UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SCOTT CARTER,
Plaintiff-Appellee,

v.

DANIEL J. GOOD, individually and in
                                                               No. 96-1965
his official capacity as Sheriff of
Rutherford County; AETNA LIFE&
CASUALTY COMPANY, Surety,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CA-94-200-4)

Submitted: April 14, 1998

Decided: May 19, 1998

Before LUTTIG and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

G. Michael Barnhill, W. Clark Goodman, WOMBLE, CARLYLE,
SANDRIDGE & RICE, P.L.L.C., Charlotte, North Carolina, for
Appellants. Anita S. Hodgkiss, Rebecca S. Thorne, FERGUSON,
STEIN, WATT, WALLAS, ADKINS, GRESHAM & SUMPTER,
P.A., Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Scott Carter, a former deputy sheriff in Rutherford County, North
Carolina, brought suit under 42 U.S.C. § 1983 (1994), against Daniel
Good, the county Sheriff, after Good allegedly fired Carter for politi-
cal reasons. Carter obtained a position as a road deputy with the Sher-
iff's Department ("department") in April 1990, when Ed Searcy, a
Democrat, was the sheriff. In the fall of 1990, Good, a Republican,
took office. Good came up for reelection in 1994. Carter's supervisor,
John Smart Jr., resigned from his position within the department in
the fall of 1993 after announcing his plans to run against Good. Car-
ter's father-in-law was Smart's close friend and ardent political sup-
porter.

Carter alleges that during the campaign, Good solicited information
from him regarding Smart's campaign strategy, and told him that he
would be fired if he campaigned for Smart. Subsequently, Good and
two other superior officers met with Carter and accused him of inter-
fering with a federal drug investigation. As a result of this meeting,
Good met with Carter in February 1994 to inform him that he was
being transferred to the jail, which Carter considered to be an undesir-
able assignment. During this meeting, Carter told Good he would be
supporting Smart "100 percent."

On March 4, 1994, Carter and a friend visited a local pizza restau-
rant, where they saw several on-duty members of the department. One
officer approached Carter to express his condolences regarding Car-
ter's transfer. There is some controversy over whether Carter
attempted to give the on-duty officer a political brochure supporting
Smart, but it is undisputed that Carter told the on-duty officer that he
had been the only deputy sheriff with "the balls" to tell Good that he
was supporting Smart for sheriff. Carter was wearing a "John Smart
for Sheriff" hat at the time of the exchange.

                    2
After Good received word of this incident, Carter was terminated.
While the defense alleges that Carter was guilty of various acts of
insubordination prior to this incident, Good admitted at his deposition
that the incident at the pizza restaurant precipitated Carter's termina-
tion. Other deputy sheriffs secretly recorded conversations with Good
during the campaign in which he told them that if they did their jobs
and did not campaign for his opponent they would retain their jobs.
According to Carter, officers who opposed Good but did not actively
campaign for his opponent retained their jobs after Good's reelection.

In Carter's view, therefore, his termination was not the result of his
political affiliation, but the result of his verbalization of his opposition
to Good. Carter contends that his statement to Good that he would
support Smart, as well as his statement at the restaurant that only he
had the courage to express his political stance, together with his sport-
ing of the hat endorsing Smart, precipitated his termination. The dis-
trict court agreed that this case involved alleged retaliation for the
exercise of free speech rights, and thereby analyzed the case under the
Supreme Court authorities applicable to such cases. See Connick v.
Myers, 

(1983). See also Pickering v. Board of Educ.,

(1968). In applying these authorities, the district court
found that Carter engaged in protected speech on the three occasions
mentioned and that, for purposes of summary judgment, Good failed
to prove that his interest in the efficient operation of his department
outweighed Carter's right to political expression. In denying Good's
motion for summary judgment, the district court went on to find that
Good was entitled to neither qualified nor Eleventh Amendment
immunity, and allowed Carter's suit, which included pendent state
claims, to proceed to trial.

After Good appealed, we placed this case in abeyance pending our
decision in Jenkins v. Medford, 

(4th Cir. 1997) (en
banc), cert. denied, 

(Jan. 26, 1998). After issuance of
our decision, the parties submitted supplemental briefs addressing the
impact of our decision on this case. Thus, the appeal is now ripe for
disposition.

In Jenkins, the plaintiffs were North Carolina deputy sheriffs dis-
missed by a newly elected sheriff for, allegedly, failing to support the
new sheriff's election bid, failing to associate themselves with the

                     3
new sheriff's campaign, and for supporting other candidates. The
plaintiffs sought relief under § 1983 and state law. The district court
denied the defendant sheriff's motion to dismiss, rejecting his claim
of qualified immunity.

We found the district court's order to be a final order subject to de
novo review on appeal. 

then analyzed the plain-
tiffs' complaint under the analysis employed in Elrod v. Burns, 

(1976), and Branti v. Finkel, 

(1980). Those
decisions hold that the propriety of a political patronage dismissal
hinges on whether the relevant hiring authority can demonstrate that
party affiliation is an appropriate requirement for effective perfor-
mance of the position at issue. See 

. If
so, the general prohibition against political firings is inapplicable. 

the role of deputy sheriffs in North Carolina
and concluded that "the office of deputy sheriff is that of a policy-
maker." 

we found that whenever the position
at issue "resembles" that of a policymaker, a communicator, or a per-
son who is privy to confidential information, "then loyalty to the sher-
iff is an appropriate requirement for the job." 

that "newly elected or re-elected sheriffs may dismiss deputies
either because of party affiliation or campaign activity. Either basis
serves as a proxy for loyalty to the sheriff." 

finding that campaign activity could signify disloyalty just as much
as party affiliation, we noted that "[w]e can think of no clearer way
for a deputy to demonstrate opposition to a candidate for sheriff . . .
than to actively campaign for the candidate's opponent." 

the deputies in Jenkins actively campaigned against
the elected sheriff, we concluded that their dismissal violated no con-
stitutional right. Absent such a violation, the defendant sheriff was
entitled to qualified immunity. We therefore directed the district court
to dismiss the plaintiffs' federal action as well as their pendent state
claim. 

argues on appeal that the Jenkins decision is inapplicable to
this case. He contends that he was fired for the content of his speech,
rather than his political affiliation. He says that other deputy sheriffs
who opposed Good but did not actively campaign against him kept
their jobs, demonstrating that it is speech, rather than political affilia-

                     4
tion, that motivated his termination. He therefore asserts that the
Connick-Pickering analysis, rather than the Elrod-Branti analysis
employed in Jenkins, applies to this case, and that the district court
properly found that he is potentially entitled to relief under Connick-
Pickering because his interest in free speech is not outweighed by
Good's interest in the efficient operation of his department.

Carter essentially asserts the same position expressed by the dissent
in Jenkins. The dissent believed that the plaintiffs asserted an Elrod-
Branti claim based on their allegations that they were dismissed for
failing to associate themselves with the winning campaign, but that
the deputies also alleged a Connick-Pickering claim based on their
contention that they were terminated for supporting opposition candi-
dates. See 

. The dissent sharply criticized the
majority opinion for applying the Elrod-Branti analysis to the plain-
tiffs' claims that they were dismissed for campaigning for the losing
candidate. 

Carter's assertion, the fact that he was more
overt than some of his fellow deputies in opposing Good does not
enhance his First Amendment protection in this context. The Jenkins
decision relied on the reasoning of the Seventh Circuit in its decision
in Upton v. Thompson, 

(7th Cir. 1991). In Upton, two
deputy sheriffs were dismissed by newly elected sheriffs because they
openly supported the incumbent sheriff during the campaign. Deputy
Upton displayed a campaign bumper sticker on his car and spoke to
reporters in his capacity as a union member about the union's support
of the incumbent. The other deputy, Jack Thulen, put up signs,
attended fundraisers, and vociferously supported the incumbent. The
Seventh Circuit applied an Elrod-Branti analysis, and concluded that
by politically aligning themselves with the opposition candidates in
such an overt manner, the plaintiffs thwarted the prevailing sheriff's
ability to entrust those deputies to carry out his policies. The court
stated:

          Given the dependency of the sheriff (and his political sur-
          vival) on his deputies' job performance, it is understandable
          why a sheriff might believe that party loyalty is an appropri-
          ate consideration for a deputy sheriff. This conclusion is
          especially true for Jack Thulen . . . . Thulen took a high pro-

                    5
          file in a hotly contested campaign which involved critical
          policy disputes relating to the proper operation of the Sher-
          iff's Department. Thulen's political involvement extended
          beyond mere party affiliation; it included active opposition
          to Marvin Bausman, who became the newly elected Sheriff.
          To the voting public this could make Thulen appear hostile
          and unreliable in carrying out the policies of the new Sher-
          iff. Deputy Upton, while apparently not as active (or at least
          as high profile) in campaign events as Jack Thulen, had cer-
          tainly made his opposition to candidate (later Sheriff)
          Thompson well known.

in its opinion, the court again emphasized the destructive
effect of actively campaigning for a political opponent, as opposed to
merely affiliating with the opponent, on the loyalty which a sheriff
may demand in the interest of the effective operation of his office
under Elrod-Branti. The court stated:

          In some states a politically silent deputy would officially
          align with a party simply by voting in the primary election.
          This contrasts sharply with the politically active deputy
          who, by vociferously campaigning for the loser, encounters
          Matthew 26:52: "All they that take the sword shall perish
          with the sword" . . . . Suffice it to say that under the First
          Amendment as interpreted by Branti [and Seventh Circuit
          cases] a sheriff may use political considerations when deter-
          mining who will serve as deputy sheriff."

the Elrod-Branti analysis is not displaced merely because a
deputy sheriff's opposition to a sheriff goes beyond mere party affilia-
tion. Rather, as found in Jenkins and Upton, such analysis, grounded
in the desire to protect a sheriff's interest in loyalty so that he may
carry out electorally mandated policies, logically applies with argu-
ably even greater force where a deputy actively campaigns for the
sheriff's political opponent. Acceptance of the Plaintiff's position in
this case would run afoul of our decision in Jenkins.

                    6
Carter also alleges that whether he was fired for his political affilia-
tion or for his political speech is a factual question, and that the pres-
ence of this factual issue precludes us from reviewing the district
court's interlocutory order. We have, however, accepted as true for
purposes of our review the facts as alleged by Carter, as we must in
reviewing the district court's denial of qualified immunity. See

. While it is undeniable that the activity for
which Carter alleges he was fired involved speech, it is also undeni-
able that this speech--in particular the speech at the pizza restaurant
--constituted overt campaign activity for the sheriff's opponent.
Jenkins holds that such activity, as a matter of law, is not constitution-
ally protected. Therefore, our review of the district court's denial of
qualified immunity is not dependent upon any determination of fact.

Because Carter's termination violated no constitutional right, Sher-
iff Good is entitled to qualified immunity. We therefore direct the dis-
trict court to dismiss Carter's federal claim. Moreover, the absence of
a federal action requires dismissal of Carter's state claim as well. 

the district court's order denying summary
judgment is reversed and this case is remanded for the entry of an
order of dismissal.

REVERSED AND REMANDED

                     7