Randall Brickey v. Robb Hall
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00073-GEC-PMS. [999882779]. [14-1910]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1910
RANDALL E. BRICKEY,
Plaintiff - Appellee,
v.
ROBB HALL,
Defendant – Appellant,
and
DICKIE DYE; T. MICHAEL TAYLOR; ERIK C. PUCKETT;
JOHNSON; C. TODD YOUNG; TOM HOLLY; VINCENT MAIDEN,
NEIL
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.
Glen E. Conrad, Chief
District Judge. (1:13−cv−00073−GEC−PMS)
Argued:
December 10, 2015
Decided:
July 8, 2016
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Reversed and remanded by published opinion.
Judge Diaz wrote
the opinion, in which Judge Duncan and Judge Keenan joined.
ARGUED: Jeremy E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke,
Virginia,
for
Appellant.
Edward
Kyle
McNew,
MICHIEHAMLETT PLLC, Charlottesville, Virginia, for Appellee. ON
BRIEF: Andrea Kay Hopkins, GLENN, FELDMANN, DARBY & GOODLATTE,
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Roanoke, Virginia, for Appellant.
Virginia, for Appellee.
2
Hilary K. Johnson, Abingdon,
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DIAZ, Circuit Judge:
Police officer Randall Brickey was fired for comments he
made as a candidate for town council that were critical of his
employer, the Saltville Police Department, and its Police Chief,
Rob
Hall.
Brickey
filed
suit
under
42
U.S.C.
§ 1983
retaliatory discharge in violation of the First Amendment.
district
court
denied
Hall
interlocutory appeal followed.
time
of
Brickey’s
dismissal
qualified
immunity,
and
for
The
this
Because it was debatable at the
that
his
speech
interests
as
a
citizen outweighed Hall’s interests as a public employer, we
conclude
that
Hall
is
entitled
to
qualified
immunity.
We
therefore reverse.
I.
A.
Brickey was an officer with the Saltville Police Department
from December 1, 2006, to May 21, 2012, the day his employment
was terminated.
Hall became Police Chief in July 2011, taking
over a department struggling with well-publicized problems of
financial mismanagement, officer misconduct, and a general lack
of professionalism.
operations
changes,
and
In an effort to improve the department’s
public
including
image,
increased
Hall
foot
code, and new payroll procedures.
3
instituted
patrols,
a
several
stricter
policy
dress
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In early 2012, Brickey decided to run for Saltville Town
Council.
the
He discussed the plan with Hall, who indicated that
campaign
would
not
cause
employment
problems
so
long
as
Brickey did not campaign in uniform or disparage the department
in contravention of departmental policy.
During the campaign, two local newspapers posed questions
to
the
candidates,
publication.
inviting
them
to
submit
responses
for
One paper provided this prompt: “Motivation for
seeking office/why should the voters choose you?”
J.A. 337.
After identifying himself as a member of the Saltville Police
Department with twenty-three years of experience as a police
officer, Brickey responded in relevant part as follows:
I teach the D.A.R.E. [i.e., Drug Abuse Resistance
Education]
Program
at
Saltville
Elementary
School. . . . I went in to talk to Chief (Rob) Hall
about
ordering
the
supplies
for
the
D.A.R.E.
graduation.
I was told there was no money to place
the order.
After checking with the accounts payable
clerk to see where the $500 in the police department
budget had been spent, I was shown several invoices
that were charged to the D.A.R.E. account. The items
on the invoices had nothing to do with the D.A.R.E.
program. I also found, from looking at a copy of the
budget that I obtained from the town, that the town
receives $225,000 in highway maintenance funds from
the state. Only $3,000 is approved in the budget for
paving.
Seeing this, along with the other misuse of
taxpayers’ money, shows me that we have a very poor
management at the council level and there needs to be
a change.
Id.
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Next, in response to a question about the town’s “greatest
needs,” Brickey noted road paving, improved management of the
town pool, and the following changes to the Saltville Police
Department:
“The
professional.
town
police
department
needs
to
be
more
Officers need to do more foot patrols during the
day shift and become more familiar with business owners.
police
department
needs
to
be
more
[aggressive]
investigations and focus more on drug trafficking.”
The
on
Id.
Finally, Brickey responded to a question as to how to meet
those needs.
He first noted that he had “been told by some
business owners in town during [his] campaign for town council
that they would like to see more foot patrols from the police
department,
hours.”
and
Id.
would
like
to
see
the
chief
during
daytime
He went on to propose the addition of a full-time
investigator, stating that the town had a serious drug problem
and that he knew of “cases that need to be investigated by the
police department.”
Id.
Brickey’s statements were printed in
late April 2012.
About a week later, Hall informed Brickey that he believed
Brickey’s statements violated departmental policy.
The alleged
violations of the Police Department Policy Manual included (1) a
failure
to
subordinates,
“display
and
respect
for
associates”;
[his]
superior
(2) “speak[ing]
officers,
rumors
detrimental to the department or another employee”; (3) “us[ing]
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or
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attempt[ing]
credentials
to
for
use
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[his]
personal
or
official
financial
(4) “communicat[ing] . . . information
activities
or
matters
of
police
position,
gain
or
or
advantage”;
concerning
business,
badge
operations,
the
release
of
which . . . may have an adverse impact on the department image,
operations,
or
administration”;
and
(5) “criticiz[ing]
or
ridicul[ing] the Department, its policies, or other employees by
speech . . .
[that]
undermines
the
effectiveness
of
the
Department, interferes with the maintenance of discipline, or is
made with reckless disregard for truth or falsity.”
J.A. 352-
55, 357-70.
Hall
hired
Gary
Reynolds—an
out-of-state,
former
police
chief—to investigate the allegations and to determine whether
Brickey
in
fact
violated
departmental
interviewed
Hall,
Brickey,
Assistant
Saltville
town
auditor,
police department.
and
the
policies.
Chief
other
Erik
five
Reynolds
Puckett,
officers
in
the
the
In speaking with Reynolds, Brickey withdrew
or attempted to clarify some of his statements.
Asked about his
comments on the professionalism of the department, Brickey said,
“It’s not that I meant they are unprofessional, we just need to
be on patrol more.”
J.A. 373.
Regarding the D.A.R.E. comments,
Brickey admitted that the $500 was in fact accounted for in a
different line item of the budget.
J.A. 384.
He also conceded
that he “should have said mismanagement of funds versus misuse
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of funds.”
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J.A. 387.
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Brickey insisted that his “statements
regarding the DARE account were not about Chief Hall, they were
about the [town] council members.”
J.A. 383.
According to Reynolds’s investigation, Brickey’s statements
caused
concern
department.
within
the
Saltville
government
and
police
A town auditor interpreted Brickey’s statements as
alleging that Chief Hall was misusing funds.
J.A. 381.
This
“upset” the auditor, who, after looking into the matter, “found
no misuse of taxpayer money by Chief Hall.”
officers
believed
that
the
comments
Id.
reflected
Some police
poorly
on
the
department, though at least two officers told Reynolds that they
had not read Brickey’s comments.
J.A. 381-83, 386.
In Reynolds’s final estimation, Brickey’s statements to the
newspapers violated departmental policies.
to
Reynolds,
Brickey’s
statements
J.A. 387.
regarding
the
According
“misuse”
of
D.A.R.E. funds “clearly ‘bad mouthed’ the Police Department and
especially the Police Chief, and thus were harmful to the public
trust of Chief Hall as well as his integrity.”
Id.
Moreover,
Reynolds faulted Brickey for failing to investigate properly or
verify his allegations that police funds were being misused.
J.A. 388.
Specifically, Reynolds found that Brickey overlooked
the fact that the D.A.R.E. budget line item also included funds
for
“Community
Relations,”
and
that
the
invoices
Brickey
observed were for legitimate community-relations expenses.
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Id.
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After
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notifying
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Brickey
of
the
results
of
the
investigation, Hall held a meeting with Brickey, Reynolds, and
Puckett in which Brickey was given an opportunity to respond to
the allegations and the findings of the report.
2012, Hall terminated Brickey’s employment.
On May 21,
Brickey pursued the
department’s grievance procedures to no avail.
B.
Brickey filed suit under § 1983, naming as defendants Hall
and a number of other individuals who played a role in his
dismissal.
In
discharge
claim,
substantive
addition
to
Brickey
due-process
his
First
also
claims.
Amendment
asserted
The
retaliatory-
procedural
due-process
claims
and
were
dismissed on a 12(b)(6) motion, as was a request for punitive
damages.
The
retaliatory-discharge
claim
survived,
and
the
defendants later moved for summary judgment, attacking the claim
on
the
merits
and
also
asserting
qualified
immunity.
The
district court granted the motion in part and denied it in part.
Brickey v. Hall, No. 1:13-CV-00073, 2014 WL 4351602, at *9 (W.D.
Va. Sept. 2, 2014).
Summary judgment was granted as to all
defendants except Chief Hall—none of the other officials, the
court held, had “caused” Brickey’s injury, as Hall was the lone
decisionmaker.
Id. at *8.
As to Hall, the district court denied qualified immunity.
Id.
The district court first held that, taking the record in
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the light most favorable to Brickey, Hall violated Brickey’s
First Amendment rights.
Id. at *4–7.
Having found a violation,
the district court determined that Brickey’s right not to be
fired for his speech was clearly established at the time of his
termination.
Id. at *7–8.
Relying on Citizens United v. FEC,
558 U.S. 310 (2010), the court stated that political speech was
clearly entitled to strong protection.
Id. at *8.
And relying
on Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), the court
stated
that
public
employees’
misconduct warrants protection.
speech
regarding
governmental
Id.
This interlocutory appeal followed. 1
II.
We review de novo the denial of qualified immunity.
Altman
v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003).
Qualified
immunity
shields
government
officials
from
personal liability when “their conduct does not violate clearly
established . . . rights of which a reasonable person would have
known.”
Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014)
1
Although “interlocutory appeals are generally disallowed,
‘a district court’s denial of a claim of qualified immunity, to
the extent that it turns on an issue of law, is [immediately
appealable] notwithstanding the absence of a final judgment,’
under the collateral-order doctrine.”
Iko v. Shreve, 535 F.3d
225, 234 (4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S.
511, 530 (1982)).
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(quoting Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)).
That is, qualified immunity protects government officials when
they act in legal “gray areas.”
Id. (quoting Occupy Columbia v.
Haley, 738 F.3d 107, 118 (4th Cir. 2013)).
entitled
to
qualified
immunity
unless
An official is
“(1) the
allegations
underlying the claim, if true, substantiate [a] violation of a
federal
statutory
violation
was
reasonable
of
person
or
a
constitutional
clearly
would
right;
established
have
known.”
and
right
Id.
(2) this
of
at
which
308
a
(quoting
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306
(4th
Cir.
required
2006)).
for
established,
a
While
court
“existing
to
a
case
directly
conclude
precedent
that
must
on
the
have
constitutional question beyond debate.”
point
law
was
placed
is
not
clearly
the . . .
Id. (quoting Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011)).
The burden of proof
rests with the official asserting the defense.
Durham, 737 F.3d
at 299.
Brickey alleges retaliatory discharge in violation of the
First
Amendment.
On
appeal,
Hall
does
not
challenge
the
district court’s holding that Brickey has properly alleged a
constitutional
violation—the
first
qualified-immunity
prong.
Instead, Hall contends that the right Brickey asserts was not
clearly established in 2012 when Brickey was terminated.
Our
review, therefore, is confined to the question of what law was
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established—we
do
not
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reach
the
merits
of
Brickey’s
constitutional claim.
A First Amendment retaliation claim poses three questions:
(1) whether the public employee was speaking as a
citizen upon a matter of public concern or as an
employee
about
a
matter
of
personal
interest;
(2) whether 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) whether the
employee’s speech was a substantial factor in the
employee’s termination decision.
McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998).
The third
question is not in dispute; Hall concedes that he terminated
Brickey because of his speech.
But Hall contends that the law
was not clearly established on the first two questions.
Because we hold that the law was not clearly established as
to
the
second
employer’s
question—the
interests—Hall
is
balancing
of
the
employee’s
entitled
to
qualified
and
immunity.
Consequently, we need not reach the question of whether it was
clearly established that Brickey spoke as a citizen on a matter
of public concern.
A.
Under the Supreme Court’s decision in Pickering v. Board of
Education, a court’s charge in a First Amendment retaliation
case is “to arrive at a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public
concern
and
the
interest
of
the
11
State,
as
an
employer,
in
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promoting
the
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efficiency
through its employees.”
of
the
Pg: 12 of 23
public
services
391 U.S. 563, 568 (1968).
it
performs
The public’s
interest in hearing the employee’s speech also weighs in the
balance: “A stronger showing of public interest in the speech
requires a concomitantly stronger showing of government–employer
interest to overcome it.”
McVey, 157 F.3d at 279 (Murnaghan,
J., concurring). 2
“The Pickering balance requires full consideration of the
government’s interest in the effective and efficient fulfillment
of its responsibilities to the public.”
U.S. 138, 150 (1983).
Connick v. Myers, 461
Prior to Brickey’s termination, the test
for striking the appropriate balance was clear:
“[W]e must take into account the context of the
employee’s speech” and “the extent to which it
disrupts
the
operation
and
mission”
of
the
institution. 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 institution; (6) undermined the
mission of the institution; (7) was communicated to
the public or to coworkers in private; (8) conflicted
with the responsibilities of the employee within the
institution; and (9) abused the authority and public
accountability that the employee’s role entailed.
2
At this point in his concurrence, Judge Murnaghan speaks
for a majority of the McVey panel. See 157 F.3d at 282 (Michael,
J., concurring in the lead opinion “except to the extent it is
qualified by Judge Murnaghan’s separate opinion”).
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Ridpath, 447 F.3d at 317 (citation omitted) (quoting McVey, 157
F.3d at 278).
“but
only
The employer need not prove actual disruption,
that
apprehended.’”
an
adverse
effect
was
‘reasonably
to
be
Maciarello v. Sumner, 973 F.2d 295, 300 (4th
Cir. 1992) (quoting Jurgensen v. Fairfax Cty., 745 F.2d 868, 879
(4th Cir. 1984)).
It was clearly established in 2012 that police officials
are entitled to impose more restrictions on speech than other
public
employers
discipline
is
because
demanded,
a
police
and
force
freedom
must
is
be
“‘paramilitary’—
correspondingly
denied.”
Id. (quoting Jurgensen, 745 F.2d at 880) (granting
qualified
immunity
officers
for
to
a
police
conducting
an
official
unauthorized
who
terminated
investigation
alleged evidence tampering in the police force).
this
heightened
“greater
ranks.”
need
latitude . . .
for
in
discipline,
dealing
police
with
into
Because of
officials
dissension
two
in
have
their
Id.
The key comments in this case involve the allegedly missing
D.A.R.E. funds. 3
As an initial matter, despite Brickey’s claim
3
We agree with the district court that it was clearly
established that Brickey’s other comments were entitled to First
Amendment protection.
Statements that the department “needs to
be more professional,” “needs to be more [aggressive] on
investigations,” or ought to hire an investigator do not raise a
reasonable apprehension of disruption.
J.A. 337.
Not only do
these statements offer modest criticism of the department and
(Continued)
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that
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he
did
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not
intend
to
Pg: 14 of 23
impugn
his
chief,
Hall
could
reasonably have read the comments—as some others in Saltville
did—to accuse him of incompetence or even malfeasance.
A town
auditor, for example, read the comments to allege misuse on the
Chief’s
part,
and
(according
to
declarations
given
by
Hall,
Assistant Chief Puckett, and the town manager) some members of
the police force and the public expressed concerns of police
misconduct in the wake of the articles.
See J.A. 93 (Hall:
“Some residents also construed Brickey’s comments as accusing me
and the department of corruption and misusing funds.”); J.A. 312
(Puckett: “I was asked questions about the articles from members
of the public who expressed concern that officers were engaging
in misconduct.”); J.A. 316 (Town Manager: “Officers expressed
their
belief
that
Brickey
had
accused
them
of
improper
behavior . . . .”); id. (“Many people who commented about the
articles expressed concern that someone was stealing money from
the Town.”).
The clearly established principles outlined above did not
put the outcome of the Pickering balancing in this case “beyond
debate.”
The
context
and
the
extent
of
disruption
D.A.R.E. comments weighed on both sides of the scale.
of
the
First,
its chief, but they also touch on weaknesses of the department
that were already well known in Saltville.
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Brickey spoke as a political candidate in a public forum.
In
general terms, speaking as a political candidate weighs in favor
of speech.
Brickey’s
At the same time, however, the public nature of
comments
increased
their
capacity
for
disruption.
Second, Brickey’s speech criticized a superior officer.
As our
cases reflect, discipline and respect for superior officers are
critical in a police force.
Because speech accusing a superior
officer of incompetence or malfeasance goes to the heart of the
superior’s authority, Hall could reasonably have believed that
Brickey’s comments would undermine his authority in the eyes of
the public and within the police department.
See J.A. 316 (Town
Manager stating that “[b]ased on my observations of officers in
the Police Department, Brickey’s comments hampered morale and
discipline in the department”).
the
close
working
conditions
Such a concern is amplified in
of
a
small
police
force,
“mutual confidence and co-operation are essential.”
Johnson, 590 F.2d 559, 562 (4th Cir. 1979).
was
working
to
restore
credibility
to
the
where
Cooper v.
Furthermore, Hall
department.
He
reasonably could have believed that Brickey’s comments would set
back his efforts and increase public distrust in him and the
department
as
a
whole.
Finally,
Reynolds
conducted
an
independent investigation of Brickey’s statements and concluded
that they “were harmful to the public trust of Chief Hall as
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well as his integrity.”
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J.A. 387.
Such a finding supports the
conclusion that Hall reasonably apprehended disruption.
In sum, the parties have not directed us to any case that
would have clearly warned Hall that terminating Brickey for his
comments
about
the
Amendment rights.
D.A.R.E.
funds
would
violate
his
First
On the contrary, our case law had stressed
the broad discretion granted police officials to limit speech
when discipline is at stake.
As a result, we cannot say that it
was beyond debate that Brickey’s interests outweighed Hall’s.
B.
Brickey’s
counter-arguments
principally
on
which
that
held
Citizens
the
United
are
v.
government
unpersuasive.
FEC,
may
558
not
U.S.
He
310
prohibit
relies
(2010),
corporate
expenditures to support or criticize political candidates.
Brickey’s
view,
“[n]othing
could
have
been
more
In
clearly
established in May 2012 than the sanctity of political speech.”
Appellee’s Br. at 28.
However, such a broadly framed right
could not have answered the question facing Hall: when does a
police chief’s need to maintain discipline and harmony permit
him to infringe on an officer’s right to make public statements
as a political candidate insinuating wrongdoing by a superior
officer?
not
See al-Kidd, 563 U.S. at 742 (stating that courts may
“define
clearly
established
generality”).
16
law
at
a
high
level
of
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While a case directly on point is not required to clearly
establish the answer to this question, Citizens United addresses
only one side of the Pickering scale, and it does so on very
different facts.
Cases more closely on point have not treated
political speech as inviolate in the public-employment context.
See, e.g., Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013)
(holding
that
reasonable
choose
it
was
sheriff
not
to
clearly
could
have
reappoint
established
believed
his
sworn
in
that
“a
had
he
2009
the
right
to
deputies
for
political
reasons, including speech indicating the deputies’ support for
the
Sheriff’s
political
opponent”);
see
also
Waters
v.
Churchill, 511 U.S. 661, 672 (1994) (plurality opinion) (“Even
something
as
participation
close
in
to
the
political
core
of
campaigns
the
First
may
be
Amendment
as
prohibited
to
government employees.”).
Brickey next contends that Hall has nothing on his side of
the Pickering scale but “rank speculation,” and he likens the
anticipated disruption here to that in Smith v. Gilchrist and
Durham v. Jones.
explained
that
Appellee’s Br. at 31-32. 4
Hall
had
a
“reasonable
4
We have already
apprehension”
of
Both Smith and Durham were published after May 21, 2012
(the date of Brickey’s termination), but they held that certain
rights were clearly established prior to that date.
While the
cases could not have assisted Hall, we are nevertheless bound by
their holdings.
17
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disruption, 5
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and
we
now
Pg: 18 of 23
explain
why
Smith
and
Durham
are
distinguishable.
In Smith, an assistant district attorney (“ADA”) running
for
public
office
gave
a
televised
interview
criticized a local defensive-driving program.
in
which
he
749 F.3d at 305.
Because completion of the program allowed ticketed drivers to
receive
a
“prayer
for
judgment
continued,”
the
district
attorney’s office (the “government”) benefitted from the program
by a substantially reduced caseload.
attorney
terminated
the
ADA’s
Id.
When the district
employment
soon
after
the
interview, the ADA brought a First Amendment retaliation suit.
Id. at 306.
In the district court, the government conceded that the ADA
“had
forecasted
evidence
sufficient
to
establish
interest in speaking outweighed the government’s.”
Nevertheless,
the
government
argued
that
the
that
his
Id. at 309.
outcome
of
the
balancing test was not clearly established in the ADA’s favor,
as the district attorney reasonably could have apprehended that
the ADA’s criticism of the defensive-driving program would harm
5
Brickey also contends that Hall effectively conceded a
lack
of
disruption
by
hiring
Reynolds
to
conduct
an
investigation.
We disagree.
Hiring an impartial investigator
in this circumstance, where Hall felt personally aggrieved, more
clearly reflects prudence than a lack of evidence.
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the district attorney’s office by increasing its workload.
Id.
at 307.
We rejected the government’s argument, relying largely on
its prior
concession
that
“[t]here
are
no
relevant
facts
to
challenge [the] finding that [the ADA’s] interest in speaking
outweighed the government’s interest in providing effective and
efficient services to the public,” but also further noting that
the government lacked “any evidence that [it] had any reason to
believe that [the ADA’s] interview would negatively affect the
efficiency or effectiveness of the DA’s office.”
Id. at 309–10.
Here,
the
Hall
balancing
government
has
not
conceded
test,
and
we
in
Smith,
had
the
have
outcome
found
reason
to
that
of
Hall,
believe
Pickering
unlike
that
the
Brickey’s
comments would cause disruption.
In Durham, the right at issue was of public employees to
speak out on “serious governmental misconduct,” specifically, a
police officer’s right to accuse “high-ranking law enforcement
officials . . . of falsifying law enforcement reports and . . .
authorizing aggressive threats against a member of their own
agency if he persisted in his opposition to such a practice.”
737 F.3d at 303.
Although the employer “paid lip service to
ostensible
to
damage
office
morale,
relationships
between
colleagues, and the function of the office generally,” we found
that the employer “was unable to articulate any way in which the
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office would have been different or was actually different due
to [the employee’s] statements.”
737 F.3d at 302.
Indeed, the
employer ultimately conceded that he had no reason to think that
the employee’s speech would prevent the police department from
carrying out its mission.
Id.
We held that the employer’s weak
evidence of disruption could not outweigh the importance of the
employee’s speech.
Id. (“Serious, to say nothing of corrupt,
law enforcement misconduct is a substantial concern that must be
met with a similarly substantial disruption in the calibration
of the controlling balancing test.”).
Durham
First,
is
and
not
most
controlling
importantly,
for
Hall
at
has
least
not
four
merely
reasons.
“paid
lip
service” to potential disruption to his police force, as we have
already explained.
reasonably
have
Unlike the employer in Durham, Hall could
apprehended
that
the
D.A.R.E.
comments
would
undermine his authority.
Second, Brickey’s speech did not clearly allege misconduct
of the same magnitude as that alleged in Durham.
While the
possibility that $500 of public funds had been mislaid or even
misused
may
well
have
been
significant
to
the
citizens
of
Saltville, Hall could reasonably have believed that it was not
the kind of “serious governmental misconduct” that our case law
had protected.
ranking
police
Durham involved clear accusations that highofficials
were
20
forcing
officers
to
falsify
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reports of incidents involving the officers’ use of force.
at 296.
is
Id.
Such a core abuse of the mission of a police department
reasonably
distinguishable
from
vague
allegations
of
mismanagement and even misuse of funds. 6
Third,
Brickey
claimed
during
the
Reynolds
investigation
that he never intended to accuse Hall of any wrongdoing.
The
employee in Durham, by contrast, made unmistakable allegations
of misconduct with the intention of exposing the wrongdoing and
alerting the public.
expose
misconduct,
Knowing that Brickey did not intend to
Hall
could
reasonably
have
believed
that
Brickey’s speech did not deserve the same protection as that of
a whistleblower.
Fourth,
Brickey’s
misleading.
Hall
knew
statements
from
about
the
the
Reynolds
misuse
investigation
of
funds
that
proved
As Brickey admitted, the D.A.R.E. funds were not
6
In holding that it was clearly established that the First
Amendment
protects
allegations
of
“serious
governmental
misconduct,” Durham relies on Robinson v. Balog, 160 F.3d 183
(4th Cir. 1998). In Balog, which was available to Hall, publicworks employees suffered retaliation for their allegations that
a contributor to the mayor’s reelection campaign was illegally
rewarded with a contract to repair a landfill leachate pond and
subsequently failed to make the needed repairs. Id. at 184–85.
That these allegations of blatant, large-scale corruption
endangering public health were protected, see id. at 185, did
not clearly establish protection for Brickey’s statements.
Moreover, as in Smith and Durham, we based our decision to deny
qualified immunity in large part on “the lack of evidence
supporting the [government’s] interest in disciplining [the
employees] for their speech.” Id. at 189.
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missing, and there were no improper charges to the account. 7
The
employee
the
in
Durham
did
not
make
such
employer before his termination.
believed
their
that
value
the
and
inaccuracy
increased
concession
to
Hall could reasonably have
of
his
a
Brickey’s
own
future statements of the same kind.
statements
interests
in
reduced
suppressing
See Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 52 (1988) (“False statements of fact
are
particularly
valueless;
they
interfere
with
the
truth-
seeking function of the marketplace of ideas, and they cause
damage
to
an
individual’s
reputation
that
cannot
easily
be
repaired by counterspeech, however persuasive or effective.”);
Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1081 (4th Cir.
1987)
(noting
an
employer’s
need
7
for
“protection
from
false
After oral argument, Brickey submitted a letter bringing
to our attention the Supreme Court’s recent decision in
Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016). See Fed.
R. App. P. 28(j). In Heffernan, “a government official demoted
an employee because the official believed, but incorrectly
believed, that the employee had supported a particular candidate
for mayor.”
136 S. Ct. at 1416.
The Court held that even
though the employee had not supported the candidate—and
therefore had not engaged in a constitutionally protected
activity—he nevertheless was entitled to bring a First Amendment
retaliation claim because “the government’s reason for demoting
[an employee] is what counts.”
Id. at 1418.
According to
Brickey, Heffernan establishes the broad rule that “a mistake of
fact does not defeat a First Amendment retaliation claim,” even
when an employee makes factually inaccurate claims regarding his
employer. See Appellee’s 28(j) Letter. Heffernan lends Brickey
no support. Not only does the case assume without deciding the
merits of the First Amendment claim, see id. at 1419, but more
to the point, it simply does not address the issue of factually
inaccurate employee speech.
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accusations
that
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may
prove
Pg: 23 of 23
difficult
to
counter
given
the
employee’s supposed access to inside information”).
III.
We hold that it was not clearly established on the date of
Brickey’s termination that his speech interests as a citizen
outweighed Hall’s interests as an employer.
entitled to qualified immunity.
Hall is therefore
Accordingly, we reverse the
district court’s denial of summary judgment and remand for entry
of an order consistent with this opinion.
REVERSED AND REMANDED
23
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