Texas Judge, DA, Sheriff Must Face Police Captain’s Speech Claim

A Texas police captain’s right to be free from firing at the behest of a new state judge, a local sheriff, and a local district attorney who allegedly believed an affidavit he provided in a criminal case disparaged them was clearly established, a divided Fifth Circuit ruled.

Judge Jeff Fletcher, James Wheeler, a former Wood County district attorney, and Tom Castloo, the county sheriff, therefore were properly denied immunity from Terry Bevill’s First Amendment retaliation suit, the 2-1 appeals court said.

Bevill says the three men conspired to get him terminated because of his affidavit supporting the bid of David McGee, a former county jail administrator, to move McGee’s trial on charges he helped an inmate escape and tampered with government documents to a different venue. The affidavit stated that Bevill didn’t believe McGee could get a fair trial in the county because of the political climate and local players, including the close relationship between Fletcher, Wheeler, and Castloo, the court said.

Government officials aren’t immune from First Amendment claims when there’s evidence a violation occurred and the right was clearly established at the time, the U.S. Court of Appeals for the Fifth Circuit said.

A free speech violation allegedly occurred here because Bevill wasn’t acting as a police officer when he provided the affidavit, Judge Carl E. Stewart said.

He provided it on behalf of McGee, who was a friend, at the request of McGee’s lawyer, the judge said.

The affidavit wasn’t filed at the request of Bevill’s former employer, the Quitman Police Department, or signed by Bevill as a QPD officer, Stewart said.

That Bevill prominently mentioned his job title in the affidavit wasn’t enough, the court said.

A public worker’s right from third-party employment interference by government officials who aren’t their employer was clearly established by the circuit’s 2004 decision in Kinney v. Weaver, Stewart said.

Bevill’s allegations that Fletcher, Wheeler, and Castloo threatened to withhold resources from Quitman if Bevill wasn’t fired, prompting the mayor to pressure the police chief, who eventually launched an investigation that resulted in Bevill’s termination, was enough to plead a conspiracy, the court said.

Judge W. Eugene Davis joined the opinion.

Judge Andrew S. Oldham dissented.

The majority needed seven pages and “elegant geometric diagramming” to explain how Kinney clearly established the right claimed by Bevill. That meant it wasn’t clearly established at the time, Oldham said.

Sommerman, McCaffity, Quesada & Geisler LLP represents Bevill. The state attorney general’s office represents Fletcher. Flowers Davis PLLC represents Wheeler and Castloo.

The case is Bevill v. Fletcher, 5th Cir., No. 20-40250, 2/11/22.