Bobby Bland v. B. Robert
Filing
59
PUBLISHED AUTHORED OPINION filed. Originating case number: 4:11-cv-00045-RAJ-TEM. [999195894]. [12-1671] (BHR)
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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
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Thacker joined.
Judge Hollander wrote
concurring in part and dissenting in part.
a
separate
opinion
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
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TRAXLER, Chief Judge:
Six
summary
plaintiffs
judgment
appeal
against
a
district
them
in
court
their
order
action
granting
against
B.J.
Roberts in his individual capacity and in his official capacity
as the Sheriff of the City of Hampton, Virginia.
alleges
that
Roberts
retaliated
against
the
The suit
plaintiffs
in
violation of their First Amendment rights by choosing not to
reappoint
opponent.
them
because
of
their
support
of
his
electoral
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
colonel, when he resigned in January 2009 to run.
3
of
lieutenant
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The
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Hampton
City
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Police
Department
has
responsibility for law enforcement in Hampton.
Sheriff’s
secures
Office
the
warrants.
maintains
city’s
In
courts,
December
all
city
and
2009,
the
However, the
correctional
serves
civil
Sheriff’s
primary
facilities,
and
Office
criminal
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
Virginia
Department
Enforcement”
course,
Virginia
an
powers. 2
for
of
Criminal
completion
officer
to
They had not taken the
Justice
of
patrol
Services’
which
and
have
was
“Basic
Law
required
in
immediate
arrest
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
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authority
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to
make
[their] work.”
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“incidental
arrest[s]
in
[the]
range
of
J.A. 297.
Bland and Woodward were not deputies, but rather worked in
non-sworn
administrative
coordinator
and
Bland
positions.
was
a
Woodward
finance
and
was
a
training
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.
Sheriff’s
Office
example,
he
barbeque/golf
His
employees
used
his
to
senior
assist
employees
tournament
staff
in
these
to
political
often
work
recruited
efforts.
at
his
fundraiser,
For
annual
and
his
subordinates pressured employees to sell and buy tickets to his
fundraising events.
The
Sheriff
subsequently
won
reappointed
reelection
147
of
his
in
November
159
2009.
full-time
He
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.
5
All six Plaintiffs
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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
reinstatement.
for
lost
front
pay
or,
alternatively,
The Sheriff answered Plaintiffs’ complaint and
asserted several affirmative defenses.
Roberts subsequently moved for summary judgment, and the
district court granted it.
2d 599 (E.D. Va. 2012).
See Bland v. Roberts, 857 F. Supp.
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.
07.
See id. at 606-
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
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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
G.D.F.,
court.
Inc.,
See
211
Providence
F.3d
846,
850
Square
(4th
Assocs.,
Cir.
L.L.C.
2000).
v.
Summary
judgment is appropriate “if the movant shows that there is no
genuine
dispute
as
to
any
material
fact
and
entitled to judgment as a matter of law.”
the
movant
is
Fed. R. Civ. P.
56(a).
The Plaintiffs allege that they were retaliated against for
exercising
their
association.
First
Amendment
rights
to
free
speech
and
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.
232 F.3d 391, 396 (4th Cir. 2000).
See Fisher v. King,
Not only does the First
Amendment protect freedom of speech, it also protects “the right
to
be
free
from
retaliation
exercise of that right.”
by
a
public
official
for
the
Suarez Corp. Indus. v. McGraw, 202
F.3d 676, 685 (4th Cir. 2000).
Although government employees do
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their
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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 or 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
employee’s termination decision.”
8
substantial
factor
in
the
McVey v. Stacy, 157 F.3d 271,
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277-78 (4th Cir. 1998). 3
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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).
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“This
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principle
jurisprudence
tends
governing
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to
the
merge
with
the
of
public
discharge
established
employees
because of their political beliefs and affiliation.”
claims
must
be
analyzed
under
the
principles
Id.
Such
established
by
Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445
U.S. 507 (1980).
(4th
Cir.
See Fields v. Prater, 566 F.3d 381, 385-86
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
Supreme
Court
effect
to
dismissals
in
the
of
Elrod
created
democratic
those
public
a
narrow
process”
employees
by
Still, the
exception
“to
allowing
patronage
occupying
give
policymaking
positions.
Jenkins v. Medford, 119 F.3d 1156, 1161 (4th Cir.
1997)
banc).
(en
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)).
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[a] new administration, policies presumably sanctioned by the
electorate.’”
Id. (quoting Elrod, 427 U.S. at 367).
the
Court
Supreme
modified
the
Elrod
test
In Branti,
somewhat
to
“recognize[] that the labels used in Elrod ignored the practical
realities of job duty and structure.”
modified,
“the
‘policymaker’
rather,
ultimate
or
the
inquiry
‘confidential’
question
is
Id.
is
not
fits
whether
Under the test as
whether
a
the
particular
the
hiring
label
position;
authority
can
demonstrate that party affiliation [or political allegiance] is
an appropriate requirement for the effective performance of the
public office involved.”
In
Stott
adopted
a
Fields,
566
v.
Haworth,
two-part
F.3d
Branti, 445 U.S. at 518.
test
at
916
for
386.
F.2d
134
(4th
Cir.
conducting
this
analysis.
First,
we
consider
1990),
whether
we
See
“the
[plaintiff’s] position involve[s] government decisionmaking on
issues where there is room for political disagreement on goals
or
their
implementation.”
quotation marks omitted).
Stott,
916
F.2d
at
141
(internal
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
equally
quotation
party
affiliation
appropriate
marks
[or
political
requirement.”
omitted).
The
11
Id.
first
allegiance]
at
step
142
of
the
is
an
(internal
inquiry
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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.”
“courts
Fields,
focus
on
566
the
F.3d
powers
at
386.
inherent
At
in
a
the
second
given
step,
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.
burden
of
proving
rights
“was
a
that
his
‘substantial’
The plaintiff bears the initial
exercise
or
his
‘motivating’
employer’s decision to terminate him.”
5
of
First
Amendment
factor
in
the
Wagner v. Wheeler, 13
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).
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F.3d 86, 90 (4th Cir. 1993); Sales v. Grant, 158 F.3d 768, 77576 (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
Amendment Immunity.
with
regard
to
qualified
and
Eleventh
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
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sheriff’s office; accordingly, the outcome of the Stott test
will turn on the outcome in Stott’s second step.
Knight, 214 F.3d at 548-51.
See, e.g.,
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
the
of
the
debate
between
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.
doing,
we
specific
considered
duties
the
performed
political
by
role
sheriff’s
of
a
In so
sheriff,
deputies,
and
the
the
relationship between a sheriff and his deputies as it affects
the execution of the sheriff’s policies.
at
1162-64.
We
generally
concluded
See Jenkins, 119 F.3d
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.
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core
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group
of
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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.”
1164.
Id. at
On that basis, we determined “that such North Carolina
deputy sheriffs may be lawfully terminated for political reasons
under
the
Elrod-Branti
terminations.”
exception
to
prohibited
political
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,
straight-forward.
and
Dixon’s
claims
would
be
quite
But Jenkins’s analysis did not end there.
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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.”
J., dissenting).
Branti
review
Id. at 1166 (Motz,
The dissent contended that had a proper Elrod-
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
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officers in North
dissent suggests.
Carolina,
as
the
FN67. Amended Complaint, ¶ 19.
Id. at 1165 (majority opinion).
Responding to the conclusion
that the deputies’ law enforcement duties made their political
loyalty
to
effective
the
sheriff
performance
an
of
appropriate
the
requirement
deputies’
jobs,
for
the
the
dissent
emphasized that the only relevant allegations in the plaintiffs’
complaint were that the deputies’ “job requirements consisted of
performing
political
that
ministerial
affiliation
none
of
confidential
the
law
is
enforcement
not
an
appropriate
plaintiffs
position.”
Id.
duties
“occupied
at
1166
a
for
which
requirement”
and
policymaking
or
(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.
at 1165 (majority opinion).
See id.
In the end, the majority explained
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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.
true
to
See id. at 1165 & nn. 66-67.
Jenkins,
we
too
loyalty
was
an
political
must
Accordingly, to be
consider
appropriate
whether
requiring
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
jail
and
responsibilities
personnel
welfare
of
and
the
prisoners,”
preventi[ng]
.
.
.
were
to
public,”
“[p]rovide
“[p]rovide
“[p]rotect[]
escapes,”
.
safekeeping
.
“[c]onduct
protection
.
society
security
of
and
by
rounds,”
“[s]upervise inmate activities,” “[p]rovide cleaning supplies to
inmates to clean their cells,” “[p]ass out razors on appropriate
days,”
“[e]scort
“[m]aintain
inmates
floor
are
inmates
throughout
log
daily
[fed],”
of
“[r]un
the
inmate
jail
as
activities,”
recreation
and
required,”
“[e]nsure
visitation
as
scheduled or authorized,” “[a]nswer inmate correspondences and
grievances,” and “[s]upervise laundry detail.”
of
the
men
had
leadership
J.A. 602.
responsibilities,
nor
were
None
they
confidants of the Sheriff.
These
duties
are
essentially
plaintiff in Knight v. Vernon.
18
identical
to
those
of
the
In that case, we considered
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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.
at 548.
See Knight, 214 F.3d
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.
549, 550.
See id. at
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.
to
terminate
In holding that Jenkins did not allow the sheriff
Knight
for
political
reasons,
we
contrasted
Knight’s duties with those of the deputy sheriffs in Jenkins.
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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.”
550.
Id. at
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
activities
on
in
the
behalf
county
of
the
confidant of the sheriff.”
engaging
Id.
law
and
sheriff,”
in
enforcement
she
was
not
“a
We further noted that she
neither “advise[d] him on policy matters” nor was “involved in
communicating
public.”
the
Id.
sheriff’s
policies
or
positions
to
the
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
Rather,
Carolina
because
deputies
she
ministerial
duties,”
discretion,”
and
generally
“worked
she
“[t]he
exercise.
mostly
was
sheriff
20
“not
did
at
the
Id.
jail
entrusted
not
rely
at
551.
performing
with
on
her
broad
for
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assistance in implementing his law enforcement platform.”
Id.
at
not
550.
We
therefore
determined
that
the
sheriff
had
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
constitutions
simply
and
to
support
faithfully
and
the
federal
impartially
duties to the best of their ability.
and
Virginia
discharge
their
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
enforcement
been
different
officer’s
oath,
even
noting
21
had
that
Knight
it
is
taken
the
a
law
specific
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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.
Sheriff
Roberts
notes
that
the
Id.
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
Enforcement”
Justice
that
course
Services
they
that
requires
the
did
not
Virginia
officers
to
take
the
Department
take
“Basic
of
before
Law
Criminal
they
exercise the statutorily granted general arrest power.
may
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
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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.
of
the
litigation,
the
Sheriff
has
not
Thus, at this stage
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
concerning this “extra” work.
the
plaintiff
deputies
had
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.”
23
Knight, 214 F.3d at 549.
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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
political
Stott,
function
allegiance]
916
demonstrated
F.2d
that
at
is
is
such
an
142.
political
that
equally
party
affiliation
appropriate
Accordingly,
allegiance
he
was
[or
requirement.”
also
an
has
not
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.
F.3d at 90.
See Wagner, 13
For reasons that we will explain, we conclude that
Carter, McCoy, and Dixon have all at least created a genuine
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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.
“liked”
the
page
and
“wrote
encouragement” that he signed.
entry
on
campaign.”
the
page
posted
J.A. 570.
indicating
J.A. 586. 7
and
[his]
Specifically, Carter
a
message
of
McCoy also “posted an
support
for
[Adams’s]
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.”
681. 8
J.A.
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.
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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.
told Cooke that Carter had invited Adams.
Jones truthfully
Shortly thereafter,
then-Captain Kenneth Richardson approached Jones and asked her
who had attended.
Richardson
campaign
“state[d]
event
good.’”
She told him that Adams had been there, and
and
that
said
J.A. 702.
the
event
specifically
had
the
that
appearance
‘it
does
of
not
a
look
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
employees’
September,
support
for
various shift changes.
Adams
Sheriff
in
Roberts
speeches
he
addressed
gave
during
his
the
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.
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thus that his train was the “long train.”
quotation marks omitted).
the
“short
would
lose
omitted).
train”
and
their
jobs.
J.A. 572 (internal
He indicated that Adams’s train was
that
those
J.A.
572
who
openly
supported
Adams
(internal
quotation
marks
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
Carter’s
wife
about
rather
disciplinary
than
to
proceedings
Carter’s
support
concerning
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 firstnor 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)
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If
a
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jury
credited
Pg: 28 of 81
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.
U.S.
133,
See Reeves v. Sanderson Plumbing Prods., Inc., 530
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.
that
a
reasonable
jury
For these reasons, we conclude
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.
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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
29
way
out,
referring
to
the
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Sheriff’s campaign material, he told Pope that she should “just
throw that stuff away” (“the polling-place comment”).
(internal quotation marks omitted).
J.A. 581
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
represents
profanity
of
that
in
political
Dixon
making
in
the
allegiance.
fact
was
Rather,
let
polling-place
go
the
because
comment,
Sheriff
he
although
used
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
Dixon’s
comment.
testimony,
it
We
conclude
could
also
that
if
reasonably
a
jury
find
credited
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.
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sticker,
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substantially
Pg: 31 of 81
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.
result,
Colonel
Bowden
asked
Sandhofer
in
2009
to
As a
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
posted
cookout
on
and
was
Facebook.
depicted
in
Plaintiffs
pictures
further
of
the
point
cookout
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.
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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.
evidence
that
supporter,
Without more, there simply is not sufficient
the
even
Sheriff
identified
Sandhofer
that
Sheriff
assuming
girlfriend was supporting Adams.
basis
for
declined
a
to
affirmative
therefore
jury
the
conclude
that
reappoint
Sandhofer
based
conclude
that
to
the
the
an
Adams
believed
his
And there was no reasonable
to
assistance
as
the
simply
Sheriff’s
district
Sheriff
on
2009
court
would
his
have
lack
campaign.
properly
of
We
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 nonreappointment.
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During her more than 11 years with the Sheriff’s Office,
Woodward’s
performance
evaluations
average” or “outstanding.”
omitted).
According
to
had
always
been
“above
J.A. 601 (internal quotation marks
Woodward,
“[i]t
was
very
well
within the office that [she] was close to Jim Adams.”
known
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
purchasing tickets.
campaign
J.A. 599.
events,
and
selling
and
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
Sergeant
name
Sharon
on
Mays,
the
ballot.
Sergeant
Woodward
Meyers,
Perkins
complained
to
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.
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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.
complaints
were
And
not
Woodward
based
on
maintained
the
fact
that
that
the
petition
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.
in
conflict
Although Woodward’s and the Sheriff’s accounts are
concerning
whether
he
ever
offered
Woodward
the
opportunity to become a deputy, we conclude that that conflict
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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
helping
to
election.
Adams’s
fundraising
set
up
golf
tournament,
electronic
and
equipment
he
the
also
night
admitted
of
the
He further admitted that he did not actively support
campaign
in
any
way
and
35
that
Woodward
was
the
only
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he
Something
Filed: 09/18/2013
even
told
more
would
of
his
be
Pg: 36 of 81
intention
necessary
in
to
vote
order
for
to
Adams. 13
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
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understand,
Filed: 09/18/2013
as
a
factual
Pg: 37 of 81
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.”
Cir. 2012).
including
stories,
million
Lane v. Facebook, Inc., 696 F.3d 811, 816 (9th
Members can share various types of information,
“news
and
headlines,
activity
Facebook
photographs,
updates.”
members
use
videos,
Id.
the
Daily
site
and
billion “likes” and comments are posted.
more
more
personal
than
than
500
three
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).
organizations
brands,”
purposes.
and
What
can
is
a
also
use
Facebook
“[B]usinesses,
“Pages”
Page?,
for
similar
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
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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
Pages
from
people
Facebook.”
and
What
that
is
[the
News
User]
follow[s]
Feed?,
on
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
The
other.
“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.”
friend
What’s the difference between liking an item a
posts
and
liking
38
a
Page?,
Facebook,
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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).
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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
constituted pure speech, it also was symbolic expression.
Page
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.
11
(1974)
expressive
See Spence v. Washington, 418 U.S. 405, 410-
(per
curiam)
conduct
when
particularized
message
(holding
that
there
was
“[a]n
.
.,
and
.
person
engaged
intent
in
to
the
in
convey
a
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,
substantive speech.
54-56 (1994).
which
the
Supreme
Court
has
held
is
See City of Ladue v. Gilleo, 512 U.S. 43,
Just as Carter’s placing an “Adams for Sheriff”
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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.
Carter’s
See J.A. 160 (McCoy’s testimony that in light of
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
Facebook
page
had
said
of
his
that
“certain
opponent,
Jim
employees
Adams,
were
on
indicating
the
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).
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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
42
interchange
of
ideas
for
the
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bringing about of political and social changes desired by the
people.” (internal quotation marks omitted)).
Next,
on
expressing
the
support
record
for
before
his
us,
favored
Carter’s
candidate
interest
outweighed
in
the
Sheriff’s interest in providing effective and efficient services
to the public.
entitled
to
Carter’s speech was political speech, which is
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
involved matters of public concern.”).
more
substantially
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
reference
opinions.”).
to
the
need
In
contrast,
for
harmony
despite
and
the
discipline
Sheriff’s
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
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difficult for Carter, the Sheriff, or others to perform their
work efficiently.
Fire
Co.,
218
“generalized
morale
and
See Goldstein v. Chestnut Ridge Volunteer
F.3d
and
337,
356
(4th
unsubstantiated
efficiency”
within
Cir.
2000)
interests”
the
fire
outweigh plaintiff’s speech interest).
(holding
“in
that
maintaining
department
did
not
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.”
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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
describe what statement McCoy made.
did
not
sufficiently
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
applied
to
Carter’s
speech,
McCoy’s
For the same reasons as
speech
was
made
in
his
capacity as a private citizen on a matter of public concern,
namely, whether Adams should be elected Hampton Sheriff.
the
record
does
not
reflect
the
exact
words
McCoy
That
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).
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conveyed.
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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
reappoint
motivation
him,
such
a
for
jury
the
Sheriff’s
could
also
decision
find
that
not
to
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
reappointed,
simply
a
that
jury
followed
Adams
could
through
supporters
reasonably
with
his
find
threat
by
would
that
not
the
not
be
Sheriff
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
46
bumper
sticker
and
that
the
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polling-place
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comment
was
Pg: 47 of 81
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
campaign
throw
[her
Roberts
materials]
away”
clearly
constituted speech on a matter of public concern – the merits of
Roberts’s
campaign
citizen.
See
−
made
McIntyre,
in
Dixon’s
514
U.S.
capacity
at
as
346;
cf.
a
private
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
reappointed.
comment
was
the
reason
he
was
not
The Sheriff simply maintained that he believed
Dixon used profanity in making the comment – although he does
not explain the source of his belief.
47
Were a jury to credit
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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.
not
created
complaint
a
genuine
was
a
factual
We therefore conclude she has
dispute
substantial
regarding
motivation
whether
her
her
non-
for
reappointment.
C.
Eleventh Amendment Immunity
Plaintiffs
ruling
that
next
argue
Eleventh
that
Amendment
the
district
immunity
court
would
erred
bar
advanced against the Sheriff in his official capacity.
to
the
extent
that
the
Plaintiffs
reinstatement.
48
seek
the
in
claims
We agree
remedy
of
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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, 66263 (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
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injunctive relief against a state officer to prevent ongoing
violations of federal law, on the rationale that such a suit is
not
a
suit
Amendment.”
2010). 18
against
the
state
for
purposes
of
the
Eleventh
McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.
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.”
18
Id.
Finding no
“[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)).
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evidence
of
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abrogation
or
Pg: 51 of 81
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.
citing
Edelman,
415
U.S.
at
664-65,
Plaintiffs
However,
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
Coal., 494 F.3d at 96.
at
307;
State
Emps.
Bargaining
Agent
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
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ruled
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that
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the
Sheriff
is
Pg: 52 of 81
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
capacity may invoke qualified immunity.
at 306.
in
his
individual
See Ridpath, 447 F.3d
“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.”
v.
City
of
Goldsboro,
178
F.3d
(internal quotation marks omitted).
231,
250
(4th
Edwards
Cir.
1999)
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
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of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular
case at hand.”
In
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
analyzing
whether
the
defendant
has
violated
a
constitutional right of the plaintiff, the court should identify
the right “at a high level of particularity.”
at
251.
For
immunity,
the
a
plaintiff
contours
of
to
defeat
the
a
Edwards, 178 F.3d
claim
constitutional
of
qualified
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
immunity
because
that
concerning
in
the
Sheriff
Carter’s,
December
2009
a
is
entitled
McCoy’s,
reasonable
and
to
qualified
Dixon’s
sheriff
claims
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
indicate
court,
that
a
much
North
of
the
Carolina
opinion’s
sheriff
language
could
seemed
terminate
to
his
deputies for political reasons regardless of the duties of their
particular positions.
Truthfully, the Jenkins majority opinion
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reads almost like two separate opinions that are in tension with
one another.
final
All of the majority’s analysis up to the opinion’s
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.
autonomously,
exercising
significant
their jobs.” (footnote omitted)).
Deputies on patrol work
discretion
in
performing
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,
Jenkins, 119 F.3d at 1164.
broader
“h[o]ld[ing]”
as
we
have
done
here
today.”
The majority later announced an even
possibly
not
even
limited
to
North
Carolina sheriffs when it declared that “newly elected or reelected 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
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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 allencompassing holding is made without any inquiry into the actual
job duties of the deputies before us.”); id. (“The majority . .
.
engages
deputy.”);
Carolina
in
no
id.
analysis
(“[T]he
deputy
of
the
majority
sheriffs
are
.
particular
duties
.
that
.
finds
policymakers
–
of
each
all
North
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
broader
claims,
reading
of
did
not
clearly
establish
Jenkins
was
incorrect.
Although
worked in a sheriff’s office, she was not a deputy.
214 F.3d at 546.
that
the
Knight
See Knight,
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
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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,
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J.,
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concurring
reasoning).
in
the
Pg: 57 of 81
judgment)
(adopting
Judge
Hamilton’s
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
information,
who
a
dispatcher
was
not
a
with
deputy,
political affiliation reasons.
access
could
to
be
confidential
terminated
for
See id. 19
For the reasons we explained in reviewing the merits of the
Elrod-Branti
consistent
issue,
with
we
the
believe
Jenkins
that
dissent’s
this
language,
while
characterization
of
Jenkins’s reasoning, is an overstatement in light of the Jenkins
majority’s specific rejection of the dissent’s characterization
of
its
signals
analysis.
that
Nevertheless,
Jenkins
and
Pike
considering
sent,
we
the
conflicting
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.”).
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was authorized to terminate any of his deputies for political
reasons. 20
If
we
regarding
were
the
deciding
legality
what
of
the
a
law
sheriff
was
in
firing
December
a
2009
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.
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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
Bluffs,
model
361
of
F.3d
clarity.
1099,
See
1108
(8th
Lawyer
Cir.
v.
City
2004)
of
Council
(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).
constitutional
immunity
rights
purposes,
were
we
Rather, in considering whether
clearly
view
the
established
for
issue
“the
from
qualifiedlayman’s
perspective,” Ross v. Reed, 719 F.2d 689, 696 n.8 (4th Cir.
1983),
recognizing
conclusions,
lay
that
“[p]articularly
officers
obviously
with
cannot
regard
be
to
legal
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.
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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.
21
For this reason, we conclude
“[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).
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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
judgment in favor of the Sheriff.
the
grant
of
summary
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
Amendment
whether
rights.
the
Sheriff
Nevertheless,
the
violated
district
their
court
First
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.
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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
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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
affiliation.
not
be
Therefore,
fired
I
on
the
basis
respectfully
of
disagree
political
with
the
majority’s ruling as to qualified immunity.
In
general,
unconstitutional
“the
under
practice
the
First
of
and
patronage
dismissals
Fourteenth
is
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
because
of
their
that
they
partisan
were
discharged
political
. . .
solely
affiliation
or
nonaffiliation state a claim for deprivation of constitutional
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rights secured by the First and Fourteenth Amendments.”
427 U.S. at 349.
Elrod,
This case concerns the scope of “a narrow
exception” to that baseline rule, Maj. Op. at 10, which frames
the qualified immunity analysis.
Pursuant
dismissal
to
based
the
on
exception
political
to
the
Elrod-Branti
affiliation
is
doctrine,
lawful
if
“the
hiring authority can demonstrate that party affiliation is an
appropriate
requirement
public office involved.”
for
the
effective
performance
Branti, 445 U.S. at 518.
of
the
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
Amendment. 1
in
violation
of
their
rights
under
the
First
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.
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“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.”
(2009).
Pearson
v.
Callahan,
555
U.S.
223,
231
The qualified immunity analysis involves two inquiries:
first, whether the facts alleged, “[t]aken in the light most
favorable
to
the
officer’s
conduct
party
asserting
violated
a
the
injury,
constitutional
. . .
[or
show
the
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).
inquiries . . . may be assessed in either sequence.”
The
“two
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.’
‘existing
precedent
must
have
placed
constitutional question beyond debate.’”
the
In other words,
statutory
or
Reichle v. Howards,
___ U.S. ___, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v.
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al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2078, 2083 (2011)) (some
internal quotation marks and citations omitted).
“assessed
in
light
established’
at
of
the
the
legal
time”
rules
of
The issue is
that
the
were
‘clearly
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
Sheriff
that,
Roberts
conclusion,
the
in
the
light
improperly
majority
most
dismissed
engages
in
favorable
them.
a
to
In
careful
plaintiffs,
reaching
analysis
that
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
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Democratic
Filed: 09/18/2013
Party . . . .”
427
Pg: 67 of 81
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
nonconfidential
question”:
government
“whether
employee
can
a
be
nonpolicymaking,
discharged
or
threatened with discharge from a job that he is satisfactorily
performing upon the sole ground of his political beliefs.”
at
375
(Stewart,
J.,
concurring)
2
(emphasis
added). 2
Id.
The
Because the concurring justices’ votes were necessary to
the judgment, their more narrow view stated the holding of the
(Continued)
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concurring justices “agree[d] with the plurality” that such an
employee
could
affiliation.
Four
not
be
dismissed
on
the
basis
of
political
Id.
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
defenders by a Democratic public defender.
In
so
doing,
the
Branti
Court
assistant
public
See id. at 508-09.
reformulated
the
Elrod
concurrence’s exception to the prohibition of dismissals on the
basis
of
political
“confidential”
ultimate
affiliation
employees.
inquiry
is
not
The
whether
for
Branti
the
“policymaking”
Court
label
said:
or
“[T]he
‘policymaker’
or
‘confidential’ fits a particular position; rather, the question
is
whether
affiliation
the
is
hiring
an
authority
appropriate
can
demonstrate
requirement
performance of the public office involved.”
for
that
the
party
effective
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).
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they
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were
Filed: 09/18/2013
involved
information.
in
Pg: 69 of 81
policymaking
or
privy
to
confidential
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.
916
F.2d
134,
142
Maj. Op. at 11 (quoting Stott v. Haworth,
(4th
Cir.
1990)).
In
Stott,
articulated a two-part test to guide the analysis.
the
court
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 decisionmaking on issues where there is room for political disagreement
on
goals
examine
or
determine
the
their
implementation,’”
particular
whether
it
the
responsibilities
resembles
3
a
second
of
the
policymaker,
“‘step
is
to
position
to
a
to
privy
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”).
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confidential information, a communicator, or some other office
holder
whose
equally
function
appropriate
omitted).
The
appropriate
such
that
requirement.’”
court
job
is
recognized
requirement
party
Id.
affiliation
at
political
“‛when
141-42
is
(citation
affiliation
there
is
a
an
as
an
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
doctrine.
of
Maj.
a
sheriff’s
Op.
at
deputy
53.
under
Jenkins,
the
which
Elrod-Branti
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
actual duties.
Id.
for
political
reasons,
without
regard
to
But, the Jenkins majority took pains to
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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
Jenkins
terminations.”
majority
also
Jenkins,
said:
“We
119
hold
F.3d
that
at
newly
1164.
elected
The
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.”
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The
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dissent
“refus[ed]
to
the
broad,
Jenkins
engage
analysis . . . .”
to
in
Pg: 72 of 81
maintained
in
the
that
proper
the
majority
Elrod-Branti
Id. at 1171 (Motz, J., dissenting).
categorical
language
employed
by
Pointing
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
‘policymakers’
who
political regime.”
(more
can
be
than
7,900
dismissed
in
at
1988)
will
by
are
each
also
new
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.”
added).
72
Id. at 1165 (emphasis
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Of import here, the Jenkins majority directed that “the
district
courts
are
to
engage
in
a
Stott-type
examining the specific position at issue . . . .”
(emphasis
admonished
added).
Moreover,
sheriffs
within
the
the
Jenkins
Fourth
analysis,
Id. at 1164
majority
Circuit,
directly
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.”
is
Id. at 1165 (emphasis added).
particularly
salient,
given
that
This directive
qualified
immunity
is
predicated on the notion that “a reasonably competent public
official should know the law governing his conduct.”
Fitzgerald,
457
U.S.
800,
818-19
(1982);
accord
Harlow v.
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
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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
jailer . . . .”
as
a
job
requirement
214 F.3d at 548.
for
a
county
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.
reiterated
that
Id. at 551. 4
the
“central
In its analysis, the majority
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).
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“limited” responsibilities of the position, in contrast to those
of a sheriff’s deputy with “the general power of arrest.”
at 550.
Id.
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.
communicating
public.”
In
the
sheriff’s
Nor was she involved in
policies
or
positions
to
the
Id.
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
warrants the same result here.”
this
case
Id. at 21.
and
Knight’s
duties
I
readily
agree
with the majority that there is no cognizable distinction for
purposes
of
the
Elrod-Branti
doctrine
Knight and the jailers in this case.
between
the
jailer
in
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,
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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
“deputy
contrasting
sheriff,
the
who
role
of
may
be
a
“jailer”
fired
for
with
his
that
of
a
political
affiliation,” id. at 550, the Knight Court was referring to the
type of deputy discussed “in Jenkins”: a deputy who “is a sworn
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enforcement
officer”
and
Pg: 77 of 81
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
such
a
Knight
would
realize
that
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
Osborne, 301 F.3d 182 (4th Cir. 2002).
held
that
a
sheriff
was
entitled
to
emphasis
on
Pike
v.
In that case, the court
qualified
immunity
in
connection with the termination in 1999 (i.e., before Knight was
decided)
of
affiliation.
two
In
dispatchers,
a
based
concurrence,
one
on
their
member
of
political
the
panel
concluded that the law was not clearly established “on the point
of
whether
political
sheriffs
affiliation
in
Virginia
reasons
confidential information.”
can
lawfully
dispatchers
terminate
with
privity
for
to
Pike, 301 F.3d at 186 (Hamilton, J.,
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concurring)
Filed: 09/18/2013
(emphasis
Pg: 78 of 81
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
affiliation reasons.”
their
deputies
for
political
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
overstated the holding of Jenkins.
that
the
Pike
concurrence
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.
expressly
admonished
Speaking en banc, the Jenkins Court
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).
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duties
of
Filed: 09/18/2013
the
dismissed.”
position,
and
Pg: 79 of 81
not
merely
the
title,
of
those
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
and
is
any
distinction
between
Knight
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
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he is doing violates that right.’” (Citation omitted).
Supreme
Court
also
underscored
that
the
“very
Yet, the
action
in
question” need not have “‘previously been held unlawful’” if,
“in
the
light
of
pre-existing
law
apparent.” Id. (citations omitted).
the
unlawfulness
[is]
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,
were lawful.’”
could
reasonably
believe
that
their
actions
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)).
In
message
1997,
to
lay
There were no gray areas here.
this
court
sheriffs.
delivered
Directly
an
unequivocally
addressing
clear
sheriffs,
the
Jenkins Court announced: “We . . . caution sheriffs that courts
examine
the
job
duties
of
title, of those dismissed.”
the
position,
and
not
merely
Jenkins, 119 F.3d at 1165.
80
the
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Doc: 59
Filed: 09/18/2013
capable
of
serving
as
Pg: 81 of 81
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
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