Firing of Flint Fire Chief Could Be a First Amendment Violation

The Sixth Circuit Court of Appeals has ruled that a mayor who retaliates against a fire chief for refusing to make false statements to the public about a matter of public concern, is not entitled to qualified immunity. As a result, a mayor could be liable to the chief for violating his First Amendment rights.

That ruling was handed down in the now infamous double fatal fire case out of Flint, Michigan. Before we go further, let me make one thing crystal clear: what the fire chief is alleging has not been definitively found to be true. Rather, what follows are his allegations. The court explains these allegations in rather shockingly stark terms as if they were true. In addition, neither the trial court nor the court of appeals have concluded that the chief’s First Amendment rights were violated – only that the case should proceed to determine (1) what actually happened and (2) whether a First Amendment violation occurred. Please keep this in mind as you read on. Due to the nature of these allegations, we will stick with verbatim quotes from the decision:

• The following facts are alleged in the operative complaint, which we accept as true for purposes of the motion to dismiss.
• In May 2022, six Flint firefighters responded to a house fire and were informed that residents likely were still in the home.
• Two of those firefighters, Daniel Sniegocki and Michael Zlotek, entered the home to search for the residents.
• Sniegocki and Zlotek claimed that they thoroughly searched all the rooms on the second floor using infrared equipment and thermal-imaging cameras, and they subsequently declared the home “all clear.”
• A few minutes later, however, other firefighters entered the home and immediately found two African American boys, visible to the naked eye, lying on the floor in a second-floor bedroom. The boys eventually died from the fire.
• Barton, who was the City’s Fire Chief at that time, concluded that Sniegocki and Zlotek lied about their search efforts-potentially due to racial animus.
• He noted that the boys were African American while Sniegocki and Zlotek are Caucasian, the boys were readily observable, and Sniegocki and Zlotek refused to cooperate with the investigation.
• So Barton recommended to the city council and city officials, including Mayor Neeley, that Sniegocki and Zlotek be suspended without pay pending a final investigation and that they be discharged at the conclusion of that investigation.
• Neeley disagreed. He instructed Barton to change the recommendation by “alter[ing] official reports to disguise the firefighters’ misconduct, suspend[ing] the firefighters with pay, and drop[ping] his recommendation that they be discharged.”
• Politics allegedly motivated Neeley’s orders to Barton: Neeley was running for re-election and needed the support of the firefighters’ union, which he did not believe he would get if Barton terminated Sniegocki and Zlotek’s employment.
• Barton refused, telling Neeley that, as Fire Chief, he had a duty to be truthful to the public, and “in his personal capacity, [he] was unwilling to make false statements or profess professional judgments that he did not actually hold.”
• Specifically, Barton alleges that he was “unwilling to participate in a cover-up of firefighter misconduct that was likely motivated by racism.”
• So Neeley acted on his own, “unilaterally and surreptitiously chang[ing] [Barton’s] official recommendation.”
• Neeley also “instructed Chief Barton to make a public announcement saying that he initiated the change and agreed with it.”
• Again, Barton refused Neeley’s demands and “reminded Mayor Neeley [that] he would not make false statements.”
• At a subsequent city council meeting, Barton “explained that he had not changed his recommendation and that he wanted to discharge Sniegocki and Zlotek from the fire department.”
• Meanwhile, Neeley was re-elected as Mayor. Nine days later, he allegedly “called Chief Barton into his office and told Chief Barton to resign as fire chief or be fired because Chief
• Barton had refused to serve Mayor Neeley’s personal interests by participating in the cover-up of the firefighters’ misconduct.” Barton refused, so Neeley terminated Barton’s employment.
• Barton contends in this lawsuit, brought under 42 U.S.C. § 1983, that his firing constitutes retaliation in violation of the First Amendment.
• Neeley moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing in relevant part that Barton failed to plausibly plead this claim, and alternatively, that he was entitled to qualified immunity.
• The district court denied Neeley’s motion, and Neeley timely filed a notice of interlocutory appeal.
• The sole issue on appeal is whether Mayor Neeley is entitled to qualified immunity at the pleadings stage. Qualified immunity is an affirmative defense that protects public officials, in certain circumstances, from liability for civil damages when they violate a person’s constitutional rights.
• We ask two questions to determine whether a public official is entitled to qualified immunity: (1) whether the facts alleged support a violation of the plaintiff’s constitutional rights, and (2) if they do, whether that right was clearly established at the time of the defendant’s alleged misconduct.
• Beginning with prong one of the qualified-immunity analysis, we hold that Barton plausibly alleged that he engaged in conduct protected by the First Amendment and that Neeley retaliated against him for doing so.
• Turning to the second prong of the qualified-immunity analysis, we hold that it is clearly established that public employees cannot be compelled to make false statements on matters of public concern in response to threats of retaliation. Neeley is therefore not entitled to qualified immunity in this procedural posture.

For those interested in a more complete understanding of the two-prong test used by the court, the ruling goes into much greater deal on both prongs. For those legal eagles who teach classes in Fire Law, an interesting – and highly advanced question – that could be posed to students would be whether this decision can be distinguished from the more commonly applied First Amendment case of Foley v. Town of Randolph, 598 F.3d 1 (1st Cir. 2010). In that case the court concluded that a fire chief speaking to the media had no First Amendment protection because he was not speaking as a private citizen. Brad and I will no doubt be discussing this next Monday on Fire Law Roundup.

Here is a copy of the decision: