Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding D.C. No.8:07-cv-00141-JVS-RNB
The opinion of the court was delivered by: Beezer, Circuit Judge:
Argued and Submitted April 9, 2010-Pasadena, California
Before: Harry Pregerson and Robert R. Beezer, Circuit Judges, and Suzanne B. Conlon, District Judge.*fn1
Partial Concurrence and Partial Dissent by Judge Pregerson
Plaintiff Jeffrey Bardzik was a lieutenant in the Orange County Sheriff's Department under the command of Defendant Sheriff Michael Carona.*fn2 Bardzik sues Carona under 42 U.S.C. § 1983, alleging that Carona violated Bardzik's First Amendment right to free speech by retaliating against Bardzik for supporting Carona's opponent in the 2006 Sheriff's election. Bardzik argues that Carona retaliated against him by transferring him from the prestigious position of Reserve Division Commander to an undesirable post at Court Operations. Bardzik also argues that Carona continued punishing him even after he was transferred.
Before the district court, Carona moved for summary judgment, arguing that he was permitted to retaliate against Bardzik for his political activities because Bardzik was a "policymaker" under Branti v. Finkel, 445 U.S. 507 (1980), or, at the very least, that Carona was entitled to qualified immunity for his actions. Carona argued that Bardzik was a policymaker because Bardzik was Reserve Division Commander in charge of over 600 reserve officers and because Bardzik proposed and implemented large policy changes in the Reserve Division. The district court denied Carona's motion, and Carona appeals the qualified immunity determination.
We hold that Carona is entitled to qualified immunity for his actions retaliating against Bardzik while Bardzik was Reserve Division Commander because Bardzik was a policy-maker in that position. Carona is not entitled to qualified immunity, however, for any further retaliatory action against Bardzik once Bardzik was transferred to Court Operations.
Under clearly established law, Bardzik was not a policymaker at Court Operations. We affirm in part and reverse in part.
I The events in this case unfold in Orange County, California, where in 1998, the voters elected Michael Carona to serve them as Sheriff. Under Sheriff Carona, there was an Under-sheriff, four assistant sheriffs, 15 captains, 60 lieutenants, and numerous sergeants, and investigators. There were as many as a few thousand deputies in the Department.
When the Sheriff was elected, Jeffrey Bardzik had been a member of the Orange County Sheriff's Department for some time. He had joined the Department in 1984 and ten years later was promoted to sergeant. Almost another decade later, in April 2003, he was promoted to lieutenant.*fn3 In the fall of 2003, however, Sheriff Carona asked Bardzik to assume more responsibility in the Department and to serve as the Sheriff's Reserve Division Commander.
The promotion was a big step up for Bardzik because Reserve Division Commander was an important position in the Department. The Reserve Division Commander supervised two sergeants and 600 part-time volunteers or "re-serves." The Reserve Division consisted of both sworn and nonsworn members. Sworn reserve deputies were given badges, were authorized to make arrests, and were allowed to carry firearms or concealed weapons. In most cases, reserves were assigned to the same duties as regular deputies, such as patrol, booking, surveillance, investigations, and undercover work.*fn4
Sheriff Carona personally met with Bardzik to give him this new position. He asked Bardzik "to take command of the Reserve Division, clean it up and bring it back to respectability." Carona told Bardzik to "get rid of the dead wood," and "run it like every other division," because it "needed to stop being led like a badge and gun club."
Carona informed Bardzik that he had chosen Bardzik for the job because Bardzik was known as "somebody with the skills to come forward and take the Reserve Division and get it back on track." Carona emphasized that the Division "needed ethical leadership," Bardzik needed "to go in and clean it up," and that there were "no special favors."
Bardzik's exact chain of command to the Sheriff is unclear, but at least for his first year as Reserve Division Commander, Bardzik worked often with the Sheriff. Bardzik met with the Sheriff "face-to-face" three or four times a month, or "de-pending on what[ was] going on, perhaps a few times a week." Bardzik says that he reported to a captain or assistant sheriff at all times during his tenure as Reserve Division Commander and that his "chain of command was never directly to the Sheriff." In his deposition, however, Bardzik testified that when he first became Reserve Division Commander, his supervisor was largely absent from the Department. According to Bardzik, "without a captain there and without an active assistant sheriff, the reserve division commander, myself, didn't have anybody there. It was at least for some time, for the first half; therefore, it was a chain of command directly to [the Sheriff]." He agreed that "from between approximately November of '03 into November of '04, [he was] essentially heading up the reserves and reporting to Mike Carona with regard to [his] work there" "with the exception of [Captain] Tom Twellman sometimes working with [them]." Later on Bardzik reported to Assistant Sheriff Pete Gannon, but Bardzik still "had day-to-day management responsibility for the reserves."
Bardzik's day-to-day duties as Reserve Division Commander were "never typical." Bardzik would get "calls weekends and nights" regarding personnel issues of the reserve members and "would deal with those [issues] on a regular basis." And when emergencies arose or reserves were needed, Bardzik would "allocat[e] resources out to whoever needed them while making the decision what to keep in case we need[ed] it for something else." Bardzik would also ensure that the reserves maintained their training. He initiated "a lot of very proactive programs" to ensure that the Department had reserves in specialized areas of expertise; he created a high-tech unit and made sure there were swift-water rescue responders in the Reserve Division.
As Reserve Division Commander, Bardzik strove to improve the Division. After working with Captain Tom Twellman on an audit of the Reserve Division, Bardzik recommended a decentralization program. "Carona's January 1, 2005 'state of the department' memo to [the] Orange County Sheriff's Department praised Bardzik's decentralization of the Reserves as one of the 'highlights of the year.' " Bardzik also "implemented" a new "promotional protocol . . . to replace the system of favoritism that was in use before."
Carona decided to make the Reserve Division Commander a captain's post, and he interviewed Bardzik for the new position in Spring 2005. Reserve Division Commander was indeed made a captain's post later that year. According to Bardzik, "the Reserve Division Commander was one of the most prestigious positions in the Department that included a unique set of challenges and responsibilities."
Despite his apparent professional successes, Bardzik became frustrated with the way that Carona ran the Department and the Reserve Division. Carona allegedly appointed political allies to assistant sheriff positions as favors, he allowed nonsworn reserves to carry firearms and badges in violation of California law, and Carona's allies in the Department attempted to coerce employees, including Bardzik, into donating money for Carona's campaign.
Bardzik eventually openly supported Carona's opponent, Lieutenant Bill Hunt, in the Sheriff's election, and in the spring or summer of 2005, Bardzik's name appeared on a published list of Hunt supporters.
When Carona discovered Bardzik's support of his opponent, Bardzik's rise through the Department was over. At Carona's instruction, Bardzik was told that he should "resign from law enforcement." Bardzik approached the Sheriff and asked him why he had been told to resign. "Well, the Bill Hunt thing sure didn't help," was the Sheriff's reply. The Sheriff asked Bardzik why he was supporting Lieutenant Hunt, and said, "What were you thinking? You know where you were going in this department." In line with the Sheriff's warnings, in the fall of 2005, Bardzik was transferred to Court Operations where he remained a lieutenant but was no longer a division commander. His position involved less responsibility, less possibility for overtime pay, and was largely ...