Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Fire chief, terminated after providing subpoenaed testimony, cannot revive First Amendment claims, (Jun 17, 2025)

By Todd Harrison, J.D.

His termination letter provided some reasons for the decision that fell outside the ambit of the First Amendment, including giving testimony while in uniform on city time.

Affirming a district court’s dismissal of a former fire chief’s First Amendment retaliation claims, the Fifth Circuit found the government employer had an adequate justification for treating the fire chief differently from any other member of the general public, including the promotion of integrity and efficiency in the carrying out of official duties and maintaining proper discipline in public service. The fire chief had been subpoenaed to testify against a colleague, failed to consult with the city before providing his testimony, drove a city vehicle to the courthouse, and gave testimony dressed in his uniform. As a result of the testimony, the city determined that the fire chief withheld vital information about his colleague and that the testimony was provided for personal reasons (Hamilton v. The City of Wilmer, Texas, No. 23-10881 (5th Cir. Jun. 16, 2025)).

Misconduct allegations. In 2019, a fire department employee was accused of putting recording equipment in the bathroom of the fire station where he worked. He was placed on paid leave pending a criminal trial. When the COVID-19 pandemic delayed the criminal proceedings, the city administrator at the time allowed the employee to return to duty. When a new city administrator took over, the fire chief alleged that he informed her of the ongoing criminal matter.

Subpoena. On June 16, 2022, the fire chief was subpoenaed by the Dallas DA’s office with regard to the employee’s criminal case. When the day of the hearing arrived, the fire chief drove to the courthouse in a city vehicle, on city time, dressed in his uniform.

Leave, termination. Shortly after the hearing, the fire chief was placed on administrative leave by the city administrator. She stated that it had come to her attention that the fire chief allegedly withheld vital information regarding one of his staff members, putting the integrity of the department in question, and that he represented himself as an employee of the city in a legal proceeding for another employee without administrative permission or legal advice from the city’s legal counsel. He was later terminated for these reasons.

Lawsuit. Subsequently, the fire chief sued the city administrator and the city, bringing Section 1983 claims for violating his First Amendment rights in retaliation for speaking as compelled by a lawful subpoena. The district court granted the defendants’ motion to dismiss and this appeal followed.

Lane. First, the court considered whether the fire chief stated a claim that his constitutional rights had been violated. The district court had rejected the fire chief’s argument that his speech fell outside of his official duties and was protected speech under Lane v. Franks, 573 U.S. 228 (2014).

There, the administrator of a youth program at the Central Alabama Community College (CACC) began an investigation of a state legislator who was on the CACC payroll, ultimately testifying against the legislator. As to whether the administrator was speaking as a citizen when he testified, the Supreme Court noted that while the administrator testified based on information he had learned at work, “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.”

Further, because the Supreme Court concluded that it was “undisputed” that testifying was not part of the administrator’s normal tasks, it expressly declined to reach the question of “whether truthful sworn testimony would constitute citizen speech under Garcetti when given as part of a public employee’s ordinary job duties.” Subsequent Fifth Circuit decisions have not provided a clear answer to this question.

Bevill. Here, the court took a detour into some of its past jurisprudence. In Bevill v. Fletcher, 26 F.4th 270 (5th Cir. 2022), the plaintiff, a police officer, wrote an affidavit in support of a transfer for a friend, a county jail administrator who was facing criminal prosecution. There, the court took the point of view that the question raised by Lane was merely a restatement of the Garcetti formulation that a government employee is not protected by the First Amendment if he makes a statement pursuant to his official duties.

Rogers. Six months after Bevill, the court decided Rogers v. Hall, 46 F.4th 308 (5th Cir. 2022). There, the court held that if someone is a law enforcement officer, he “arguably” falls within the “scenario Lane left open for another day.” Ultimately, the court concluded that because the law enforcement officer did not introduce evidence showing his testimony was “undisputedly outside the scope of his ordinary job responsibilities,” and because the law was not clearly established as to the open issue from Lane, he could not overcome the defendants’ qualified immunity defense.

Rogers and Bevill exist in tension with one another, observed the court. The plaintiff in Rogers gave sworn testimony upon a subpoena about an event he witnessed at work, while the plaintiff in Bevill volunteered to provide a sworn affidavit in a friend’s criminal trial based on misconduct he had witnessed at work. The Bevill panel relied on the Garcetti formulation of official duties, while Rogers adopted the assumption that giving sworn testimony was within the plaintiff’s ordinary job duties.

Adequate justification. Turning to the case at hand, the appellate court noted that while the district court relied on Rogers to reach its decision, the court here would reach the same outcome regardless of whether Bevill or Rogers controlled its analysis of the first prong of Garcetti. Thus, the court determined that it need not resolve the tension between the two cases presently.

Even if the fire chief had engaged in speech protected by the first prong of Garcetti, the question then becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. The court answered this question in the affirmative.

Connick factors. In Lane, the Supreme Court pointed to factors recognized by Connick as legitimate reasons the government might have for treating an employee differently, including “promoting efficiency and integrity in the discharge of official duties” and “maintaining proper discipline in public service.” 573 U.S. at 242 (citing Connick v. Myers, 461 U. S. 138, 150-51 (1983)).

Here, the Connick factors favored the defendants. The termination letter outlined some reasons for its decision that fell outside the ambit of First Amendment protection, such as the fire chief not immediately reporting to his supervisor that the employee had been arrested. It also spoke to several reasons outside of the content of his testimony that animated the city’s decision, including the fact that he drove a city vehicle to the courthouse, gave testimony in uniform, and testified during work hours without taking leave.

Given that the fire chief used the instrumentalities and uniform of the city’s fire department to testify during the workday, his positive testimony concerning the employee could have been seen as an endorsement on behalf of the fire department rather than merely his personal opinion, explained the court. As such, the city administrator’s stated reasons for the termination decision fell squarely within the Connick factors describing legitimate reasons for treating an employee differently, and the fire chief was unable to overcome Garcetti’s second prong. Accordingly, the district court’s dismissal of the claims was affirmed.

Concurrence. In a concurrence, Judge Oldham agreed with the panel’s judgment but could only join part of its opinion. Specifically, Judge Oldham explained that he could not join the panel’s dicta concerning Bevill and Rogers, noting that the court meanders through the history of these opinions only to conclude that they do not matter with regard to the case at hand, and as such he would omit this dicta.

The case is No. 23-10881.

Judge: Higginson, S.

Attorneys: Eric Nelson Roberson (Kilgore & Kilgore) for Mark Hamilton. Robert Jacob Davis (Matthews, Shiels, Knott, Eden, Davis & Beanland) for City of Wilmer, Texas.

Companies: City of Wilmer, Texas

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