Thomas Noon; Christopher Skidmore; Candice Skidmore v. City of Platte Woods, Missouri

United States Court of Appeals
For the Eighth Circuit
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No. 22-3668
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Thomas Noon; Christopher Skidmore; Candice Skidmore
Plaintiffs - Appellees
v.
City of Platte Woods, Missouri
Defendant
Mayor John Smedley; Chief of Police Jim Kerns
Defendants - Appellants
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Appeal from United States District Court
for the Western District of Missouri
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Submitted: December 13, 2023
Filed: March 4, 2024
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Before SMITH, Chief Judge, GRUENDER and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Former Platte Woods, Missouri, police officers Thomas Noon and
Christopher Skidmore (collectively, “the Officers”) were terminated from their jobs

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after they submitted a letter to Platte Woods Mayor John Smedley and the city’s
Board of Aldermen containing various grievances about the police chief, James
Kerns. The officers sued Smedley and Kerns, alleging First Amendment retaliation
under 42 U.S.C. § 1983. Smedley and Kerns moved for summary judgment based
on qualified immunity, and the district court denied their motion. Smedley and
Kerns now bring this interlocutory appeal. We affirm.1
I.
Noon and Skidmore were officers with the Platte Woods, Missouri Police
Department (the “Department”). Over the course of their employment, the Officers
raised several concerns about Kerns’s performance as Chief of Police. Skidmore
notified Kerns that Department vehicles were not operating properly and radar
equipment gave false readings. Noon also raised concerns about personnel issues
and Kerns’s use of Department time to conduct personal business. The Officers
claim Kerns failed to address any of these concerns.
On September 9, 2019, frustrated with the Department’s management, Noon
met with Kerns. During this meeting, Noon encouraged Kerns to resign as Chief of
Police and handed Kerns a pre-drafted resignation letter. Kerns did not resign.
The Officers decided to take further action. On September 12, 2019, they sent
a document (the “Complaint Packet”) outlining their concerns about the Department
to Smedley and the Platte Woods Board of Aldermen. The Complaint Packet was
sent anonymously, and it included a list of complaints about Kerns’s leadership,
which “led to chronic, systemic and significant issues within the Department.” The
Complaint Packet also included a copy of the Department’s standard operating
procedures and noted “over 180 violations” and “a supplemental document with
numerous other examples of specific public safety concerns or simply things that
1 The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.

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discourage officers.” The document concluded by stating, “it is our belief that our
oath of office to serve the community requires this action.”
By mid-November, an investigation into the Complaint Packet’s allegations
had yet to commence. This prompted Noon and Skidmore to inform Smedley they
had authored the document. Following this admission, in late November 2019,
Skidmore’s job duties changed so that he was no longer able to assign shifts.
On December 4, 2019, a local newspaper wrote about the Complaint Packet’s
allegations. Two days later, Kerns learned someone anonymously sent an email
containing the allegations to the Ararat Shriners organization, of which Kerns was a
member. Kerns reached out to Smedley, claiming Noon or Skidmore may have been
involved in the leak. Noon and Skidmore wrote to Smedley again on January 7,
2020, expressing their disappointment that the investigation was closed without
either of them being interviewed. In January 2020, both the Officers were removed
from the Department’s schedule, and by March 2020, they both had been fired.
The Officers brought this lawsuit in state court, alleging Smedley and Kerns
violated the First and Fourteenth Amendments by retaliating against them for
reporting concerns about the Department. Smedley and Kerns removed the case to
federal court and moved for summary judgment, claiming they were entitled to
qualified immunity. The district court denied the motion and found there was a
genuine dispute of material fact as to whether Smedley and Kerns violated the
Officers’ First Amendment rights. Smedley and Kerns now appeal.
II.
Ordinarily, we review only final decisions of district courts. See 28 U.S.C.
§ 1291. But “a district court’s denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final decision’ within the meaning
of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v.

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Forsyth, 472 U.S. 511, 530 (1985). We review de novo a denial of summary
judgment on the grounds of qualified immunity. Stoner v. Watlingten, 735 F.3d 799,
802 (8th Cir. 2013). Thus, in resolving questions of law related to the denial of
qualified immunity, we review only whether the Officers’ version of the facts is
sufficient to overcome qualified immunity. See Plumhoff v. Rickard, 572 U.S. 765,
768 (2014); Scott v. Harris, 550 U.S. 372, 377–78 (2007); Fed. R. Civ. P. 56(a)
(“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”).
A.
Smedley and Kerns claim they are entitled to qualified immunity. As with
every qualified immunity analysis, we are tasked with a two-part inquiry to
determine (1) whether a constitutional violation occurred, and (2) whether the right
in question was clearly established at the time of the violation. Nord v. Walsh Cnty.,
757 F.3d 734, 738 (8th Cir. 2014). The district court determined the Officers created
a genuine dispute of material fact as to whether Smedley and Kerns violated their
First Amendment rights, and therefore Smedley and Kerns were not entitled to
qualified immunity. We agree.
Our first inquiry is whether the Officers established a First Amendment
violation. To succeed on their First Amendment retaliation claim, the Officers must
prove (1) they engaged in protected activity, (2) Smedley and Kerns took an adverse
employment action against them, and (3) the protected speech was a “substantial or
motivating factor” in that decision to take the adverse employment action. Henry
v. Johnson, 950 F.3d 1005, 1011 (8th Cir. 2020) (quoting Davenport v. Univ. of Ark.
Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009)). On appeal, Smedley and Kerns
do not contest whether the Officers suffered an adverse employment action or the
causal connection between the two events. Thus, our analysis will focus on the first
element—whether the Officers engaged in protected activity.

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A public employee engages in protected activity only if the employee “spoke
as a citizen on a matter of public concern.” Hemminghaus v. Missouri, 756 F.3d
1100, 1110 (8th Cir. 2014) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
We review this as a question of law. See Buehrle v. City of O’Fallon, 695 F.3d 807,
812 (8th Cir. 2012). If the speech “owes its existence to a public employee’s
professional responsibilities[,]” it is not made as a private citizen. Garcetti, 547 U.S.
at 411.
In this case, the Officers’ speech, taken in the light most favorable to them,
was made outside their regular duties as police officers. The record reveals only a
few of the Officers’ duties.2 Noon was responsible for patrol, responding to calls,
rotation of on-call officers, equipment management, assisting on-duty officers, and
emergency management. Skidmore’s duties included assigning shifts to other
officers and vehicle maintenance. As the district court recognized, there are
obviously a number of grievances in the Complaint Packet that do not relate to these
duties. For example, there is no evidence it was within the Officers’ job duties to
report Kerns’s allegedly corrupt billing practices. Or that they had an obligation to
voice their concerns with Kerns’s alleged dissemination of explicit images or alleged
bias in favor of the Ararat Shriners organization. The Officers claim they had no
2 As noted above, the Complaint Packet concluded by stating, “it is our belief
that our oath of office to serve the community requires this action.” Smedley and
Kerns claim this admission demonstrates the Officers were acting pursuant to their
official duties when they submitted their grievances. Although Noon and Skidmore
acknowledged making these statements, they did not discuss the contents of the oath,
and they claim the oath did not require them to submit the Complaint Packet.
Because the contents of the oath are not in the record, we cannot, viewing the facts
in the light most favorable to the Officers, conclude the oath required the Officers to
submit the Complaint Packet. Without knowing the contents of the oath, we cannot
say otherwise.

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obligation as employees to report these issues. Because Smedley and Kerns fail to
muster any evidence to the contrary, we agree.
We also agree with the district court’s assessment that the Officers’ speech
was a matter of public concern.3 The issues raised in the Complaint Packet largely
concerned the integrity of the Department and its leadership. The Complaint Packet
included concerns about corruption, financial mismanagement, and investigative
failures. Such allegations are related to institutional integrity—an important
governmental function. See Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1117
(8th Cir. 1997) (When the speech in question “involves a matter of political, social
or other concern to the community [it] is of public concern.”); Belk v. City of Eldon,
228 F.3d 872, 878 (8th Cir. 2000) (“Speech that criticizes a public employer in his
capacity as a public official . . . addresses matters of public concern.”).
Because the Officers spoke as citizens on matters of public concern, the
Officers have a possible First Amendment retaliation claim. But this does not end
our analysis. We must then resolve whether Smedley and Kerns have produced
“evidence to indicate the[ir] speech had an adverse impact on the efficiency of [the
Department’s] operations.” Lindsey v. City of Orrick, 491 F.3d 892, 900 (8th Cir.
2007). If there is evidence of disruption, an analysis under the so-called Pickering
balancing test is necessary. Hemminghaus, 756 F.3d at 1111 (referring to Pickering
v. Bd. of Educ., 391 U.S. 563, 568 (1968)). This is also a question of law for the
court. See Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993). Here,
the district court found Smedley and Kerns made the threshold showing of disruption
to trigger the Pickering balancing test. We agree.
“To trigger the Pickering balancing test, a public employer must, with
specificity, demonstrate the speech at issue created workplace disharmony, impeded
the plaintiff’s performance or impaired working relationships.” Lindsey, 491 F.3d
3 Smedley and Kerns do not dispute that portions of the Officers’ speech were
of public concern.

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at 900. In this case, the record shows there were some instances of workplace
disharmony and relational discord. For example, the same day the Complaint Packet
was submitted, a fellow Department officer texted Noon saying, “Do you have any
updates on this [Kerns] thing . . . I really don’t care what the resolution is [because]
at this point I am the only one tending to the day-to-day operations of the department
while the rest of you play whatever game you’re playing.” Moreover, Skidmore
testified that after the Complaint Packet’s submission, he noticed relationships
deteriorating among officers. Based on these facts, the consequences of the Officers’
actions were sufficient evidence of disruption, requiring us to conduct an analysis
under the Pickering balancing test.
Under Pickering, we must decide whether the Officers’ statements were “‘of
such public and social importance as to override [the Department’s] substantial
interest in maintaining’ the efficiency and reputation of the workplace, given the
nature of the office . . . .” Nord, 757 F.3d at 743 (quoting Crain v. Bd. of Police
Comm’rs of Metro. Police Dep’t of City of St. Louis, 920 F.2d 1402, 1411 (8th Cir.
1990)). To make this determination, the court considers the following factors:
(1) the need for harmony in the work place; (2) whether the
government’s responsibilities require a close working relationship; (3)
the time, manner, and place of the speech; (4) the context in which the
dispute arose; (5) the degree of public interest in the speech; and (6)
whether the speech impeded the employee’s ability to perform his or
her duties.
Anzaldua v. Northeast Ambulance & Fire Prot. Dist., 793 F.3d 822, 835 (8th Cir.
2015).
The Department “has a significant government interest in regulating the
speech activities of its officers in order ‘to promote efficiency, foster loyalty and
obedience to superior officers, maintain morale, and instill public confidence in the
law enforcement institution.’” Hughes v. Whitmer, 714 F.2d 1407, 1419 (8th Cir.

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1983) (quoting Gasparinetti v. Kerr, 568 F.2d 311, 315–16 (3d Cir. 1977)). But we
have also recognized that “an employee’s first amendment interest is entitled to more
weight where he is acting as a whistle-blower exposing government corruption.” Id.
at 1423. Thus, a “first amendment balancing test cannot be controlled by a finding
that disruption has occurred where such disruption occurs because a public employee
blows the whistle on the corruption of public officials.” Id. See also Atcherson v.
Siebenmann, 605 F.2d 1058, 1063 (8th Cir. 1979) (“[T]he creation of disharmony
cannot be so feared as to silence the critic who would inform the public of this
misbehavior by public officials.”) (quoting Atcherson v. Siebenmann, 458 F. Supp.
526, 539 (S.D. Iowa 1978)). As the Fifth Circuit stated, “it would be absurd to hold
that the First Amendment generally authorizes corrupt officials to punish
subordinates who blow the whistle simply because their speech somewhat disrupted
the office.” Porter v. Califano, 592 F.2d 770, 773–74 (5th Cir. 1979).
Although Smedley and Kerns offer evidence evincing some interoffice
disharmony, it is not enough to overcome the Officers’ First Amendment interest.
Here, the Complaint Packet alleges, among many other things, financial
mismanagement, workplace misconduct, and serious investigative failures. The
public would certainly be interested in these issues. Moreover, there is no evidence
that the Officers were unable to perform their job duties after submitting the
Complaint Packet, and this is not an “extreme situation[],” where “the employee
unduly breached confidentiality or disrupted intimate working relationships.” Id. at
774. These circumstances negate any interests weighing in favor of Smedley and
Kerns. Thus, we conclude the Pickering factors weigh in favor of the Officers.
B.
Our next determination is whether the Officers’ “First Amendment right was
clearly established such that a reasonable official would have known firing [them]
was unlawful.” Lindsey, 491 F.3d at 901. We conclude Smedley and Kerns had fair

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notice their alleged adverse actions were unlawful.4 We have held “no right is more
clearly established than freedom of speech [and] . . . speech alleging illegal
misconduct by public officials occupies the ‘highest rung of First Amendment
hierarchy.’” Hall v. Mo. Highway & Transp. Comm’n, 235 F.3d 1065, 1068 (8th
Cir. 2000) (quoting Sexton v. Martin, 210 F.3d 905, 913 (8th Cir. 2000)). See also
Belk, 228 F.3d at 882 (“It is clearly established that a State may not discharge an
employee on a basis that infringes that employee’s constitutionally protected interest
in freedom of speech.”) (quoting Rankin v. McPherson, 483 U.S. 378, 383 (1987)).
Further, in Sexton, we held it “clearly established that the disclosure of potential
illegal conduct of public officials was a matter of public concern.” 210 F.3d at 911.
And in Lindsey, we held speech by a city employee was protected by the First
Amendment because it “amounts to straightforward criticism of the Council’s
sunshine law compliance.” 491 F.3d at 899. Thus, Smedley and Kerns cannot
reasonably say they did not understand terminating the Officers for engaging in
protected speech violated the Officers’ First Amendment rights. After all, “a
reasonably competent public official should know the law governing his conduct.”
Sexton, 210 F.3d at 910. The Officers’ First Amendment right to be free from
retaliation for protected speech was clearly established.
III.
For the reasons stated above, Smedley and Kerns are not entitled to qualified
immunity. We affirm the district court.
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4 Smedley and Kerns argue this case is distinguishable from our precedent
because the Officers stated their complaints were made pursuant to their “oath of
office.” However, as previously noted, a material fact question remains as to the
contents of that oath. Accordingly, construing the facts in the light most favorable
to the Officers, we cannot determine as a matter of law that the Officers’ references
to their “oath of office” provide a basis for distinguishing this case from our prior
decisions.

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