Filed: Sep. 23, 2013
Latest Update: Mar. 28, 2017
Summary: Filed: September 23, 2013 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1671 (4:11-cv-00045-RAJ-TEM BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD, Plaintiffs - Appellants, v. B. J. ROBERTS, individually and in his official capacity as Sheriff of the City of Hampton, Virginia, Defendant - Appellee. ------------------------------- AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION; FACEBO
Summary: Filed: September 23, 2013 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1671 (4:11-cv-00045-RAJ-TEM BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD, Plaintiffs - Appellants, v. B. J. ROBERTS, individually and in his official capacity as Sheriff of the City of Hampton, Virginia, Defendant - Appellee. ------------------------------- AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION; FACEBOO..
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Filed: September 23, 2013
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1671
(4:11-cv-00045-RAJ-TEM
BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT
W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD,
Plaintiffs - Appellants,
v.
B. J. ROBERTS, individually and in his official capacity as
Sheriff of the City of Hampton, Virginia,
Defendant - Appellee.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−--
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA FOUNDATION; FACEBOOK, INC.; NATIONAL
ASSOCIATION OF POLICE ORGANIZATIONS,
Amici Supporting Appellants.
O R D E R
The Court amends its opinion filed September 18, 2013,
as follows:
On page 8, first full paragraph, line 10 –- quotation
marks are inserted after the word “concern” and before the words
“as an employee” and the words “rather than” are substituted for
the word “or”.
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1671
BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT
W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD,
Plaintiffs - Appellants,
v.
B. J. ROBERTS, individually and in his official capacity as
Sheriff of the City of Hampton, Virginia,
Defendant - Appellee.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−--
AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA FOUNDATION; FACEBOOK, INC.; NATIONAL
ASSOCIATION OF POLICE ORGANIZATIONS,
Amici Supporting Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:11-cv-00045-RAJ-TEM)
Argued: May 16, 2013 Decided: September 18, 2013
Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen
Lipton HOLLANDER, United States District Judge for the District
of Maryland, sitting by designation.
Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion, in which Judge
Thacker joined. Judge Hollander wrote a separate opinion
concurring in part and dissenting in part.
ARGUED: James Harrell Shoemaker, Jr., PATTEN, WORNOM, HATTEN &
DIAMONSTEIN, LC, Newport News, Virginia, for Appellants. Aaron
M. Panner, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL,
P.L.L.C., Washington, D.C., for Amicus Facebook, Inc. Jeff W.
Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for
Appellee. ON BRIEF: Lisa Ehrich, PENDER & COWARD, PC, Virginia
Beach, Virginia, for Appellee. Andrew E. Goldsmith, KELLOGG,
HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C.,
for Amicus Facebook, Inc. Aden J. Fine, Kathryn A. Wood,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York;
Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia, for Amici American Civil
Liberties Union and ACLU of Virginia. J. Michael McGuinness,
THE MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William
J. Johnson, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,
Alexandria, Virginia, for Amicus National Association of Police
Organizations.
2
TRAXLER, Chief Judge:
Six plaintiffs appeal a district court order granting
summary judgment against them in their action against B.J.
Roberts in his individual capacity and in his official capacity
as the Sheriff of the City of Hampton, Virginia. The suit
alleges that Roberts retaliated against the plaintiffs in
violation of their First Amendment rights by choosing not to
reappoint them because of their support of his electoral
opponent. We affirm in part, reverse in part, and remand for
trial.
I.
Viewing the facts in the light most favorable to the
plaintiffs, as we must in reviewing an order granting summary
judgment against them, the record reveals the following. Bobby
Bland, Daniel Ray Carter, Jr., David W. Dixon, Robert W. McCoy,
John C. Sandhofer, and Debra H. Woodward (“the Plaintiffs”) are
all former employees of the Hampton Sheriff’s Office (“the
Sheriff’s Office”).
Roberts was up for re-election in November 2009, having
served as sheriff for the prior 17 years. Jim Adams announced
in early 2009 that he would run against Sheriff Roberts. Adams
had worked in the Sheriff’s Office for 16 years and had become
the third most senior officer, with a rank of lieutenant
colonel, when he resigned in January 2009 to run.
3
The Hampton City Police Department has primary
responsibility for law enforcement in Hampton. However, the
Sheriff’s Office maintains all city correctional facilities,
secures the city’s courts, and serves civil and criminal
warrants. In December 2009, the Sheriff’s Office had 190
appointees, including 128 full-time sworn deputy sheriffs, 31
full-time civilians, 3 unassigned active duty military, and 28
part-time employees. Carter, McCoy, Dixon, and Sandhofer were
sworn, uniformed sheriff’s deputies who worked as jailers in the
Sheriff’s Office Corrections Division. 1 They had not taken the
Virginia Department of Criminal Justice Services’ “Basic Law
Enforcement” course, completion of which was required in
Virginia for an officer to patrol and have immediate arrest
powers. 2 However, they did take the “Basic Jailer and Court
Services” course, which has about half as long a curriculum as
the Basic Law Enforcement course. Although they did not have
general powers of immediate arrest, the deputies did have the
1
Sandhofer worked as a jailer for most of his short time in
the Sheriff’s Office, although he worked as a civil process
server in the Sheriff’s Office Civil Process Division for the
final three months of his tenure.
2
The Virginia Department of Criminal Justice Services,
Division of Law Enforcement, has the responsibility of
overseeing and managing training standards and regulations for
the criminal justice community.
4
authority to make “incidental arrest[s] in [the] range of
[their] work.” J.A. 297.
Bland and Woodward were not deputies, but rather worked in
non-sworn administrative positions. Woodward was a training
coordinator and Bland was a finance and accounts payable
officer.
Notwithstanding laws and regulations prohibiting the use of
state equipment or resources for political activities, see Hatch
Act, 5 U.S.C. § 1501, et. seq.; 22 Va. Admin. Code § 40-675-210
(2012), Sheriff Roberts used his office and the resources that
he controlled, including his employees’ manpower, to further his
own re-election efforts. His senior staff often recruited
Sheriff’s Office employees to assist in these efforts. For
example, he used his employees to work at his annual
barbeque/golf tournament political fundraiser, and his
subordinates pressured employees to sell and buy tickets to his
fundraising events.
The Sheriff won reelection in November 2009. He
subsequently reappointed 147 of his 159 full-time employees.
Those not reappointed included the six Plaintiffs as well as
five other deputies and one other civilian.
On March 4, 2011, the Plaintiffs filed suit in federal
district court against Sheriff Roberts in his individual and
official capacities under 42 U.S.C. § 1983. All six Plaintiffs
5
alleged that the Sheriff violated their First Amendment right to
free association when he refused to reappoint them based on
their lack of political allegiance to him in the 2009 election.
Additionally, Carter, McCoy, Dixon, and Woodward alleged that
the Sheriff violated their First Amendment right to free speech
when he refused to reappoint them because of various instances
of speech they made in support of Adams’s campaign. Among the
remedies Plaintiffs requested were compensation for lost back
pay and compensation for lost front pay or, alternatively,
reinstatement. The Sheriff answered Plaintiffs’ complaint and
asserted several affirmative defenses.
Roberts subsequently moved for summary judgment, and the
district court granted it. See Bland v. Roberts, 857 F. Supp.
2d 599 (E.D. Va. 2012). Regarding the free-speech claims, the
district court concluded that Carter, McCoy, and Woodward had
all failed to allege that they engaged in expressive speech and
that Dixon had not shown that his alleged speech was on a matter
of public concern. See id. at 603-06. Regarding the
association claims, the court concluded that Plaintiffs failed
to establish any causal relationship between their support of
Adams’s campaign and their non-reappointment. See id. at 606-
07. Finally, assuming arguendo that the Sheriff did violate
Plaintiffs’ First Amendment rights, the district court concluded
he was entitled to qualified immunity on the individual-capacity
6
claims and Eleventh Amendment immunity on the official-capacity
claims. See id. at 608-10.
II.
On appeal, the Plaintiffs maintain that the district court
erred in granting summary judgment against them.
This court reviews de novo a district court’s order
granting summary judgment, applying the same standards as the
district court. See Providence Square Assocs., L.L.C. v.
G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary
judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
The Plaintiffs allege that they were retaliated against for
exercising their First Amendment rights to free speech and
association. The First Amendment, in relevant part, provides
that “Congress shall make no law . . . abridging the freedom of
speech.” U.S. Const. amend. I. The Fourteenth Amendment makes
this prohibition applicable to the states. See Fisher v. King,
232 F.3d 391, 396 (4th Cir. 2000). Not only does the First
Amendment protect freedom of speech, it also protects “the right
to be free from retaliation by a public official for the
exercise of that right.” Suarez Corp. Indus. v. McGraw,
202
F.3d 676, 685 (4th Cir. 2000). Although government employees do
7
not forfeit their constitutional rights at work, it is well
established “that the government may impose certain restraints
on its employees’ speech and take action against them that would
be unconstitutional if applied to the general public.” Adams v.
Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th
Cir. 2011) (internal quotation marks omitted).
The Supreme Court in Connick v. Myers, 461 U.S. 138 (1983),
and Pickering v. Board of Education,
391 U.S. 563 (1968), has
explained how the rights of public employees to speak as private
citizens must be balanced against the interest of the government
in ensuring its efficient operation. In light of these
competing interests, we have held that in order for a public
employee to prove that an adverse employment action violated his
First Amendment rights to freedom of speech, he must establish
(1) that he “was speaking as a citizen upon a matter of public
concern” rather than “as an employee about a matter of personal
interest”; (2) that “the employee’s interest in speaking upon
the matter of public concern outweighed the government’s
interest in providing effective and efficient services to the
public”; and (3) that “the employee’s speech was a substantial
factor in the employee’s termination decision.” McVey v. Stacy,
8
157 F.3d 271, 277-78 (4th Cir. 1998). 3 In conducting the
balancing test in the second prong, we must consider the context
in which the speech was made, including the employee’s role and
the extent to which the speech impairs the efficiency of the
workplace. See Rankin v. McPherson,
483 U.S. 378, 388-91
(1987).
Factors relevant to this inquiry include whether a
public employee’s speech (1) impaired the maintenance
of discipline by supervisors; (2) impaired harmony
among coworkers; (3) damaged close personal
relationships; (4) impeded the performance of the
public employee’s duties; (5) interfered with the
operation of the [agency]; (6) undermined the mission
of the [agency]; (7) was communicated to the public or
to coworkers in private; (8) conflicted with the
responsibilities of the employee within the [agency];
and (9) abused the authority and public accountability
that the employee’s role entailed.
Ridpath v. Board of Governors Marshall Univ., 447 F.3d 292, 317
(4th Cir. 2006). Accordingly, “a public employee who has a
confidential, policymaking, or public contact role and speaks
out in a manner that interferes with or undermines the operation
of the agency, its mission, or its public confidence, enjoys
substantially less First Amendment protection than does a lower
level employee.” McVey, 157 F.3d at 278.
3
The Sheriff appropriately does not contend that the fact
that the Plaintiffs were simply not reappointed – as opposed to
being otherwise discharged – affects the constitutionality of
his actions. The critical fact for our purposes is that the
termination of the Plaintiffs’ employment with the Sheriff’s
Office was not the Plaintiffs’ decision. See Branti v. Finkel,
445 U.S. 507, 512 n.6 (1980).
9
“This principle tends to merge with the established
jurisprudence governing the discharge of public employees
because of their political beliefs and affiliation.” Id. Such
claims must be analyzed under the principles established by
Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel,
445
U.S. 507 (1980). See Fields v. Prater,
566 F.3d 381, 385-86
(4th Cir. 2009). These cases make clear that the First
Amendment generally bars the firing of public employees “solely
for the reason that they were not affiliated with a particular
political party or candidate,” Knight v. Vernon,
214 F.3d 544,
548 (4th Cir. 2000) (internal quotation marks omitted), as such
firings can impose restraints “on freedoms of belief and
association,” Elrod, 427 U.S. at 355 (plurality opinion); see
Smith v. Frye,
488 F.3d 263, 268 (4th Cir. 2007). 4 Still, the
Supreme Court in Elrod created a narrow exception “to give
effect to the democratic process” by allowing patronage
dismissals of those public employees occupying policymaking
positions. Jenkins v. Medford,
119 F.3d 1156, 1161 (4th Cir.
1997) (en banc). This exception served “the important
government goal of assuring ‘the implementation of policies of
4
“The ‘right of free association [is] a right closely
allied to freedom of speech and a right which, like free speech,
lies at the foundation of a free society.’” Cromer v. Brown, 88
F.3d 1315, 1331 (4th Cir. 1996) (quoting Shelton v. Tucker,
364
U.S. 479, 486 (1960)).
10
[a] new administration, policies presumably sanctioned by the
electorate.’” Id. (quoting Elrod, 427 U.S. at 367). In Branti,
the Supreme Court modified the Elrod test somewhat to
“recognize[] that the labels used in Elrod ignored the practical
realities of job duty and structure.” Id. Under the test as
modified, “the ultimate inquiry is not whether the label
‘policymaker’ or ‘confidential’ fits a particular position;
rather, the question is whether the hiring authority can
demonstrate that party affiliation [or political allegiance] is
an appropriate requirement for the effective performance of the
public office involved.” Branti, 445 U.S. at 518.
In Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), we
adopted a two-part test for conducting this analysis. See
Fields, 566 F.3d at 386. First, we consider whether “the
[plaintiff’s] position involve[s] government decisionmaking on
issues where there is room for political disagreement on goals
or their implementation.” Stott, 916 F.2d at 141 (internal
quotation marks omitted). If it does, we then “examine the
particular responsibilities of the position to determine whether
it resembles a policymaker, a privy to confidential information,
a communicator, or some other office holder whose function is
such that party affiliation [or political allegiance] is an
equally appropriate requirement.” Id. at 142 (internal
quotation marks omitted). The first step of the inquiry
11
requires us to examine the issues dealt with by the employee “at
a very high level of generality,” while “[t]he second step
requires a much more concrete analysis of the specific position
at issue.” Fields, 566 F.3d at 386. At the second step,
“courts focus on the powers inherent in a given office, as
opposed to the functions performed by a particular occupant of
that office.” Stott, 916 F.2d at 142. In this regard, we focus
on the job description for the position in question and “only
look past the job description where the plaintiff demonstrates
some systematic unreliability, such as where the description has
been manipulated in some manner by officials looking to expand
their political power.” Nader v. Blair, 549 F.3d 953, 961 (4th
Cir. 2008) (internal quotation marks omitted). 5
Our causation analysis for the association claims is the
same as for the speech claims. The plaintiff bears the initial
burden of proving that his exercise of his First Amendment
rights “was a ‘substantial’ or ‘motivating’ factor in the
employer’s decision to terminate him.” Wagner v. Wheeler, 13
5
We note that in cases in which the Elrod-Branti exception
applies, and an employer thus can terminate his employees for
political disloyalty, he may also terminate them for speech that
constitutes such disloyalty. See Jenkins v. Medford, 119 F.3d
1156, 1164 (4th Cir. 1997) (en banc) (holding that because
pleadings established that Elrod-Branti exception applied,
deputies failed to state a First Amendment speech retaliation
claim that deputies were dismissed for campaigning against the
sheriff).
12
F.3d 86, 90 (4th Cir. 1993); Sales v. Grant,
158 F.3d 768, 775-
76 (4th Cir. 1998). And if the plaintiff satisfies that burden,
the defendant will avoid liability if he can demonstrate, by a
preponderance of the evidence, that he would have made the same
employment decision absent the protected expression. See Sales,
158 F.3d at 776 (citing O’Hare Truck Serv., Inc. v. City of
Northlake,
518 U.S. 712, 725 (1996)).
Plaintiffs challenge the district court’s rulings with
regard to the merits of both their association and their speech
claims as well as with regard to qualified and Eleventh
Amendment Immunity. We begin our analysis with the merits of
Plaintiffs’ association claims and will then address the merits
of the speech claims before turning to Eleventh Amendment and
qualified immunity.
A. Merits of Association Claims
We conclude that Carter, McCoy, and Dixon at least created
genuine factual disputes regarding whether the Sheriff violated
their association rights, but that Sandhofer, Woodward, and
Bland did not.
1. Elrod-Branti
With regard to these claims, we start by asking whether the
Sheriff had the right to choose not to reappoint the Plaintiffs
for political reasons. Certainly there is legitimate
disagreement over the goals and implementation of the goals of a
13
sheriff’s office; accordingly, the outcome of the Stott test
will turn on the outcome in Stott’s second step. See, e.g.,
Knight, 214 F.3d at 548-51. Thus, it is that part of the test
on which we focus our attention.
Carter, McCoy, and Dixon all occupied the same position in
the Sheriff’s Office. 6 They were uniformed jailers and they held
the title of sheriff’s deputy. Because they held that title,
much of the debate between the parties concerning the
application of the Elrod-Branti test to these three men relates
to our decision in Jenkins. In Jenkins we analyzed the First
Amendment claims of several North Carolina sheriff’s deputies
who alleged that the sheriff fired them for failing to support
his election bid and for supporting other candidates. In so
doing, we considered the political role of a sheriff, the
specific duties performed by sheriff’s deputies, and the
relationship between a sheriff and his deputies as it affects
the execution of the sheriff’s policies. See Jenkins, 119 F.3d
at 1162-64. We generally concluded that deputies “play a
special role in implementing the sheriff’s policies and goals,”
that “[t]he sheriff is likely to include at least some deputies
6
We do not address whether Sandhofer, Woodward, or Bland
could be terminated for lack of political allegiance because, as
we will discuss, they have not created genuine factual disputes
regarding whether lack of political allegiance was a substantial
basis for their non-reappointment.
14
in his core group of advisors,” that deputies “exercis[e]
significant discretion in performing their jobs” when they are
on patrol, that “[t]he sheriff relies on his deputies to foster
public confidence in law enforcement,” that he expects them to
provide him with the “truthful and accurate information” the
sheriff needs, and that sometimes deputies serve as the
sheriff’s general agents whose acts can expose the sheriff to
civil liability. See id. at 1162-63. We therefore concluded
“that in North Carolina, the office of deputy sheriff is that of
a policymaker, and that deputy sheriffs are the alter ego of the
sheriff generally, for whose conduct he is liable.” Id. at
1164. On that basis, we determined “that such North Carolina
deputy sheriffs may be lawfully terminated for political reasons
under the Elrod-Branti exception to prohibited political
terminations.” Id.; see also id. (“We hold that newly elected
or reelected sheriffs may dismiss deputies either because of
party affiliation or campaign activity.”). We reasoned that
“[b]ecause they campaigned for [the sheriff’s] opponents, the
deputies in the instant case had no constitutional right to
continued employment after the election, and so have failed to
state a claim under 42 U.S.C. § 1983.” Id.
Had Jenkins’s analysis ended there, our Elrod-Branti review
of Carter’s, McCoy’s, and Dixon’s claims would be quite
straight-forward. But Jenkins’s analysis did not end there.
15
Several judges dissented from the majority’s decision, and the
resulting opinions included an exchange of particular relevance
here. The dissent maintained that “the majority broadly holds
that all deputy sheriffs in North Carolina – regardless of their
actual duties – are policymaking officials.” Id. at 1166 (Motz,
J., dissenting). The dissent contended that had a proper Elrod-
Branti review been conducted, focusing on “analysis of the
particular duties of each deputy,” the result of the case would
have been different. Id.
For its part, the majority flatly rejected the dissent’s
claim that the decision was not based on the duties of the
deputies before the court. The majority stated:
We limit dismissals based on today’s holding to
those deputies actually sworn to engage in law
enforcement activities on behalf of the sheriff. We
issue this limitation to caution sheriffs that courts
examine the job duties of the position, and not merely
the title, of those dismissed.[FN66] Because the
deputies in the instant case were law enforcement
officers, they are not protected by this
limitation.[FN67]
FN66. See Stott, 916 F.2d at 142; Zorzi v.
County of Putnam, 30 F.3d 885, 892 (7th
Cir. 1994) (dispatchers not involved in
law enforcement activities or policy, so
political affiliation inappropriate job
requirement).
The dissent manifests a
misunderstanding of our holding. It
applies only to those who meet the
requirements of the rule as we state
it, and does not extend to all 13,600
16
officers in North Carolina, as the
dissent suggests.
FN67. Amended Complaint, ¶ 19.
Id. at 1165 (majority opinion). Responding to the conclusion
that the deputies’ law enforcement duties made their political
loyalty to the sheriff an appropriate requirement for the
effective performance of the deputies’ jobs, the dissent
emphasized that the only relevant allegations in the plaintiffs’
complaint were that the deputies’ “job requirements consisted of
performing ministerial law enforcement duties for which
political affiliation is not an appropriate requirement” and
that none of the plaintiffs “occupied a policymaking or
confidential position.” Id. at 1166 (Motz, J., dissenting)
(internal quotation marks omitted).
That brings us to the question of how to read Jenkins.
Despite a significant amount of language in the opinion
seemingly indicating that all North Carolina deputies could be
terminated for political reasons regardless of the specific
duties of the particular deputy in question, and despite the
dissent’s allegation that the majority indeed held that all
North Carolina deputies may be fired for political reasons, the
majority explicitly stated that it analyzed the duties of the
plaintiffs and not merely those of deputies generally. See id.
at 1165 (majority opinion). In the end, the majority explained
17
that it was the deputies’ role as sworn law enforcement officers
that was dispositive and suggests that the result might have
been different had the deputies’ duties consisted of working as
dispatchers. See id. at 1165 & nn. 66-67. Accordingly, to be
true to Jenkins, we too must consider whether requiring
political loyalty was an appropriate requirement for the
effective performance of the public employment of the deputies
before us in light of the duties of their particular positions.
According to their formal job description, the deputies’
duties and responsibilities were to “[p]rovide protection of
jail personnel and the public,” “[p]rovide safekeeping and
welfare of prisoners,” “[p]rotect[] . . . society by
preventi[ng] . . . escapes,” “[c]onduct security rounds,”
“[s]upervise inmate activities,” “[p]rovide cleaning supplies to
inmates to clean their cells,” “[p]ass out razors on appropriate
days,” “[e]scort inmates throughout the jail as required,”
“[m]aintain floor log of daily inmate activities,” “[e]nsure
inmates are [fed],” “[r]un recreation and visitation as
scheduled or authorized,” “[a]nswer inmate correspondences and
grievances,” and “[s]upervise laundry detail.” J.A. 602. None
of the men had leadership responsibilities, nor were they
confidants of the Sheriff.
These duties are essentially identical to those of the
plaintiff in Knight v. Vernon. In that case, we considered
18
whether the district court erred in granting summary judgment
against a sheriff’s office employee on her First Amendment
political firing claim on the basis that the employee could be
lawfully terminated for political reasons. See Knight, 214 F.3d
at 548. Unlike Carter, McCoy, and Dixon, Knight did not have
the title of sheriff’s deputy, but Knight worked for a North
Carolina sheriff’s department as a low-level jailer. See id. at
549, 550. Noting that “[t]he central message of Jenkins is that
the specific duties of the public employee’s position govern
whether political allegiance to her employer is an appropriate
job requirement,” see id. at 549, we closely examined the duties
of Knight’s job in applying the Elrod-Branti analysis at the
summary judgment stage:
As a jailer Ms. Knight was responsible for the
processing, supervision and care, and transportation
of inmates. Ms. Knight’s processing duties included
fingerprinting new inmates, obtaining their personal
data (addresses, next of kin, etc.), marking and
storing their personal belongings, routing them for
physical examinations, and arranging for their initial
baths and changes into clean clothing. Ms. Knight’s
daily supervision and care duties involved monitoring
inmates every half hour, distributing and logging
their medications and supplies, serving them food, and
managing their visitors. Occasionally, Ms. Knight
filled in as a cook when help was short in the jail’s
kitchen. Finally, Ms. Knight assisted in transporting
inmates to prisons and medical facilities.
Id. at 546. In holding that Jenkins did not allow the sheriff
to terminate Knight for political reasons, we contrasted
Knight’s duties with those of the deputy sheriffs in Jenkins.
19
We noted that “a deputy is a sworn law enforcement officer [and
thus] has the general power of arrest, a power that may be
exercised in North Carolina only by an officer who receives
extensive training in the enforcement of criminal law.” Id. at
550. We also noted that “[a] sworn deputy is the sheriff’s
alter ego: he has powers conterminous with his principal, the
elected sheriff.” Id. (internal quotation marks omitted). In
contrast, we explained that the jailer’s authority “is much more
circumscribed” and “[h]er training, which is much more limited
than that of a deputy, is concentrated on matters of custodial
care and supervision.” Id. We noted that “exercising the power
of arrest is not one of the job duties of a jailer,” and Knight
“was not out in the county engaging in law enforcement
activities on behalf of the sheriff,” and she was not “a
confidant of the sheriff.” Id. We further noted that she
neither “advise[d] him on policy matters” nor was “involved in
communicating the sheriff’s policies or positions to the
public.” Id. Although we recognized that the job of jailer
involves the exercise of some discretion, we concluded that “a
jailer does not exercise the ‘significant discretion’” that the
North Carolina deputies generally exercise. Id. at 551.
Rather, because she “worked mostly at the jail performing
ministerial duties,” she was “not entrusted with broad
discretion,” and “[t]he sheriff did not rely on her for
20
assistance in implementing his law enforcement platform.” Id.
at 550. We therefore determined that the sheriff had not
established as a matter of law that political loyalty was an
appropriate requirement for Knight’s performance of her job as a
jailer.
We conclude that the near identity between the duties of
the deputy plaintiffs in this case and Knight’s duties warrants
the same result here. Although Sheriff Roberts points to
various differences between Knight and the plaintiffs here that
he claims make this case more like Jenkins and less like Knight,
we conclude that none of them is sufficiently significant to
justify a different outcome.
First, although the Sheriff correctly points out that
Carter, McCoy, and Dixon were all sworn deputies, the oath that
they took was simply to support the federal and Virginia
constitutions and faithfully and impartially discharge their
duties to the best of their ability. See Va. Code Ann. § 49-1;
Thore v. Chesterfield Cnty. Bd. of Supervisors, 391 S.E.2d 882,
883 (Va. Ct. App. 1990). No one contends that these men took a
law enforcement officer’s oath, as the Jenkins plaintiffs did.
See N.C. Gen. Stat. § 11-11. In any event, in Knight we
specifically rejected the argument that the result in Knight
would have been different even had Knight taken a law
enforcement officer’s oath, noting that it is the specific
21
duties of the public employees that must be the focus of the
Elrod-Branti inquiry. See Knight, 214 F.3d at 551. Because
Knight’s duties were “essentially custodial” and she, unlike the
deputies in Jenkins, was not empowered to stand in for the
sheriff on a broad front, we held that she could not be required
to be politically loyal to the sheriff. Id.
Sheriff Roberts notes that the deputies in the present
case, like those in Jenkins, were entitled to stand in for their
sheriff in one way that Knight could not, namely, by making an
arrest. It is true that in Virginia sheriff’s deputies are,
like sheriffs, statutorily authorized to make arrests under a
wide range of circumstances. See Va. Code Ann. § 19.2-81(A)(2).
That all deputies have been granted general arrest powers by
statute, however, does not mean that exercising those powers was
an appreciable part of the duties of their particular positions.
In fact, Carter, McCoy, and Dixon were trained as jailers, and
it is undisputed that they did not take the “Basic Law
Enforcement” course that the Virginia Department of Criminal
Justice Services requires officers to take before they may
exercise the statutorily granted general arrest power. And,
while the evidence in the record was that the deputies were
authorized to make arrests for offenses occurring before them in
the course of their “everyday responsibilities,” J.A. 297, the
Plaintiffs offered evidence that their technical authorization
22
to make arrests had no appreciable effect whatsoever on the job
duties of their position. According to the declarations of
Carter, McCoy, and Dixon, not only had none of them ever made an
arrest, but they were not even aware they had the authority to
do so. In fact, Adams stated in his declaration that in his 16
years at the Hampton Sheriff’s Office, during which he rose to
the level of third most senior officer, he could not recall a
sheriff’s deputy making a single arrest. Thus, at this stage
of the litigation, the Sheriff has not established that the
jailers’ arrest duties were sufficiently significant that they
would affect whether their political allegiance to the Sheriff
was an appropriate requirement for the effective performance of
their jobs.
The Sheriff also notes that Carter, McCoy, and Dixon each
sought and received approval to perform “‘Extra Duty Employment’
comprising security work outside of the Sheriff’s Office during
which they were in uniform and armed.” J.A. 84. It is hard to
see how this fact could significantly impact our Elrod-Branti
analysis at this stage, however, considering that the record is
silent concerning what duties the plaintiff deputies had
concerning this “extra” work. Moreover, the Sheriff did not
make any showing that such apparently optional work “outside of
the Sheriff’s Office,” J.A. 84, was part of “the specific duties
of the public employee[s’] position.” Knight, 214 F.3d at 549.
23
In sum, we hold that at this stage of the litigation, the
Sheriff has not demonstrated that the duties of Carter, McCoy,
and Dixon differed from Knight’s duties in any significant way,
and we conclude that Sheriff Roberts has not shown that their
duties resembled those of “a policymaker, a privy to
confidential information, a communicator, or some other office
holder whose function is such that party affiliation [or
political allegiance] is an equally appropriate requirement.”
Stott, 916 F.2d at 142. Accordingly, he also has not
demonstrated that political allegiance was an appropriate
requirement for the jailers’ performance of their jobs. Accord
Diruzza v. County of Tehama, 206 F.3d 1304, 1310-11 (9th Cir.
2000) (holding that sheriff did not establish application of
Elrod-Branti exception as a matter of law in the case of a
California deputy sheriff who worked as a jailer). Thus, we
hold that the Sheriff was not entitled to summary judgment on
the basis that he could terminate Carter, McCoy, and Dixon for
their lack of political allegiance to him.
2. Causation
We now turn to the issue of whether the Plaintiffs’ lack of
political allegiance to the Sheriff was a substantial basis for
the Sheriff’s decision not to reappoint them. See Wagner, 13
F.3d at 90. For reasons that we will explain, we conclude that
Carter, McCoy, and Dixon have all at least created a genuine
24
factual dispute regarding whether lack of political allegiance
was a substantial basis for their non-reappointment, but that
Sandhofer, Woodward, and Bland have not.
Carter and McCoy
In the late summer of 2009, Carter and McCoy visited
Adams’s campaign Facebook page and made statements on the page
indicating their support for his campaign. Specifically, Carter
“liked” the page and “wrote and posted a message of
encouragement” that he signed. J.A. 570. McCoy also “posted an
entry on the page indicating [his] support for [Adams’s]
campaign.” J.A. 586. 7 Carter’s and McCoy’s Facebook actions
became well-known in the Sheriff’s Office as many were shocked
because “they appeared not to be supporting the sheriff.” J.A.
681. 8 Colonel Bowden, who was the second most senior officer in
the Sheriff’s Office, learned of Carter’s and McCoy’s presence
on Adams’s Facebook Page and informed Sheriff Roberts.
7
Both men also verbally expressed their support for Adams
to several people, and although both had volunteered and worked
vigorously for Roberts’s past campaigns, they did not volunteer
at all for Roberts in the 2009 election.
8
McCoy testified that he “was approached by ten or 15
people” who asked him why he would risk his job with the posting
when he was only 18 months away from becoming eligible for
retirement. J.A. 162. Indeed, McCoy eventually took his
posting down.
25
In the late summer of 2009, Carter and Ramona Jones 9 – also
a Hampton sheriff’s deputy – co-hosted a cookout (“the August
cookout”) attended by many Sheriff’s Office employees, including
Adams. The next day at work, Jones was approached by her
supervisor, Lieutenant Crystal Cooke, who told Jones that she
had heard that Adams had attended her cookout. Jones truthfully
told Cooke that Carter had invited Adams. Shortly thereafter,
then-Captain Kenneth Richardson approached Jones and asked her
who had attended. She told him that Adams had been there, and
Richardson “state[d] that the event had the appearance of a
campaign event and said specifically that ‘it does not look
good.’” J.A. 702. Jones told Richardson, as she had told
Cooke, that it was Carter who had invited Adams, and Richardson
responded that Jones “needed to explain that to the Sheriff.”
J.A. 702. Indeed, the Sheriff learned about the cookout and
that Adams had attended. Pictures showing Sandhofer and McCoy
at the event were posted on Facebook by early October.
In early September, Sheriff Roberts addressed his
employees’ support for Adams in speeches he gave during the
various shift changes. He expressed his disapproval with the
decision of some to support Adams’s candidacy on Facebook. He
stated that he would be sheriff for as long as he wanted and
9
Jones was named Ramona Larkins at the time.
26
thus that his train was the “long train.” J.A. 572 (internal
quotation marks omitted). He indicated that Adams’s train was
the “short train” and that those who openly supported Adams
would lose their jobs. J.A. 572 (internal quotation marks
omitted). Additionally, after the conclusion of the meeting
that occurred before Carter’s shift change, the Sheriff angrily
approached Carter and “ma[de] several intimidating statements.”
J.A. 572. He then added, “You made your bed, and now you’re
going to lie in it – after the election, you’re gone.” J.A. 572
(internal quotation marks omitted).
The Sheriff represented that his heated exchange with
Carter after one of Roberts’s “long train” speeches pertained to
Carter’s objections about disciplinary proceedings concerning
Carter’s wife rather than to Carter’s support of Adams. 10
Indeed, the Sheriff testified that that conversation was the
reason that he chose not to reappoint Carter. Carter flatly
denied that Roberts made any reference to Carter’s wife during
that conversation, however. 11
10
Carter’s wife was also a Sheriff’s Office employee.
11
According to Carter’s declaration, Carter worked for the
Sheriff’s Office for more than 11 years, performed his job “in
an exemplary manner,” and always received performance
evaluations of “above average.” J.A. 568. Neither his first-
nor his second-level supervisor indicated at any time prior to
his termination that they had any concerns regarding his
performance. Carter conceded that he had had several
(Continued)
27
If a jury credited Carter’s account of their heated
exchange, however, it could reasonably conclude that Roberts was
not telling the truth in an attempt to cover up his illegal
retaliation. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000) (explaining that “[p]roof that the
defendant’s explanation is unworthy of credence is . . . one
form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive”). The Sheriff,
after all, had specifically warned his employees not to support
Adams through Facebook and had told Carter that his support for
Adams would cost him his job. For these reasons, we conclude
that a reasonable jury could find that Carter’s lack of
political allegiance to the Sheriff was a substantial motivation
for the Sheriff’s decision not to reappoint him.
Based on the evidence of Roberts’s strong animus toward
those of his employees who supported Adams, a reasonable jury
could also conclude that Roberts’s knowledge of McCoy’s support
for Adams would have strongly motivated Roberts not to reappoint
McCoy. Roberts claimed his primary reason for not reappointing
disciplinary actions taken against him for mistakes he made in
allowing prisoners to be released prematurely. However, the
only formal discipline in his record was more than five years
old at the time he was not reappointed, and the Sheriff did not
testify that those past disciplinary actions played any part in
his decision not to reappoint Carter.
28
McCoy was that McCoy had had “heated arguments with deputies
when he was in civil” and that Roberts “switched him up and
brought him back to corrections.” J.A. 102. McCoy, however,
stated that he had worked in the Sheriff’s Office for more than
21 years and always received “above average” or “outstanding”
evaluations, and that at no time prior to his non-reappointment
did his immediate supervisor or second-level supervisor indicate
that they had any problems with his performance. In light of
the Sheriff’s threat that supporters of Adams would lose their
jobs and his specific statement of disapproval of employees
being on Adams’s Facebook page, we conclude that a reasonable
jury could conclude that McCoy’s lack of political allegiance to
Roberts was a substantial motivation for the Sheriff’s decision
not to reappoint him.
Dixon
Plaintiffs presented evidence that Dixon performed his job
“in an exemplary manner” during his more than 13 years with the
Sheriff’s Office, always earning performance evaluations of at
least “above average” and earning a rating of “outstanding” in
his last evaluation. At no time did his first- or second-level
supervisor express concerns with his performance.
Dixon voiced his opposition to Sheriff Roberts’s candidacy
on Election Day to Frances Pope, who was working the polls for
Roberts’s campaign. On Dixon’s way out, referring to the
29
Sheriff’s campaign material, he told Pope that she should “just
throw that stuff away” (“the polling-place comment”). J.A. 581
(internal quotation marks omitted). Dixon spoke in a friendly,
nonconfrontational tone and did not use any expletives. Dixon
also had an Adams bumper sticker on his car that he was “pretty
sure people saw.” J.A. 148.
The Sheriff denies that Dixon was not reappointed because
of his lack of political allegiance. Rather, the Sheriff
represents that Dixon in fact was let go because he used
profanity in making the polling-place comment, although the
Sheriff does not indicate the source of his belief and admits
that he never sought Dixon’s side of the story before replacing
him. 12 See Appellee’s brief at 10; J.A. 99 (stating that “[I]t
was [the Sheriff’s] understanding” that Dixon said, “You can
take this f---ing s---, stuff, and throw it in the trash can.”).
For his part, Dixon denies using any profanity in making the
polling-place comment. We conclude that if a jury credited
Dixon’s testimony, it could also reasonably find that the
Sheriff knew Dixon had not used profanity and that his support
for Adams, as revealed by the polling-place comment and bumper
12
The Sheriff testified that he also considered the fact
that Dixon transferred multiple times between working in the
jail and in civil process after requesting to be a training
officer but later deciding that he could not handle the
pressures of that position.
30
sticker, substantially motivated him not to reappoint Dixon.
See Reeves, 530 U.S. at 147.
Sandhofer
In contrast, we conclude that Plaintiffs have failed to
create a genuine factual dispute regarding whether Sandhofer’s
political disloyalty to Sheriff Roberts was a substantial basis
for his non-reappointment. The Sheriff had used Sandhofer – who
had experience working for a downtown marketing organization −
for significant marketing efforts and fundraising in 2008. As a
result, Colonel Bowden asked Sandhofer in 2009 to obtain
prominent sign locations among downtown Hampton businesses in
conjunction with the 2009 election. Sandhofer agreed to help
the Sheriff in this way, even though he actually never followed
through. Sandhofer also was ordered by Lieutenant Miranda
Harding to work the polls on Election Day, but he declined on
the basis that his “family comes first.” J.A. 169.
Additionally, he verbally expressed his support for Adams to
several people, as discreetly as possible, and he attended the
August cookout and was depicted in pictures of the cookout
posted on Facebook. Plaintiffs further point out that
Sandhofer’s girlfriend drove him to work and to campaign debates
in her car, which had an Adams bumper sticker affixed to it.
Sergeant John Meyers “mentioned” the sticker to Sandhofer on at
least one occasion. J.A. 591.
31
We conclude that this evidence is simply too thin to create
a genuine factual dispute regarding whether Sandhofer’s lack of
political allegiance to the Sheriff was a substantial basis for
his non-reappointment. Sandhofer admitted attending a reception
for the Sheriff’s campaign at the mayor’s house at the Sheriff’s
request. And, he admitted agreeing to help the Sheriff locate
signs for the 2009 election, although he never actually located
any of the signs. Furthermore, while he refused to work the
polls on Election Day, the reason he gave had nothing to do with
supporting Adams. Without more, there simply is not sufficient
evidence that the Sheriff identified Sandhofer as an Adams
supporter, even assuming that the Sheriff believed his
girlfriend was supporting Adams. And there was no reasonable
basis for a jury to conclude that the Sheriff would have
declined to reappoint Sandhofer based simply on his lack of
affirmative assistance to the Sheriff’s 2009 campaign. We
therefore conclude that the district court properly granted
summary judgment to the Sheriff on Sandhofer’s claim.
Woodward
We also conclude that Woodward did not create a genuine
factual dispute concerning whether her lack of political
allegiance to the Sheriff was a substantial basis for her non-
reappointment.
32
During her more than 11 years with the Sheriff’s Office,
Woodward’s performance evaluations had always been “above
average” or “outstanding.” J.A. 601 (internal quotation marks
omitted). According to Woodward, “[i]t was very well known
within the office that [she] was close to Jim Adams.” J.A. 600.
In early 2009, Woodward’s former supervisor and mentor, Deborah
Davis, became the treasurer of Adams’s campaign. Woodward also
informed several of her coworkers that she supported Adams’s
candidacy, although she generally tried to keep her support
quiet to protect her job.
During Roberts’s prior campaigns, Woodward had worked
“tireless[ly]” handing out flyers, working the polls, placing
yard signs, attending campaign events, and selling and
purchasing tickets. J.A. 599. In light of her support for
Adams, however, she did none of those things in 2009, except for
purchasing golf tournament tickets (because she felt coerced).
In the summer of 2009, Woodward noticed that her colleague,
Lieutenant George Perkins, was circulating a petition to place
the Sheriff’s name on the ballot. Woodward complained to
Sergeant Sharon Mays, Sergeant Meyers, Perkins himself, and
others, on the basis that Perkins was not a Hampton resident and
only Hampton residents could circulate such petitions. She also
learned that another non-resident was circulating petitions and
she had various conversations with Mays about that as well.
33
In the end, however, we conclude that it would be mere
speculation for a jury to conclude that Woodward was let go
because of lack of political allegiance to Roberts. Outside of
her petition complaints, there is no significant evidence that
would support an inference that the Sheriff believed Woodward
was supporting Adams. Woodward conceded that she shared her
preference for Adams only with people she thought would keep her
feelings secret. And Woodward maintained that the petition
complaints were not based on the fact that Roberts was the
subject of the petitions but on the principle that they should
not be circulated in the workplace by a non-Hampton resident.
There is no evidence that the Sheriff or others did not take her
complaints at face value or otherwise assumed that her true goal
was to work against Roberts’s campaign.
The Sheriff testified that the reason he did not reappoint
Woodward and Bland was that he expected that the number of
deputies he would be allocated by the Compensation Board would
be reduced, based on the declining population of the Hampton
City Jail. See Va. Code Ann. § 15.2-1609.1. Woodward and Bland
counted against that allotment and the Sheriff maintains that he
decided he needed to have deputies in Woodward’s and Bland’s
positions. Although Woodward’s and the Sheriff’s accounts are
in conflict concerning whether he ever offered Woodward the
opportunity to become a deputy, we conclude that that conflict
34
is simply not a sufficient basis for a reasonable inference that
her lack of political allegiance to Roberts was a substantial
motivation for her non-reappointment.
Bland
Finally, we determine that Plaintiffs failed to create a
genuine factual issue concerning whether a lack of political
allegiance was a substantial basis for the Sheriff’s decision
not to reappoint Bland. Bland had a financial position in the
Sheriff’s Office Administration Division. He had worked with
the Sheriff’s Department for more than nine years, performed “in
an exemplary manner,” and received performance evaluations of
“above average.” Bland had declined to provide significant
volunteer assistance to the Sheriff’s 2009 campaign after having
provided many types of support for the Sheriff’s past campaigns.
He was also known to be very close to Deborah Davis, who had
left the Sheriff’s Office in 2008 to become Adams’s campaign
treasurer in early 2009.
However, Bland admitted purchasing raffle tickets for the
Sheriff’s fundraising golf tournament, and he also admitted
helping to set up electronic equipment the night of the
election. He further admitted that he did not actively support
Adams’s campaign in any way and that Woodward was the only
35
person he even told of his intention to vote for Adams. 13
Something more would be necessary in order to warrant a
reasonable inference that Bland’s lack of political allegiance
to Sheriff Roberts was a substantial basis for the Sheriff’s
decision not to reappoint him.
B. Merits of Free-Speech Claims
The Plaintiffs next argue that the district court erred in
granting summary judgment against them on their speech claims.
We conclude that Carter, McCoy, and Dixon at least created
genuine factual disputes regarding whether the Sheriff violated
their free-speech rights, but that Woodward did not.
Carter
The first question to be addressed with regard to the
speech claims is whether the conduct that the employee maintains
precipitated his non-reappointment constituted speech at all.
Carter’s conduct consisted of his “liking” Adams’s campaign page
on Facebook. The district court concluded that “merely ‘liking’
a Facebook page is insufficient speech to merit constitutional
protection” and that the record did not sufficiently describe
what statement McCoy made. Bland, 857 F. Supp. 2d at 603. To
consider whether this conduct amounted to speech, we first must
13
Indeed, even Bland’s wife did not know that he favored
Adams.
36
understand, as a factual matter, what it means to “like” a
Facebook page.
“Facebook is an online social network where members develop
personalized web profiles to interact and share information with
other members.” Lane v. Facebook, Inc., 696 F.3d 811, 816 (9th
Cir. 2012). Members can share various types of information,
including “news headlines, photographs, videos, personal
stories, and activity updates.” Id. Daily more than 500
million Facebook members use the site and more than three
billion “likes” and comments are posted. See Brief of Facebook,
Inc. as Amicus Curiae, at 3.
Every Facebook user has a profile, which “typically
includes, among other things, the User’s name; photos the User
has placed on the website (including one photo that serves as
the User’s profile photo); a brief biographical sketch; a list
of individual Facebook Users with whom the User [interacts,
known as ‘friends’]; and . . . a list of Facebook ‘Pages’ the
User has Liked.” Id. at 4 (footnote omitted). “[B]usinesses,
organizations and brands,” can also use “Pages” for similar
purposes. What is a Facebook Page?, Facebook,
http://www.facebook.com/help/281592001947683 (last visited Sept.
17, 2013).
When a user logs on to Facebook, his home page is the first
thing that he typically sees. Included on a home page is a news
37
feed, “which, for most Users, is the primary place where they
see and interact with news and stories from and about their
Friends and Pages they have connected with on Facebook.” Brief
of Facebook, Inc. as Amicus Curiae, at 5; see What is News Feed,
Facebook, http://www.facebook.com/help/327131014036297 (last
visited Sept. 17, 2013). It “is a constantly updating list of
stories from people and Pages that [the User] follow[s] on
Facebook.” What is News Feed?, Facebook,
http://www.facebook.com/help/327131014036297 (last visited Sept.
17, 2013).
“Liking” on Facebook is a way for Facebook users to share
information with each other. The “like” button, which is
represented by a thumbs-up icon, and the word “like” appear next
to different types of Facebook content. Liking something on
Facebook “is an easy way to let someone know that you enjoy it.”
What does it mean to “Like” something?, Facebook,
http://www.facebook.com/help/452446998120360 (last visited Sept.
17, 2013). Liking a Facebook Page “means you are connecting to
that Page. When you connect to a Page, it will appear in your
timeline and you will appear on the Page as a person who likes
that Page. The Page will also be able to post content into your
News Feed.” What’s the difference between liking an item a
friend posts and liking a Page?, Facebook,
38
http://www.facebook.com/help/452446998120360 (last visited Sept.
17, 2013).
Here, Carter visited the Jim Adams’s campaign Facebook page
(the “Campaign Page”), which was named “Jim Adams for Hampton
Sheriff,” and he clicked the “like” button on the Campaign Page.
When he did so, the Campaign Page’s name and a photo of Adams –
which an Adams campaign representative had selected as the
Page’s icon – were added to Carter’s profile, which all Facebook
users could view. On Carter’s profile, the Campaign Page name
served as a link to the Campaign Page. Carter’s clicking on the
“like” button also caused an announcement that Carter liked the
Campaign Page to appear in the news feeds of Carter’s friends.
And it caused Carter’s name and his profile photo to be added to
the Campaign Page’s “People [Who] Like This” list.
Once one understands the nature of what Carter did by
liking the Campaign Page, it becomes apparent that his conduct
qualifies as speech. 14 On the most basic level, clicking on the
“like” button literally causes to be published the statement
that the User “likes” something, which is itself a substantive
statement. In the context of a political campaign’s Facebook
14
The Supreme Court has rejected the notion that online
speech is somehow not worthy of the same level of protection as
other speech. See Reno v. ACLU, 521 U.S. 844, 870 (1997); see
also Ashcroft v. ACLU,
542 U.S. 656 (2004).
39
page, the meaning that the user approves of the candidacy whose
page is being liked is unmistakable. That a user may use a
single mouse click to produce that message that he likes the
page instead of typing the same message with several individual
key strokes is of no constitutional significance.
Aside from the fact that liking the Campaign Page
constituted pure speech, it also was symbolic expression. The
distribution of the universally understood “thumbs up” symbol in
association with Adams’s campaign page, like the actual text
that liking the page produced, conveyed that Carter supported
Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-
11 (1974) (per curiam) (holding that person engaged in
expressive conduct when there was “[a]n intent to convey a
particularized message . . ., and in the surrounding
circumstances the likelihood was great that the message would be
understood by those who viewed it”); see also Tobey v. Jones,
706 F.3d 379, 388 n.3 (4th Cir. 2013).
In sum, liking a political candidate’s campaign page
communicates the user’s approval of the candidate and supports
the campaign by associating the user with it. In this way, it
is the Internet equivalent of displaying a political sign in
one’s front yard, which the Supreme Court has held is
substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43,
54-56 (1994). Just as Carter’s placing an “Adams for Sheriff”
40
sign in his front yard would have conveyed to those passing his
home that he supported Adams’s campaign, Carter’s liking Adams’s
Campaign Page conveyed that message to those viewing his profile
or the Campaign Page. 15 In fact, it is hardly surprising that
the record reflects that this is exactly how Carter’s action was
understood. See J.A. 160 (McCoy’s testimony that in light of
Carter’s liking Adams’s Campaign Page, “everybody was saying
that . . . Carter is out of there because he supported Adams
openly”); see also J.A. 793 (Sheriff’s Office employee stating
that Roberts had said that “certain employees were on the
Facebook page of his opponent, Jim Adams, indicating their
support of Adams for Sheriff”).
15
Indeed, in holding that an ordinance banning signs at
residences except for those signs fitting within particular
exceptions violated the plaintiff-resident’s free-speech rights,
the Gilleo Court highlighted several aspects of displaying
political signs at one’s residence that apply as well to liking
a Facebook campaign page:
Displaying a sign from one’s own residence often
carries a message quite distinct from placing the same
sign someplace else, or conveying the same text or
picture by other means. Precisely because of their
location, such signs provide information about the
identity of the “speaker.” . . .
Residential signs are an unusually cheap and
convenient form of communication. Especially for
persons of modest means or limited mobility, a yard or
window sign may have no practical substitute.
City of Ladue v. Gilleo, 512 U.S. 43, 56-57 (1994).
41
The second part of McVey’s first prong, concerning whether
Carter was speaking as a private citizen on a matter of public
concern, need not detain us long. The Sheriff does not dispute
that Carter’s speech, if it was speech, was made in his capacity
as a private citizen. Cf. Garcetti v. Ceballos, 547 U.S. 410,
421 (2006) (holding that employee does not speak as a private
citizen when his speech is “pursuant to [his] official duties”).
And, it is well established that an employee can speak as a
private citizen in his workplace, even if the content of the
speech is “related to the speaker’s job.” Id.; see Pickering,
391 U.S. at 564-65 (holding that letter to local newspaper from
teacher concerning school board policies was protected speech).
Further, the idea expressed in Carter’s speech − that he
supported Adams in the 2009 election – clearly related to a
matter of public concern. See Citizens United v. Fed. Election
Comm’n,
558 U.S. 310, 329 (2010) (describing political speech as
“central to the meaning and purpose of the First Amendment”);
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334, 346 (1995)
(“Discussion of public issues and debate on the qualifications
of candidates are integral to the operation of the system of
government established by our Constitution. The First Amendment
affords the broadest protection to such political expression in
order to assure the unfettered interchange of ideas for the
42
bringing about of political and social changes desired by the
people.” (internal quotation marks omitted)).
Next, on the record before us, Carter’s interest in
expressing support for his favored candidate outweighed the
Sheriff’s interest in providing effective and efficient services
to the public. Carter’s speech was political speech, which is
entitled to the highest level of protection. See Meyer v.
Grant, 486 U.S. 414, 422, 425 (1988) (describing constitutional
protection of “core political speech” as being “at its zenith”
(internal quotation marks omitted)); see also Connick, 461 U.S.
at 152 (“We caution that a stronger showing [of disruption] may
be necessary if the employee’s speech more substantially
involved matters of public concern.”). Indeed, the public’s
interest in Carter’s opinions regarding the election may have
had particular value to the public in light of his status as a
Sheriff’s Office employee. See, e.g., Waters v. Churchill,
511
U.S. 661, 674 (1994) (plurality opinion) (“Government employees
are often in the best position to know what ails the agencies
for which they work; public debate may gain much from their
informed opinions.”). In contrast, despite the Sheriff’s
reference to the need for harmony and discipline in the
Sheriff’s Office, nothing in the record in this case indicates
that Carter’s Facebook support of Adams’s campaign did anything
in particular to disrupt the office or would have made it more
43
difficult for Carter, the Sheriff, or others to perform their
work efficiently. See Goldstein v. Chestnut Ridge Volunteer
Fire Co., 218 F.3d 337, 356 (4th Cir. 2000) (holding that
“generalized and unsubstantiated interests” “in maintaining
morale and efficiency” within the fire department did not
outweigh plaintiff’s speech interest). The Sheriff’s case in
this regard is especially weak considering that he has failed to
show that the jailers occupied any “confidential, policymaking,
or public contact role” in the Sheriff’s Office. McVey, 157
F.3d at 278.
Finally, for the same reasons that we hold that Carter has
created a genuine factual issue regarding whether he was
terminated because of his lack of political allegiance to the
Sheriff, we conclude that Carter has created a genuine factual
issue concerning whether his Facebook support for Adams was also
a substantial factor. The Sheriff warned Carter that his
support of Adams would cost him his job, and a jury reasonably
could take the Sheriff at his word.
McCoy
Our application of the McVey test to McCoy’s speech claim
is very similar to our application of it to Carter’s. McCoy
presented evidence that he engaged in First Amendment speech
when he “went on Jim Adams’ campaign Facebook page and posted an
entry on the page indicating [his] support for his campaign.”
44
J.A. 586; see also J.A. 156 (stating that he “went on [Adams’s]
Facebook page” and “posted [his] picture . . . as a supporter”).
Indeed, the evidence indicated that many in the Sheriff’s Office
were “shocked” by the posting because it indicated that McCoy
was “not . . . supporting the sheriff.” J.A. 681. The district
court concluded that McCoy did not sufficiently allege that he
engaged in speech because the record did not sufficiently
describe what statement McCoy made. See Bland, 857 F. Supp. 2d
at 604.
Certainly a posting on a campaign’s Facebook Page
indicating support for the candidate constitutes speech within
the meaning of the First Amendment. 16 For the same reasons as
applied to Carter’s speech, McCoy’s speech was made in his
capacity as a private citizen on a matter of public concern,
namely, whether Adams should be elected Hampton Sheriff. That
the record does not reflect the exact words McCoy used to
express his support for Adams’s campaign is immaterial as there
is no dispute in the record that that was the message that McCoy
16
At oral argument, the Sheriff argued for the first time
that McCoy did not actually intend his statement of support to
be posted on the Campaign Page, and thus that the message did
not constitute speech. That McCoy may have intended his
expression of support to be kept private rather than made
public, however, does not deprive it of its status as speech.
See, e.g., Rankin v. McPherson, 483 U.S. 378, 387 (1987)
(holding that constable’s office employee engaged in protected
speech when she made a private political remark that was
overheard by a third person she did not realize was in earshot).
45
conveyed. Additionally, although many were shocked that McCoy
would so openly support Sheriff Roberts’s opponent, nothing in
the record indicates that his speech created any sort of
disruption or explains how the Sheriff’s interest in operating
the Sheriff’s Office efficiently could outweigh McCoy’s interest
in supporting the Sheriff’s opponent in the election. See
Goldstein, 218 F.3d at 356.
Further, for the same reasons that we conclude that a
reasonable jury could find that McCoy’s political disloyalty was
a substantial motivation for the Sheriff’s decision not to
reappoint him, such a jury could also find that McCoy’s
(politically disloyal) speech was also a substantial motivation
for his non-reappointment. With the Sheriff having specifically
warned his employees not to support Adams through Facebook and
having threatened that Adams supporters would not be
reappointed, a jury could reasonably find that the Sheriff
simply followed through with his threat by not reappointing
McCoy.
Dixon
Dixon alleges he was not reappointed because he displayed
an Adams bumper sticker on his car and because he made the
polling-place comment. The district court concluded that there
was no evidence that Roberts or other senior Sheriff’s Office
employees had knowledge of his bumper sticker and that the
46
polling-place comment was merely a personal grievance rather
than a statement touching on a matter of public concern. See
Bland, 857 F. Supp. 2d at 605.
Although the evidence that the Sheriff or his senior
officers knew of Dixon’s bumper sticker was thin, to say the
least, the Sheriff admits that he terminated Dixon because of
the polling-place comment. And, the statement that Pope should
“just throw [her Roberts campaign materials] away” clearly
constituted speech on a matter of public concern – the merits of
Roberts’s campaign − made in Dixon’s capacity as a private
citizen. See McIntyre, 514 U.S. at 346; cf. Cohen v.
California, 403 U.S. 15, 18 (1971) (concluding that California
“lack[ed] power to punish” the wearing of a jacket bearing the
plainly visible words “F - - k the Draft” based on “the
underlying . . . evident position on the inutility or immorality
of the draft”). Dixon represented that he made the statement in
a nonconfrontational, friendly manner, and no specific evidence
in the record indicated how his support for Adams might have
created a lack of harmony in the Hampton Sheriff’s Office.
As for causation, the Sheriff does not deny the fact that
Dixon’s polling-place comment was the reason he was not
reappointed. The Sheriff simply maintained that he believed
Dixon used profanity in making the comment – although he does
not explain the source of his belief. Were a jury to credit
47
Dixon’s denial of that charge, it could reasonably conclude that
what actually motivated the Sheriff not to reappoint Dixon was
the fact that Dixon voiced his disapproval of the Sheriff’s
candidacy.
Woodward
Woodward’s alleged protected speech occurred when she
complained about Lieutenant George Perkins’s circulation of a
petition in support of Sheriff Roberts on the basis that Perkins
was not a Hampton resident. As we have already explained,
however, we conclude that it would be speculative for a jury to
conclude that Woodward’s complaint regarding the petition was
based on anything other than the reasons she voiced at the time,
which were unrelated to the question of whether she supported
Adams or Roberts in the election. We therefore conclude she has
not created a genuine factual dispute regarding whether her
complaint was a substantial motivation for her non-
reappointment.
C. Eleventh Amendment Immunity
Plaintiffs next argue that the district court erred in
ruling that Eleventh Amendment immunity would bar claims
advanced against the Sheriff in his official capacity. We agree
to the extent that the Plaintiffs seek the remedy of
reinstatement.
48
The Eleventh Amendment to the United States Constitution
provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.”
Eleventh Amendment immunity protects unwilling states from suit
in federal court. See Will v. Michigan Dep’t of State Police,
491 U.S. 58, 70-71 (1989); Edelman v. Jordan,
415 U.S. 651, 662-
63 (1974). 17 This immunity also protects “state agents and state
instrumentalities,” Regents of the Univ. of Cal. v. Doe,
519
U.S. 425, 429 (1997), meaning that it protects “arm[s] of the
State” and State officials, Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle,
429 U.S. 274, 280 (1977). When a judgment
against a governmental entity would have to be paid from the
State’s treasury, the governmental entity is an arm of the State
for Eleventh Amendment purposes. See Cash v. Granville Cnty.
Bd. of Educ.,
242 F.3d 219, 223 (4th Cir. 2001). The Supreme
Court, however, delineated an exception to the application of
the Eleventh Amendment in Ex parte Young,
209 U.S. 123 (1908).
That exception “permits a federal court to issue prospective,
17
Although the language of the Eleventh Amendment does not
explicitly apply to suits brought against a state by one of its
own citizens, the Amendment has been construed to bar such
suits. See Equity in Athletics, Inc. v. Department of Educ.,
639 F.3d 91, 107 n.12 (4th Cir. 2011).
49
injunctive relief against a state officer to prevent ongoing
violations of federal law, on the rationale that such a suit is
not a suit against the state for purposes of the Eleventh
Amendment.” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.
2010). 18 The operation of the Eleventh Amendment in this case
thus depends on whether Sheriff Roberts is an arm of the State
and, if so, whether the Ex Parte Young exception applies.
The district court determined that Virginia sheriffs are
constitutional officers, see Va. Const. Art. VII § 4; Va. Code
Ann. § 15.2-1609; Jenkins v. Weatherholtz, 909 F.2d 105, 107
(4th Cir. 1990), and that sheriffs are arms of the State, see
Blankenship v. Warren Cnty.,
918 F. Supp. 970, 973-74 (W.D. Va.
1996). The district court also determined that “the State would
be liable to pay adverse judgments won against the Sheriff in
his official capacity.” Bland,
857 F. Supp. 2d at 610. Thus,
the court concluded, “a suit against the Sheriff in his official
capacity is in fact a suit against the State.” Id. Finding no
18
“[A] State’s sovereign immunity is a personal privilege
which it may waive at pleasure.” College Sav. Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999) (internal quotation marks omitted). However, there is no
indication of any waiver in this case. Nor has there been any
Congressional abrogation of the Commonwealth’s immunity. See
Lee-Thomas v. Prince George’s Cnty. Pub. Sch.,
666 F.3d 244, 249
(4th Cir. 2012) (“‘Congress may abrogate the States’ Eleventh
Amendment immunity when it both unequivocally intends to do so
and acts pursuant to a valid grant of constitutional
authority.’” (quoting Board of Trustees of Univ. of Ala. v.
Garrett,
531 U.S. 356, 363 (2001)).
50
evidence of abrogation or waiver of immunity by the
Commonwealth, the district court reasoned that “the Sheriff is
immune from suit for claims against him in that capacity.” Id.
Plaintiffs do not dispute that the Commonwealth would be
liable to pay any money judgment against the Sheriff. However,
citing Edelman, 415 U.S. at 664-65, Plaintiffs contend that
Eleventh Amendment immunity does not apply to the claims against
the Sheriff in his official capacity because Plaintiffs’
requests for reinstatement and lost pay are equitable claims to
which the immunity does not apply.
Because reinstatement is a form of prospective relief, the
refusal to provide that relief when it is requested can
constitute an ongoing violation of federal law such that the Ex
Parte Young exception applies. See Coakley v. Welch, 877 F.2d
304, 307 (4th Cir. 1989); State Emps. Bargaining Agent Coal. v.
Rowland,
494 F.3d 71, 96 (2d Cir. 2007). Plaintiffs are
therefore correct that the Sheriff is not entitled to Eleventh
Amendment immunity to the extent that they seek reinstatement.
See Coakley, 877 F.2d at 307; State Emps. Bargaining Agent
Coal., 494 F.3d at 96. As we have explained, however, to the
extent that the claims seek monetary relief, they are claims
against an arm of the State. See Cash, 242 F.3d at 223. Thus,
to the extent that the claims seek monetary relief against the
Sheriff in his official capacity, the district court correctly
51
ruled that the Sheriff is entitled to Eleventh Amendment
immunity.
D. Qualified Immunity
The Sheriff argues that even if some of the Plaintiffs
created genuine factual disputes concerning whether he violated
their association or free-speech rights by not reappointing
them, he is nevertheless entitled to qualified immunity to the
extent that the claims are asserted against him in his
individual capacity.
A government official who is sued in his individual
capacity may invoke qualified immunity. See Ridpath, 447 F.3d
at 306. “Qualified immunity protects government officials from
civil damages in a § 1983 action insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Edwards
v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999)
(internal quotation marks omitted). In determining whether a
defendant is entitled to qualified immunity, a court must decide
(1) whether the defendant has violated a constitutional right of
the plaintiff and (2) whether that right was clearly established
at the time of the alleged misconduct. See Walker v. Prince
George’s Cnty.,
575 F.3d 426, 429 (4th Cir. 2009). However,
“judges of the district courts and the courts of appeals [are]
permitted to exercise their sound discretion in deciding which
52
of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular
case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
In analyzing whether the defendant has violated a
constitutional right of the plaintiff, the court should identify
the right “at a high level of particularity.” Edwards, 178 F.3d
at 251. For a plaintiff to defeat a claim of qualified
immunity, the contours of the constitutional right “must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Hope v. Pelzer, 536
U.S. 730, 739 (2002) (internal quotation marks omitted).
We conclude that the Sheriff is entitled to qualified
immunity concerning Carter’s, McCoy’s, and Dixon’s claims
because in December 2009 a reasonable sheriff could have
believed he had the right to choose not to reappoint his sworn
deputies for political reasons, including speech indicating the
deputies’ support for the Sheriff’s political opponent.
Simply put, Jenkins sent very mixed signals. Although we
conclude today for the reasons discussed earlier that Jenkins is
best read as analyzing the duties of the particular deputies
before the court, much of the opinion’s language seemed to
indicate that a North Carolina sheriff could terminate his
deputies for political reasons regardless of the duties of their
particular positions. Truthfully, the Jenkins majority opinion
53
reads almost like two separate opinions that are in tension with
one another. All of the majority’s analysis up to the opinion’s
final page concerns deputies generally or North Carolina
deputies, and references particular duties of deputies without
indicating that the plaintiffs had those duties, see, e.g., 119
F.3d at 1162 (“The sheriff is likely to include at least some
deputies in his core group of advisors. Deputies on patrol work
autonomously, exercising significant discretion in performing
their jobs.” (footnote omitted)). This analysis leads up to the
broad conclusion that “North Carolina deputy sheriffs may be
lawfully terminated for political reasons under the Elrod-Branti
exception to prohibited political terminations.” Id. at 1164.
The majority rejected our earlier decision in Jones v. Dodson,
727 F.2d 1329 (4th Cir. 1984), where we concluded that no deputy
could ever be a policymaker and held instead that “district
courts are to engage in a Stott-type analysis, examining the
specific position at issue, as we have done here today.”
Jenkins, 119 F.3d at 1164. The majority later announced an even
broader “h[o]ld[ing]” possibly not even limited to North
Carolina sheriffs when it declared that “newly elected or re-
elected sheriffs may dismiss deputies either because of party
affiliation or campaign activity.” Id.
As if this language were not already strong support for a
broader reading of Jenkins, as we have pointed out, the dissent
54
in Jenkins read it that way as well, accusing the majority of
“hold[ing] that all deputy sheriffs in North Carolina –
regardless of their actual duties – are policymaking officials.”
Id. at 1166 (Motz, J., dissenting); see also id. (“This all-
encompassing holding is made without any inquiry into the actual
job duties of the deputies before us.”); id. (“The majority . .
. engages in no analysis of the particular duties of each
deputy.”); id. (“[T]he majority . . . finds that all North
Carolina deputy sheriffs are policymakers – without ever
considering the positions held by each of the deputies at issue
or their specific job duties.”).
Additionally, Knight v. Vernon, while important to our
decision regarding the merits of Carter’s, McCoy’s, and Dixon’s
constitutional claims, did not clearly establish that the
broader reading of Jenkins was incorrect. Although Knight
worked in a sheriff’s office, she was not a deputy. See Knight,
214 F.3d at 546. It is true that the Knight majority opined
that Knight’s sheriff would not have had the right to fire her
for political reasons even if she had taken the oath of a law
enforcement officer (like the plaintiffs in Jenkins took and
like the Knight dissent concluded Knight took). See id. at 551;
id. at 555 (Widener, J., concurring and dissenting). But the
Knight majority’s explanation for why it was immaterial whether
Knight had taken the law enforcement officer oath could itself
55
be reasonably taken as support for the broad reading of Jenkins.
The Knight majority stated:
As we emphasized in Jenkins, we “examine the job
duties of the position,” 119 F.3d at 1165, and Ms.
Knight’s duties as a jailer were essentially
custodial. She simply lacked the special status of a
deputy sheriff, who is empowered to stand in for the
sheriff on a broad front.
Id. at 551 (emphasis added). A sheriff reasonably reading
Jenkins as painting all deputies with a broad brush could well
have viewed Knight as doing the same, or, at the very least, not
weighing in on the issue. See also id. at 550 (“The
responsibilities of a jailer, such as Ms. Knight, are routine
and limited in comparison to those of a deputy sheriff, who may
be fired for his political affiliation.”); id. (“A jailer is not
the sheriff’s ‘second self’ in the sense that a deputy is.”).
The broader reading of Jenkins is also in line with a
statement from another of our opinions, which was issued after
Knight. In Pike v. Osborne, 301 F.3d 182 (4th Cir. 2002), we
held that, on a claim that a sheriff terminated a dispatcher for
political affiliation reasons, the sheriff was entitled to
qualified immunity because in December 1999 it was not clearly
established that a sheriff in Virginia could not lawfully
terminate, for political affiliation reasons, a dispatcher who
was privy to confidential information. See Pike, 301 F.3d at
186 (Hamilton, J., concurring in the judgment); id. (Broadwater,
56
J., concurring in the judgment) (adopting Judge Hamilton’s
reasoning). Judge Hamilton began his analysis in that case with
the statement, “The law of this circuit is clear that sheriffs
in Virginia have the right to lawfully terminate their deputies
for political affiliation reasons.” Id. (citing Jenkins). He
then proceeded to explain why the law was nevertheless not clear
regarding whether a dispatcher with access to confidential
information, who was not a deputy, could be terminated for
political affiliation reasons. See id. 19
For the reasons we explained in reviewing the merits of the
Elrod-Branti issue, we believe that this language, while
consistent with the Jenkins dissent’s characterization of
Jenkins’s reasoning, is an overstatement in light of the Jenkins
majority’s specific rejection of the dissent’s characterization
of its analysis. Nevertheless, considering the conflicting
signals that Jenkins and Pike sent, we conclude that a
reasonable sheriff in December 2009 could have believed that he
19
Other courts have, at times, also described Jenkins’s
holding broadly. See, e.g., Hall v. Tollett, 128 F.3d 418, 428
(6th Cir. 1997) (stating that Jenkins “held that political
affiliation is an appropriate requirement for deputy sheriffs”);
Fields v. County of Beaufort,
699 F. Supp. 2d 756, 764 (D.S.C.
2010) (“The Fourth Circuit determined that the office of deputy
is that of a policymaker, and therefore, the deputies were
lawfully terminated for political reasons.”).
57
was authorized to terminate any of his deputies for political
reasons. 20
If we were deciding what the law was in December 2009
regarding the legality of a sheriff firing a deputy for
political reasons, we would agree with our colleague in dissent
that the law was that a sheriff could not fire for political
reasons a deputy sheriff with the limited duties of a jailer.
Where we believe we differ in our assessment of this case is in
whether that law was clearly established and would have been so
recognized not by a judge trained in the law, but by a
reasonable sheriff.
For the reasons stated previously, we believe we have sent
mixed signals as to when a sheriff could fire a deputy for
political reasons and we have been unclear as to when he could
and when he could not. Some parts of our en banc decision in
Jenkins indicate he could do so and other parts would prohibit
it. The dissent in Jenkins expressed its own confusion as to
what the holding of Jenkins was and language in our cases since,
as well as those from other courts, have interpreted the holding
20
We emphasize that even a sheriff who read the specific
holding of Jenkins as limited to North Carolina deputies
involved in law enforcement could still have reasonably
concluded that, if we were squarely presented with the issue, we
would hold that a sheriff could terminate any of his deputies
for political reasons regardless of their particular duties.
58
in Jenkins broadly and consistent with the Sheriff’s. In short,
we understand why a sheriff would not find the law in this
situation clear, particularly given that he is a lay person.
We do not expect sheriffs to be judges and to have the
training to sort through every intricacy of case law that is
hardly a model of clarity. See Lawyer v. City of Council
Bluffs, 361 F.3d 1099, 1108 (8th Cir. 2004) (holding that
defendants were entitled to qualified immunity because “[p]olice
officers are not expected to parse code language as though they
were participating in a law school seminar”); Lassiter v.
Alabama A&M Univ. Bd. of Trustees,
28 F.3d 1146, 1152 n.8 (11th
Cir. 1994) (“Even if some legal expert would have then concluded
that a hearing was required, defendants would still be due
qualified immunity if reasonable university officials would not
have known about it.”), overruled on other grounds by Hope v.
Pelzer,
536 U.S. 730 (2002). Rather, in considering whether
constitutional rights were clearly established for qualified-
immunity purposes, we view the issue from “the layman’s
perspective,” Ross v. Reed,
719 F.2d 689, 696 n.8 (4th Cir.
1983), recognizing that “[p]articularly with regard to legal
conclusions, lay officers obviously cannot be expected to
perform at the level achievable by those trained in the law,”
Kroll v. United States Capitol Police,
847 F.2d 899, 906 (D.C.
59
Cir. 1988) (Robinson, J., concurring in the judgment) (footnote
omitted).
We note that in cases in which the Elrod-Branti exception
applies, and an employer therefore does not violate his
employee’s association rights by terminating him for political
disloyalty, the employer also does not violate his employee’s
free speech rights by terminating him for speech displaying that
political disloyalty. 21 See Jenkins, 119 F.3d at 1164 (holding
that because pleadings established that Elrod-Branti exception
applied, deputies failed to state a First Amendment speech
retaliation claim that deputies were dismissed for campaigning
against the sheriff). Thus, a reasonable sheriff in December
2009 who believed that the Elrod-Branti exception applied to his
deputies could have also reasonably believed that he could
choose not to reappoint them for their speech indicating their
political disloyalty to him. And Carter’s and McCoy’s Facebook
activity and Dixon’s bumper sticker and polling-place comment
certainly fall into that category. For this reason, we conclude
21
“[O]nly infrequently will it be ‘clearly established’
that a public employee’s speech on a matter of public concern is
constitutionally protected, because the relevant inquiry
requires a particularized balancing that is subtle, difficult to
apply, and not yet well-defined.” DiMeglio v. Haines, 45 F.3d
790, 806 (4th Cir. 1995) (internal quotation marks omitted); see
also McVey v. Stacy,
157 F.3d 271, 277 (4th Cir. 1998).
60
that the Sheriff was entitled to qualified immunity concerning
the claims of Carter, McCoy, and Dixon. 22
E. Conclusion
In sum, as to the claims of Sandhofer, Woodward, and Bland,
we conclude the district court properly analyzed the merits of
the claims, and we therefore affirm the grant of summary
judgment in favor of the Sheriff. As to the claims of Carter,
McCoy, and Dixon, the district court erred by concluding that
the Plaintiffs failed to create a genuine dispute of material
fact regarding whether the Sheriff violated their First
Amendment rights. Nevertheless, the district court properly
ruled that the Sheriff was entitled to qualified immunity on
Carter’s, McCoy’s, and Dixon’s claims seeking money damages
against the Sheriff in his individual capacity, and that the
Sheriff was entitled to Eleventh Amendment immunity against
those claims to the extent they seek monetary relief against him
in his official capacity. The Sheriff is not entitled to
Eleventh Amendment immunity, however, on Carter’s, McCoy’s, and
Dixon’s claims to the extent the remedy sought is reinstatement.
22
Plaintiffs maintain that the Sheriff is not entitled to
qualified immunity because the Sheriff’s testimony demonstrated
that he actually realizes that he cannot fire his employees on
the basis of their political opposition to him. However,
qualified immunity depends not on what the actual sheriff knew
at the time of his deposition but on what a hypothetical,
objectively reasonable sheriff would have known in December
2009.
61
III.
Accordingly, for the foregoing reasons, we reverse the
grant of summary judgment to the Sheriff regarding Carter’s,
McCoy’s, and Dixon’s reinstatement claims, and we remand these
claims to the district court for further proceedings. We
otherwise affirm the grant of summary judgment to the Sheriff.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
62
ELLEN LIPTON HOLLANDER, District Judge, concurring in part and
dissenting in part:
I concur in Chief Judge Traxler’s excellent opinion, with
one exception. The majority concludes that, at the relevant
time, “a reasonable sheriff could have believed he had the right
to choose not to reappoint his sworn deputies for political
reasons,” Maj. Op. at 53, and, on this basis, it determines that
Sheriff Roberts is protected by qualified immunity with respect
to his discharge of Carter, Dixon, and McCoy. In my view, when
these deputies were discharged in December 2009, the law was
clearly established that a sheriff’s deputy with the job duties
of a jailer could not be fired on the basis of political
affiliation. Therefore, I respectfully disagree with the
majority’s ruling as to qualified immunity.
In general, “the practice of patronage dismissals is
unconstitutional under the First and Fourteenth Amendments.”
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality); see Branti
v. Finkel,
445 U.S. 507, 516-17 (1980) (recognizing, generally,
that “the First Amendment prohibits the dismissal of a public
employee solely because of his private political beliefs”).
Based on what is known as the Elrod-Branti doctrine, “public
employees who allege that they were discharged . . . solely
because of their partisan political affiliation or
nonaffiliation state a claim for deprivation of constitutional
63
rights secured by the First and Fourteenth Amendments.” Elrod,
427 U.S. at 349. This case concerns the scope of “a narrow
exception” to that baseline rule, Maj. Op. at 10, which frames
the qualified immunity analysis.
Pursuant to the exception to the Elrod-Branti doctrine,
dismissal based on political affiliation is lawful if “the
hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved.” Branti, 445 U.S. at 518. The Supreme
Court’s formulation of the doctrine clearly puts the onus on the
employer to establish that a particular employee comes within
the exception to the rule barring discharge of a public employee
based on political affiliation. The majority correctly
concludes that, in the light most favorable to plaintiffs, they
were dismissed in violation of their rights under the First
Amendment. 1 This, in turn, requires consideration of Sheriff
Roberts’ defense of qualified immunity.
1
As the majority observes, both the free expression and
political affiliation claims of Carter, McCoy, and Dixon stand
or fall on the question of whether those plaintiffs come within
the exception to the Elrod-Branti rule because, “in cases in
which the Elrod-Branti exception applies, and an employer thus
can terminate his employees for political disloyalty, he may
also terminate them for speech that constitutes such
disloyalty.” Maj. Op. at 12 n.5. Accordingly, the qualified
immunity analysis applies equally to the free expression and
political affiliation claims of these three deputies.
64
“Qualified immunity balances two important interests -- the
need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231
(2009). The qualified immunity analysis involves two inquiries:
first, whether the facts alleged, “[t]aken in the light most
favorable to the party asserting the injury, . . . show the
officer’s conduct violated a constitutional [or statutory]
right,” Saucier v. Katz,
533 U.S. 194, 201 (2001); and second,
whether the right at issue “‘was clearly established in the
specific context of the case -- that is, [whether] it was clear
to a reasonable officer that the conduct in which he allegedly
engaged was unlawful in the situation he confronted.’” Merchant
v. Bauer,
677 F.3d 656, 662 (4th Cir.) (citation omitted), cert.
denied, ___ U.S. ___, 133 S. Ct. 789 (2012). The “two
inquiries . . . may be assessed in either sequence.” Id. at
661-62.
“To be clearly established, a right must be sufficiently
clear ‘that every reasonable official would [have understood]
that what he is doing violates that right.’ In other words,
‘existing precedent must have placed the statutory or
constitutional question beyond debate.’” Reichle v. Howards,
___ U.S. ___, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v.
65
al-Kidd, 563 U.S. ___,
131 S. Ct. 2074, 2078, 2083 (2011)) (some
internal quotation marks and citations omitted). The issue is
“assessed in light of the legal rules that were ‘clearly
established’ at the time” of the disputed conduct.
Messerschmidt v. Millender, ___ U.S. ___,
132 S. Ct. 1235, 1245
(2012) (citation and some internal quotation marks omitted).
Accordingly, we must consider the state of the law in December
2009, when Sheriff Roberts discharged Carter, Dixon, and McCoy.
As to the first prong of the inquiry, which evaluates the
merits of the claim of constitutional violation, the majority
determines that, in the light most favorable to plaintiffs,
Sheriff Roberts improperly dismissed them. In reaching that
conclusion, the majority engages in a careful analysis of
Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc),
cert. denied,
522 U.S. 1090 (1998), and Knight v. Vernon,
214
F.3d 544 (4th Cir. 2000). In my view, these same cases are
dispositive as to the second prong of the qualified immunity
inquiry. Jenkins and Knight clearly established that the Elrod-
Branti doctrine requires consideration of a deputy’s actual job
responsibilities, rather than the title of the position.
The Supreme Court’s formulation of the doctrine, of course,
is paramount. In Elrod, a newly elected Democratic sheriff
discharged several Republican employees of the Sheriff’s Office
“solely because they did not support and were not members of the
66
Democratic Party . . . .” 427 U.S. at 350-51. One of the
discharged employees was “Chief Deputy of the Process Division
and supervised all departments of the Sheriff’s Office” at a
certain location; another employee was a courthouse “bailiff and
security guard”; a third employee was a process server in the
office. Id. On First Amendment grounds, the employees sued in
federal court to enjoin their termination. Three justices of
the Supreme Court, joined by two concurring justices, held that
the district court should have granted the injunction. See id.
at 373. The three-justice plurality opined that “the practice of
patronage dismissals is unconstitutional” because “any
contribution of patronage dismissals to the democratic process
does not suffice to override their severe encroachment on First
Amendment freedoms.” Id. at 373.
The two concurring justices articulated an exception to
that general principle, viewing the case as presenting only a
“single substantive question”: “whether a nonpolicymaking,
nonconfidential government employee can be discharged or
threatened with discharge from a job that he is satisfactorily
performing upon the sole ground of his political beliefs.” Id.
at 375 (Stewart, J., concurring) (emphasis added). 2 The
2
Because the concurring justices’ votes were necessary to
the judgment, their more narrow view stated the holding of the
(Continued)
67
concurring justices “agree[d] with the plurality” that such an
employee could not be dismissed on the basis of political
affiliation. Id.
Four years later, in Branti, supra, 445 U.S. 507, a
majority of the Court reaffirmed Elrod’s holding, in the context
of the imminent firing of two Republican assistant public
defenders by a Democratic public defender. See id. at 508-09.
In so doing, the Branti Court reformulated the Elrod
concurrence’s exception to the prohibition of dismissals on the
basis of political affiliation for “policymaking” or
“confidential” employees. The Branti Court said: “[T]he
ultimate inquiry is not whether the label ‘policymaker’ or
‘confidential’ fits a particular position; rather, the question
is whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved.” Id. at 518. It
concluded that the assistant public defenders did not fall into
the exception to the general rule barring termination on the
basis of political affiliation, even though, in some respects,
Court under the “narrowest grounds” doctrine of Marks v. United
States,
430 U.S. 188 (1977).
68
they were involved in policymaking or privy to confidential
information. Id. at 519-20. 3
Consistent with Elrod and Branti, this circuit’s case law
has long required courts to “‘examine the particular
responsibilities of the position’” to determine whether a given
public employee comes within the exception to the rule against
patronage dismissals. Maj. Op. at 11 (quoting Stott v. Haworth,
916 F.2d 134, 142 (4th Cir. 1990)). In Stott, the court
articulated a two-part test to guide the analysis. The first
part requires examination of “‘whether the position at issue, no
matter how policy-influencing or confidential it may be, relates
to partisan political interests . . . [or] concerns.’” Stott,
916 F.2d at 141 (citations and some internal quotation marks
omitted). If the position does “‘involve government decision-
making on issues where there is room for political disagreement
on goals or their implementation,’” the second “‘step is to
examine the particular responsibilities of the position to
determine whether it resembles a policymaker, a privy to
3
In two subsequent cases, the Supreme Court extended the
Elrod-Branti doctrine in ways that are not germane to this case.
See Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)
(holding that Elrod-Branti doctrine also applies to “promotion,
transfer, recall, and hiring decisions”); O’Hare Truck Service,
Inc. v. City of Northlake,
518 U.S. 712 (1996) (holding that
Elrod-Branti doctrine applies “where government retaliates
against a[n] [independent] contractor, or a regular provider of
services, for the exercise of rights of political association or
the expression of political allegiance”).
69
confidential information, a communicator, or some other office
holder whose function is such that party affiliation is an
equally appropriate requirement.’” Id. at 141-42 (citation
omitted). The court recognized political affiliation as an
appropriate job requirement “‛when there is a rational
connection between shared ideology and job performance.’” Id.
at 142 (citation omitted).
This circuit’s Elrod-Branti case law has continued to
adhere to Stott’s focus on the job responsibilities of a given
position. See, e.g., Fields v. Prater, 566 F.3d 381, 386-87
(4th Cir. 2009) (applying Stott analysis); Nader v. Blair,
549
F.3d 953, 959-62 (4th Cir. 2008) (same). Commenting on the test
endorsed by Stott, the court said in Jenkins, 119 F.3d at 1162:
“Our cases have moved . . . to position-specific analyses.”
The majority’s conclusion that, at the relevant time, the
law as to deputy sheriffs was not clearly established is based
largely on its belief that Jenkins sent “very mixed signals” as
to the status of a sheriff’s deputy under the Elrod-Branti
doctrine. Maj. Op. at 53. Jenkins, which involved the
termination of ten North Carolina sheriff’s deputies, contains
instances in which the court used broad language that, according
to the majority here, arguably suggested that a Sheriff could
terminate a deputy for political reasons, without regard to
actual duties. Id. But, the Jenkins majority took pains to
70
define the scope of its holding and to resolve any “tension”
created by its language. Id. at 54.
The Jenkins majority stated that, “in North Carolina, the
office of deputy sheriff is that of a policymaker, and . . .
deputy sheriffs are the alter ego of the sheriff generally, for
whose conduct he is liable,” and concluded from this “that such
North Carolina deputy sheriffs may be lawfully terminated for
political reasons under the Elrod-Branti exception to prohibited
political terminations.” Jenkins, 119 F.3d at 1164. The
Jenkins majority also said: “We hold that newly elected or
reelected sheriffs may dismiss deputies either because of party
affiliation or campaign activity.” Id.
These statements cannot be read in isolation, however. The
Jenkins majority was engaged in overruling the court’s earlier
decision in Jones v. Dodson, 727 F.2d 1329 (4th Cir. 1984),
which had held that deputy sheriffs could not be fired on the
basis of political affiliation, “no matter what the size of the
office, or the specific position of power involved, or the
customary intimacy of the associations within the office, or the
undoubted need for mutual trust and confidence within any law
enforcement agency.” Id. at 1338. The Jenkins Court announced,
119 F.3d at 1164: “We disagree with Dodson to the extent it
suggests that no deputy sheriff can ever be a policymaker.”
71
The dissent in Jenkins maintained that the majority
“refus[ed] to engage in the proper Elrod-Branti
analysis . . . .” Id. at 1171 (Motz, J., dissenting). Pointing
to the broad, categorical language employed by the Jenkins
majority, the dissent reasoned that the majority had found that
“all (more than 4,600 in 1988) North Carolina deputy sheriffs
are policymakers,” thereby “call[ing] into question whether the
numerous North Carolina state troopers (more than 1,100 in 1988)
and police officers (more than 7,900 in 1988) are also
‘policymakers’ who can be dismissed at will by each new
political regime.” Id. (emphasis in original).
In response, the Jenkins majority expressly rejected the
dissent’s construction of its holding, explaining that its
holding was “limit[ed]” to “those deputies actually sworn to
engage in law enforcement activities on behalf of the sheriff.”
Id. at 1165 (emphasis added). Further, the Jenkins majority
insisted that its holding “applies only to those who meet the
requirements of the rule as we state it,” id. at 1165 n.66, and
did “not extend to all 13,600 officers in North Carolina, as the
dissent suggests.” Id. It reasoned that the “deputies in the
instant case” fell within the Elrod-Branti exception “[b]ecause”
they were “law enforcement officers.” Id. at 1165 (emphasis
added).
72
Of import here, the Jenkins majority directed that “the
district courts are to engage in a Stott-type analysis,
examining the specific position at issue . . . .” Id. at 1164
(emphasis added). Moreover, the Jenkins majority directly
admonished sheriffs within the Fourth Circuit, stating: “We
issue this limitation to caution sheriffs that courts examine
the job duties of the position, and not merely the title, of
those dismissed.” Id. at 1165 (emphasis added). This directive
is particularly salient, given that qualified immunity is
predicated on the notion that “a reasonably competent public
official should know the law governing his conduct.” Harlow v.
Fitzgerald, 457 U.S. 800, 818-19 (1982); accord Trulock v.
Freeh,
275 F.3d 391, 400 (4th Cir. 2001), cert. denied,
537 U.S.
1045 (2002).
Notably, the majority here acknowledges “the Jenkins
majority’s specific rejection of the dissent’s characterization
of its analysis.” Maj. Op. at 57. But, even assuming that
Jenkins left the state of circuit precedent unclear as to the
application of the Elrod-Branti doctrine to deputy sheriffs, the
court’s subsequent decision in Knight v. Vernon, supra, 214 F.3d
544, laid to rest any ambiguity with respect to sheriff’s
deputies serving as jailers.
In Knight, the district court had relied on Jenkins in
granting summary judgment to a sheriff who fired a jailer, based
73
on the district court’s conclusion that the role of a jailer is
similar to the role of a deputy. See Knight v. Vernon, 23 F.
Supp. 2d 634, 646 (M.D.N.C. 1998), rev’d in part, aff’d in part
on other grounds, 214 F.3d 544 (4th Cir. 2000). This court
disagreed, thereby clarifying any possible confusion as to the
proper construction of Jenkins.
The court expressly held that “a sheriff cannot insist on
political loyalty as a job requirement for a county
jailer . . . .” 214 F.3d at 548. It reasoned that “political
allegiance to [the sheriff] was not an appropriate requirement
for the performance of [the] job [of] jailer,” id. at 550, and
this would be so even if the jailer had taken the oath of a
deputy sheriff. Id. at 551. 4 In its analysis, the majority
reiterated that the “central message of Jenkins is that the
specific duties of the public employee’s position govern whether
political allegiance to her employer is an appropriate job
requirement.” Id. at 549 (emphasis added).
Focusing on the particular job duties of a jailer, the
Knight majority emphasized the “circumscribed,” “routine,” and
4
According to the Knight majority, the record was clear
that Knight never took a law enforcement officer’s oath.
Knight, 214 F.3d at 546. The dissent disagreed. See id. at 555
(Widener, J., dissenting). But, of significance here, the
majority determined, in the alternative, that “even if Ms.
Knight did take such an oath, it would not change our decision.”
Id. at 551 (majority).
74
“limited” responsibilities of the position, in contrast to those
of a sheriff’s deputy with “the general power of arrest.” Id.
at 550. It noted that “exercising the power of arrest is not
one of the job duties of a jailer. Her duties are simply to
supervise and care for inmates in the county jail.” Id. The
Knight majority also observed: “Ms. Knight was not out in the
county engaging in law enforcement activities on behalf of the
sheriff. She was not a confidant of the sheriff, and she did
not advise him on policy matters. Nor was she involved in
communicating the sheriff’s policies or positions to the
public.” Id.
In its analysis of the merits, the majority here
acknowledges that the job duties of Carter, McCoy, and Dixon
were “essentially identical to those of the plaintiff in Knight
v. Vernon.” Maj. Op. at 18. It goes on to say, in the context
of their termination, that “the near identity between the duties
of the deputy plaintiffs in this case and Knight’s duties
warrants the same result here.” Id. at 21. I readily agree
with the majority that there is no cognizable distinction for
purposes of the Elrod-Branti doctrine between the jailer in
Knight and the jailers in this case. As I see it, that should
end the qualified immunity inquiry.
To be sure, the jailers here were sworn deputy sheriffs.
But, they did not exercise law enforcement responsibilities (or,
75
at least, have raised a genuine factual dispute as to whether
they did). The district court asserted that, because the
“officers in this case were sworn, uniformed deputies,” they had
“the power of arrest.” Bland v. Roberts, 857 F. Supp. 2d 599,
609 (E.D. Va. 2012). But, as the majority observes, see Maj.
Op. at 22-23, the deputies here could not lawfully exercise the
arrest power, except in extraordinary circumstances, because
they had been trained as jailers rather than as law enforcement
officers, and the arrest power was not an appreciable aspect of
their duties. Indeed, the undisputed record evidence is that no
deputy in the Sheriff’s Department had made an arrest in the
preceding sixteen years.
Moreover, as the majority points out, the record is clear
that, although the jailers in this case took an oath, they did
not take a law enforcement officer’s oath. See Maj. Op. at 21.
This renders the finding of qualified immunity weaker still,
because the Knight Court concluded that even a jailer who does
take a law enforcement officer’s oath cannot be discharged on
the basis of political affiliation. See Knight, 214 F.3d at
551.
In contrasting the role of a “jailer” with that of a
“deputy sheriff, who may be fired for his political
affiliation,” id. at 550, the Knight Court was referring to the
type of deputy discussed “in Jenkins”: a deputy who “is a sworn
76
law enforcement officer” and who “has the general power of
arrest, a power that may be exercised in North Carolina [and
Virginia] only by an officer who receives extensive training in
the enforcement of criminal law.” Id. A reasonable sheriff
reading Knight would realize that such a description of a
“deputy” did not encompass Carter, McCoy, and Dixon, who served
as jailers, and would have heeded the court’s warning in both
Knight and Jenkins that “‘courts examine the job duties of the
position, and not merely the title, of those dismissed.’”
Knight, 214 F.3d at 549 (quoting Jenkins, 119 F.3d at 1165)
(emphasis in Knight).
In support of its view that the pertinent law was not
clearly established when plaintiffs were discharged in December
2009, the majority places unwarranted emphasis on Pike v.
Osborne, 301 F.3d 182 (4th Cir. 2002). In that case, the court
held that a sheriff was entitled to qualified immunity in
connection with the termination in 1999 (i.e., before Knight was
decided) of two dispatchers, based on their political
affiliation. In a concurrence, one member of the panel
concluded that the law was not clearly established “on the point
of whether sheriffs in Virginia can lawfully terminate for
political affiliation reasons dispatchers with privity to
confidential information.” Pike, 301 F.3d at 186 (Hamilton, J.,
77
concurring) (emphasis added). 5 The concurrence prefaced its
discussion of the sheriff’s entitlement to qualified immunity
with a statement upon which the majority here relies: the “law
in this circuit is clear that sheriffs in Virginia have the
right to lawfully terminate their deputies for political
affiliation reasons.” Id. at 186 (citing Jenkins).
But, this assertion was clearly dicta, because Pike did not
involve sheriff’s deputies. 6 And, privity to confidential
information, upon which Pike’s holding turned, is not at issue
here. The majority acknowledges that the Pike concurrence
overstated the holding of Jenkins. Maj. Op. at 57. As of
December 2009, Jenkins, as well as Stott and Knight, were part
of the clearly established law of this circuit. In my view, it
sets a troubling precedent if this circuit’s clearly established
law can be undone by dicta.
Stott emphasized the importance of analyzing job duties in
cases such as this one. Speaking en banc, the Jenkins Court
expressly admonished sheriffs that “courts examine the job
5
The opinion, although labeled a concurrence, was joined by
one of the other two judges on the panel.
6
“Dictum is ‘statement in a judicial opinion that could
have been deleted without seriously impairing the analytical
foundations of the holding -- that, being peripheral, may not
have received the full and careful consideration of the court
that uttered it.’” Pittston Co. v. United States, 199 F.3d 694,
703 (4th Cir. 1999) (citation omitted); accord New Cingular
Wireless PCS, LLC v. Finley,
674 F.3d 176, 241 (4th Cir. 2012).
78
duties of the position, and not merely the title, of those
dismissed.” Jenkins, 119 F.3d at 1165 (emphasis added). And,
Knight reinforced that point, characterizing it as the “central
message of Jenkins.” Knight, 214 F.3d at 549. Knight also made
clear that a sheriff may not terminate a jailer for political
reasons, even if the jailer took an oath as a law enforcement
officer. See Knight, 214 F.3d at 551. Pike did not alter any
of this.
The salient facts of this case are so close to the facts in
Knight that any reasonable sheriff would have predicted that
both cases would yield the same result. To the extent that
there is any distinction between Knight and this case, it
concerns only the title of the positions held by the employees.
Yet, it was clearly established that the title itself is of no
legal significance. Therefore, Sheriff Roberts should have
known that he could not discharge his jailers on the basis of
their political affiliation.
The majority is correct in stating that, in considering
whether the law was clearly established for purposes of
qualified immunity, we look to the perspective of a layperson,
not a lawyer. See Maj. Op. at 58-60. And, as the Supreme Court
recognized in Hope v. Pelzer, 536 U.S. 730, 739 (2002), the
“contours” of the constitutional right “‘must be sufficiently
clear [so] that a reasonable official would understand that what
79
he is doing violates that right.’” (Citation omitted). Yet, the
Supreme Court also underscored that the “very action in
question” need not have “‘previously been held unlawful’” if,
“in the light of pre-existing law the unlawfulness [is]
apparent.” Id. (citations omitted). See also Wilson v. Kittoe,
337 F.3d 392, 403 (4th Cir. 2003) (qualified immunity may be
denied even in the absence of “‛a case holding the defendant’s
identical conduct to be unlawful . . . .’”) (citation omitted).
“Qualified immunity extends to protect officials ‘who
commit constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful.’” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir.
2013) (quoting Henry v. Purnell,
652 F.3d 524, 531 (4th Cir.)
(en banc), cert. denied, ___ U.S. ___,
132 S. Ct. 781 (2011));
accord Durham v. Horner,
690 F.3d 183, 188 (4th Cir. 2012). It
is intended to “protect[ ] public officials from ‘bad guesses in
gray areas.’” Durham, 690 F.3d at 190 (quoting Maciariello v.
Sumner,
973 F.2d 295, 298 (4th Cir. 1992), cert. denied,
506
U.S. 1080 (1993)). There were no gray areas here.
In 1997, this court delivered an unequivocally clear
message to lay sheriffs. Directly addressing sheriffs, the
Jenkins Court announced: “We . . . caution sheriffs that courts
examine the job duties of the position, and not merely the
title, of those dismissed.” Jenkins, 119 F.3d at 1165. Any
80
person capable of serving as a sheriff surely would have
understood that directive, which was subsequently reiterated in
Knight, and would have grasped what all the members of this
panel agree was “the law . . . in December 2009 regarding the
legality of a sheriff firing a deputy for political reasons.”
Maj. Op. at 58. 7
In sum, Sheriff Roberts’ dismissal of Carter, McCoy, and
Dixon on the basis of their political allegiance, if ultimately
proven, cannot be excused on the basis of qualified immunity.
Therefore, I respectfully dissent from the portion of the
majority opinion that upholds the finding of qualified immunity
for Sheriff Roberts with respect to the First Amendment claims
lodged by Carter, McCoy, and Dixon.
7
The majority has correctly disregarded Sheriff Roberts’
subjective understanding of the law in applying the objective
analysis called for by the qualified immunity doctrine. See
Maj. Op. at 61 n.22. It is worth noting, however, that there is
no indication that Sheriff Roberts was laboring under a
misapprehension of the law. At his deposition, Roberts stated
that he did not believe he was entitled to fire the plaintiffs
“for political reasons.” JA 96. Instead, Roberts disputed
plaintiffs’ claim that he fired them for political reasons. As
the court unanimously concludes, see Maj. Op. at 25-31, there
are genuine disputes of material fact as to the basis for
Roberts’ termination of Carter, McCoy, and Dixon.
81
