                      IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE FIFTH CIRCUIT


                                          No. 02-30078


WILLIAM EDWARD FRAZIER,

                                                                              Plaintiff - Appellee,

versus

LEONARD HATAWAY, individually and as Sheriff of Grant Parish, Louisiana, also known as
Pop Hataway,

                                                                           Defendant - Appellant.



                          Appeal from the United States District Court
                             for the Western District of Louisiana
                                        (99-CV-2265)

                                        January 13, 2003

Before KING, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

   Plaintiff William Frazier alleges that defendant sheriff Joseph Hataway engaged in a pattern of

retaliation against Frazier for supporting Hataway’s political opponent, in violation of the First

Amendment and 42 U.S.C. § 1983. Hat away allegedly used his political influence over Frazier’s

employer, district attorney Joseph Beck, to cause Frazier to suffer various adverse employment



         *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

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actions. The district court denied Hataway’s motion for summary judgment, rejecting, among other

things, his argument for qualified immunity. Hataway appeals the denial of summary judgment. We

affirm.

    Although this Court generally only hears appeals from “final decisions” of district courts, 28

U.S.C. § 1291, “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. Forsyth, 472 U.S. 511, 530 (1985). In

this interlocutory posture, we review only the “purely legal question of whether the plaintiff alleges

a violation of a clearly established right of which a reasonable person would have known.” See Kinney

v. Weaver, 301 F.3d 253, 261 (5th Cir. 2002). We must “assume[] as true the facts alleged by the

plaintiff that the district court determined to be in genuine dispute.” Id. at 262.

    The district court determined Frazier had raised a genuine issue of material fact as to whether

Hataway, using his position as parish sheriff, constructively demoted Frazier by exerting his influence

over Frazier’s employer, to retaliate against Frazier for supporting Hataway’s political opponent. We

agree with the district court that these facts, if true, would not support Hataway’s qualified immunity

defense.

    A plaintiff opposing a qualified immunity defense on summary judgment must show three things:

(1) that he has alleged the violation of a constitutional right; (2) that the constitutional right was

clearly established at the time the defendant acted; and (3) that record indicates that the violation

occurred, or gives rise to a genuine issue of material fact as to whether the defendant actually

engaged in the conduct that violated the clearly established right.” Conroe Creosoting Co. v.

Montgomery County, 249 F.3d 337, 340 (5th Cir. 2001). Again, however, we only review the first


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two questions for purposes of this appeal. The Supreme Court has explained that, for a right to be

clearly established, the “contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). That is, “in the light of pre-existing law the unlawfulness must be apparent.” Id.

    First, Frazier has alleged a violation of constitutional right. In Keenan v. Tejada, 290 F.3d 252,

258 (5th Cir. 2002), this Court explained the relevant First Amendment retaliation standard. A

plaintiff must show (1) he was engaged in constitutionally protected activity, (2) the defendant’s

actions caused him to suffer an injury that would chill a person of ordinary firmness from continuing

to engage in that activity, and (3) the defendant’s adverse actions were substantially motivated against

the plaintiff’s exercise of constitutionally protected activity. Id. at 258. Frazier alleges Hataway

retaliated against him for supporting Hataway’s opponent, and for opposing a tax measure that would

have benefitted law enforcement. The district court correctly found this to be a “mixed speech” case

because Frazier was speaking both as a citizen, and as a parish employee. See Kennedy v. Tangipahoa

Parish Library Bd. of Control, 224 F.3d 359, 366-67 (5th Cir. 2000). Under the principles explained

in Kennedy, the district court correctly found the speech to be a matter of public concern, and hence,

constitutionally protected. Frazier’s speech did not relate to an internal personnel dispute, or any

administrative dispute with Hataway; rather, it involved the public debate on the qualifications of

Hataway for sheriff, against the backdrop of a public election. See Kennedy, 224 F.3d at 372. Being

constructively demoted would plainly chill an ordinary person from continuing to engage in such

speech. Indeed, chilling Frazier’s speech is alleged to have been Hataway’s motive. The district court

also found that Frazier had raised a genuine issue of fact as to whether Hataway retaliated against him

because of Frazier’s speech; thus, the final part of the Keenan test is met.


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    Second, we address the question of whether the right was clearly established at the time of the

violation, considering that all the alleged retaliation occurred prior to this Court’s decision in Keenan.

Before Keenan, this Court had not addressed First Amendment retaliation where the retaliating party

was not an employer or in some contractual relationship with the plaintiff. However, the Keenan test

is substantially identical to the framework fo r First Amendment employment retaliation. See, e.g.,

Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999). The only meaningful

difference is that, in the employment context, the plaintiff must additionally show that his interest in

commenting on matters of public concern outweighs the defendant’s interest in promoting efficiency.

Compare id. with Keenan, 290 F.3d at 258. The efficiency concern is irrelevant here. We conclude

it would have been “apparent,” Anderson, 483 U.S. at 640, prior to Keenan that Hataway’s alleged

retaliation would not be deemed constitutional merely because Hataway was not Frazier’s employer,

especially because Frazier alleges Hataway exercised control over Beck, Frazier’s employer.

    AFFIRMED.




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