Opinion
CV-24-00232-TUC-JAS
07-25-2024
Aaron Cross, et al., Plaintiffs, v. Chris Nanos, et al., Defendants.
ORDER
Honorable James A. Soto United States District Judge
Pending before the Court is Plaintiffs' motion for a preliminary injunction. For the reasons stated below, the motion is denied.
Because the briefing is adequate and oral argument will not help in resolving this matter, oral argument is denied. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1200-1201 (9th Cir. 1999).
STANDARD OF REVIEW
“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy never awarded as of right”). A plaintiff seeking a preliminary injunction must show that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are ‘serious questions going to the merits'-a lesser showing than likelihood of success on the merits- then a preliminary injunction may still be issued if the ‘balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072. Regardless of which standard applies, the movant “has the burden of proof on each element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction, which should not be granted “unless the facts and law clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted).
BACKGROUND
On May 1, 2024, a Pima County Sheriff's Department (“PCSD”) police officer (Sergeant Aaron Cross - “Plaintiff Cross”) and the Arizona Conference of Police and Sheriffs (“AZCOPS”) (“Plaintiffs”) initiated this action by filing a Complaint seeking injunctive relief. On the same day, Plaintiffs filed a motion for a preliminary injunction seeking to enjoin Chris Nanos, in his official capacity as Sheriff of the PCSD, and Ryan Pretti, in his official capacity as Lieutenant in the PCSD (collectively, “Defendants”) from pursuing an internal affairs (“IA”) investigation into Plaintiff Cross.
On April 20, 2024, Plaintiff Cross participated in a radio show interview on KVOI AM1030, which aired on the “Law Matters” podcast. During the interview, the radio host asked Plaintiff questions regarding his role as President of the Pima County Deputy Organization (“PCDO”), a labor union. Plaintiff discussed why he started the organization and how the PCDO differs from other organizations. Specifically, Plaintiff stated that the PCDO gives deputies a “voice” within the Department, while members of the Pima County Deputy Sheriff's Association (“PCDSA”) are “completely in the pocket of Sherriff Nanos.”
The IA investigation at issue in this case began after Sergeant Eric Cervantez (“Cervantez”), President of the PCDSA, filed a complaint with the Sheriff's Department three days after the radio interview occurred. Cervantez's complaint with IA alleged that Cross engaged in improper conduct inasmuch as the public statements that Cross made during the radio interview pertaining to the PCDSA were false. On April 29, 2024, the PCSD conducted an interview with Plaintiff Cross which included questions about his role as PCDO President and the radio interview in question, and also instructed him not to discuss the investigation or the radio interview while the investigation was still actively proceeding.
Shortly thereafter, on May 15, 2024, Plaintiffs filed a notice of change of factual circumstances concerning the motion for a preliminary injunction. This was prompted by a memorandum (dated May 13, 2024) from Sheriff Nanos stating that the investigation against Plaintiff Cross was closed, and that no action was warranted regarding Plaintiff Cross as he did not violate any Department policies.
The record reflects that under Department rules, all complaints must be investigated by IA, with a report submitted to Sheriff Nanos to determine any policy violations. Nanos concluded that Plaintiff's statements were opinions and did not adversely affect the Department's operations. Nevertheless, Plaintiffs maintain that the need for the preliminary injunction persists. They argue that it is crucial to prevent a chilling effect on Plaintiff Cross's and other AZCOPS members' First Amendment rights to comment on matters of public concern.
DISCUSSION
As a threshold matter, to obtain a preliminary injunction, Plaintiffs must show a likelihood of success on the merits (or serious questions going to the merits). Plaintiffs' motion for a preliminary injunction is based on a First Amendment retaliation claim, alleging violations of federal constitutional rights under 42 U.S.C. § 1983. When analyzing First Amendment retaliation claims by government employees, courts employ a five-factor test to determine the validity of the claims:
(1) Whether the plaintiff spoke on a matter of public concern;
(2) Whether the plaintiff spoke as a private citizen or public employee;
(3) Whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action;
(4) Whether the state had an adequate justification for treating the employee differently from other members of the general public; and
(5) Whether the state would have taken the adverse employment action even absent the protected speechHernandez v. City of Phx., 43 F.4th 966, 976 (9th Cir. 2022) (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)).
Here, it is undisputed that Plaintiff Cross was speaking on a matter of public concern and in a private capacity during the radio interview. The topics discussed during the interview centered on why Cross started his labor union and its operational aspects. The primary issue at hand concerns whether the initial investigation constitutes an adverse employment action; thus elements 3 through 5 will be implicated in this discussion.
“An adverse employment action is an act that is reasonably likely to deter employees from engaging in constitutionally protected speech.” Coszalter v. City of Salem, 320 F.3d 968, 970 (9th Cir. 2003). An employer does not violate an employee's First Amendment rights when the “employer's response includes only minor acts, such as ‘bad-mouthing,' that cannot reasonably be expected to deter protected speech.”' Id. at 976 (summarizing the holding of Nunez v. City of L.A., 147 F.3d 867 (9th Cir. 1998)). Employer actions that meet this threshold include those of the employer in Thomas v. Carpenter, who banned the plaintiff employee from attending certain meetings, and the employer in Ulrich v. City and County of San Francisco, who refused to rescind an employee's resignation. Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir. 1989); Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 972 (9th Cir. 2002).
In contrast, a brief investigation with no corresponding disciplinary action (as occurred in the case at bar) does not constitute an adverse employment action. Pierce v. Tex. Dep't of Criminal Justice, Institutional Div., 37 F.3d 1146, 1150 (5th Cir. 1994). Actions such as “discharges, demotions, refusals to hire, refusals to promote, and reprimands” are more consistent with acts reasonably likely to deter employees' First Amendment speech. Id. (citing Rutan v. Republican Party, 497 U.S. 62, 74 (1990)). Further, First Amendment retaliation claims do not apply to unspoken speech. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
There was no adverse employment action in this case. The record reflects that when anyone submits a complaint to the PCDS, it is standard procedure for IA to investigate that complaint, prepare a report, and send it to the Sheriff to determine if action is warranted. Rather than the PCDS initiating their own investigation (sua sponte) into Plaintiff based upon the recording of the radio interview, the investigation was triggered only in direct response to a complaint made by a peer law enforcement officer (i.e., Cervantez) who alleged that Cross made false statements in a publicly aired radio interview. Both Cervantez (i.e., the complainant) and Plaintiff Cross (i.e., the accused), were interviewed in response to a complaint initiated by Cervantez, and IA concluded in its report that Plaintiff Cross's statements constituted opinions and no improper action occurred. Likewise, Sheriff Nanos reviewed the report and determined that Plaintiff's statements did not violate any Department policies or regulations, and had no adverse effect on PCSD operations. Consequently, Nanos dismissed the complaint without altering Plaintiff's employment conditions in any manner whatsoever. The PCSD's actions simply fulfilled its duty to investigate allegations of wrongdoing against one of its officers; failure to investigate such allegations of wrongdoing would undermine the public's trust in the PCSD.
Despite the investigation being closed with no adverse actions taken against Plaintiff Cross, Plaintiffs nevertheless contend that Defendants did not need to proceed with any investigation at all; rather, Plaintiffs argue that the radio broadcast (standing completely alone - with no other context or investigation at all) provided all necessary information to evaluate the complaint's validity and to summarily dismiss it without any further investigation. However, the fact that Plaintiff Cross's statements potentially were not untruthful based solely on the audio recording of the radio interview, did not obviate the need for any investigation at all. If, on the other hand, Plaintiff's statements did appear to be potentially untruthful, it would likewise be unreasonable for the Department to discipline Plaintiff Cross without asking relevant parties any specific questions and getting more factual context. Furthermore, failing to investigate would contradict the PCSD's standard policies and those of similarly situated law enforcement agencies. Law enforcement officers face heightened scrutiny compared to employees in other professions, and defense attorneys have the right to disclosure of potentially exculpatory information such as records of dishonesty of law enforcement officers. By rigorously investigating all complaints alleging untruthful remarks regarding its officers, law enforcement agencies earn the public trust and maintain their integrity.
Plaintiffs argue that directing Plaintiff Cross to refrain from discussing the investigation (while the investigation was active and pending for a brief period of time) chilled his First Amendment speech. The Court finds this argument unpersuasive; maintaining confidentiality is a standard and reasonable protocol for the PCSD and law enforcement agencies generally. Allowing Plaintiff to disclose investigation details would compromise confidentiality and hinder the Department's effective functioning. Furthermore, the transcript of the IA interview reflects no inappropriate conduct or adverse employment threats toward Plaintiff. Rather, questions were directed at understanding the context of Plaintiff's statements about the PCDA, such as his relationship with Cervantez, the impact of his remarks on workplace harmony, and determining whether his statements were based upon the opinions of his organization's members.
Despite Nanos dismissing the investigation, Plaintiffs still argue that the IA investigation creates a chilling effect on future speech on matters of public concern. The Court finds this argument unpersuasive. Plaintiffs have not shown why an investigation that resulted in no adverse employment action would chill deputies' future speech. Restraining investigations based on future speech contradicts Ninth Circuit precedent, which focuses on reviewing already spoken speech. See Eng, 552 F.3d at 1070-71.
Lastly, even assuming (arguendo), that Plaintiffs could show a likelihood of success on the merits (or serious questions as to the merits), there has been no showing of irreparable harm to warrant any preliminary injunction. Plaintiffs fail to show any irreparable harm that would occur from investigating complaints of officer misconduct; this case only involved the minimal inconvenience of answering questions during a brief investigation. This situation departs from precedent where there was adverse employment action such as dismissals, demotions, or reprimands. Even minor employer actions like “bad-mouthing” present in Nunez do not support a First Amendment retaliation claim, let alone a lack of any adverse employment action at all as in this case. Ultimately, contrary to Plaintiffs' position, theoretical future complaints (which trigger a brief investigation with no accompanying adverse employment action) are very unlikely to deter citizens from discussing matters of public concern.
In light of the foregoing, Plaintiffs have failed to show that it is entitled to a preliminary injunction.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiffs' motion for a preliminary injunction is denied.