FILED

                           United States Court of Appeals

                                    Tenth Circuit

 

                                     AUG 14 2002

 

                                   PATRICK FISHER

                                        Clerk                                      PUBLISH

        

                           UNITED STATES COURT OF APPEALS

        

                                   TENTH CIRCUIT

        

        

         LARRY T. BASS,                  

                                         

         Plaintiff - Appellee,           

                                         

         v.                                          No. 01-1202

                                          

         WILLIAM T. RICHARDS, Sheriff;   

          RUSSELL HEBERT, Undersheriff;   

          and TIM EVANS, Deputy Sheriff,  

                                         

         Defendants - Appellants,        

                                          

         and                             

                                         

         THE BOARD OF COUNTY  COMMISSIONERS

         OF THE  COUNTY OF ARCHULETA,    

         STATE  OF COLORADO,              

                                         

         Defendant.                      

                                         

 

        

        

                    Appeal from the United States District Court

                            for the District of Colorado

                                (D.C. No. 98-D-2286)

        

             

        

         Jonathan A. Cross (Robert M. Liechty with him on the briefs) of Cross & Liechty,

         P.C., Denver, Colorado, for Defendants-Appellants.

        

         G. Stephen Long (Joseph J. Mellon and Brian R. Reynolds with him on the brief)

         of Shughart Thomson & Kilroy, P.C., Denver, Colorado, for Plaintiff-Appellee.

        

                                 

        

 

        

        

         Before HENRY, ANDERSON, and MURPHY, Circuit Judges.

        

        

        

         MURPHY, Circuit Judge.

        

        

        

        

 

         I. INTRODUCTION

 

              Appellants Richards, Hebert, and Evans are police officials of Archuleta

         County, Colorado.  Appellee Bass brought suit against them under 42 U.S.C. 

         1983 alleging that they had violated his First Amendment speech and association

         rights.  Appellants moved for summary judgment asserting a qualified immunity

         defense.  They appeal the district court's denial of that motion.  This court has

         jurisdiction under 28 U.S.C.  1291 over several, but not all, of Appellants'

         claims.  We affirm in part and dismiss in part.

         II. BACKGROUND

              Pagosa Lakes Property Owners Association ("Pagosa Lakes") is a resort

         community of approximately 4,500 residents near the town of Pagosa Springs in

         Archuleta County, Colorado.  Because of the limited manpower of the Pagosa

         Springs and Archuleta County police forces, Pagosa Lakes maintained its own

         police department, the Public Safety Office.  Larry Bass worked as the Chief of

         the Office.  The Public Safety Office worked closely with the Archuleta County

         Sheriff's Office.  To give Bass and other public safety officers at Pagosa Lakes

        

         the authority to make arrests and investigate crimes, the Sheriff deputized the

         Pagosa Lakes officers.  Each held the title of "reserve deputy" in the Sheriff's

         office.  Though Bass and the other Pagosa Lakes officers were based at the Public

         Safety Office at Pagosa Lakes, as reserve deputies they were under the direct

         supervision of employees of the Sheriff's office.

              Sometime prior to the summer of 1997, Bass talked with his friend, Lee

         Vorhies, about Vorhies' interest in running for Archuleta County Sheriff in the

         November 1998 election.  During the summer of 1997, Bass began privately

         supporting Vorhies to run against the incumbent Sheriff Richards.  Bass never

         campaigned for Vorhies or otherwise publicly supported Vorhies' campaign.  The

         Sheriff's office became aware of Bass' private support for Vorhies sometime that

         summer.  Undersheriff Hebert was informed by another individual that Bass was

         supporting Vorhies and had said that "the money and machinery are in place." 

         Hebert decided to approach Bass about his political activities and arranged

         several meetings with Bass throughout the summer.  In a June 1997 meeting,

         Hebert "cautioned Bass . . . about politics against the Sheriff."  In a July meeting,

         Hebert told Bass that "he owed loyalty to the Sheriff."  In that same meeting,

         Bass denied publicly supporting Vorhies, but he did reveal to Hebert that he

         preferred Vorhies' political philosophy.  Also in July 1997, employees of the

         Sheriff's office met with Sheriff Richards to discuss Bass' support of Vorhies.

        

         The possibility of removing Bass' reserve deputy commission was discussed but

         all agreed that such an action would violate Bass' First Amendment rights.  Bass

         had several additional meetings with Sheriff's office employees, including the

         Sheriff, during the summer and fall of 1997.  In some of those meetings,

         employees made statements that Bass interpreted as threats, including an incident

         in which Appellant Evans shook his finger at Bass and said it was Evans'

         "mission to make sure that Sheriff Richards gets reelected."

              In November 1997, Bass testified in an unrelated state criminal trial.  After

         several days of testimony, the state judge granted the defendant's motion to

         dismiss the charges.  In his minute order, the judge stated that Bass "withheld

         information within his knowledge, even when he found out about its importance

         to the case and was requested to provide any pertinent information to the case."

         The judge also stated that Bass had improperly marked evidence bags after

         learning of their importance to a suppression motion.  Because of these

         improprieties, the judge dismissed the charges.  The Sheriff's office suspended

         Bass' reserve deputy commission in December 1997 and conducted an

         investigation into Bass' role in the dismissed criminal case.  Following the

         investigation, Bass' reserve deputy commission was revoked permanently in

         January 1998.  For purposes of summary judgment and this appeal, however,

         Appellants concede that Bass' commission was revoked because of his support for

        

         Vorhies, not because of Bass' conduct in the criminal trial.

              Following Bass' suspension, he became interested in running for Sheriff. 

         Consequently, Bass, Vorhies, and supporters of both men held a meeting in which

         they discussed which man would make a better candidate against Sheriff Richards

         in the November 1998 election.  The meeting concluded with a decision that

         Vorhies alone should run against Richards.  Vorhies' candidacy became official

         then or shortly thereafter.  Bass supported Vorhies through the primary in August

         1998 in which Vorhies was defeated.

              Bass brought suit in federal district court alleging that Appellants violated

         his free speech and association rights when they removed his commission because

         of Bass' comments about his preference for Vorhies and his association with

         Vorhies.  Appellants moved for summary judgment on the basis of qualified

         immunity.  Among other things, they argued that Pickering v. Board of Education

         only prohibited employee termination based on speech about a matter of public

         concern.  See 391 U.S. 563, 568 (1968).  They contended that Bass had only

         privately supported an unannounced candidate, and it was not clearly established

         that such speech was about a matter of public concern.  The district court rejected

         this argument, ruling that because Appellants admitted they knew Bass was

         supporting Vorhies, the support was not private speech.  The district court also

         rejected Appellants' argument that Bass' right to associate with an unannounced

        

         candidate was not clearly established.

         III. APPELLATE JURISDICTION

              This is an interlocutory appeal of the denial of Appellants' summary

         judgment motion.  This court has no jurisdiction over appeals to non-final orders

         absent some specific statutory grant.  See 28 U.S.C.  1291.  The denial of a

         summary judgment motion ordinarily is not an appealable final order.  See

         Schmidt v. Farm Credit Servs., 977 F.2d 511, 513 n.3 (10th Cir. 1992).  It is

         subject to appeal, however, when the defendants are public officials asserting a

         qualified immunity defense and the appealed issue is whether a given set of facts

         establishes that defendants violated clearly established law.  See Mitchell v.

         Forsyth, 472 U.S. 511, 528 (1985).  Those portions of the summary judgment

         denial, however, which involve a determination of evidence sufficiency, i.e.,

         whether there exists a genuine issue of material fact, are not appealable.  See

         Johnson v. Jones, 515 U.S. 304, 313 (1995).   In other words, the scope of

         interlocutory appeals to denials of qualified immunity is limited to "purely legal"

         challenges to the denial.  See Shinault v. Cleveland County Bd. of County

         Comm'rs, 82 F.3d 367, 370 (10th Cir. 1996) (quotation omitted).  "Our

         jurisdiction, then, turns on what portion of the district court order [defendants]

         appeal[]."  Id.

              Appellants raise four general issues: (1) whether it was clearly established

        

         that the mere removal of a commission is sufficiently punitive to infringe upon

         Bass' speech and association rights; (2) whether it was clearly established that

         Bass' speech was on a matter of public concern and thus protected; (3) whether

         Bass' right to associate with an unannounced political candidate was clearly

         established; and (4) whether the evidence presented was sufficient to demonstrate

         that Appellant Evans participated in a conspiracy to deprive Bass of his

         constitutional rights.

              Appellants' fourth contention is a factual one over which we have no

         jurisdiction.  Appellants argue that Evans has qualified immunity because the

         "facts are completely insufficient" to show that he knowingly participated in a

         conspiracy to violate Bass' rights.(1)  In Johnson v. Jones, the defendant officials

         challenged the district court's determination that there was an issue of fact

         regarding the officials' participation in the beating of the plaintiff.  See 515 U.S.

         at 313.  The Supreme Court held that such a determination was not an appealable

         final order.  See id.  Appellants' challenge is essentially the same as that made in

         Johnson v. Jones, and this court does not have jurisdiction to consider it.

              The first three issues, however, are purely legal and we have jurisdiction to

        

 

         (1)      The district court did not explicitly consider this argument.  The order

         denying summary judgment, however, must be read as an implicit denial of the

         motion on this basis.

        

         consider them.  Bass contends(2) that the district court determined that a genuine

         issue of material fact existed as to the Sheriff's intent in stripping Bass'

         commission, a necessary element to Bass' speech and association claims.  It is

         apparent, however, that the district court's denial of qualified immunity did not

         turn on this disputed fact.  Appellants argued below that even if the Sheriff

         removed the commission to punish Bass for his speech, they were entitled to

         qualified immunity because (1) the removal of Bass' commission was not

         sufficiently punitive to infringe upon Bass' rights, (2) his speech was not on a

         matter of public concern, and (3) his right to associate with an unannounced

         political candidate was not clearly established.  The district court reached all of

         these legal arguments and rejected them.  Appellants seek review of the district

         court's rejection of these legal arguments.  They do not argue that their summary

         judgment motion should have been granted because the district court erroneously

         concluded an issue of fact existed regarding the Sheriff's intent.  Cf. Shinault, 82

         F.3d at 370 (dismissing appeal when defendant public official challenged on

         appeal district court's finding of a question of fact regarding official's intent in

         dismiss plaintiff); Mick v. Brewer, 76 F.3d 1127, 1133 (10th Cir. 1996)

         (dismissing appeal when defendant public official challenged districts court's

        

 

         (2)      Bass withdrew his jurisdictional objections at oral argument.  This court

         must nevertheless satisfy itself as to jurisdiction.  See Bender v. Williamsport

         Area Sch. Dist., 475 U.S. 534, 541 (1986).

        

         finding of disputed facts precluding summary judgment).  The district court

         assumed the Sheriff harbored an intent to retaliate when it made its qualified

         immunity rulings.  When the district court assumes facts in order to make legal

         determinations, it is appropriate for this court to consider appeals to the legal

         determinations and accept as given the assumed facts.  See Johnson v. Jones, 515

         U.S. at 319 ("When faced with an argument that the district court mistakenly

         identified clearly established law, the court of appeals can simply take, as given,

         the facts that the district court assumed."). 

              Bass points out that the district court also determined that a genuine issue

         of fact existed whether the loss of his commission led to his dismissal from his

         job as Chief of Police at Pagosa Lakes.  Again, Appellants do not challenge this

         factual issue on appeal.  Rather, they appeal the district court's ruling that merely

         removing Bass' commission amounts to retaliation violating Bass' speech and

         associational rights.  We have jurisdiction to review this determination.

         IV. DISCUSSION

              We review the denial of a summary judgment motion raising qualified

         immunity de novo.  See Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001).

         To successfully resist a motion for summary judgment based on qualified

         immunity, the plaintiff must allege sufficient facts to demonstrate that his

         constitutional rights were violated and demonstrate that the rights were clearly

        

         established at the time defendants acted.  See Romero v. Fay, 45 F.3d 1472, 1475

         (10th Cir. 1995).   As stated, Appellants raise three arguments over which we

         have jurisdiction: (1) whether the district court erred in concluding that it was

         clearly established that mere removal of his commission infringed upon Bass'

         speech and association rights; (2) whether the district court erred in concluding

         that it was clearly established that Bass' speech was on a matter of public concern

         and thus protected; and (3) whether Bass' right to associate with an unannounced

         political candidate was clearly established.

         A. Removal of the Commission

              Appellants argue that Bass' speech and association rights were not violated

         by the removal of his commission.  They contend that Bass lost his job with

         Pagosa Lakes ten months after the removal of his commission, and since the

         removal had no immediate effect on Bass' employment it could not infringe on

         his constitutional rights.(3)  We disagree.  Appellants "fail[] to recognize that there

         are deprivations less harsh than dismissal that nevertheless press state employees

         . . . to conform their belief and associations to some state-selected orthodoxy."

         Rutan v. Republican Party of Ill., 497 U.S. 62, 75 (1990).  A government need not

        

 

         (3)      The district court determined that a genuine issue of fact existed regarding

         whether the removal of Bass' commission caused Pagosa Lakes to terminate his

         employment.  To the extent Appellants are arguing that the removal of his

         commission did not lead to the loss of Bass' job with Pagosa Lakes, the argument

         is factual and we will not consider it in this interlocutory appeal.

        

         cause an individual to lose his job in order to infringe on constitutionally

         protected activity.  Rather, the government infringes upon protected activity

         whenever it punishes or threatens to punish protected speech.  See Phelan v.

         Laramie County Cmty. Coll. Bd., 235 F.3d 1243, 1247 (10th Cir. 2000).  The

         commission was a valuable government benefit.  The commission entitled Bass to

         effect arrests and investigate crimes, necessary experience to any individual

         interested in a law-enforcement career.  Depriving and threatening to deprive

         Bass of such a benefit was punishment that could inhibit speech and thus could

         infringe on Bass' First Amendment rights.  Compare Andersen v. McCotter, 100

         F.3d 723, 727 (10th Cir. 1996) (depriving government intern of valuable

         volunteer experience because of protected speech infringes on her constitutional

         rights), with Phelan 235 F.3d at 1248 (censure of Board member did not infringe

         protected activity since it "carried no penalties; it did not prevent her from

         performing her official duties").  Moreover, it was clearly established in 1997 that

         such punishment, which cannot be labeled minimal or wholly subjective,

         infringed upon Bass' rights.  See Andersen, 100 F.3d at 727; see generally

         Phelan, 235 F.3d at 1247-48 (citing Supreme Court precedent from the 1950s

         through the 1980s).

         B. Speech Claim

              In Pickering v. Board of Education, the Supreme Court held that the

        

         government as an employer does not have unchecked power to limit its

         employees' speech on matters of public concern.  See 391 U.S. at 568.(4)  Rather,

         when the government restricts the speech rights of its employees, its interest in

         limiting the speech must be balanced against the employees' interest in speaking. 

         Id.; Connick v. Myers, 461 U.S. 138, 142 (1983).  To prevail on a Pickering claim

         the employee must demonstrate that (1) the speech in question involves a matter

         of public concern; (2) his interest in engaging in the speech outweighs the

         government employer's interest in regulating it; and (3) that the speech was a

         substantial motivating factor behind the government's decision to take an adverse

         employment action against the employee.  See Horstkoetter v. Dep't of Pub.

         Safety, 159 F.3d 1265, 1271 (10th Cir. 1998).  If the employee makes the required

         showing, the government employer may escape liability if it can show that it

         would have taken the same employment action in the absence of the protected

         speech.  See id.  Whether speech involves a matter of public concern and whether

         the employee's interest outweighs the employer's are questions of law for the

         court; whether speech was a substantial motivating factor and whether the

         employer would have made the same employment decision in the absence of the

         speech are questions of fact for the jury.  See id.  Appellants' arguments relating

        

 

         (4)      Both parties agree that Pickering applies.  Cf. Bd. of County Comm'rs v.

         Umbehr, 518 U.S. 668, 676-79 (1996) (holding restrictions on independent

         contractor speech governed by Pickering analysis).

        

         to Bass' Pickering claim can be read to raise only one issue: whether Bass spoke

         on a matter of public concern.  Accordingly, we will address only this question

         with respect to the Pickering analysis.  See State Farm Fire & Cas. Co. v. Mhoon,

         31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding failure to raise issue constitutes

         waiver).

              Bass' speech consisted of his statements to several individuals about his

         support, albeit private, of Vorhies and his preference for Vorhies' political

         philosophy.  A chronology of events compiled by Undersheriff Hebert states that

         Bass told a district attorney employee that he was supporting Vorhies and that

         "the money and machinery are in place."  Bass disputed that characterization of

         his statement, insisting that he merely said that "it looks like" Vorhies would run

         and that "he probably was financially capable of doing it."  Hebert then had a

         series of meetings with Bass throughout the summer of 1997.  Bass denied

         publicly supporting Vorhies during these meetings, but he said specifically he

         preferred Vorhies' political philosophy to the Sheriff's.

              Such speech involves a matter of public concern.  Generally, speech

         involves a matter of public concern when it is "of interest to the community,

         whether for social, political, or other reasons," rather than a matter of a mere

         personal interest to the speaker.  See Horstkoetter, 159 F.3d at 1271 (quotation

         omitted).  Speech relating to internal personnel disputes and working conditions

        

         does not touch upon matters of public concern.  See David v. City & County of

         Denver, 101 F.3d 1344, 1355 (10th Cir. 1996).  Speech about political elections,

         however, undoubtedly does.  See Cragg v. City of Osawatomie, 143 F.3d 1343,

         1346 (10th Cir. 1998).  Bass' speech had no relation to matters such as working

         conditions.  Instead, his speech relates to his assessment of the viability of a

         potential candidate's campaign and his belief about the relative merits of two

         potential candidates for public office.  Such political speech is at the core of

         protected speech.  See id.  Furthermore, it is irrelevant that Bass only spoke to

         employees of the Sheriff's office and not the public at large.  Speech not

         broadcast to the public but made in private to the government employer may still

         be speech about a matter of public concern.  See Givhan v. W. Line Consol. Sch.

         Dist., 439 U.S. 410, 415-16 (1979).

              Simply because the facts as alleged and supported on summary judgment

         demonstrate that the Appellants violated Bass' right to free speech does not end

         the qualified immunity analysis.  Rather, Bass' right to comment upon his

         assessment of potential candidates for sheriff must be clearly established at the

         time his commission was removed.  Jantzen v. Hawkins, 188 F.3d 1247, 1258

         (10th Cir. 1999).  A right is clearly established when "the contours of the right

         [are] sufficiently clear that a reasonable official would understand that what he is

         doing violates that right."  Id. (quotation omitted).  All the plaintiff need show is

        

         "that there is a Supreme Court or Tenth Circuit decision on point."  Horstkoetter,

         159 F.3d at 1278 (quotation omitted).

              The citizenry's ability to make known their assessment of a candidate's

         qualifications for public office is "integral to the operation of the system of

         government established by our Constitution."  Buckley v. Valeo, 424 U.S. 1, 14

         (1976) (per curiam).  Accordingly, "[t]he First Amendment affords the broadest

         protection to such political expression."  Id. (emphasis added).  It is thus clear

         that one has a right to speak one's mind on the fitness of candidates for public

         office.  See Gardetto v. Mason, 100 F.3d 803, 812 (10th Cir. 1996); see also Eu v.

         San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223 (1989)

         (invalidating state prohibition of endorsement of candidates in primaries by

         political parties).  Appellants make much of the fact that Vorhies had not

         announced his candidacy at the time Bass spoke about his preference for Vorhies.

         They argue that there is no Supreme Court or Tenth Circuit precedent establishing

         a right to comment on potential political candidates.  We are not persuaded. 

              Bass' speech touched on more than his preference for one unannounced

         candidate over another; he endorsed one individual's political philosophy over

         another's.  It is well-established that freedom of expression encompasses the

         freedom to opine generally on "public questions" and to engage in political

         discussion.  New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).  The First

        

         Amendment "embodies our profound national commitment to the free exchange of

         ideas."  Ashcroft v. Am. Civil Liberties Union, 122 S. Ct. 1700, 1707 (2002)

         (emphasis added) (quotation omitted).  While the right to comment on a candidate

         is an important component of such a discussion, it is not the only speech protected

         by the Amendment.  See Mills v. Alabama, 384 U.S. 214, 218 (1966) (observing

         that the free discussion of "all matters relating to political processes" is protected,

         one of which is a discussion of political candidates).  Bass' expression of his

         preference for one philosophy over another is the type of pure political opinion

         that has been long protected.  Consequently, a reasonable official would

         understand that removing Bass' commission based on his expressed preference for

         one individual's philosophy over another and his assessment of Vorhies'

         campaign violated Bass' free speech rights.

         C. Association Claim

              An employee can establish a violation of his association rights if he

         demonstrates that  "(1) political affiliation and/or beliefs were substantial or

         motivating factors behind [his] dismissal; and (2) [his] position[] did not require

         political allegiance."  Jantzen, 188 F.3d at 1251 (quotations omitted).(5)  For

        

 

         (5)      Again, both parties agree that this is the proper analytical framework to

         apply to Bass' association claim.  Cf. O'Hare Truck Serv., Inc. v. City of

         Northlake, 518 U.S. 712, 721 (1996) (holding Elrod v. Burns, 427 U.S. 347

         (1976), and Branti v. Finkel, 445 U.S. 507 (1980), line of cases applies torestriction on independent contractors' association rights).

        

         purposes of this appeal, Appellants have conceded that Bass' affiliation with

         Vorhies and lack of affiliation with the Sheriff were the motivating factors behind

         the removal of his commission.  Similarly, they do not argue that Bass' position

         requires political allegiance to the Sheriff as a matter of law.  Instead, Appellants

         argue that they are entitled to qualified immunity because Bass' right to affiliate

         himself with Vorhies, an unannounced candidate, was not clearly established at

         the time his commission was removed.

              It is clear that the First Amendment protects employees from "official

         pressure . . . to work for political candidates not of the worker's own choice."

         Connick, 461 U.S. at 149; see also O'Hare Truck Serv., Inc. v. City of Northlake,

         518 U.S. 712, 720 (1996) (observing that "[t]here is no doubt" employee could

         not be discharged for refusing to contribute to incumbent's campaign).  It is also

         clearly established that the First Amendment prohibits the dismissal of an

         employee because of his privately held political beliefs.  See Branti v. Finkel, 445

         U.S. 507, 516-17 (1980).  Thus, support of or membership in a political party is

         not a valid ground for termination of a government employee whose position does

         not demand political loyalty.  See id. at 517; see also Elrod v. Burns, 427 U.S.

         347, 351, 357 (1976) (plurality opinion) (holding discharge of persons who failed

        

         to support or join political party unconstitutional).  Furthermore, even at the time

         Bass's commission was removed, it was clear that there is no meaningful

         distinction for First Amendment purposes between nonpartisan political alignment

         and membership in a political party.  See Green v. Henley, 924 F.2d 185, 187

         (10th Cir. 1991) (equating political loyalty to party affiliation); Dickeson v.

         Quarberg, 844 F.2d 1435, 1441 (10th Cir. 1988) (equating party affiliation to

         "particular political association and support" of candidate).

              Bass, like the partisans in Elrod and Branti, suffered an adverse

         employment action because his political alignment and beliefs were at odds with

         his employer's.  The plaintiffs in those cases were not required to demonstrate

         that they suffered an adverse employment action because of their support for an

         actual candidate.  Rather, it was sufficient that they were fired for failing to

         endorse or pledge allegiance to a particular political ideology.  See Branti, 445

         U.S. at 517; Elrod, 427 U.S. at 351, 357 (plurality opinion); see also Rutan, 497

         U.S. at 76 (holding denial of "promotions, transfers, or rehires for failure to

         affiliate with and support the Republican Party" violates First Amendment).  Bass

         was fired for the same reason: he did not change his personal belief that an

         individual with Vorhies' philosophy would make a better sheriff than Sheriff

         Richards.  Because a reasonable official would understand that Bass' commission

         could not be removed simply because of his political alignment and beliefs,

        

         Appellants are not entitled to qualified immunity from the association claim.

         V. CONCLUSION

              This court concludes that it does not have appellate jurisdiction over

         Appellants' claim that the evidence is insufficient to demonstrate that Evans

         participated in a conspiracy to deprive Bass of his constitutional rights.

         Therefore, that portion of the appeal is DISMISSED.  We further conclude that

         Appellants are not entitled to qualified immunity from Bass' speech and

         association claims.  The judgment of the District Court for the District of

         Colorado is AFFIRMED.