Action under 42 USC § 1983 asserting claims for violation of First Amendment free speech rights; Qualified immunity; Whether each defendant acted within the scope of their “discretionary functions”; Whether a governmental entity’s outside counsel can claim qualified immunity; Cullinan v Abramson; Whether there was a violation of “clearly established law”; Causing an employee’s firing due to his protected speech; Paige v Coyner

The court held that defendant-city councilman (Mendes) was properly denied qualified immunity where his alleged interference with plaintiff-DeLanis’s free speech violated clearly established law. Noting that the allegations against defendant-law firm (Baker Donelson), the city’s outside counsel, presented “a unique situation” it had not previously addressed, it held that the firm was entitled to raise the qualified immunity defense and it did not violate any clearly established law in firing DeLanis, an attorney with the firm. Mendes allegedly threatened to withdraw business from the firm after DeLanis, the chair of the county Election Commission, took a position Mendes did not like on a tax referendum. DeLanis refused the law firm’s requests to oppose the referendum and to abstain on a Commission vote, and the firm fired him. He sued the city, the law firm, and Mendes under § 1983 for First Amendment retaliation and conspiracy to deny him free speech. The district court denied defendants’ motions for qualified immunity. The court first held that Mendes, as a city councilman who allegedly used his position to violate DeLanis’s civil rights, and Baker Donelson, as outside counsel who allegedly fired DeLanis on the city’s behalf, were both eligible for the qualified immunity defense. It rejected DeLanis’s argument that they were acting outside the scope of their “discretionary functions,” holding that both defendants carried out such functions within the scope of their duties when they played their alleged part in his termination. The court also rejected his claim that outside counsel was not eligible for the defense, citing its decision in Cullinan. As to the applicability of the defense, it held that Mendes’s alleged actions while serving as a council member violated clearly established law. He “had ample notice that pressuring an employer to fire an employee in retaliation for his protected speech ran afoul of the Free Speech Clause.” It rejected his claim that DeLanis failed to show that he was the councilman who threatened the law firm, holding that “Mendes’s frustration with DeLanis and hearty opposition to his conduct on the Commission make it plausible that he was one of the Nashville officials, if not the key Nashville official, who threatened Baker Donelson.” As for the firm, “it did not have clear notice that a law firm (or private company) violates the First Amendment by firing an employee when a government client threatens to take its business elsewhere if the employee continues to act adversely to the government.” The court affirmed the denial of qualified immunity for Mendes on the retaliation claims, reversed the denial of qualified immunity to Baker Donelson, and remanded.