State Officials Not Immune From 1st Amendment Suit

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By Kevin McGowan

Nov. 12 — A former Michigan gaming compliance officer fired after speaking to the media about a lawsuit he filed alleging lack of enforcement of liquor licensing laws at tribal casinos may pursue First Amendment retaliation claims, the U.S. Court of Appeals for the Sixth Circuit ruled Nov. 12.

Affirming the denial of qualified immunity, the court said four state officials responsible for Patrick Devlin's termination aren't shielded from his First Amendment claims because it was “clearly established” Devlin was engaging in protected speech when he was fired in July 2008.

In analyzing whether public officials are shielded from liability by qualified immunity, a court asks if the officials violated the fired employee's constitutional rights and if those rights were “clearly established” when the worker was terminated.

Both questions must be resolved in Devlin's favor, the Sixth Circuit said. Devlin's speech clearly “addressed a matter of public concern” and he spoke as a “citizen” outside the duties of his employment, bringing his speech under the First Amendment's protection, the court said.

The First Amendment retaliation claims turn on Devlin's discharge about seven weeks after he sued to compel the attorney general to enforce the liquor laws against tribal casinos in Michigan. Devlin told reporters the attorney general was “a deadbeat” when it came to enforcing the laws and gave the tribes “a free pass.” Devlin was suspended two days after the newspaper articles were published and fired after a disciplinary hearing.

The officials failed to produce evidence that Devlin's speech caused any actual disruption in the workplace, meaning they can't prevail under the balancing test in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 1 IER Cases 8 (1968).

On remand, a district court jury must decide if Devlin's speech was a substantial or motivating factor in the state's decision to fire him, the court said.

Judges Julia Smith Gibbons, Jeffrey S. Sutton and Raymond M. Kethledge joined in the opinion.

The court previously had rejected the officials' motion to dismiss Devlin's constitutional claims.

Devlin, of Grand Rapids, Mich., represented himself. The Michigan attorney general represented the state.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at