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Under 42 U.S.C. § 1983, where a public employee gives subpoenaed deposition testimony in the course of a § 1983 lawsuit, a supervisor whose subsequent retaliatory conduct causes the termination of the employee does not have qualified immunity, even if the supervisor did not have final authority to terminate the employee.

Martha Karl (“Karl”) was employed as a Confidential Administrative Assistant to Chief of Police and gave a subpoenaed testimony in a federal civil rights suit against the City, Chief of Police, and others. Assistant Chief of Police, Charles Caw (“Caw”), made statements that they would have to “get rid of her.” He informed the new Chief of Police about Karl, and Karl was involuntarily transferred to Caw’s supervision, with “unreasonable and arbitrary performance targets on Karl alone.” The Chief of Police placed her on administrative leave and then suggested her termination, which resulted, after he consulted with Caw. Karl filed “under 42 U.S.C. § 1983, alleging retaliation in violation of her First Amendment rights.” The district court denied in part Caw’s motion for summary judgment; Caw filed an “interlocutory appeal solely challenging the denial of his claim to qualified immunity.” The Court noted that Karl’s deposition testimony was speech on a matter of public concern because “it was offered in the course of a § 1983 lawsuit,” with allegations that “clearly implicated the exposure of ‘significant government misconduct . . . .’" The Court also held that Karl testified as a private citizen, not a public employee, because Karl’s testimony “was the product of a subpoena and cannot fairly be characterized as “commissioned or created” by the city.” The Ninth Circuit also upheld the districts court's finding that the retaliation was the cause of Karl's termination because “viewing the record in the light most favorable to Karl, [the Court] cannot say that Caw has met his burden to show that the City would have fired Karl even in the absence of her protected speech activities.” The Court held that “a reasonable official in Caw’s position would have known that it was unlawful to retaliate against an employee for providing subpoenaed deposition testimony in connection with a civil rights lawsuit alleging government misconduct.” AFFIRMED.