MARK S. DAVIS, District Judge.
On April 21, 2011, Bill Watson, the elected Sheriff in Portsmouth, Virginia ("Sheriff Watson"), ordered his deputies to conduct strip searches of all civilian contractors that entered the Portsmouth City Jail (the "Jail") the following day. Sheriff Watson issued such blanket order based on information he had received indicating that contractors were bringing contraband into the Jail. On April 22, 2011, all nine Plaintiffs were among those contractors that underwent strip searches. One year later, Plaintiffs filed suit against Sheriff Watson and his deputies in this Court, alleging that the strip searches violated the constitutional prohibition on unreasonable searches. The next business day after suit was filed, Sheriff Watson issued a second blanket order, this time revoking the Jail security clearances of the six Plaintiffs that were still working as contractors at the Jail. A jury having decided the constitutionality of the strip searches, this Opinion addresses whether Sheriff Watson's revocation of the six Plaintiffs' security clearances was unconstitutional
This matter is before the Court following severance of the Section 1983 Fourth Amendment unreasonable search claims that were advanced by all nine Plaintiffs from the Section 1983 First Amendment retaliation claims that were advanced by six of these Plaintiffs.
Each of the nine Plaintiffs in this case was previously an employee of a contractor providing services at the Portsmouth Jail, which is overseen by defendant Sheriff Watson.
Pursuant to written Jail policy, all employees and contractor workers are subject to "search" at any time.
According to the testimony at the jury trial, as of April 2011, Sheriff Watson and his internal affairs division had received numerous tips implicating contract workers in bringing contraband into the Jail. Almost all of such tips were received from anonymous informants. Sheriff Watson and various Sheriff's Deputies testified at the jury trial that on April 22, 2011, as a result of receiving the tips, all nine Plaintiffs, and two other contractors, were subjected to a strip search at the Portsmouth Jail. Although the parties disagreed as to whether the Plaintiffs were subjected to a "standard strip search," or a strip search that included a "visual body cavity search," the jury returned a special verdict concluding that all Plaintiffs were subjected to a "standard strip search."
During trial, defense counsel argued vigorously to the Court, outside of the presence of the jury, that the heightened security concerns at the Jail permit the Sheriff and his Deputies to conduct standard strip searches of Jail employees and contractors without any degree of articulable suspicion. Alternatively, defense counsel argued that even if the law requires that a strip search be based on reasonable articulable suspicion, there were not any constitutional violations in this case because the Plaintiffs all consented to be strip searched. Such purported consent was based on: (1) Plaintiffs' knowledge of the Jail's general search policies and signing of the orientation form; and/or (2) the asserted fact that, on April 22, 2011, after being informed that all contractors were being strip searched, each Plaintiff voluntarily decided to submit to a strip search.
The Court rejected Defendants' assertion that they should be able to conduct standard strip searches of Jail employees and contractors without any degree of articulable suspicion,
While the Court rejected Defendants' assertion that suspicionless strip searches of jail employees and contractors are constitutionally permissible, the Court agreed with defense counsel that the jury should be instructed on "consent." As indicated above, there was evidence adduced at trial by Defendants that Plaintiffs generally consented to being "searched" at any time, and specifically consented to being "strip searched" immediately before they underwent such searches on April 22, 2011. In light of Plaintiffs' contention that any such purported consent was involuntary because Plaintiffs' continued contract employment at the Jail was conditioned upon submitting to the allegedly unconstitutional searches, the Court also instructed the jury that consent is not voluntary when a public employer conditions continued public employment, or continued public contract work, on the waiver of a right protected by the United States Constitution ("the Constitution"). Jury Instr. 32, ECF No. 97; see Lefkowitz v. Turley, 414 U.S. 70, 82-83, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973); Johnson v. Branch, 364 F.2d 177, 180 (4th Cir.1966).
After being instructed on "reasonable suspicion," Jury Instr. 21, ECF No. 97, the asserted defense of "consent," Jury Instr. 31, ECF No. 97, and the involuntariness of "consent" if the threatened loss of public employment is used to coerce an employee or contractor, Jury Instr. 32, ECF No. 97, the jury concluded that Defendants had reasonable suspicion sufficient to justify strip searches for seven of the nine Plaintiffs, but did not have reasonable suspicion as to two of the nine Plaintiffs. The jury further concluded that all nine Plaintiffs voluntarily consented to be strip searched. Based on such findings, as well as the defense verdicts on the associated state law claims, damages were not awarded by the jury as to any of the Plaintiffs. The Court accepted and entered the jury's unanimous findings.
As summarized above, the Court separately conducted a bench trial to address the six Injunction Plaintiffs' claims that Sheriff Watson retaliated against them by revoking their security clearances when they filed this lawsuit, in violation of the First Amendment to the Constitution. The Court's findings of fact are set forth immediately below.
On April 27, 2012, approximately one year after the April 22, 2011 strip searches were performed, each of the nine Plaintiffs in this consolidated set of cases filed a separate federal complaint in a separately numbered civil case. Each of the suits initially advanced a Section 1983 Fourth Amendment unconstitutional
At the bench trial, the Court heard testimony from all six Injunction Plaintiffs, as well as Sheriff Watson. The trial testimony demonstrated that the Injunction Plaintiffs initially filed suit both to: (1) seek redress for the harm they personally suffered from what they believed to be unconstitutional strip searches; and (2) to make sure that Sheriff Watson never again ordered such demeaning strip searches of his own employees or contractors without possessing the constitutionally required individualized reasonable suspicion. Stated simply, a substantial factor that motivated many of the Injunction Plaintiffs to file suit was to ensure that the events, as they alleged them, never happened again, to anyone. The Court therefore finds that, while the Injunction Plaintiffs were concerned about their own self-interest, they were also clearly concerned that others would be subjected to the same demeaning, and purportedly unconstitutional, strip searches. The form of the speech was public, both through a federally filed lawsuit and Injunction Plaintiffs' contact with the media.
Considering the facts relevant to the Sheriff's interest in maintaining the Portsmouth Jail in a safe and efficient manner, the Court finds that the Portsmouth Sheriffs' Office is a paramilitary organization with unique security concerns. The Court recognizes the undisputed fact that working in, and overseeing, a Jail involves very real dangers that exist on a daily basis. Any sheriff overseeing such a facility therefore has immense responsibility on his shoulders that should not be discounted.
The Sheriff's testimony at the bench trial revealed that his memory is not entirely clear regarding what evidence motivated the strip searches in 2011, and what evidence motivated the revocation of security clearances in 2012. Based on such limited memory, and lack of any written documentation from 2012, there is limited, if any, objective justification for revoking the security clearances in 2012.
In contrast to the above, Sheriff Watson more clearly recalled at the bench trial that the filings of the federal lawsuits themselves were a substantial factor, if not the factor, in his decision to revoke Injunction Plaintiffs' security clearances. When questioned on such topic, Sheriff Watson revealed that he lost confidence in the Injunction Plaintiffs because they had continued working at the Jail for a year after the strip searches were performed and, unbeknownst to him, they were planning to sue him rather than approaching him with their concerns. Stated differently, Sheriff Watson's candid testimony revealed that he felt betrayed when he heard about Injunction Plaintiffs' lawsuits. Specifically, Sheriff Watson stated, under oath: "All I know is it was the lawsuit I think that pushed me over the edge."
The Court also finds that, based on the facts of this case, the revocation of Plaintiffs' security clearances constituted the loss of a valuable benefit. As revealed through testimony at both the preliminary injunction hearing and the bench trial, several Injunction Plaintiffs were left without
The Court further finds that the issuance of a permanent injunction would not directly result in any increased security issues at the Portsmouth Jail. Sheriff Watson's own attorney asked Sheriff Watson at the bench trial whether restoring the security clearances of the Injunction Plaintiffs would create any problems with security at the Portsmouth Jail. The Sheriff clearly and candidly answered that "it's not a problem." He clarified that, as of that day, he only had one job opening for a nurse contractor, but repeated that "it's not a problem" to reinstate the Injunction Plaintiffs' previously suspended security clearances.
It is well established that a plaintiff seeking a permanent injunction is required to demonstrate the following:
Legend Night Club v. Miller, 637 F.3d 291, 297 (4th Cir.2011) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (hereinafter "eBay Inc.)")). An injunction should never "be granted as a matter of course," as it is a "drastic and extraordinary remedy" that is only appropriate after careful balancing of all competing interests. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2761, 177 L.Ed.2d 461 (2010).
The analysis of the first two prongs of the permanent injunction standard frequently go hand-in-hand, as a court must determine whether the party seeking an injunction has demonstrated an "irreparable injury" (prong one) for which money damages, or other legal remedy, are inadequate § prong two). See, e.g., MercExchange, L.L.C. v. eBay, Inc., 500 F.Supp.2d 556, 569 n. 11, 582 (E.D.Va. 2007) (indicating that the "irreparable harm inquiry and remedy at law inquiry are essentially two sides of the same coin" and that "the requisite analysis for the second factor of the four-factor test inevitably overlaps with that of the first"). As discussed below, the Court analyzes the first two prongs in unison, and does so through the application of the multi-factor test concerning public employees, as set forth in Goldstein v. Chestnut Ridge Volunteer Fire Company, 218 F.3d 337 (4th Cir.2000). After conducting such analysis, the Court finds that Injunction Plaintiffs
The protections afforded by the First Amendment generally include "not only the affirmative right to speak, but also the `right to be free from retaliation by a public official for the exercise of that right.'" Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir.2011) (quoting Suarez Corp. Indus, v. McGraw, 202 F.3d 676, 685 (4th Cir.2000)). It is well established in the Fourth Circuit that "[v]iolations of first amendment rights constitute per se irreparable injury." Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir.1978) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion)); see Legend Night Club, 637 F.3d at 302 (quoting Elrod, 427 U.S. at 373, 96 S.Ct. 2673) ("`[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'"). Furthermore, "monetary damages are inadequate to compensate for the loss of First Amendment freedoms," particularly when there is "direct penalization" for the exercise of such rights, as opposed to an "incidental inhibition." Id. (citations omitted).
Although First Amendment violations are, by their nature, "irreparable," the protections afforded to a "public employee" are less than those afforded to an ordinary citizen because the government and the general public both have a strong interest in public agencies providing efficient public services. Id. Accordingly, "[w]hile government employees do not lose their constitutional rights at work, the Supreme Court has repeatedly held 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." Id.; see Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)) ("Our task, as we defined it in Pickering, is to seek `a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'") (alteration in original).
Here, Injunction Plaintiffs allege ongoing infringement of their First Amendment rights because they remain barred from working at the Portsmouth Jail as a result of the retaliatory revocation of their security clearances.
The first step in the multi-faceted Goldstein analysis requires the Court to determine whether the speech at issue (in this case, the lawsuit that allegedly caused the retaliation) was made "as a citizen upon a matter of public concern" or whether it was made "as an employee about a matter of personal interest." McVey v. Stacy, 157 F.3d 271, 277 (4th Cir.1998); see Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 316 n. 26 (4th Cir. 2006) (indicating that classifying the speech as involving a "public concern" or a "personal interest" is the "threshold question"). If a court determines that a public employee's speech "does not touch upon a matter of public concern, the state, as employer, may regulate it without infringing any First Amendment protection." Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir.2000) (en banc); see Stroman v. Colleton Cnty. Sch. Dist., 981 F.2d 152, 156 (4th Cir.1992) (explaining that "[p]ersonal grievances, complaints about conditions of employment, or expressions about other matters of personal interest do not constitute speech about matters of public concern that are protected by the First Amendment, but are matters more immediately concerned with the self-interest of the speaker as employee").
Whether speech addresses a matter of public concern versus a matter of personal interest "must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. A public employee's speech involves a matter of public concern if it is spoken as a citizen and addresses "an issue of social, political, or other interest to a community." Id.; see DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir.1995) (quoting Terrell v. Univ. of Texas Sys. Police, 792 F.2d 1360 (5th Cir.1986)) (defining the inquiry as "`whether the speech at issue in a particular case was made primarily in the plaintiff's role as a citizen or primarily in h[er] role as employee'"). Such inquiry, however, does not turn on how "interesting" the topic of the speech is. See Baker v. McCall, 842 F.Supp.2d 938, 950 (W.D.Va.2012) (quoting DiMeglio, 45 F.3d at 805) (indicating that even if the topic of the disputed speech — a high school principal's desire to marry a subordinate employee — would arouse interest in the small town where it occurred, "`the mere fact that the topic of the employee's speech was one in which the public might or would have had a great interest is of little moment'").
Whether the speech at issue occurs inside or outside of the workplace is not determinative of its nature, as an individual can speak as a private citizen while at work, and can speak as a government employee while away from the workplace.
In Campbell v. Galloway, 483 F.3d 258 (4th Cir.2007), the Fourth Circuit discussed the lack of contours to the case specific test for determining whether speech touches on a matter of public concern. In doing so, the Fourth Circuit expressly declined to "articulate any sort of bright-line rule" as to whether sexual harassment claims are matters of public concern, suggesting that such a universal rule does not appear "consistent with the Supreme Court's directive that [lower courts] engage in a case-and fact-specific inquiry to determine" if a public employee's speech addresses a matter of public concern. Id. at 269. Both the Fourth Circuit and Supreme Court have expressly acknowledged that the flexible nature of such test necessarily results in a lack of clear precedential guidance. See id. at 270 (noting that Fourth Circuit precedent has "provided little concrete guidance on the question of when ... a [sexual discrimination] complaint amounts to an issue of public concern"); City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (noting that "the boundaries of the public concern test are not well defined"). Therefore, whether the public would be "truly concerned" with a public employee's speech remains a "subtle, qualitative inquiry" that must be performed in every case. Goldstein, 218 F.3d at 352-53; see Mills v. Steger, 64 Fed. Appx. 864, 871 (4th Cir.2003) (explaining that "[o]ne of the critical factors in determining whether speech is on public or private matters is whether it concerns matters of public debate or whether it reflects merely personal pique and internal employment issues").
More recently, the Supreme Court and the Fourth Circuit have added some further clarity as to the importance of the forum of the speech, indicating that internal employee complaints implicating workplace duties or advancing on-the-job favoritism claims rarely implicate a matter of public concern. Guarnieri, 131 S.Ct. at 2501; Brooks v. Arthur, 685 F.3d 367, 373 (4th Cir.2012). This is particularly true in the case of internal speech focusing solely on the alleged unfair workplace treatment of a single individual. Brooks, 685 F.3d at 373. In Brooks, the Fourth Circuit stressed the private nature of "individualized" internal workplace complaints that are "significant chiefly to the parties involved," noting that "[t]he First Amendment demands more." Id. at 375-76.
Notwithstanding such recent cases, the applicable legal test remains unchanged; the ultimate inquiry requires consideration of the "content, form, and context of a given statement, as revealed by the whole record," Connick, 461 U.S. at 147-48, 103 S.Ct. 1684, with the ultimate question being "`whether the "public" or the "community" is likely to be truly concerned with or interested in the particular expression, or whether it is more properly viewed as essentially a "private" matter between employer and employee.'" Goldstein, 218
Brooks, 685 F.3d at 371-73.
Here, although a relatively close question, the Court finds that Injunction Plaintiffs' simultaneously-filed nine federal lawsuits, alleging unconstitutional strip searches orchestrated by an elected official, are sufficient to satisfy the first prong of the Goldstein test, as they implicate a matter of public concern. The Court reaches such conclusion after conducting the required "subtle, qualitative inquiry" into the case specific factual allegations. Goldstein, 218 F.3d at 352; see Jackson v. Bair, 851 F.2d 714, 717 (4th Cir.1988) (indicating that the elements of a public employee's speech rights "are subtle and difficult [in] application, precisely because of the obviously conflicting interests and values involved in the public employment relationship"); Stickley v. Sutherly, 416 Fed. Appx. 268, 272 (4th Cir.2011) (noting that "the line marking when something becomes a matter of public concern is blurry, and thus the boundary confining a public official's behavior is hard to discern").
As this Court's finding is based on balancing competing factors, the Court first reviews the factors that favor Sheriff Watson's categorization of the instant suits as involving matters restricted to each Plaintiff's personal interest. A review of each Complaint in isolation suggests that each Injunction Plaintiff was pursuing relief based on her own self-interest because: (1) each Injunction Plaintiff originally filed a separate suit; (2) each suit sought monetary damages to remedy personal suffering; (3) each suit alleged misconduct on a single occasion; and (4) the requested injunctive relief is phrased in a manner that limits such relief to Sheriff Watson's future treatment of the filing Plaintiff. See Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir.2004) (indicating that complaints regarding employment conditions, or personal work grievances, are not matters of public concern); Brooks, 685 F.3d at 373 (classifying the internal workplace complaints at issue as "of a purely private
Notwithstanding the above factors favoring Sheriff Watson's position, a consideration of the bench trial testimony and the entire record before the Court demonstrates that the factors favoring Plaintiffs outweigh those favoring the Sheriff, and thus, the speech at issue involves a matter of public concern. First, considering the "form" and "context" of the speech, the speech that allegedly caused the retaliation was not an internal grievance, but was instead a collection of nine publicly filed federal lawsuits alleging that an elected state official acted in violation of the United States Constitution. Furthermore, to the extent that defense counsel sought to establish that Injunction Plaintiffs sought out the media and that Sheriff Watson's alleged retaliation was a reaction to news coverage as much as it was a reaction to the lawsuits themselves, such contention, if assumed true, further supports a finding that the speech touched a matter of public concern. This is true not because the topic of the speech (strip searches) is "interesting" and would sell newspapers, but instead because it demonstrates that the Injunction Plaintiffs were seeking to publicly criticize an elected state official's (alleged) brazen disregard for the United States Constitution. Cf. Connick, 461 U.S. at 148, 103 S.Ct. 1684 (declining to categorize certain speech about the conduct of an elected official as speech "of public import" because such speech "did not seek to inform the public that the [elected official's] office was not discharging its governmental responsibilities" and did not "seek to bring to light actual or potential wrongdoing or breach of public trust").
Accordingly, regardless of whether the Injunction Plaintiffs' disputed speech is viewed solely as the lawsuits themselves, or as the lawsuits and communications with the press, the form and content of the speech militate toward finding that such speech was both spoken as a citizen and involved a matter of public concern. See Brooks, 685 F.3d at 373 (contrasting a "letter to a local newspaper" with an internally filed, non-disseminated, workplace grievance); Cromer v. Brown, 88 F.3d 1315 (4th Cir.1996) (finding that even an internal letter to the sheriff from employees raising broad allegations of racial discrimination within the sheriff's office was "an expression of concern about the ability of the sheriff's office to carry out its vital public mission effectively," and thus, was speech "as citizens, not merely as employees"). Notably, the purpose of an internal employee grievance is typically to address "the government in its capacity as the petitioners' employer, rather than its capacity as their sovereign." Guarnieri, 131 S.Ct. at 2506 (Scalia, J., concurring in part and dissenting in part). Here, as set forth in the findings of fact above, in addition to seeking personal relief, Plaintiffs' joint action of contemporaneously filing nine suits on the same day plainly sought to ensure
Although each Injunction Plaintiff's suit, if considered in a vacuum, could be characterized as a personal grievance, the nine suits were all filed at the same time, by the same counsel, and collectively reveal that nine different Plaintiffs all alleged the same unconstitutional conduct orchestrated by the same publicly elected state constitutional officer. Although such suits do not allege the existence of a formal unconstitutional search policy, the collective allegations clearly suggest that Sheriff Watson's conduct was motivated by a policy or practice that did not individually analyze the level of suspicion to search each jail contractor, as is required by the Constitution. See Braun, 652 F.3d at 558 (recognizing that, in 2008, it was "clearly established that intrusive prison employee searches require reasonable suspicion"). The nine contemporaneously filed federal Complaints thus collectively allege a far more sweeping failure to comply with the dictates of the Constitution than the complaint of a single employee. See Campbell, 483 F.3d at 269-70 (suggesting that sexual harassment complaints are more likely to implicate a public concern when the allegations involve repeat discrimination impacting numerous individuals); Brooks, 685 F.3d at 373 (contrasting the facts before that court with the facts in Cromer, and noting that the "public concern" speech in Cromer: (1) "addressed department-wide procedures"; (2) was made "outside an employee grievance channel"; and (3) "represented the concerns of a larger group of officers within the department"). Furthermore, as indicated above, the testimony at the bench trial demonstrated that a substantial factor that motivated many of the Injunction Plaintiffs to file suit was their desire to ensure that unconstitutional strip searches never happened again, to anyone, at the Portsmouth Jail.
Next, considering the "content" of the Injunction Plaintiffs' disputed speech, the conduct complained of in the Injunction Plaintiffs' federal complaints plainly involves far more serious matters than ordinary workplace disputes like "favoritism" or "interpersonal discord." Goldstein, 218 F.3d at 352; see Guarnieri, 131 S.Ct. at 2501 (stressing that public employees do not have the right "to transform everyday employment disputes into matters for constitutional litigation in the federal courts") (emphasis added). Rather, here the Injunction Plaintiffs' speech alleged that a publicly elected state constitutional officer, and his subordinates, knowingly violated the Constitution by forcing numerous jail contractors to either submit to a complete strip search, which required the person
Furthermore, the content of the Plaintiffs' speech implicates the public interest because it alleges the wide implementation of a type of intrusive and demeaning search that, if constitutionally unfounded, could significantly impact the public's viewpoint regarding the elected Sheriff's judgment and exercise of his broad powers. Cf. Connick, 461 U.S. at 148-49, 103 S.Ct. 1684 (implying that speech implicates a "public concern" when it seeks to "bring to light actual or potential wrongdoing or breach of public trust") (emphasis added). To better illustrate such point, the Constitution may be violated when, while in the field, a low-ranking law enforcement officer makes the erroneous, but innocent, split-second decision to pat-down a single suspect for weapons over his or her clothes, when such officer lacks reasonable suspicion to perform such pat-down. See Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, the public is far more likely to be offended by, and thus have a far more powerful legitimate interest in being apprised of, an allegedly premeditated and knowingly unconstitutional search orchestrated by an elected state-constitutional officer that required at least nine Jail contractors to remove all of their clothing, all of their undergarments, and to either squat and cough while completely naked, or to undergo an even more intrusive visual search of their private areas.
The Court further notes that the filing of the nine lawsuits instantly generated front page news, perhaps not only because the "topic" of the suits was intriguing, but because the citizenry was legitimately concerned about Sheriff Watson's alleged misuse of his broad powers. See Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992) (agreeing with the district court that "an allegation of evidence tampering by a high-ranking police officer is a matter in which the public should be interested"); Sexton v. Martin, 210 F.3d 905, 910 (8th Cir.2000) (quoting Brockell v. Norton, 732 F.2d 664, 668 (8th Cir.1984)) (explaining that the "`public has a vital interest in the integrity of those commissioned to enforce the law'"); Brawner v. City of Richardson, Tex., 855 F.2d 187, 191-92 (5th Cir. 1988) (noting that "[t]he disclosure of misbehavior by public officials is a matter of public interest and therefore deserves constitutional protection, especially when it concerns the operation of a police department") (emphasis added). The community is thus "likely to be truly concerned with or interested in the particular expression" at issue in this case. Goldstein, 218 F.3d at 352.
This Court's conclusion, that the speech causing the retaliation implicates a matter of public concern, was reached only after careful consideration of the competing factors discussed above. In the end, the content of the speech is more compelling than the speakers' express or implicit intent, and the Court thus concludes that the Injunction Plaintiffs have demonstrated that their speech implicated a matter of "public concern."
If a public employee's speech implicates a matter of public concern, the next step in the Goldstein analysis is to consider whether such employee has demonstrated that her "interest in First Amendment expression" outweighs the public employer's "interest in efficient operation of the workplace." Goldstein, 218 F.3d at 352. Such balancing, "commonly referred to as `Pickering balancing,'" Ridpath, 447 F.3d at 317, requires the Court to determine "`whether the degree of public interest in the employee's statement was ... outweighed by the employer's responsibility to manage its internal affairs and provide "effective and efficient" service to the public,'" Goldstein, 218 F.3d at 354 (quoting Daniels v. Quinn, 801 F.2d 687,
McVey, 157 F.3d at 278 (quoting Rankin v. McPherson, 483 U.S. 378, 388-91, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). Additionally, the Fourth Circuit recently noted in Ridpath: "A majority of the McVey panel observed that both [the Fourth Circuit] and the Supreme Court have also included the value of the employee's speech to the public in the Pickering balance." Ridpath, 447 F.3d at 317 n. 28; see Connick, 461 U.S. at 152, 103 S.Ct. 1684 ("We caution that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern."); Goldstein, 218 F.3d at 355 (recognizing that matters "of the highest public concern" are to be given "the highest level of First Amendment Protection"); Daniels, 801 F.2d at 690 (indicating that courts should compare the "the degree of public interest" in the speech at issue with the employers' need to manage its affairs and provide efficient public services) (emphasis added).
The Fourth Circuit has expressly recognized the inherent difficulty in performing such balancing, and the need for reasoned, case-specific consideration of all relevant factors, stating:
Jackson, 851 F.2d at 717-18 (alterations in original).
As stated on the record at the bench trial, this Court does not discount the weight to be afforded the special nature of the public employer in this case, as Sheriff Watson operates a paramilitary organization responsible for overseeing hundreds of inmates at a high-security Jail. Tellingly, "courts must give weight to the nature of the employee's job in assessing the possible effect of his action on employee morale, discipline or efficiency. In so doing, it must be recognized that such effect may vary with the job occupied by the employee." Jurgensen v. Fairfax Cnty., Va., 745 F.2d 868, 880 (4th Cir.1984). The free speech rights of public employees in paramilitary organizations "must ... be evaluated with the special character of the organization in mind." Id. However, while acknowledging such special character manifestly recognizes that "the free speech rights of an employee in a [sheriff's office] are more limited than [the speech rights] of a teacher, this is not to say that [employees in a sheriff's office] have no free speech rights." Id. Rather, such special status means that "the character" of employment at a sheriff's office is an "element in the balance of interests in his or her individual case, to be considered in determining the agency's interest in regulating his speech." Id. (internal quotation marks and citation omitted); compare Jackson, 851 F.2d at 722 ("The district court rightly considered that employment in the prison context presents special considerations favoring the public employer in the balancing process."), and Maciariello, 973 F.2d at 300 ("Police are at the restricted end of the spectrum because they are `paramilitary' — discipline is demanded, and freedom must be correspondingly denied."), with Cromer, 88 F.3d at 1327 (recognizing that, to be effective, a police department must have the respect of the community and its officers and that "the public has a keen interest in seeing that police officers are free to speak up against any broad-based discrimination in their agencies"), and Goldstein, 218 F.3d at 355 (rejecting the district court's approach as impermissibly permitting "fire companies, police officers and other entities carrying out crucial public functions" to "quash complaints affecting public safety under the general aegis of `camaraderie' and the avoidance of disruptions").
Here, it is undisputed that Sheriff Watson revoked Injunction Plaintiffs' security clearances the next business day after the lawsuits were filed, and that neither the suits themselves, nor any press coverage, had at that time caused any morale issues, security concerns, or other disruptions in the Jail. Accordingly, taking into consideration the special importance associated with the safe and efficient operation of a high security jail, because the Sheriff acted preemptively to avoid disruption in the workplace, he must be able to provide "objectively justifiable" reasons for such pre-emptive action; otherwise, as noted above, free speech rights would "be no stronger than the timidity or nervousness or impatience of the particular employer," and thus, would be no right at all. Jackson, 851 F.2d at 718.
Sheriff Watson's testimony at the bench trial revealed that the Sheriff is unable to distinguish the evidence that motivated the strip searches in 2011 from the evidence that motivated the revocation of security clearances in 2012 Specifically, Sheriff Watson testified that he recalled a precise conversation with Lieutenant Mike Cook from the Internal Affairs Division of the Portsmouth Sheriff's Office in which Lieutenant Cook relayed contraband complaints
In addition to Sheriff Watson's inability to recall from memory the relevant motivators, he had no written documents from 2012 — even handwritten notes — that explain any reason for revoking the security clearances of the six Injunction Plaintiffs. Accordingly, there does not appear to be any reliable objective justification supporting the preemptive action of revoking Injunction Plaintiffs' security clearances immediately upon the filing of the instant suit.
Notably, this Court's preliminary injunction ruling resolved the Pickering balancing in favor of Sheriff Watson primarily because, at the Preliminary Injunction hearing, while under oath, Sheriff Watson articulated a threat to inmates from Injunction Plaintiffs should the litigation process reveal the identity of inmates who had provided information against the Injunction Plaintiffs. Injunction Tr. at 57, ECF No. 20. Furthermore, it appeared that Sheriff Watson had specific inmates in mind because he testified that some of the at risk inmates had been housed at the jail long-term, and that some had left and returned. Id. at 58. Plaintiffs, at the time, failed to effectively challenge the factual underpinning of such articulated concern. However, as the case continued, Injunction Plaintiffs effectively demonstrated that such concern regarding risk to inmates was mere speculation because, even after months of trial preparation, Sheriff Watson was not able to identify which inmates purportedly provided inculpatory information on any of the Injunction Plaintiffs, let alone identify an inmate that both provided such information and was housed at the Jail at the time the security clearances were revoked.
In contrast to the vague and at times somewhat inconsistent testimony discussed above,
Accordingly, even though this Court recognizes the heightened security concerns in the Sheriff's paramilitary organization, if Sheriff Watson's vague testimony was deemed sufficient to justify his action, there "would be effectively no right" to free expression for any employee or contractor working in any Jail setting. Jackson, 851 F.2d at 718.
Having determined that Plaintiffs' speech implicated a matter of public concern and that the Pickering balancing favors Plaintiffs' free speech rights, the next consideration is whether Injunction Plaintiffs have demonstrated that they were "deprived of a valuable government benefit or adversely affected in a manner that, at the very least, would tend to chill [their] exercise of First Amendment rights." Goldstein, 218 F.3d at 356. The Court's analysis of such prong need not be protracted because despite defense counsels' continued efforts to highlight that, due to their status as contractors, Injunction Plaintiffs were not technically "terminated" by Sheriff Watson when he revoked their security clearances, the revocation of such clearances was clearly both the loss of a valuable government benefit and something that would chill First Amendment speech.
Injunction Plaintiffs testified that losing their security clearances resulted in, at a minimum, a temporary loss of work hours and income. In fact, more than a year after they lost their security clearances, several Injunction Plaintiffs still have not found substitute work that replaces the hours and/or pay level of their job placement at the Portsmouth Jail. It is thus plain that Injunction Plaintiffs were "stripped of the powers [and] rights" held by public employees and contractors cleared to work at the Portsmouth Jail. Id. Defense counsel's contention that a contractor who loses all her hours and all her income has not suffered an adverse employment action merely because she remains "employed" with her outside contractor (at no salary) defies credulity. Although the revocation of Injunction Plaintiffs security clearances need not be the effective equivalent of termination to constitute an adverse employment action, id., on these facts, the loss of such clearance was the equivalent. Accordingly, Injunction Plaintiffs not only demonstrate the loss of a valuable government benefit, but also clearly demonstrate that they were adversely affected in a manner that would chill the exercise of First Amendment rights.
The final factor in the Goldstein analysis is whether Injunction Plaintiffs demonstrated that their speech was "a substantial factor" in Sheriff Watson's decision to revoke their security clearances. Id. As discussed at length above, Sheriff Watson candidly admitted at the bench trial that he felt betrayed by the suits and that such suits "pushed [him] over the edge." His testimony, as a whole, clearly demonstrated that the suits were a "substantial factor," if not the driving factor, in revoking Injunction Plaintiffs' security clearances. Accordingly, Injunction Plaintiffs plainly satisfy the final prong in the analysis.
As discussed in detail above, Injunction Plaintiffs have successfully demonstrated that, notwithstanding their status as public employees, the filing of their lawsuits in federal court constituted protected First Amendment speech. They have further
Through demonstrating the loss of their First Amendment freedoms, Plaintiffs have proven that they suffered an "irreparable injury." See Legend Night Club, 637 F.3d at 302 (quoting Elrod, 427 U.S. at 373, 96 S.Ct. 2673) ("`[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'"). The Sheriff's "direct penalization" of Injunction Plaintiffs for the exercise of their First Amendment rights is unquestionably the type of harm that chills the exercise of free speech. Id. Accordingly, such harm is "the sort that c[an] not be remedied absent an injunction," which makes monetary damages "inadequate to compensate" Injunction Plaintiffs for the loss of their constitutional rights. Id. Injunction Plaintiffs have therefore satisfied the first two prongs of the permanent injunction standard.
The third prong of the permanent injunction standard requires the Court to consider "`the balance of hardships between the plaintiff and defendant.'" Id. at 297 (quoting eBay Inc., 547 U.S. at 391, 126 S.Ct. 1837). Here, based on the testimony at the bench trial, the balance of hardships plainly weighs in favor of Injunction Plaintiffs, and thus supports granting such Plaintiffs' request for injunctive relief. Notably, Injunction Plaintiffs continue to suffer from the effects of the unconstitutional retaliation, as they remain barred from employment at the Portsmouth Jail. Furthermore, some Injunction Plaintiffs continue to suffer ill-effects from the unconstitutional order, in that it has required them to attempt to explain to prospective employers why they lost their security clearance at the Jail. As discussed herein, the Sheriff's order barring Injunction Plaintiffs from working at the Jail is not based on actual misconduct, but instead was issued because such Plaintiffs exercised their constitutional rights to free speech.
In contrast to Injunction Plaintiffs' ongoing harm, a harm that also extends to chill the speech of all contractors and employees working at the Jail, there is no evidence before the Court that entering an injunction in this case would cause any hardship on Sheriff Watson. See id. at 302-03 (indicating that a state is not harmed from an injunction preventing it from enforcing an unconstitutional practice). To the contrary, the Sheriff testified at trial that "it's not a problem" to restore the Injunction Plaintiffs' security clearances and that doing so would not create any problems with security at the Portsmouth Jail. It is further undisputed that the process of restoring Injunction Plaintiffs' security clearances only requires that Sheriff Watson write a very brief letter to Injunction Plaintiffs' direct employer. Accordingly, unlike a typical case involving a jail or prison, the "reinstatement" question in this case does not implicate the well-established concern regarding the propriety of a court ruling in a manner that substitutes the judgment of the court for that of a warden or sheriff in matters of security at a correction facility. See Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, ___ U.S. ___, 132 S.Ct. 1510,
The fourth prong of the permanent injunction standard requires a plaintiff to demonstrate that the "`public interest would not be disserved by a permanent injunction.'" Legend Night Club, 637 F.3d at 297 (quoting eBay Inc., 547 U.S. at 391, 126 S.Ct. 1837). Here, not only would the public interest not be "disserved" by entry of a permanent injunction, the public interest would be enhanced by such an injunction. As indicated above, this is not a case where the Court is substituting its security assessment for that of a jail official. Furthermore, it is important for the public to know that they can exercise their First Amendment rights without fear of unconstitutional retaliation. See id. at 303 (quoting Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620 (7th Cir.2004)) (indicating that "it is always in the public interest to protect First Amendment liberties"); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir.2002) (recognizing that "upholding constitutional rights surely serves the public interest").
The Court acknowledges that this is not an easy area of the law, and there will always be competing interests when it comes to public employees' speech rights. But here, as the record developed at trial, it became evident that Sheriff Watson engaged in unconstitutional retaliation. On these facts, the public interest is thus clearly served by the remedy of an injunction, particularly when such injunction is limited to reversing the retaliatory order.
As set forth above, the Court finds that Injunction Plaintiffs sufficiently demonstrated that each of the four prongs of the permanent injunction test, as set forth by the Supreme Court in eBay Inc. and the Fourth Circuit in Legend Night Club, warrant entry of a permanent injunction in this case. Subsumed within such analysis is the Court's finding that Injunction Plaintiffs, as public employees, demonstrated a violation of their First Amendment rights based on the four-part legal standard set forth by the Fourth Circuit in Goldstein.
As ordered from the bench at the conclusion of the bench trial, the injunctive relief awarded to Injunction Plaintiffs requires Sheriff Watson to take two steps to remedy the unconstitutional retaliatory revocation of Injunction Plaintiffs' security clearances. First, Sheriff Watson must write a letter to Injunction Plaintiffs' direct employer indicating that the Injunction Plaintiffs' security clearances are reinstated. Second, to the extent that Sheriff Watson or the Jail have any written records indicating that Injunction Plaintiffs' security clearances are revoked, such records should be modified to reflect the reinstatement of all six Injunction Plaintiffs' security clearances. The Court notes that the Injunction entered in this case does not require Sheriff Watson to take any steps that would place any inmate, any Jail
For the reasons set forth on the record, and in detail above, a permanent injunction was entered in favor of all six Injunction Plaintiffs at the conclusion of the bench trial. Consistent with the Court's ruling from the bench, Sheriff Watson is hereby
Judgment having already been entered on the docket on April 25, 2013, see ECF No. 117, the Clerk is
In addition to Leverette and Hunter, the Fourth Circuit recently revisited this issue in Braun v. Maynard, where it concluded that "intrusive prison employee searches require reasonable suspicion." Braun, 652 F.3d at 558. Braun involved intrusive searches of correctional employees and contractors that were described as partial or full strip searches, with one employee claiming he underwent a "visual body cavity search." The Fourth Circuit applied Leverette's reasonable suspicion standard to all of the searches at issue in Braun regardless of the precise description of the type of intrusive strip search alleged by the various plaintiffs. Id. at 563-64. Although no compensable Fourth Amendment violations occurred in Braun, the Fourth Circuit did hold that, as of 2008, it was "clearly established" that intrusive searches of prison employees and contractors require "reasonable suspicion." Id. at 558. The Braun opinion concluded by acknowledging that strip searches are demeaning and recommended that before prison authorities subject their own workers to such treatment, they consider intermediate measures to detect and deter contraband. Id. at 564.
