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1st Amendment Violation

By: Derek Hawkins//July 9, 2018//

1st Amendment Violation

By: Derek Hawkins//July 9, 2018//

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7th Circuit Court of Appeals

Case Name: Comsys, Inc., et al. v. Frank Pacetti, et al.

Case No.: 17-2053

Officials: EASTERBROOK and ROVNER, Circuit Judges, and GILBERT, District Judge.

Focus: 1st Amendment Violation

The City of Kenosha, Wisconsin, hired Comsys to be its information-technology department. Comsys had its offices inside City Hall and stored all of its electronic information on the City’s servers. The contract between Comsys and the City automatically renewed from year to year unless terminated, adding that both Comsys and the City “shall have the right, with or without cause, to terminate the Agreement by written notice delivered to the other party at least twelve (12) calendar months prior to the specified effective date of such termination.” The City’s Common Council voted on June 2, 2014, to end the contract, and the City’s Mayor (Keith G. Bosman) delivered formal notice two days later. The contract ended on June 5, 2015.

Comsys and McAuliffe contend that the contract’s termination violated the First Amendment by penalizing three episodes of speech. Plaintiffs call this “retaliation,” but that word does not add anything to the basic claim that the City made protected speech costly by ending a contract that was profitable to Comsys. See Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). Qualified immunity protects public employees who do not violate clearly established law. Unless we accept highly general statements—such as “do not invade reasonable expectations of privacy without probable cause”—as clearly establishing the law when the existence of a reasonable privacy interest is itself debatable, these appellants prevail. We have been told by the highest authority not to take general principles as clearly establishing how novel situations must be resolved. It follows that Mayor Bosman, Administrator Pacetti, and Manager St. Peter cannot be ordered to pay damages under 42 U.S.C. §1983. Whether they face liability under Wisconsin law is a question that we do not address. To the extent contested on appeal, the district court’s decision is reversed, and the case is remanded for further proceedings concerning other claims and other litigants.

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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