                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                        ________________

                              No. 14-3861
                           ________________

                 DAVID JERRI, JR.; DAVID JERRI, SR.,
                                Appellants

                                    v.

 FREDERICK HARRAN, IN BOTH HIS OFFICIAL CAPACITY AS DIRECTOR OF
   PUBLIC SAFETY, BENSALEM TOWNSHIP, PENNSYLVANIA, AND IN HIS
   INDIVIDUAL CAPACITY; JOSEPH DIGIROLAMO, IN BOTH HIS OFFICIAL
CAPACITY AS MAYOR OF BENSALEM TOWNSHIP, PENNSYLVANIA, AND IN
HIS INDIVIDUAL CAPACITY; PATRICK PONTICELLI, IN BOTH HIS OFFICIAL
     CAPACITY AS DEPUTY DIRECTOR OF PUBLIC SAFETY, BENSALEM
  TOWNSHIP, PENNSYLVANIA, AND IN HIS INDIVIDUAL CAPACITY; JOHN
MONAGHAN, IN BOTH HIS OFFICIAL CAPACITY AS DETECTIVE, BENSALEM
TOWNSHIP, PENNSYLVANIA, AND IN HIS INDIVIDUAL CAPACITY; KNIGHTS
COLLISION CENTER; MICHAEL PIERSON, IN BOTH HIS OFFICIAL CAPACITY
             AS OWNER OF KNIGHTS COLLISION CENTER,
                  AND IN HIS INDIVIDUAL CAPACITY
                          ________________

              On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                   (D.C. Civil Action No. 2-13-cv-01328)
               District Judge: Honorable Michael M. Baylson
                             ________________

                Submitted Under Third Circuit LAR 34.1(a)
                             April 14, 2015

        Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges

                     (Opinion filed: August 10, 2015)
                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge

       David Jerri, Sr. and David Jerri, Jr. claim that appellees, various Bensalem

Township officials, retaliated against Jerri, Sr. for exercising his First Amendment rights

and falsely arrested and maliciously prosecuted Jerri, Jr. The District Court granted

summary judgment to appellees, and, for the reasons that follow, we affirm in part, vacate

in part, and remand.

       I.     Facts

       Appellants are a father and son. Jerri, Sr. was chief of the Union Fire Company

(“Union”), of which his son was a member. The core of the parties’ fight relates to a

$1,000,000 fire boat that Union purchased over the vigorous objection of Defendant

Frederick Harran, the Director of Public Safety for Bensalem Township.

       Union first set its eyes on the boat in 2008 when Vincent Troisi was the chief. He

applied for a grant from the Federal Emergency Management Agency (“FEMA”) for

$750,000 and proposed that Union would pay the rest. Union’s annual budget is about

$300,000 and is funded by Bensalem ($150,000), the local Volunteer Firefighters’ Relief

Organization ($130,000), and private contributions ($10,000–$20,000). In addition to the

nearly $250,000 that Union needed to put up for the sticker price of the boat, it turned out



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
that Union paid $25,000 in counsel fees and $28,000 to a consultant in the course of the

acquisition. A. 1061. Union took on $94,000 in bank debt to cover these expenses, and it

allocated $42,000 per year to maintenance. Thus, the boat was, to say the least, a

significant expenditure to the Township-funded company.

       According to the Township, it was also a boondoggle. Chief Troisi’s application

to FEMA for funds to cover purchasing the boat argued that it would be useful in

combating “IED (Improvised Explosive Device) attacks involving small craft or

underwater swimmers” and to “address prevention of IED attacks on passenger and/or

vehicle ferries.” A. 1058. It bears noting that, according to Jerri, Sr.’s deposition, there

have not been ferries near Bensalem since the 1930s, to say nothing of IED attacks on

them. A. 1031:21–22.

       Harran opposed the boat’s purchase and, in the course of his disagreements with

Troisi on June 13, 2011, suspended Union’s operation. In response, Troisi resigned, and

Union agreed to allow an oversight committee to be created to investigate Union’s

finances and practices. This committee was created in short order, and Union was

reinstated on June 17 with Raymond Hackman III as chief. A. 919. Six weeks later,

Union’s membership elected Jerri, Sr. as chief. He also supported the fire boat, and he

succeeded where Troisi had failed: in January 2012, the boat, nicknamed “the Bear on the

Delaware,” was delivered to the Neshaminy State Park Marina. A. 1059.

       According to Jerri, Sr., his responsibilities as fire chief were “[t]o oversee the day-

to-day operations of [his] subordinates, to make sure that [his] junior officers were

performing their task[s] as far as training [and] maintenance, make sure everybody stayed

                                              3
up-to-date on their certifications . . . , and to be liaison between the fire company and the

[t]ownship.” A. 247–48. Although Jerri, Sr. dances around the question a bit in his

deposition, “[w]hen it comes down to it,” he testified, Harran was his boss. A. 251.

Shortly after Jerri, Sr.’s election as chief, he had correspondence by phone, email, and

letter with Harran, who on August 11, 2011, “request[ed] that any issues regarding the

Union Fire Company . . . be discussed in private and not at a [Township] council

meeting.” A. 1112.

       Jerri, Sr.’s brief tenure as Union’s Chief was tumultuous. He disagreed with

Harran about the boat, which Jerri, Sr. claims to have viewed as vital for public safety.

Harran was upset with what he perceived to be mismanagement by Union; at one point,

he asked to see Union’s insurance contract for the boat. Jerri, Sr. would not provide him

with the documentation and instead hired a lawyer. Jerri, Sr. also believed that Harran

went so far in his opposition to the boat as to attempt to sabotage Union’s grant

application. A. 304, 307. When the grant was awarded, Jerri, Sr. believed the Township

wrongly reported it as an asset on its municipal budget (according to Jerri, Sr., the grant

was awarded directly to Union) and then wrongly reported that the Township had spent

the money on the boat.

       On August 22, 2011—after Harran’s letter telling him not to bring his complaints

to a Township council meeting—Jerri, Sr. attended such a meeting to complain about his

differences with Harran. Though his deposition is a little unclear on the precise timeline,

it appears that just before the meeting Harran told Jerri, Sr. that “[Harran] doesn’t like

[Jerri, Sr.] talking shit about him.” A. 1007. Jerri, Sr. responded that he “had freedom of

                                              4
speech,” and Harran said he wasn’t sure, but if Jerri, Sr. “didn’t like it [he] could sue.”

Id.

       At the meeting, Jerri, Sr. “spoke to a reporter from the Bensalem Patch.” A. 256.

His testimony at the council was brief; he said, “After I threatened to come to here—

safety issues that Fred [Harran] used to close the fire company down. This may not be

the proper venue for me to address this, but I would just like the opportunity to sit down

with maybe several of you and the mayor and go over these issues because there is really

nothing on here concerning safety.” A. 1115. The council president cut him off and

suggested he call the mayor the next day to schedule a meeting, which the mayor agreed

would be best. A. 1115–16.

       After the meeting, Harran sent Jerri, Sr. a letter telling him to bring up “any issues

that the Union Fire Company may have with the [T]ownship” with the oversight

committee that had been created after Troisi’s resignation. A. 1119. Jerri, Sr. interprets

this letter as telling him not to speak at future Township council meetings, but the letter

does say, “[Y]ou will continue to be welcome to attend any council meetings and speak

during the Public Comment portion.” A. 1119 (emphasis added).

       Jerri, Sr. communicated his disagreements with Harran about the boat to “the

Bucks County Controller’s Office, the FBI, Bensalem Township Auditor, and the

Pennsylvania State Fire Commissioner.” A. 304. Throughout his tenure as Union’s

chief, Jerri, Sr. communicated with Danny Adler, a reporter, to complain about Harran’s

decision to shut down the fire department (which Jerri, Sr. deemed a hardball tactic to get

Union to abandon its boat purchase). A. 230–32, 262–63. Before he had become fire

                                              5
chief, Jerri, Sr. had also tipped an employee of Fox TV about the shutdown, alleging that

Harran had “issued standing orders to arrest on site [sic] any member of [Union] on any

fire apparatus in Bensalem” and that “ANY fire in Union fire companies local WILL be

considered arson and the members of [Union] be [sic] investigated as such.” A. 290.

       In July 2012 Harran again suspended Union’s operation. Shortly thereafter, Jerri,

Sr. resigned, the boat was turned over to FEMA, and Union was again permitted to fight

fires in Bensalem.

       But pushing Jerri, Sr. out was not enough, he and his son allege. Township

officials also orchestrated what Jerri, Jr. believes was a sham prosecution against him for

insurance fraud. Jerri, Jr. injured his hand and filed for workers’ compensation. He

claims he sustained an injury when fighting a fire, but he was accused of hurting himself

while playing hockey. Defendant Detective John Monaghan investigated the injury. A

supervisor of Jerri, Jr. at Knights Collision, an auto body shop, told Monaghan that Jerri,

Jr. had injured himself in a hockey game; others told Monaghan it had been in the fire.

Monaghan filed a criminal complaint against Jerri, Jr., reciting the hockey story and

stating that it was corroborated by two supervisors at Knights Collision. The affidavit of

probable cause in support of the complaint omits any exculpatory information that

Monaghan learned in his investigation.

       Jerri, Jr. and Sr. sued, the District Court granted summary judgment to the

Defendants, and this appeal followed.




                                             6
       II.    Discussion

              A.     Jerri, Sr.’s First Amendment Claim

       In order to state a claim under 42 U.S.C. § 1983 for retaliation for exercising one’s

First Amendment rights, “a public employee plaintiff must allege that his activity is

protected by the First Amendment, and that the protected activity was a substantial factor

in the alleged retaliatory action.” Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).

To establish that the activity was protected by the First Amendment, the plaintiff must

show that he or she spoke as a citizen and on a matter of public concern. Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006).

       Indeed, the only issue we decide is whether Jerri, Sr. spoke “as a citizen.” After

making this showing, a plaintiff must persuade the court that the employee’s interests “as

a citizen, in commenting upon matters of public concern” outweighs “the interest of the

State, as an employer, in promoting the efficiency of the public services it performs

through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also

Hill v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d Cir. 2006) (outlining elements of

First Amendment claim). “Determining whether [Jerri’s speech] is protected activity

under Pickering is an issue of law for the court to decide.” Green v. Phila. Hous. Auth.,

105 F.3d 882, 885 (3d Cir. 1997). The District Court concluded that Jerri, Sr. did not

speak as a citizen and thus did not reach the Pickering question. We ordered

supplemental briefing on the matter. The parties have made plausible arguments in

support of their positions, but we deem it prudent to remand to the District Court to



                                             7
weigh the Pickering balance in the first instance, as “we are a court of review, not first

view.” Haskell v. Harris, 745 F.3d 1269, 1271 (9th Cir. 2014).

                     1.     Standard of Review

       Whether speech is protected, and thus whether Jerri, Sr. spoke as a citizen, is a

question “of law, not fact.” Connick v. Myers, 461 U.S. 138, 148 n.7 (1983). Whether

speech is protected depends on the answers to several fact-intensive questions: what did a

person say, in what form, in what context, what was the scope of his employment, and

was the speech on a matter of public concern? Thus we must carefully examine the

whole record in light of the parties’ arguments and “mak[e] an independent constitutional

judgment on the facts of the case” to determine whether the plaintiff spoke as a citizen.

Id. at 150 n.10.

                     2.     Law of Citizen vs. Employee Speech

       Defendants urge that Jerri, Sr.’s complaints were made “pursuant to [his] official

duties” and not as a citizen outside his professional obligations. Garcetti, 547 U.S. at

421. “[T]he ‘proper inquiry’ into what are an individual’s official duties ‘is a practical

one.’ Garcetti, 547 U.S. at 424.” Gorum, 561 F.3d at 185. Thus, although a person’s

formal job description may be relevant, the true scope of someone’s official

responsibilities will generally need to be established by evidence revealing the actual

policies and practices of a workplace. See Garcetti, 547 U.S. at 424 (rejecting possibility

“that employers can restrict employees’ rights by creating excessively broad job

descriptions”).



                                              8
       We have held “that a claimant’s speech might be considered part of his official

duties if it relates to ‘special knowledge’ or ‘experience’ acquired through his job.”

Gorum, 561 F.3d at 185. At the same time, courts have emphasized that the First

Amendment protects speech by employees who are “the members of a community most

likely to have informed and definite opinions” on issues of public concern related to their

job. Pickering, 391 U.S. at 572. If there is tension between these lines of cases, it can be

resolved by underscoring “that Garcetti’s ‘pursuant to official duties’ test requires a

practical inquiry.” Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 989 (3d Cir. 2014).

While the fact that a person learned something about which he complained on the job

may be a factor in determining whether the speech was made as a citizen, “it bears

emphasis that whether an employee’s speech ‘concern[s] the subject matter of [his]

employment’ is ‘nondispositive’ under Garcetti, 547 U.S. at 421. This is because the

First Amendment necessarily ‘protects some expressions related to the speaker’s job.’

Id.” Dougherty, 772 F.3d at 989 (alterations in original).

       It is also helpful to separate the “as a citizen” prong from the “matter of public

concern” inquiry. Whether a person speaks as a citizen depends less on the subject

matter—though that is relevant—than on the manner of speech, specifically whether the

plaintiff is “expected, pursuant to [his or her] job duties,” to make the speech that is at

issue. Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir. 2007), abrogated on other

grounds by Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488 (2011).

       Finally, and importantly in the context of this case, in evaluating whether Jerri, Sr.

has stated a claim under § 1983, “[t]he [C]ourt . . . cannot make a superficial

                                              9
characterization of the speech or activity taken as a whole . . . . Instead, it must conduct a

particularized examination of each activity for which the protection of the First

Amendment is claimed.” Johnson v. Lincoln Univ., 776 F.2d 443, 451 (3d Cir. 1985).

This inquiry requires a sensitive analysis that attends to “the content, form, and context of

a given statement, as revealed by the whole record.” Gorum, 561 F.3d at 187.

                     3.      The District Court’s Opinion

       The District Court held that “all relevant speech concerned the affairs of” Union

and that therefore a precedent of our Court required dismissal. Jerri v. Harran, No. 13-

cv-1328, 2014 WL 2586960, at *2 (E.D. Pa. June 10, 2014) (citing Houston v. Twp. of

Randolph, 559 F. App’x 139 (3d Cir. 2014) (not precedential)). In stating that

conclusion, the District Court evaluated all the speech in the case together without

engaging in the more particularized examination that Johnson requires.

       Houston was a not precedential opinion, and thus even if its facts were analogous

to this case, the District Court would not have been bound by it. But we note that

Houston did not hold that an employee’s speech about his place of employment is

categorically unprotected. Nor could it have: the Supreme Court in Pickering recognized

that employees’ speech about their work is particularly worthy of protection because

employees are “the members of a community most likely to have informed and definite

opinions” about their jobs. 391 U.S. at 572. Instead, in Houston the plaintiff (a

firefighter responsible for training other firefighters) disagreed with the chief about how

many people it was appropriate to send out on teams responding to fires. He complained

to the chief that it was dangerous to allow teams with fewer than five firefighters. A

                                             10
panel of this Court applied Garcetti to hold that Houston’s job description was “to correct

errors and deviations in [fire department] procedures,” and thus his speech was made

“pursuant to [his] official duties.” Houston, 559 F. App’x at 142 (second alteration in

original). The crucial fact in Houston was not that the speech concerned the fire

department; it was that Houston’s job was to communicate disagreements about the way

the fire department operated to the chief. Under Garcetti, that sort of speech is

unprotected.

                      4.     Jerri Spoke as a Citizen.

       Applying the proper test here, it appears that much of Jerri, Sr.’s speech was made

as an employee (and thus is unprotected), but some of it was made as a citizen. (Note

that it does not follow from the fact that it was made as a citizen that it is protected

speech; it still needs to have been made on a matter of public concern, and Jerri, Sr.’s

interest in saying it must outweigh the Township’s interest in maintaining an orderly fire

department.)

       Jerri, Sr. did not speak as a citizen when he made his complaints directly to the

defendants, who are all Township officials. One of his job responsibilities as chief was to

liaise with the Township on matters that concerned Union, and he did so when, for

example, he “complained to Defendants” about “waste occurring on the part of

Defendants with respect to a non-functional fire training center.” A. 310. And, as a

general matter, expressing concern about an employer’s actions “up the chain of

command,” Foraker, 501 F.3d at 240, particularly when the employee is not advocating

“ideas, principles and projects,” Hill, 455 F.3d at 242, that a supervisor opposes, is

                                              11
unlikely to be protected. When Jerri, Sr. sought to bring Defendants’ attention to alleged

waste that harmed Union, he was doing what a fire chief is meant to do, and thus he

cannot be said to have acted in those contexts as a citizen.

       Nevertheless, Harran, Jerri, Sr.’s boss, specifically told him to raise issues about

Union and Bensalem “in private” and “not at a council meeting.” Jerri, Sr. instead went

to a Township council meeting where he spoke to a reporter. He was in regular contact

with a different reporter while he was chief to whom he relayed complaints about

Bensalem, and he also complained about Bensalem’s handling of the boat to “the Bucks

County Controller’s Office, the FBI, Bensalem Township Auditor, and the Pennsylvania

State Fire Commissioner.” A. 304. Similarly, the plaintiff in Pickering raised his

complaints to a reporter by way of a letter to the editor. 391 U.S. at 566. Jerri, Sr.’s job

duties do not include making complaints to reporters or the FBI; in fact, his boss

specifically forbade him from doing so by demanding he raise his complaints in private.

       Although it is true that Jerri, Sr.’s speech concerned his employment as fire chief,

we have held that such a consideration is not dispositive. Dougherty, 772 F.3d at 989.

Instead, the crucial question is whether the plaintiff is “expected, pursuant to [his or her]

job duties,” to make the relevant speech. Foraker, 501 F.3d at 241. Quite simply, there

is no record evidence (and it would seem illogical) to suggest that Jerri, Sr. was expected

to make the complaints he did to reporters and law enforcement, and thus Jerri, Sr. spoke

as a citizen when he complained about the boat business to all and sundry.




                                             12
                     5.     Qualified Immunity

       The parameters of when a person speaks as a citizen are sufficiently clear that,

given the posture of this case and the arguments before us, it would be inappropriate to

affirm on the basis of qualified immunity, which only “protects government officials

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks

omitted). As Garcetti and our precedential opinions make clear, a person who speaks

outside his job duties speaks as a citizen. Moreover, this case is analogous to Pickering

when it involves speech made to the press. The law governing the narrow issue before

us—whether, assuming all the other elements of a First Amendment claim are satisfied,

speech made as a citizen is protected—is clearly established, hence rendering qualified

immunity inappropriate.

       We thus vacate with respect to Jerri, Sr. and remand.

              B.     Jerri, Jr.’s Malicious Prosecution and False Arrest Claims

       Jerri, Jr. argues that his arrest and prosecution for insurance fraud violated the

Fourth Amendment’s prohibition on unreasonable seizures. He thus brings a claim for

false arrest and malicious prosecution under § 1983. The elements of a malicious

prosecution claim are:

       (1) the defendants initiated a criminal proceeding;
       (2) the criminal proceeding ended in the plaintiff’s favor;
       (3) the proceeding was initiated without probable cause;
       (4) the defendants acted maliciously or for a purpose other than bringing the
       plaintiff to justice; and

                                             13
       (5) the plaintiff suffered a deprivation of liberty consistent with the concept of
       seizure as a consequence of a legal proceeding.

DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). A plaintiff states a

claim for false arrest when he shows that the arrest was “made without probable cause to

believe that a crime has been committed.” Barna v. City of Perth Amboy, 42 F.3d 809,

819 (3d Cir. 1994).

       The primary difference between the torts Jerri, Jr. alleges is that “[a] claim for

false arrest, unlike a claim for malicious prosecution, covers damages only for the time of

detention until the issuance of process or arraignment, and not more.” Johnson v. Knorr,

477 F.3d 75, 82 (3d Cir. 2007) (alteration in original). Probable cause to arrest on one

charge does not insulate a defendant from liability for malicious prosecution on another.

Id. at 84–85. However, Jerri, Jr.’s arrest and prosecution were for the same alleged

conduct, nor is it alleged that any new information bearing on probable cause came to

light between arrest and prosecution. In this context, probable cause to arrest Jerri, Jr.

would defeat his malicious prosecution claim as well. Because Jerri, Jr. has not pointed

to sufficient evidence for a reasonable juror to view his arrest as lacking probable case,

we affirm.

       In considering a false arrest claim, we have defined “probable cause” as

“reasonable grounds for the initiation of the criminal proceeding.” Kossler v. Crisanti,

564 F.3d 181, 194 (3d Cir. 2009). This standard requires the state official who initiated

the proceeding to have a reasonable belief, based on his or her perception of the relevant

facts and circumstances, to believe the defendant committed the offense or offenses


                                             14
charged. Id. Moreover, even if a defendant is arrested pursuant to a warrant that appears

supported by probable cause, he may state a claim for false arrest if the prosecuting

official “knowingly and deliberately, or with a reckless disregard for the truth, made false

statements or omissions that create a falsehood in applying for a warrant; and . . . such

statements or omissions are material, or necessary, to the finding of probable cause.”

Wilson v. Russo, 212 F.3d 781, 786–87 (3d Cir. 2000).

       In this case, Detective Monaghan submitted an affidavit of probable cause to

initiate criminal proceedings against Jerri, Jr. for insurance fraud. The affidavit stated

that Jerri, Jr. informed Michael Pierson and Robert Searfoss, his supervisors at Knights

Collision, that he injured his hand playing hockey. Nonetheless, Jerri, Jr. submitted a

claim for workers’ compensation, stating that he had injured his hand while fighting a

fire. The affidavit also stated that Jerri, Jr.’s insurance company terminated his benefits

because his “injury was not within the scope of [his] employment.” A. 1224. On its face,

the affidavit of probable cause sufficiently stated a reasonable belief that Jerri, Jr. had

made a material misstatement of the cause of his hand injury and thus committed

insurance fraud.

       Because the affidavit is facially sufficient, the question becomes whether Jerri, Jr.

can point to record evidence which, if accepted as true and drawing all reasonable

inferences in his favor, could lead a reasonable juror to conclude that Detective

Monaghan recklessly, knowingly, or deliberately made material false statements or

omissions in the affidavit. To support his contention that Monaghan did so, Jerri, Jr.

points to statements by three firefighters (Zac Breig, Cryil Pyle, and Conor McIntyre) and

                                              15
Jerri, Jr.’s girlfriend (Meghan Onifri) who corroborated Jerri, Jr.’s version of events, as

well as a few investigative paths that neither confirmed nor undermined Monaghan’s

hypothesis that Jerri, Jr. had injured his hand playing hockey. Appellants Br. 29–32. He

also points to Pierson’s deposition, where he testified that he had his information about

Jerri, Jr.’s injury from Searfoss, A. 614, contrary to what Detective Monaghan wrote in

the affidavit of probable cause (“Pierson asked [Jerri, Jr.] what he did to his hand[;] he

told [Pierson] he had hurt it playing hockey the night before.” A. 1224).

       The problem for Jerri, Jr. is that he points to no reason why Detective Monaghan

had to credit the firefighters and Jerri, Jr.’s girlfriend and not the persons at Knight’s

Collision. All that the evidence to which Jerri, Jr. points shows is that Detective

Monaghan had conflicting information. There is no reason to doubt that Searfoss told

Monaghan that Jerri, Jr. had suffered a hockey injury. And although it is possible that

Detective Monaghan misstated Pierson’s report of who told him how Jerri, Jr. was

injured, that misrepresentation—assuming as we must that it was indeed a false

statement—was not material. First, Searfoss’s report by itself provides sufficient

probable cause to support the affidavit, and, in any event, Pierson’s deposition testimony

makes clear that, whatever the source of his information, Pierson believed that Jerri, Jr.

“said he hurt his hand playing hockey.” A. 1195. Monaghan was under no obligation to

pour all the evidence he had amassed into his probable cause affidavit; instead, he was

permitted to point only to the evidence that supported a finding of probable cause to

begin a criminal case. To be sure, if the interviews Jerri, Jr. cites occurred as the

witnesses testify they did, Detective Monaghan may well have been obligated to disclose

                                              16
them to Jerri, Jr. pursuant to Brady v. Maryland, 373 U.S. 83 (1963), but no source of law

obliged him to tell both sides of the story in his criminal complaint.

       Thus we affirm with respect to the decision against Jerri, Jr.

       III.   Conclusion

       We affirm the award of summary judgment with respect to Jerri, Jr. However, at

least some of Jerri, Sr.’s speech was made as a citizen. As this was the only prong of the

analysis of a First Amendment retaliation claim that the District Court analyzed, we

vacate its decision and remand to consider Pickering and any other aspects of Jerri, Sr.’s

claim that continue in dispute.




                                             17
