RICHARD CROUSE; GEORGE T. WINNINGHAM, Plaintiffs - Appellants,
TOWN OF MONCKS CORNER; JAMES CHAD CALDWELL, Chief of Police, Moncks Corner Police Department, Defendants-Appellees.
Argued: December 7, 2016
from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior
District Judge. (2:14-cv-00438-CWH)
Robert Hopwood, GEORGETOWN UNIVERSITY LAW CENTER, Washington,
D.C., for Appellants.
Christopher Wofford Johnson, GIGNILLIAT, SAVITZ & BETTIS,
L.L.P., Columbia, South Carolina, for Appellees.
H. Goldblatt, Appellate Litigation Program, GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C.; Marybeth Mullaney,
Mount Pleasant, South Carolina; Jennifer Munter Stark, Mount
Pleasant, South Carolina, for Appellants.
Derwood L. Aydlette, III, GIGNILLIAT, SAVITZ & BETTIS,
L.L.P., Columbia, South Carolina, for Appellees.
WILKINSON, MOTZ, and FLOYD, Circuit Judges.
by published opinion. Judge Wilkinson wrote the opinion, in
which Judge Floyd joined. Judge Motz wrote a separate opinion
concurring in the judgment.
WILKINSON, Circuit Judge.
are two police officers who appeal their dismissal from the
force, claiming that it was in retaliation for the exercise
of their First Amendment rights. The district court granted
qualified immunity to the police chief on the ground that it
was unclear whether the officers had acted as private
citizens or government employees. For the reasons that
follow, we affirm the judgment.
Richard Crouse and George Winningham were detectives in the
Moncks Corner Police Department until they were forced to
resign in October 2013. Winningham was a corporal, and he
reported directly to Crouse, a sergeant. Crouse, in turn,
reported to Lieutenant Michael Roach. Roach's supervisors
were Captain Mark Murray and, in charge of the entire
department, Chief Chad Caldwell.
and Winningham had "good" relationships with Roach
when they began to work for him, but those relationships
deteriorated over time. J.A. 980, 1091. Crouse and Winningham
complained about Roach's management style, his treatment
of criminal suspects, and his showing the officers
inappropriate pictures. Chief Caldwell agreed that Roach
could be "argumentative" and "abrasive."
J.A. 608. Another officer described Roach as
"aggressive, " but she felt that his approach as a
detective "tend[ed] to work." J.A. 1323. Crouse
discussed his complaints about Roach with both Captain Murray
and Chief Caldwell, but until October 2013, these complaints
did not include accusations of excessive use of
sequence of events leading to Crouse's and
Winningham's resignations began with the arrest of James
Berkeley on October 4, 2013. Berkeley had fallen asleep in
his car in a Wal-Mart parking lot after taking the wrong
medication. His three sons in the car could not wake him and
alerted Wal-Mart security, who called the police. Roach was
the first to arrive on the scene. Berkeley claims that Roach
pulled him from the car and threw him to the ground, while
Roach says that he pulled Berkeley out of the car to wake him
up. A second Moncks Corner police officer, Shawnda Winder,
arrived to find Berkeley standing outside of his car arguing
with Roach. While she did not see the initial encounter,
Winder felt that Roach was being rude to Berkeley and making
the situation more difficult.
and Winder learned that Berkeley had an outstanding arrest
warrant and placed him under arrest in the back of
Winder's patrol car. While Berkeley was in the patrol
car, he and Roach began to argue again. Roach tried to shut
the car door, but Berkeley's leg prevented it from
closing. Roach tried to shut the door again and then used a
knee strike to try to force Berkeley's leg into the car.
Berkeley claims the knee strike hit his groin, while Roach
claims the strike was to Berkeley's outer thigh. After
the knee strike, Berkeley jumped out of the patrol car. Roach
and Winder tried to push Berkeley back into the patrol car.
Another officer on the scene, Officer Dozier, was able to
force Berkeley onto the ground. Roach and Dozier held
Berkeley down, and Roach threatened to use his Taser if
Berkeley resisted further. Berkeley calmed down, and Dozier
and Winder helped him back into the patrol car.
and Winningham learned about this incident the following
Monday, October 7, 2013. That morning, another officer told
Crouse and Winningham that he had heard that Roach had
"kneed Mr. Berkeley in the" groin. J.A. 1116.
Crouse and Winningham read the incident report and viewed
pictures of Berkeley's injuries. Crouse discussed his
concerns about the incident with Captain Murray.
next day, Crouse and Winningham decided to talk to Berkeley.
During their lunch, Crouse and Winningham drove to
Berkeley's house. They were in plainclothes and driving
an unmarked car, but their guns and badges were visible.
After a few minutes sitting outside the house, they saw
Berkeley and initiated a conversation with him. Crouse and
Winningham encouraged him to file a complaint about Roach.
They told him that other officers supported his version of
the story, and Winningham suggested that Berkeley get an
attorney. Crouse also handed Berkeley a form that the police
department prepared for citizens to submit complaints about
police officers. These forms were freely available in the
police station and were distributed by clerical staff and
and Winningham made several efforts to conceal their visit to
Berkeley. Crouse used a separate piece of paper to hold the
citizen complaint form, ensuring that his fingers never
touched the form that he gave to Berkeley. Crouse told
Berkeley to pretend not to recognize the officers if they saw
each other in the police station. After they left, the two
officers initially agreed to say that Berkeley had flagged
them down but ultimately decided to tell the truth if they
the officers' entreaties to Berkeley not to discuss their
visit, he spoke with Officer Winder that day. He told her
that a Moncks Corner police officer had encouraged him to sue
Roach and the Moncks Corner Police Department. Winder
informed Chief Caldwell, who assigned Lieutenant Mark Fields
to investigate the entire incident-both Berkeley's claim
of excessive use of force and the visit by the mysterious
began his investigation by reviewing the incident report and
interviewing some of the officers who were present at
Berkeley's arrest. On October 15, 2013, Fields
interviewed Berkeley about both his arrest and the officers
who had come by his house. Based on Berkeley's physical