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Sheriff David Clarke Wins Unlawful Retaliation Appeal

By Robyn Hagan Cain | Last updated on

Outspoken Milwaukee Sheriff David Clarke won big this week in the Seventh Circuit Court of Appeals.

Deputy David Hutchins sued Sheriff Clarke in 2007, alleging unlawful retaliation and violations of the Wisconsin Open Records Law following an on-air dispute on the "Eric Von Show." The district court granted summary judgment for Deputy Hutchins. This week, the Seventh Circuit reversed the district court in favor of Sheriff Clarke.

The spat between the two law enforcement officials started during a radio show discussion of Sheriff Clarke's interaction with the African-American community. Hutchins, a routine "Eric Von Show" listener and caller, called the show in response to the critical comments regarding Sheriff Clarke. Hutchins was likewise critical.

In response to Hutchins' comments, Sheriff Clarke called the "Eric Von Show" and described Hutchins as a "slacker" who did not deserve to be an employee of the sheriff's department. Sheriff Clarke claimed that Hutchins was bitter and carried a grudge because of a 2004 disciplinary action.

Sheriff Clarke stated on-air that Hutchins has been disciplined for "sexual harassment" of another employee. In actuality, the disciplinary action was for Hutchins' violation of a department rule that prohibited offensive conduct or language toward the public or toward county officers or employees.

Clarke, known for his tough-talking ways, refused to back down from the comments, calling Hutchins a "crybaby" and saying "I think he gives public servants a bad name," reports the Milwaukee Journal-Sentinel. (The Milwaukee Sheriff's Department seems to be a gathering place for "crybabies;" at the time, Sheriff Clarke was fighting six federal law suits filed by deputies.)

The Seventh Circuit Court of Appeals ruled against Deputy Hutchins on the Wisconsin Open Records Law claim, finding that Sheriff Clarke's on-air comments on Hutchins' disciplinary history were insensitive and inaccurate, but not a violation of Wisconsin's Open Records Act.

The court also sided with Sheriff Clarke on the unlawful retaliation claim. While the court acknowledged that some "harassment and ridicule" might be retaliatory speech sufficient to support a civil rights claim, Sheriff Clarke's statements did not rise to that level.

The Seventh Circuit noted an interesting conflict in this case: if the court penalized Sheriff Clarke for his criticism of Deputy Hutchins, it would chill Clarke's free speech. The Seventh Circuit ruled for Clarke because it found that the law cannot afford one party his right to free speech while discounting the rights of the other party.

Do you think that the Seventh Circuit's holding gives Sheriff David Clarke license to publicly embarrass public employees who criticize him?

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