James Lane v. John Anderson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-03739-RDB Copies to all parties and the district court/agency. [999912030]. Mailed to: Sonia Kumar Nicholas Steiner. [15-2153]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2153

JAMES LANE,
Plaintiff - Appellant,
v.
SHERIFF JOHN W. ANDERSON; MAYOR & CITY COUNCIL OF BALTIMORE,
Defendants – Appellees,
and
COL. MARCUS L. BROWN,
Defendant.
------------------------AMERICAN CIVIL LIBERTIES UNION
PUBLIC JUSTICE CENTER, INC.,

FOUNDATION

OF

MARYLAND;

Amici Supporting Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:14-cv-03739-RDB)

Argued:

May 12, 2016

Decided:

Before KING, DIAZ, and THACKER, Circuit Judges.

August 17, 2016

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Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.

ARGUED: Howard Benjamin Hoffman, Rockville, Maryland, for
Appellant.
Jason L. Levine, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Annapolis, Maryland; Jason Robert Foltin, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.
ON
BRIEF: Steven H. Goldblatt, Director, Shon Hopwood, Appellate
Litigation
Program,
GEORGETOWN
UNIVERSITY
LAW
CENTER,
Washington, D.C., for Appellant.
Brian E. Frosh, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee Anderson.
George A. Nilson, City
Solicitor, William R. Phelan, Jr., Chief Solicitor, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellee Mayor and
City Council of Baltimore.
Deborah A. Jeon, Sonia Kumar,
Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND,
Baltimore, Maryland; Debra Gardner, Tassity Johnson, PUBLIC
JUSTICE CENTER, Baltimore, Maryland, for Amici American Civil
Liberties Union Foundation of Maryland and Public Justice
Center.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James Lane (“Appellant”) appeals the district court’s
dismissal of his complaint against the Mayor and City Council of
Baltimore (“Baltimore City”) and the Sheriff of Baltimore City,
John

W.

Anderson

in

his

official

and

individual

(“Sheriff Anderson”) (collectively, “Appellees”).

capacities

Appellant, a

deputy sheriff at the time, was shot in the face during the
execution of an arrest warrant.

After the shooting incident,

Appellant voiced doubts, alleging possible friendly fire and an
official cover-up of that possibility, and thereafter, Sheriff
Anderson fired him.

Appellant then sued Appellees, claiming a

violation of his First Amendment rights.
The
holding

that

Anderson
Amendment

district
it

was

court

lacked

entitled

immunity,

dismissed

subject
to

and

Appellant’s

matter

qualified

Baltimore

complaint,

jurisdiction,
immunity

City

was

and

not

Sheriff
Eleventh

liable

for

Sheriff Anderson’s employment actions because he was not a final
policymaker for Baltimore City.
For the reasons that follow, we affirm the dismissal
of

Appellant’s

claim

against

Baltimore

City.

But

because

subject matter jurisdiction exists and Sheriff Anderson is not
entitled

to

immunity,

we

reverse

respects.

3

and

remand

in

all

other

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I.
A.
Appellant became a deputy sheriff with the Baltimore
City Sheriff’s Office (“BCSO”) in 2003.

On September 15, 2008,

while executing an arrest warrant with other law enforcement
officers

from

the

Warrant

Apprehension

suffered a gunshot wound to the face.

Task

Force,

Appellant

Purportedly, the subject

of the arrest warrant (the “Suspect”) shot Appellant.
officer then

shot

the

Suspect,

killing

him.

The

Another

subsequent

internal investigation of the incident concluded that it was the
Suspect who shot Appellant.
as

he

shot

suspected
him.

another

When

But Appellant still had his doubts,

law

Appellant

enforcement
expressed

officer
his

accidentally

concerns

superiors, they “told him to forget about it.”

to

J.A. 8. 1

his
When

Appellant and two other deputy sheriffs continued to question
the shooting, they were all transferred out of the task force.
On

December

15,

2010,

Appellant

expressed

his

reservations about the shooting in interviews with certain media
outlets -- namely, Fox 45 News (television) and “Investigative
Voice”

(web-based).

Appellant’s

doubts

The
about

interviews

the

revealed

investigation,

1

but

not
also

only
his

Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.

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suspicion about a potential cover-up.

Appellant also expressed

his belief that the other officer he suspected had accidentally
shot him lied about the incident because that officer had failed
a polygraph examination.
Three

months

later,

in

March

2011,

the

BCSO

administratively charged Appellant with six counts of prohibited
conduct

stemming

from

his

interviews

with

the

media.

Ultimately, in December 2011, a hearing board found Appellant
guilty of five of the six charges, including two counts for
engaging in conduct that reflected unfavorably upon the BCSO,
two counts for representing the BCSO without permission, and one
count

for

publicly

criticizing

the

guilty of making a false statement.

BCSO.

He

was

found

not

The hearing board made a

non-binding recommendation of a five-day suspension without pay
to Sheriff Anderson.
Sheriff Anderson declined to follow the recommendation
and instead terminated Appellant.
Sheriff

Anderson

[Appellant’s]
Appellant’s

said

that

reliability
violations

In explaining this decision,

he

and

brought

could

“no

longer

[Appellant’s]
the

BCSO

“into

trust

credibility”;
disrepute”;

Appellant’s appearances on television and the internet displayed
“sullenness and anger” towards the BCSO; Appellant’s criticisms
and accusations of another officer lying were “divisive[] [and]
disloyal to the mission of the [BCSO] and intended to undermine
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the

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effective

operation

of

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the

[BCSO]”;

and

“become a polarizing force within the [BCSO].”

Appellant

had

J.A. 177-78.

B.
Appellant

appealed

his

termination

to

the

Maryland

Circuit Court for Baltimore City, asserting that he was found
guilty despite insufficient evidence, and that he was terminated
for conduct that was both not charged and outside the record.
The Maryland Circuit Court reversed the termination and ordered
reinstatement, but on appeal, the Court of Special Appeals of
Maryland,

which

considered

“only

. . . the

ultimate

sanction

imposed,” J.A. 72, upheld Appellant’s termination.
Thereafter,

on

December

1,

2014,

Appellant

filed

a

complaint in the United States District Court for the District
of

Maryland

individual
U.S.C.

against

Sheriff

capacities,

and

§ 1983,

Appellant

Anderson,

Baltimore
claimed

in

his

City. 2

retaliatory

official

Pursuant

to

discharge

and
42
in

violation of his First Amendment right to freedom of speech.
Additionally, he claimed violations of the Maryland Declaration
of Rights.

Appellant sought injunctive relief to permit his

2

Appellant also alleged that Colonel Marcus Brown, in his
official capacity as the chair of the Maryland Police Training
Commission, violated his First Amendment rights and his due
process rights.
The district court granted Appellant’s motion
to voluntarily dismiss the claims against Colonel Brown on
August 13, 2015.
Accordingly, these respective allegations are
no longer part of the complaint on appeal.

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reinstatement as a deputy sheriff, declaratory relief, and money
damages.
Appellees

moved

to

dismiss

district court granted the motions.
1:14-cv-3739,
district

2015

court,

WL

5136035

reasoning

(D.

that

the

complaint,

and

the

See Lane v. Anderson, No.
Md.

Sept.

Appellant

was

1,

2015).

seeking

The

federal

review of a state-court decision, held that it lacked subject
matter

jurisdiction

over

Appellant’s

injunctive

pursuant to the Rooker-Feldman 3 doctrine.
The

district

court

further

relief

claims

See id. at *8.
concluded

that

Sheriff

Anderson, in his individual capacity, was entitled to qualified
immunity because, at the time he terminated Appellant, the law
was not clearly established that doing so was a violation of
Appellant’s First Amendment rights.
at

*6-7.

Finally,

the

district

See Lane, 2015 WL 5136035,
court

determined

Sheriff

Anderson enjoyed Eleventh Amendment immunity from the claim for
monetary damages brought against him in his official capacity
because, pursuant to Maryland law, he was an arm of the state.
See id. at *4-6.
As
court

for

reasoned

Baltimore

that

City’s

Baltimore

City

3

involvement,
could

not

the
be

district

liable

for

See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

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Sheriff

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Anderson’s

actions

Pg: 8 of 33

because

Sheriff

Anderson

was

a

Maryland official, not an official acting on behalf of Baltimore
City. 4

See Lane, 2015 WL 5136035, at *8.
Appellant timely appealed.
II.
Subject Matter Jurisdiction
A.
As

district

an

initial

court’s

jurisdiction.

matter,

determination
Because

the

that

Appellant
it

lacked

jurisdictional

challenges
subject
question

the

matter
is

a

“threshold issue,” we address it before proceeding to the merits
of the appeal.
(4th

Cir.

Elyazidi v. SunTrust Bank, 780 F.3d 227, 232

2015).

jurisdiction de novo.

We

review

challenges

to

subject

matter

See Flame S.A. v. Freight Bulk Pte. Ltd.,

807 F.3d 572, 580 (4th Cir. 2015).

4

As for the state law claim pursuant to the Maryland
Declaration of Rights against Baltimore City, the district court
concluded that because Sheriff Anderson was not a Baltimore City
employee, Baltimore City could not be liable.
See Lane v.
Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *9 (D. Md. Sept.
1, 2015). Appellant does not challenge on appeal the dismissal
of
Baltimore
City’s
liability
premised
on
the
Maryland
Declaration of Rights.
Accordingly, that argument is waived.
See United States v. Avila, 770 F.3d 1100, 1104 n.1 (4th Cir.
2014) (failing to raise an argument in the opening briefs
constitutes an abandonment of that issue).

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B.
Appellant

argues

that

the

Rooker-Feldman

doctrine,

which would deprive us of jurisdiction if applicable, does not
apply

here

decision.

because

he

is

not

challenging

state

court’s

See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718

(4th Cir. 2006).

Rather, he seeks relief for the termination

that Sheriff Anderson imposed upon him.
Pursuant
courts

the

are

decisions.

to

generally

the

We agree.

Rooker-Feldman

barred

from

doctrine,

reviewing

district

state-court

See D.C. Court of Appeals v. Feldman, 460 U.S. 462,

483 n.16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
415-16 (1923).
still

Notwithstanding that premise, federal courts may

entertain

claims

the

state

court

examined,

so

long

as

those claims do not challenge the state-court decision itself.
See Elyazidi, 780 F.3d at 233 (claims not challenging the statecourt judgment do not present a jurisdictional bar).
“[t]he

Rooker–Feldman

. . . brought
caused

by

by

doctrine

state-court

state-court

. . . is

losers

judgments

confined

complaining

rendered

before

Instead,
to

cases

of

injuries

the

district

court proceedings commenced and inviting district court review
and rejection of those judgments.”
Basic

Indus.

supplied).

Corp.,

544

U.S.

Exxon Mobil Corp. v. Saudi
280,

284

(2005)

(emphasis

So, “[i]f [the state-court loser] is not challenging

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the state-court decision, the Rooker-Feldman doctrine does not
apply.”

Davani, 434 F.3d at 718.
Here,

Appellant

is

not

challenging

the

Maryland

court’s decision or judgment, but rather the injury that Sheriff
Anderson imposed, that is, Appellant’s termination.
544 U.S. at 284.
termination

In Davani, a state employee challenged his

for

discrimination

and

retaliation,

administrative agency upheld the termination.
F.3d at 715.

See Exxon,

and

the

See Davani, 434

The state court dismissed his appeal, and the

employee filed a complaint in federal court alleging retaliation
and discrimination, which thereafter was dismissed for lack of
subject

matter

doctrine.
was

not

jurisdiction

See id.

pursuant

to

the

Rooker-Feldman

We reversed, concluding that the employee

“seek[ing]

redress

for

an

injury

caused

by

the

state-court decision itself,” id. at 718, but rather for the
injury that the employer caused when it terminated the employee,
see id. at 719.
Like in Davani, the state-court judgment here did not
cause

Appellant’s

injury

when

it

decision to terminate Appellant.

upheld

Sheriff

Anderson’s

Appellant’s complaint does not

allege that the state court caused the injury, and instead, he
alleges that Sheriff Anderson caused his termination, an event
that happened prior to the state-court decision.
we

hold

that

Appellant’s

claims
10

are

not

Accordingly,
barred

by

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and

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therefore,

federal

subject

matter

jurisdiction remains intact.
III.
Qualified Immunity
A.
On a motion to dismiss pursuant to qualified immunity,
we review the district court’s conclusion de novo.

See Occupy

Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013).
official

asserting

qualified

immunity

establishing his right to it.

carries

the

The

burden

of

See Durham v. Jones, 737 F.3d

291, 299 (4th Cir. 2013).
B.
In assessing whether Sheriff Anderson was entitled to
qualified immunity, the district court assumed that terminating
Appellant in retaliation for speaking to the media violated a
right protected by the First Amendment, but held that the right
was not clearly established when the violation occurred.

See

Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *7 (D.
Md. Sept. 1, 2015).

Therefore, the district court held Sheriff

Anderson was entitled to qualified immunity.

See id.

This

holding is contrary to our precedent.
C.
When a government official is sued in his individual
capacity, he may be entitled to a qualified immunity defense.
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See

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Bland

However,

v.

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Roberts,

qualified

allegations

730

F.3d

immunity

underlying

Pg: 12 of 33

the

is

368,
not

claim,

391

(4th

bestowed

if

true,

Cir.

when

2013).

“(1) the

substantiate

[a]

violation of a federal statutory or constitutional right; and
(2) this violation was of a clearly established right of which a
reasonable person would have known.”

Smith v. Gilchrist, 749

F.3d 302, 308 (4th Cir. 2014) (alteration in original) (quoting
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306
(4th Cir. 2006)); see also Saucier v. Katz, 533 U.S. 194 (2001).
A

clearly

established

right

exists

when

“existing

precedent

. . . place[s] the . . . constitutional question beyond debate.”
Gilchrist, 749 F.3d at 308 (quoting Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2083 (2011)).

When the official acts in legal “gray

areas,” he is entitled to qualified immunity.
With

these

principles

in

Id. at 307.

mind,

we

address

the

qualified immunity inquiry, considering first the constitutional
right

at

issue,

and

second,

whether

this

right

was

clearly

established when the alleged violation occurred.
1.
First Amendment Right
The First Amendment protects “the right to be free
from

retaliation

[freedom

of

by

a

speech].”

quotation marks omitted).

public

official

Gilchrist,

749

for
F.3d

the
at

exercise
308

of

(internal

However, this right is not limitless,
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particularly for public employees.

See id. (citing McVey v.

Stacy, 157 F.3d 271, 277 (4th Cir. 1998)).

“[T]he government,

as an employer, ‘is entitled to maintain discipline and ensure
harmony

as

necessary

to

the

operation

and

mission

of

its

agencies,’” and therefore has “an interest in regulating the
speech of its employees.”
As

the

Supreme

Court

Id. (quoting McVey, 157 F.3d at 277).
explained

in

Pickering

v.

Board

of

Education, 391 U.S. 563 (1968),
The problem in any case is to arrive at a
balance between the interests of the [public
employee], as a citizen, in commenting upon
matters of public concern and the interest
of the State, as an employer, in promoting
the efficiency of the public services it
performs through its employees.
391 U.S. at 568.
retaliation

claim

Finally, when an employee asserts a § 1983
based

on

his

exercise

of

free

speech,

we

analyze the claim using the following three queries:
(1) [W]hether
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)[W]hether
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) [W]hether the employee’s speech was a
substantial
factor
in
the
employee’s
termination decision.
McVey,

157

F.3d

at

277-78.

The

first

two

prongs

present

questions of law to be resolved by the court, and the third
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prong is a question of fact best resolved on “summary judgment
only

in

those

dispute.”

instances

when

there

are

no

causal

facts

in

Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir.

2004).
a.
With respect to the first McVey prong, we cannot agree
with Sheriff Anderson that Appellant stated his concerns merely
as a self-serving complaint.

Rather, Appellant, as a private

citizen, spoke on a matter of public concern when he questioned
a

police

shooting,

which

resulted

in

a

fatality,

and

the

he

was

subsequent investigation.
When

Appellant

communicated

with

the

media,

acting outside the scope of his duties as a deputy sheriff.
Although

Appellant’s

“expressions

related

to

[his]

job,”

the

First Amendment affords him protection when he conveys these
views as a private citizen.
421

(2006).

It

is

Garcetti v. Ceballos, 547 U.S. 410,

“antithetical

to

our

jurisprudence

to

conclude . . . speech by public employees regarding information
learned through their employment [] may never form the basis for
a

First

Amendment

retaliation

claim”.

Hunter

v.

Town

of

Mocksville, 789 F.3d 389, 396-97 (4th Cir. 2015).
Appellant’s
personal grievance.

speech

was

not

just

an

airing

It was a matter of public concern.

14

of

a

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Speech involves matters of public concern when it can
be fairly considered as relating to any matter of
political, social, or other concern to the community,
or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value
and concern to the public.
Lane v. Franks, 134 S. Ct. 2369, 2380 (2014) (internal quotation
marks omitted).

We consider the character of speech in this

regard by taking into account “the content, form, and context of
a given statement.”
Myers,

461

U.S.

public

safety

Durham, 737 F.3d at 299 (quoting Connick v.

138,

are

147-48

(1983)).

quintessential

“Matters

matters

of

relating

public

to

concern.”

Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337,
353

(4th

Cir.

characterized

2000).

as

personal

By

contrast,

grievances

comments

“about

employment” are not matters of public concern.

properly

conditions

of

Durham, 737 F.3d

at 300 (internal quotation marks omitted).
The content of Appellant’s speech here was undeniably
a matter of public concern.
suspect

was

questioned

killed
an

(and

allegedly

He questioned a shooting in which a
Appellant
botched

himself

injured).

investigation,

suspected was cloaked in a police cover-up.

which

He
he

And he ultimately

questioned whether friendly fire occurred, as opposed to the
Suspect

having

allegedly

shot

Suspect’s death.

15

him,

which

resulted

in

the

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form

and

Pg: 16 of 33

context

of

Appellant’s

speech

further

strengthens the conclusion that Appellant spoke on a matter of
public concern.

Appellant spoke to a broad audience, through

both

and

television

internet.

Clearly,

Appellant’s

story

interested the local press, and in two different mediums, no
less.

See

[from]

the

Durham,
media

737

F.3d

indicates

at

301

that

(explaining

[the

issue]

“interest[]

was

of

public

interest”); Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998)
(public

dissemination

through

press

shows

matter

of

public

Appellant’s

speech

concern).
For

these

reasons,

we

hold

that

satisfied the first McVey prong as protected speech.
b.
With
whether
2008

respect

Appellant’s

shooting

outweighs

the

and

to

interest
the

the

government’s

legitimate

grounds.

in

prong,

speaking

legitimate

we

about

must
the

internal

assess

September

investigation

interest

in

providing

See Gilchrist, 749 F.3d at 308.

burden
See

second

subsequent

government’s

efficient public services.
is

the

id.

to
at

justify
309.

the
As

termination
we

explained

It
on
in

Ridpath, we evaluate the government’s interests utilizing the
following factors:
[W]hether
a
public
employee’s
speech
(1) impaired the maintenance of discipline
by supervisors; (2) impaired harmony among
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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.
447 F.3d at 317.

In this context, law enforcement agencies are

afforded some leeway to restrict their employees’ speech because
“they are paramilitary -- discipline is demanded, and freedom
must

be

correspondingly

denied.”

Durham,

(internal quotation marks omitted).
of

public

stronger
it.”

interest

showing

in

of

the

737

F.3d

at

301

And, “[a] stronger showing

speech

requires

government-employer

a

concomitantly

interest

to

overcome

McVey, 157 F.3d at 279 (Murnaghan, J., concurring).
Moreover,

employee’s

speech

burden

to

is

apprehended.”

the

government

actually

show

“an

need

disrupted

adverse

not

“prove

efficiency”;

effect

was

that

the

rather,

its

reasonably

to

be

Gilchrist, 749 F.3d at 309 (internal quotation

marks omitted); see also Durham, 737 F.3d at 302 (stating that
more

than

damage”

“vague
to

references”

morale,

and

“lip

relationships,

functionality is necessary).

17

service
and

to

ostensible

general

office

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Here,

as

Pg: 18 of 33

previously

discussed,

Appellant’s

speech

dealt with a matter of public concern: he suspected friendly
fire ultimately resulted in a person being killed, and yet, when
he

voiced

that

suspicion,

uncovering the truth.

he

was

told

not

to

about

Akin to our holding in Durham, the facts

here do not tip the balance in favor of Appellees.
at 302-03.

worry

See 737 F.3d

To the contrary.
As for the Government, Sheriff Anderson has spoken of

Appellant’s alleged effect on the office in mere generalities.
He has offered no concrete examples to back up his claim that
Appellant brought “disrepute” to the agency, and was divisive,
disloyal, and a “polarizing force.”
has

asserted

nothing

more

references” in this regard.

than

J.A. 73.
“lip

Sheriff Anderson

service”

and

“vague

Durham, 737 F.3d at 302 (explaining

that a showing of an actual disruption is not needed, and, at
the

same

time,

indicating

an

articulation

of

“a

reasonable

apprehension of such a disruption” is required).
Ultimately, at the motion to dismiss stage, based upon
these generalized statements, we cannot conclude that Sheriff
Anderson

has

met

his

burden

of

justifying

the

Appellant’s

termination on legitimate grounds, particularly considering the
significant

public

interests

raised

Gilchrist, 749 F.3d at 309.

18

by

Appellant.

See

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c.
The third McVey prong, which presents an issue of fact
as to whether Appellant’s speech was “a substantial factor” in
his termination, can be swiftly dispensed.
277-78.

McVey, 157 F.3d at

When reviewing a Rule 12(b)(6) motion to dismiss, we

view the facts in the light most favorable to Appellant.

When

dealing

this

with

a

First

Amendment

retaliation

claim

in

posture, we generally infer causation based on the facts alleged
in the complaint because, at the motion to dismiss stage, “we
are unable and unwilling to speculate as to the outcome.”

Tobey

v. Jones, 706 F.3d 379, 391 (4th Cir. 2013).
Here, as in Tobey, Appellant has adequately set forth
a plausible claim that his First Amendment rights were violated
when his comments directly precipitated his firing.
result

of

his

media

interviews,

charges, and ultimately termination.

Appellant

As a direct

faced

internal

Sheriff Anderson’s stated

basis for terminating Appellant included the fact that Appellant
had commented publicly about the internal investigation.

In

fact, Sheriff Anderson said, “I find that . . . . [Appellant’s]
appearance

on

television,

[and]

on

the

website,

[were]

disrespectful, accusatory, and . . . displayed an attitude of
sullenness and anger towards the [BCSO]. . . .
termination

will

permit

the

division

[Appellant’s] conduct to heal.”
19

and

J.A. 177-78.

Nothing short of

discord

caused

by

Thus, we readily

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conclude that Appellant’s speech was “a substantial factor” that
led to his firing.

McVey, 157 F.3d at 277-78.
2.
Clearly Established Right

Having

concluded

that

Appellant’s

speech

should

be

accorded First Amendment protection, we now turn to the second
prong

of

the

qualified

immunity

analysis:

whether

every

reasonable official would have known that terminating Appellant
for speaking out would be in violation of his First Amendment
rights.

See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per

curiam).

Appellees

specifically
expressly
chief

--

the

Law

provides
here,

maintain
Enforcement
that

Sheriff

the

Anderson

that

Maryland

Officers’
law
--

state

Bill

enforcement
is

permitted

of

law,

Rights,
agency’s

to

punish

Appellant for “divulg[ing] information” that is contrary to the
department’s policy.

Appellees’ Br. 28.

If Sheriff Anderson

complied with this express statutory right, Appellees’ argument
goes, “he had no reason to doubt the constitutionality of the
policies.”

Id. at 29.

But, the position urged by Appellees,

and adopted by the district court, that the Sheriff was acting
within his legal authority because he was acting pursuant to
Maryland law, ignores clearly established precedent.
2015 WL 5136035, at *7.

20

See Lane,

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Sheriff
helpful

here.

provide

a

Anderson’s
An

Pg: 21 of 33

adherence

independent

shield

from

basis

state

for

liability

constitutionally protected.

to

law

is

not

does

not

speech

is

sanctions

when

the

See Durham, 737 F.3d at 304; Am.

Civ. Liberties Union of Md., Inc. v. Wicomico Cty., 999 F.2d
780,

785

(4th

“[r]etaliation

by

Cir.
a

1993)

public

(per

official

curiam)
for

the

(recognizing
exercise

of

a

constitutional right is actionable under 42 U.S.C. § 1983, even
if the act, when taken for different reasons, would have been
proper”).
More

significantly,

years

before

Sheriff

Anderson

terminated Appellant, there was ample authority reinforcing the
notion that Appellant’s speech was of the type that was afforded
protection.

See Durham, 737 F.3d 291; Andrew v. Clark, 561 F.3d

261 (4th Cir. 2009); see also Hunter, 789 F.3d at 402 (holding
that

the

law

was

clearly

established

in

December

2011

that

speech about serious misconduct was protected).
In Andrew -- decided two years before the incident at
issue -- we held that a police commander in the Baltimore Police
Department stated a First Amendment claim when he alleged that
he was terminated for leaking information to the media about a
police-involved shooting and its investigation.
F.3d at 263.
sheriff

to

See Andrew, 561

In Durham, the right at issue was of a deputy
speak

out

on

“serious
21

governmental

misconduct,”

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specifically, his 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

practice.”

Durham, 737 F.3d at 303.

been

that

clear

where

public

opposition

to

such

a

There, we held, “[w]e have

employees

are

speaking

out

government misconduct, their speech warrants protection.”

on
Id.

at 303 (citing Balog, 160 F.3d at 189).
Thus,

when

Sheriff

Anderson

terminated

2012, the law was not in any “gray area[].”
at 307.

Appellant

in

Gilchrist, 749 F.3d

Rather, the law was clearly established.

After our

decisions in Andrew and Durham, no reasonable official could
have believed that a law enforcement officer’s statements to
media outlets regarding misconduct and corruption surrounding a
police-involved
Therefore,
qualified

we

shooting
hold

immunity,

lacked

that

Sheriff

and

Appellant

First

Amendment

Anderson
can

is

not

continue

protection.
entitled

to

press

to
the

damages claim brought against Sheriff Anderson in his individual
capacity. 5

5

We note that this case is unlike Brickey v. Hall, where we
held that a police chief was entitled to qualified immunity
after he had been sued under § 1983 for terminating a
subordinate in violation of the First Amendment.
No. 14-1910,
2016 WL 3648462, at *1 (4th Cir. July 8, 2016) (published
opinion).
In Brickey, a police officer who was running for a
town council seat made statements in two newspapers that
(Continued)
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IV.
Eleventh Amendment Immunity
A.
“Whether an action is barred by the Eleventh Amendment
is a question of law that we review de novo.”

Hutto v. S.

Carolina Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014).
B.
We

next

address

the

Eleventh

Amendment

immunity

defense raised by Sheriff Anderson in his official capacity.
The Eleventh Amendment protects a state entity from
suit

in

federal

protection

is

court.
also

instrumentalities,”

See

accorded
or

in

U.S.
to

other

Const.,
“state

words,

amend.
agents

arms

of

XI.

This

and

state

the

state.

suggested that the police chief misused -- either through
negligence or malfeasance -- $500 in the Drug Abuse Resistance
Education (“D.A.R.E.”) budget.
Id. at *1, *5.
After
commissioning an independent investigation into the officer’s
statements, the police chief terminated him. Id. at *2–3.
There are at least four key differences between Brickey and
the instant case.
First and most notably, the misconduct
Appellant alleges is far more serious than the misconduct
alleged in Brickey. Second, unlike Sheriff Anderson, the police
chief in Brickey did more than merely “‘pa[y] lip service’ to
potential disruption to his police force.”
Id. at *7.
Third,
the allegations in Brickey were shown to be false.
Id. at *8.
Finally, unlike Appellant, the officer in Brickey did not intend
to accuse the police chief of wrongdoing.
Id.
Based on these
differences -- which also distinguished Brickey from Durham, id.
at *7–8 -- Brickey does not control our decision here.

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Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997);
see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280 (1977).

Yet, not every entity exercising a “slice of

state power” is entitled to protection, Lake Country Estates,
Inc.

v.

Tahoe

Reg’l

Planning

Agency,

440

U.S.

391,

400-01

(1979), and immunity “does not extend to counties and similar
municipal corporations,” Mt. Healthy, 429 U.S. at 280.
“Whether
ultimately

a

an

question

entity
of

is

an

federal

arm

law,

of

‘[b]ut

the

state

that

is

federal

question can be answered only after considering the provisions
of

state

law

that

define

the

agency’s

character.’”

United

States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745
F.3d 131, 138 (4th Cir. 2014) (quoting Doe, 519 U.S. at 429
n.5).
The district court held that Sheriff Anderson enjoyed
Eleventh

Amendment

However,

the

immunity

district

court

because
came

to

he

was

this

a

state

conclusion

officer.
without

analyzing the test we have outlined for such a determination.
See Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *6
(D. Md. Sept. 1, 2015); Ram Ditta v. Md. Nat’l Capital Park &
Planning Comm’n, 822 F.2d 456, 457–58 (4th Cir. 1987).
In assessing whether an entity is state or local in
character, we have employed the four-factor test described in
Ram

Ditta,

822

F.2d

at

457–58.
24

The

first

factor

to

be

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considered is “whether the state treasury will be responsible
for paying any judgment that might be awarded.”

Id. at 457; see

Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir.
2001).

We have concluded that a judgment’s effect on the state

treasury,

though

still

“of

considerable

deserve dispositive preeminence.”

importance,

does

not

Oberg, 745 F.3d at 137 n.4

(internal quotation marks and citations omitted); cf. Cash, 242
F.3d at 223; Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,
48 (1994) (stating treasury factor is “the most salient factor
in Eleventh Amendment determinations”).

The other three Ram

Ditta factors are: “[W]hether the entity exercises a significant
degree

of

involved

autonomy

with

from

local

the

versus

state,

whether

statewide

[the

concerns,

entity] is treated as a matter of state law.”

entity]

and

how

is

[the

Ram Ditta, 822

F.2d at 457-58 (internal footnotes omitted).
Upon consideration of all of these factors, we must
“determine whether the governmental entity is so connected to
the

State

that

. . . amount

the

to

‘the

coercive

process

private

parties.’”

of

legal

action

indignity
judicial
Cash,

of

against

subjecting

tribunals

242

the

F.3d

at

at
224

a
the

entity
State

would
to

instance

(quoting

the
of

Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)).
Here, the district court admittedly did not engage in
the Ram Ditta analysis at all: “[T]his Court need not apply the
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Ram Ditta test to the subject action.

Maryland Code and case

law make clear that sheriffs are state officers, with authority
derived from state law.”

Lane, 2015 WL 5136035, at *6.

The

district court based its reasoning on the fact that sheriffs are
elected

state

officials,

see

Md.

Const.

art.

IV,

§ 44;

are

defined as “state personnel” for the purposes of the Maryland
Tort Claims Act, see Md. Code Ann., State Gov’t § 12-101(a)(6),
Rucker

v.

Harford

Cty.,

558

A.2d

399,

412

(Md.

1989);

are

granted authority by state law to hire deputy sheriffs, see Md.
Code Ann., Cts. & Jud. Proc. § 2-309(d)(1)(ii); and are state
officials, not local government officials, see Lane, 2015 WL
5136035, at *5 (citing cases).
Yet,

this

is

only

part

of

the

analysis,

and

the

district court’s failure to apply the proper legal framework was
erroneous.

See Gray v. Laws, 51 F.3d 426, 434–35 (4th Cir.

1995) (remanding when the district court did not “undertake the
appropriate

Eleventh

Amendment

analysis”).

As

a

result,

we

reverse and remand the district court’s holding in this regard
so that it can fully consider the issue pursuant to the proper
Ram Ditta test.

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V.
Baltimore City’s Liability
A.
We review the district court’s grant of a motion to
dismiss de novo, accepting as true all well-pled facts in the
complaint and construing them in the light most favorable to the
plaintiff.

See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d

412, 422 (4th Cir. 2015).
B.
Appellant

asserts

that

the

district

court

erred

in

dismissing his claim against Baltimore City on the theory that
Sheriff Anderson was acting as the Baltimore City policymaker in
making

BCSO

contends,

Baltimore

termination.
In
York,

employment

the

decisions.

City

can

also

Therefore,
be

held

Appellant

liable

for

his

of

New

We disagree.
Monell

Supreme

v.

Department

Court

held

of

that

Social
a

Services

municipality

(a

local

government entity) may be liable for a constitutional violation
pursuant to § 1983 if a plaintiff can show “a policy statement,
ordinance,
promulgated

regulation,
by

that

constitutional violation.

or

decision

body’s

officially

officers”

adopted

resulted

in

and
a

436 U.S. 658, 690 (1978) (stating

that municipalities are “persons” subject to suit pursuant to
§ 1983).

This “‘official policy’ requirement was intended to
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distinguish acts of the municipality from acts of employees of
the

municipality,

and

thereby

make

clear

that

municipal

liability is limited to action for which the municipality is
actually responsible.”
F.3d

518,

523

Cincinnati,
results

(4th

475

when

Cir.

U.S.

the

Riddick v. Sch. Bd. of Portsmouth, 238
2000)

469,

acts

479

have

(quoting
(1986)).

been

ordered” by the municipality.

Pembaur

v.

Municipal

“officially

City

of

liability

sanctioned

or

Love-Lane v. Martin, 355 F.3d

766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at 480).
Under appropriate circumstances, a single decision by
a policymaker can result in municipal liability.
475 U.S. at 480.

See Pembaur,

“Municipal liability attaches only where the

decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered.”

Id. at 481; see

also McMillian v. Monroe Cty., 520 U.S. 781, 784-85 (1997) (“A
court’s

task

is

to

identify

those

officials

or

governmental

bodies who speak with final policymaking authority for the local
governmental actor concerning the action alleged to have caused
the particular constitutional or statutory violation at issue.”
(internal quotation marks omitted)); Love-Lane, 355 F.3d at 782.
“To

qualify

as

a

‘final

policymaking

official,’

a

municipal official must have the responsibility and authority to
implement final municipal policy with respect to a particular
course of action.”

Riddick, 238 F.3d at 523 (quoting Pembaur,
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475 U.S. at 483); see also Spell v. McDaniel, 824 F.2d 1380,
1386

(4th

Cir.

1987)

(“‘[P]olicymaking

authority’

implies

authority to set and implement general goals and programs of
municipal government, as opposed to discretionary authority in
purely operational aspects of government.”).
Here, Baltimore City “does not dispute that Sheriff
Anderson

has

final

policymaking

authority”

for

employment

matters relating to those decisions within the BCSO.

Appellees’

Br. 7; see also Pembaur, 475 U.S. at 483.

However, the issue

lies in whether Sheriff Anderson made the unfavorable employment
decision for Baltimore City.
C.
In determining whether Sheriff Anderson acted as the
final policymaker for Baltimore City, our analysis “is guided by
two

principles.”

McMillian,

520

U.S.

at

785.

First,

“the

question is not whether [a sheriff] acts for [the state] or [a
county]

in

some

Rather,

the

categorical,

question

is

‘all

whether

or
the

nothing’
sheriff

manner.”
was

a

Id.
final

policymaker “for the local government in a particular area, or
on a particular issue.”

Id.

Second, we resolve this issue based upon state law,
“[r]eviewing the relevant legal materials, including state and
local positive law, as well as custom or usage having the force
of law.”

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
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(1989) (internal quotation marks omitted).

“[S]imply labeling

as a state official an official who clearly makes county policy”
cannot answer the question.

McMillian, 520 U.S. at 786; see

Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) (“[T]he
Sheriff

is

employee.

not

always

a

state

employee

or

always

a

county

He may, on occasion, be both, or sometimes one and

sometimes the other.

It all depends on the particular function

the Sheriff is performing.”); Rucker v. Harford Cty., 558 A.2d
399, 406 (Md. 1989) (“This conclusion does not mean that, for
some purposes and in some contexts, a sheriff may not be treated
as a local government employee.”).
Here, we conclude that, as a matter of Maryland law,
Sheriff Anderson is not a final policymaker for Baltimore City.
State law, rather than the local government, provides Sheriff
Anderson with his power.

See Md. Const. art. IV, § 44 (stating

that the sheriff “in each county and in Baltimore City” shall
“exercise such powers and perform such duties as now are or may
hereafter be fixed by law”); Prince George’s County v. Aluisi,
731 A.2d 888, 894 (Md. 1999) (explaining that, pursuant to the
Maryland Constitution, “the duties of the sheriffs are those
prescribed

by

the

common

law,

the

enactments

of

Assembly, and the rules of the Court of Appeals”).

the

General

Moreover,

the Court of Appeals of Maryland has explained that the duties
of sheriffs “are determined by state law, not locally enacted
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Aluisi, 731 A.2d at 895.

And here, the Charter of

Baltimore City does not include the sheriff’s department as a
principal

agency

reference

the

of

Baltimore

sheriff’s

within its provisions.

City,

position

or

or

more

the

generally,

sheriff’s

even

department

See generally Charter of Balt. City art.

I to IX.
With respect to a sheriff’s personnel decision-making
authority, state law establishes the authority for hiring and
discipline, including termination processes.

See Md. Code Ann.,

Cts. & Jud. Proc. § 2-309(d)(1)(viii) (requiring the sheriff to
“select[] [his deputy sheriffs] according to the provisions of
the State Personnel and Pensions Article”); Md. Code Ann., Pub.
Safety § 3-102(c) (providing the Law Enforcement Officers’ Bill
of Rights “does not limit the authority of the [sheriff] to
regulate the competent and efficient operation and management of
a

law

enforcement

agency

by

any

reasonable

means

including

transfer and reassignment if . . . the [sheriff] determines that
action to be in the best interests of the internal management of
the

law

enforcement

agency”);

Md.

Code

Ann.,

Pub.

Safety

§ 3-108(d) (granting chief of law enforcement agency authority
to

make

final

decision

regarding

discipline

of

subordinate

officers subject to certain procedural requirements mandated by
Sections 3-101 to -109 of the Code of Maryland); Md. Code Ann.,
St. Pers. & Pens. § 11-104 (granting the sheriff power to take
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actions,

Pg: 32 of 33

including

demotion

and

termination,

against any employee).
Further,

although

state

law

does

not

conclusively

establish the state’s liability for a judgment against Sheriff
Anderson in a § 1983 claim, it indicates that, in a tort claim
brought

pursuant

to

state

law,

the

state,

as

opposed

to

Baltimore City, would cover a judgment against the sheriff based
on his personnel decisions.

See generally Md. Code Ann., State

Fin. & Proc. § 9-108 (providing that, pursuant to the Maryland
Tort Claims Act, the state of Maryland, and not Baltimore City,
is liable for tort claims against a sheriff for those claims
relating

to

“personnel

and

other

administrative

activities”);

Rucker, 558 A.2d at 401 (though not deciding whether sheriffs
were state or local employees for federal purposes, which was
not

before

the

court,

holding

sheriffs

are

state

personnel

pursuant to the Maryland Tort Claims Act -- and thus the state
bore

responsibility

for

judgments).

This

suggests

that

personnel decisions do not create local municipal liability and
are not paid by the local government entity.

See State v. Card,

656 A.2d 400, 402–03 (Md. Ct. Spec. App. 1995) (explaining that
in

the

early

1990s,

the

Maryland

legislature

amended

the

Maryland code “to sort out the various functions performed by
sheriffs and their deputies throughout the State . . . and to
provide an umbrella of State protection, with the cost of that
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protection to be assessed to the State or the county, depending
on the function involved”).
In sum, we hold that Sheriff Anderson did not act as a
Baltimore City policymaker when making employment and personnel
decisions.

Accordingly, Appellant’s Monell claim was properly

dismissed. 6
VI.
For
judgment

of

Appellant’s
respects,

we

the

reasons

district
claim

court

against

reverse

set

the

forth
to

the

Baltimore
judgment

of

herein,

we

extent
City.
the

it
In

district

affirm

the

dismisses
all

other

court

and

remand for further proceedings consistent with this opinion.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

6

We note that our resolution of the Monell liability issue
does not resolve the Eleventh Amendment immunity question that
the district court will consider on remand.
See Gray, 51 F.3d
at 435 (explaining that the district court erred by “appl[ying]
in the Eleventh Amendment context principles applicable only
under section 1983”).

33