Scott Ando became IPRA’s Chief Administrator. Ando hired Steven Mitchell as his First Deputy Chief Administrator.

1In 2017, the Civilian Office of Police Accountability replaced IPRA as Chicago’s police-oversight agency.

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Davis alleges that between 2014 and 2015, Ando and Mitchell ordered Davis to change “sustained” findings of po- lice misconduct and to change his reports to reflect more fa- vorably on the accused officers. Davis refused to change his findings. Ando allegedly threatened to fire Davis if he did not change his disciplinary recommendations, but Davis still re- fused. Davis also alleges that Ando and Mitchell requested Microsoft Word versions of Davis’s reports to alter them in a way that would look like Davis had made the changes. In March 2015, Ando implemented a policy requiring his approval for all “sustained” findings. Under the new policy, if an investigator refused to make a change recommended by Ando, he would be disciplined for insubordination. After the policy was implemented, Davis again refused to change “sus- tained” findings. Ando fired him in July 2015. In the district court, Davis claimed that Ando fired him because he refused to change his “sustained” findings. He in- sisted that this violated his First and Fourteenth Amendment rights. He also alleged violations of the Illinois Whistleblower Act and common law retaliatory discharge. The district court dismissed his constitutional claims with prejudice and declined to exercise supplemental jurisdiction over his state law claims. Davis appeals only his First Amend- ment claim, which we review de novo. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). II. ANALYSIS “There is considerable value … in encouraging, rather than inhibiting, speech by public employees.” Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). But “government offices could not

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function if every employment decision became a constitu- tional matter.” Connick v. Myers, 461 U.S. 138, 143 (1983). Thus, “[w]hen a citizen enters government service, the citizen by ne- cessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). To show that his speech is protected under the First Amendment, Davis—a public employee—must demonstrate that “(1) he made the speech as a private citizen, (2) the speech addressed a matter of public concern, and (3) his interest in expressing that speech was not outweighed by the state’s in- terests as an employer in ‘promoting effective and efficient public service.’” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (quoting Houskins v. Sheahan, 549 F.3d 480, 490 (7th Cir. 2008)). Because Davis did not speak as a private citizen, we reach only the first step of this analysis. Whether an employee speaks as an employee or a citizen depends on whether the speech was made “pursuant to [his] official duties.” Garcetti, 547 U.S. at 421. The “inquiry is a prac- tical one” that goes beyond a written job description. Id. at 424. The employee’s official duties include both formal job re- quirements and “the employer’s real rules and expectations.” Fairley v. Andrews, 578 F.3d 518, 523 (7th Cir. 2009). Our conclusion that Davis spoke pursuant to his job duties is straightforward. Given his position in IPRA’s hierarchy, Da- vis was responsible for revising his reports at the direction of his superiors. Indeed, Chicago’s Municipal Code assigned the power to make disciplinary recommendations to IPRA’s Chief Administrator, not a mid-level supervisor. Chi., Ill., Municipal Code § 2-57-040(h). The revision policy Ando implemented in 2015 further cements the conclusion that Davis’s duties in-

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cluded revising his reports. Because Davis’s refusal was pur- suant to his job duties, he spoke as a public employee rather than a private citizen. His speech, therefore, falls outside of the First Amendment’s scope. Davis offers two main reasons for why we should find that his speech is protected. Neither is persuasive. First, he argues that he did not act under his duties because his duties could not have included drafting inaccurate and misleading reports to absolve officers of misconduct. But the fact that an em- ployee may have good reasons to refuse an order, does “not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.” Bowie v. Maddox, 653 F.3d 45, 48 (D.C. Cir. 2011). 2 Second, Davis attempts to create a distinction between a dismissal following an affirmative disclosure and one follow- ing a refusal to make a statement. In this context, however, the distinction is meaningless. Concerns about regular interven- tion by courts in the management of public employees moti- vated Garcetti. 547 U.S. at 423. Those concerns exist regardless of whether the government fires a public employee for mak- ing a statement or refusing to make one. Because IPRA required Davis to draft and revise his re- ports, his refusal to revise those reports was speech made “pursuant to [his] official duties.” Garcetti, 547 U.S. at 421. He therefore spoke as a public employee rather than a private cit- izen. The First Amendment does not protect this speech.

2Davis may still have other avenues for relief—the district court dis- missed his Illinois Whistleblower Act and common law retaliation claims without prejudice.

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III. CONCLUSION Davis may have had good reasons to refuse to revise his reports. But good intentions alone do not grant First Amend- ment protection to speech by public employees. We therefore AFFIRM the district court’s dismissal of Davis’s First Amend- ment retaliation claim.

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HAMILTON, Circuit Judge, concurring. I join the court’s opinion because plaintiff Davis is challenging the way he was supervised in carrying out his official duties. He was not speaking (or refusing to speak) as a private citizen. I offer two additional points on issues that are raised here and that are likely to recur in cases involving, among other topics, investi- gations into police actions. First, the speech in question, about the results of official police investigations into fatal police-action shootings and al- legations of police misconduct, qualifies as speech about a matter of public concern. See, e.g., Kristofek v. Village of Orland Hills, 832 F.3d 785, 794–95 (7th Cir. 2016); see also, e.g., Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) (“Exposing governmental inefficiency and misconduct is a matter of considerable signif- icance.”); Jackler v. Byrne, 658 F.3d 225, 236–37, 241–42 (2d Cir. 2011) (reversing dismissal of First Amendment claim by po- lice officer allegedly fired for refusing to falsify reports for in- ternal investigations of excessive-force complaints). In finding otherwise, the district court mixed two distinct elements of the proper analysis. On this element, the court focused mis- takenly on Davis’s role as an employee. That role meant he was not speaking as a private citizen, but it did not affect the separate question of whether he was addressing matters of public concern. Second, Davis does not contend he was fired for refusing to lie about matters of fact. He was fired for refusing to accept his boss’s different evaluations of facts. The difference is im- portant to distinguish this case from Jackler v. Byrne, where the Second Circuit reversed dismissal of a First Amendment claim by a police officer. Officer Jackler alleged he was fired

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for having refused to make false statements of fact in an in- vestigation of a civilian’s complaint that another officer had used excessive force. 658 F.3d at 230–31. The Second Circuit explained that the police department’s discretion as an em- ployer “does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing.” Id. at 242; see also Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (holding that “the First Amendment pro- tects a public employee who provides truthful sworn testi- mony, compelled by subpoena, outside the scope of his ordi- nary job responsibilities”); Gonzalez v. City of Chicago, 239 F.3d 939, 941 (7th Cir. 2001) (pre-Garcetti, if police investigator were ordered to rewrite reports so as not to disclose police corrup- tion, he would have First Amendment right to expose police cover-up to the public).