Bruce v. Cole et al
Filing
180
ORDERED: Defendants' Motion for Summary Judgment (Doc. #168) is denied. Signed on 1/17/19 by District Judge Stephen R. Bough. (Diefenbach, Tracy)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
FRANK TIMOTHY BRUCE,
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Plaintiff,
v.
BRAD COLE, et al.,
Defendants.
Case No. 6:17-CV-3073-SRB
ORDER
Before the Court is Defendants’ Motion for Summary Judgment. (Doc. #168). For
reasons explained below, the motion is denied.
I.
Background
Plaintiff Frank Timothy Bruce is a former deputy sheriff of Christian County, Missouri.
In 2015, Defendant Brad Cole (“Cole”) ran as a candidate for Christian County Sheriff. Plaintiff
publically endorsed Keith Mills, an electoral opponent of Cole. Cole was elected on August 4,
2015. On or about August 7, 2015, Cole assumed the duties of sheriff and terminated Plaintiff’s
employment. Plaintiff brought this lawsuit under 42 U.S.C. § 1983, alleging that Defendant Cole
and Defendant Christian County (collectively “Defendants”)1 violated Plaintiff’s First
Amendment rights. (Doc. #112, ¶¶ 15–35). Defendants bring the present motion, arguing two
independent bases for summary judgment: 1) that Plaintiff’s political affiliation did not cause his
dismissal and 2) that Defendant Cole is entitled to qualified immunity regarding his decision to
1
Plaintiff’s First Amended Complaint (Doc. #112) also names Christian County Commissioners Ray Weter, Hosea
Bilyeu, and Ralph Phillips as defendants. Plaintiff’s official-capacity claims against these commissioners have been
dismissed as duplicative, and the commissioners are no longer defendants in this case. (Doc. #152).
dismiss Plaintiff. Defendants further argue that Defendant Christian County cannot be liable if
the Court grants summary judgment on either basis.
II.
Legal Standards
A. Summary Judgment
A federal court must grant a motion for summary judgment if 1) the moving party “shows
that there is no genuine dispute of material fact” and 2) the moving party is “entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “The movant bears the initial responsibility of
informing the district court of the basis for its motion and must identify the portions of the record
that it believes demonstrate the absence of a genuine dispute of material fact.” Bedford v. Doe,
880 F.3d 993, 996 (8th Cir. 2018) (citing Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc)). Although this burden belongs to the moving party, the nonmoving
party “may not rest upon mere denials or allegations, but must instead set forth specific facts
sufficient to raise a genuine issue for trial.” Nationwide Property & Cas. Ins. Co. v. Faircloth,
845 F.3d 378, 382 (8th Cir. 2016) (quoting Rohr v. Reliance Bank, 826 F.3d 1046, 1052 (8th Cir.
2016)). A nonmoving party survives a summary judgment motion if the evidence, viewed in the
light most favorable to the nonmoving party, is “such that a reasonable jury could return a
verdict for the nonmoving party.” Stuart C. Irby Co. v. Tipton, 796 F.3d 918, 922 (8th Cir. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The purpose of summary
judgment “is not to cut litigants off from their right of trial by jury if they really have issues to
try.” Hughes v. Am. Jawa, Ltd., 529 F.2d 21, 23 (8th Cir. 1976) (internal quotation marks
omitted) (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 467 (1962)); see
also Melvin v. Car-Freshener Corp., 453 F.3d 1000, 1004 (8th Cir. 2006) (Lay, J., dissenting)
(quoting Poller, 368 U.S. at 467).
2
B. Elrod-Branti Claims
In general, the government “may not condition public employment on an employee’s
exercise of his or her First Amendment rights.” Thompson v. Shock, 852 F.3d 786, 791 (8th Cir.
2017) (quoting O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996)). “With
few exceptions, the Constitution prohibits” patronage dismissals, which occur when a
government employer discharges or demotes an employee “because the employee supports a
particular political candidate.” Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418 (2016).
Recognizing the need “to balance the First Amendment rights of government employees with the
need of government employers to operate efficiently,” the Supreme Court has developed an
exception to the general rule. Thompson, 852 F.3d at 791 (citing Elrod v. Burns, 427 U.S. 347
(1976); Branti v. Finkel, 445 U.S. 507 (1980); DePriest v. Milligan, 823 F.3d 1179, 1184 (8th
Cir. 2016)). Under Elrod-Branti, a patronage dismissal violates the First Amendment “unless
political affiliation is a reasonably appropriate requirement for the job in question.” O’Hare, 518
U.S. at 714 (citing Elrod, 427 U.S. 347; Branti, 445 U.S. 507).
Federal courts apply the Elrod-Branti “narrow-justification test” when the adverse
employment decision is, as in this case, allegedly due to the employee’s “affiliation with the
‘wrong’ candidate.”2 Thompson, 852 F.3d at 793 (citing Rutan v. Republican Party of Ill., 497
2
A related exception, the Pickering-Connick balancing test, addresses cases involving “a government employee
causing workplace disruption by speaking as a citizen on a matter of public concern, followed by government action
adversely affecting the employee’s job.” Thompson, 852 F.3d at 791 (citing Pickering v. Bd. of Educ., 391 U.S. 563
(1968); Connick v. Myers, 461 U.S. 138 (1983)). The Eighth Circuit recently clarified when either test applies,
holding that 1)“if an employee is discharged because of his or her expressive conduct, we apply the PickeringConnick test”; 2) [i]f an employee is discharged because of his or her political affiliation, we apply the Elrod-Branti
test”; and 3) “when a political-affiliation employee gets discharged for his or her expressive conduct, we apply
Pickering-Connick.” Thompson, 852 F.3d at 792 (internal citations omitted). This third scenario is one in which
“speech is intermixed with a political affiliation requirement.” Id. (emphasis added) (internal quotation marks
omitted) (quoting Hinshaw v. Smith, 436 F.3d 997, 1006 (8th Cir. 2006)) (explaining that the Hinshaw court applied
Pickering-Connick to the executive director of a state agency—a position for which political affiliation was
required—who alleged she was dismissed after criticizing policies promulgated by the agency’s board of trustees in
violation of her First Amendment rights). The parties discuss both tests. Defendants argue that Pickering-Connick
applies. (Doc. #169, p. 51; Doc. #179, pp. 83–85). Plaintiff argues that Elrod-Branti, applies. (Doc. # 174, pp.
3
U.S. 62, 69 (1990)). This test permits government employers to “take adverse employment
actions against employees for protected First Amendment activities if they hold confidential or
policymaking positions for which political loyalty is necessary to an effective job performance.”
Shockency v. Ramsey Cty., 493 F.3d 941, 950 (8th Cir. 2007) (emphasis added). However, “the
ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position;
rather the question is whether the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the public office involved.” O’Hare,
518 U.S. at 719 (quoting Branti, 445 U.S. at 518) (emphasis added).
The Elrod-Branti test “is a functional one, focusing on the actual duties an employee
performs” and “requir[ing] that a distinction be drawn between political loyalty and other kinds.”
Horton v. Taylor, 767 F.2d 471, 476–77 (8th Cir. 1985). The Branti Court itself refused to
“accept the proposition that there [could not] be ‘mutual confidence and trust’ between” the
employer and employee at issue in that case “unless they [were] both of the same political
party.” Id. at 477 (quoting Branti, 445 U.S. at 520 n.14) (noting that “[t]here is, obviously, a
point at which [political loyalty and other types of loyalty] mingle or are merged—a point at
which . . . party affiliation bears on [an employee’s] job performance”). “Branti, however,
makes clear that the loyalty required for raw political patronage . . . alone will not justify a
patronage dismissal.” Id. (internal citation and quotations omitted).
III.
Discussion
A. Causation
“Like many circuits,” the Eighth Circuit has “extended the Elrod-Branti principle to
include cases in which political affiliation was a motivating factor in the dismissal, rather than
100–104). This Court agrees with Plaintiff because the present case most squarely fits the second Thompson
scenario. See 852 F.3d at 792.
4
the sole factor.” Langley v. Hot Spring Cty., 393 F.3d 814, 817 (8th Cir. 2005) (emphasis in
original) (citing Barnes v. Bosley, 745 F.2d 501, 507 (8th Cir. 1984)). Accordingly, when
addressing an Elrod-Branti claim “at the summary judgment stage,” the district court first
determines whether the plaintiff has submitted sufficient evidence that political affiliation or
loyalty was a motivating factor in the dismissal.” Langley, 393 F.3d at 817; see also Wagner v.
Jones, 664 F.3d 259, 270 (8th Cir. 2011) (quoting Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st
Cir. 1993)) (holding that the plaintiff must “produce[] sufficient evidence from which the fact
finder reasonably can infer that the plaintiff’s protected conduct was a ‘substantial’ or
‘motivating’ factor behind [the plaintiff’s] dismissal”). A plaintiff can prove a substantial or
motivating factor “through either direct or indirect evidence.” Jones, 664 F.3d at 271 (citing
Davison v. City of Minneapolis, 490 F.3d 648, 655 n.5, 657 (8th Cir. 2007)).
Second, “[i]f the plaintiff meets this burden, summary judgment must be denied unless
the defendant establishes either that the political motive is an appropriate requirement for the
job, or that the dismissal was made for mixed motives and the plaintiff would have been
discharged in any event.” Langley, 393 F.3d at 817 (emphasis in original) (citing Horton v.
Taylor, 767 F.2d 471, 481 (8th Cir.1985); Wagner v. Hawkins, 634 F.Supp. 751, 757 (W.D. Ark.
1986)). The latter “‘mixed motives’ alternative” in the second prong of Langley “comes from”
the Supreme Court’s decision in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977). Mahn v. Jefferson Cty., 891 F.3d 1093, 1096–97 (8th Cir. 2018) (noting inconsistent
Eighth Circuit precedent regarding the applicable causation standard in First Amendment
adverse employment action cases and holding that Mt. Healthy applied to plaintiff’s Elrod-Branti
claim); see also Jones, 664 F.3d at 270–71 (holding that Mt. Healthy applies to First Amendment
adverse employment action claims brought by nonpolicymaking employees).
5
When a court deciding a summary judgment motion considers a defendant-employer’s
Mt. Healthy defense, i.e., whether the plaintiff-employee “would have been discharged in any
event,” Langley, 393 F.3d at 817, the “key inquiry” is whether the defendant-employer “can
show—with all reasonable inferences drawn in [the plaintiff’s] favor—that” the defendantemployer “had a lawful reason to terminate” the plaintiff-employee, that the defendant-employer
“would have used that lawful reason to terminate” the plaintiff-employee even if “political
affiliation had not been a factor, and that there is no genuine dispute of material fact on these
issues.” Mahn, 891 F.3d at 1098 (quoting Reyes-Orta v. Puerto Rico Highway & Transp. Auth.,
811 F.3d 67, 77 (1st Cir. 2016)) (noting that the Eighth Circuit has adopted the First Circuit’s
approach to Mt. Healthy defenses). To succeed on a motion for summary judgment, a defendantemployer asserting a Mt. Healthy defense must “show that the record would compel a reasonable
jury to find that the adverse action would have occurred anyway, not merely that such action
would have been warranted anyway.” Mahn, 891 F.3d at 1098 (emphasis in original) (internal
quotations omitted) (quoting McCue v. Bradstreet, 807 F.3d 334, 346 (1st Cir. 2015)) (denying
summary judgment because defendants provided no “evidence showing [the plaintiff’s]
performance would have indisputably caused her termination”).
Defendants assert that Plaintiff cannot establish sufficient evidence from which a
reasonable jury could find that Plantiff’s “support for Keith Mills motivated3 [Defendant Cole’s]
3
Defendants argue that Plaintiff “must first demonstrate his support for Keith Mills was the motivating factor in his
termination.” (Doc. #169, p. 37) (emphasis added) (citing Mahn, 891 F.3d at 1096). Defendants then conclude that
“[t]hus, Plaintiff must establish his support [for Mills] was the ‘but-for’ cause of his termination.” (Doc. #169, p.
37) (citing Hartman v. Moore, 547 U.S. 250, 260 (2006)). Defendants misstate the standard that this Court must
apply to this summary judgment motion. First, the Mahn decision held that a district court resolving an ElrodBranti claim at the summary judgment stage “first determines whether the plaintiff has submitted sufficient evidence
that political affiliation or loyalty was a motivating factor in the dismissal,” not the motivating factor, and that under
Mt. Healthy, “[t]he burden of persuasion itself passes to the defendant-employer once the plaintiff produces
sufficient evidence from which the fact finder reasonably can infer that the plaintiff’s protected conduct was a
‘substantial’ or ‘motivating factor behind her dismissal.” Mahn, 891 F.3d at 1096 (emphasis added). Second,
Hartman is inapplicable here. That decision is an alternative to Mt. Healthy that applies to First Amendment
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decision to terminate [Plaintiff],” arguing that Plaintiff “has no probative evidence demonstrating
his support for Mills was the motivating factor in his termination, only speculation.” (Doc. #169,
pp. 37, 42). Defendants further argue that even if Plaintiff has produced such evidence,
Defendants have produced sufficient evidence to show that Defendant Cole would have
terminated Plaintiff’s employment in any event for constitutionally permissible reasons.
(Doc. #169, pp. 42–44). Plaintiff argues that he has produced “sufficient causation evidence to
survive summary judgment” and that Defendants have not met their burden of “demonstrat[ing]
that a jury would be compelled to conclude that Plaintiff would have been terminated anyway.”
(Doc. #174, pp. 81, 86–88).
Here, a genuine dispute of material fact exists as to whether Plaintiff’s political affiliation
with Mills caused his dismissal. First, viewing all evidence and inferences in the light most
favorable to the nonmoving party, the Court finds that Plaintiff has produced sufficient evidence
from which a reasonable jury could infer that Plaintiff’s political affiliation with Mills was a
substantial or motivating factor in Defendant Cole’s decision to dismiss Plaintiff. Plaintiff has
produced evidence that Defendant Cole violated Christian County Sheriff’s Department policy
when he dismissed Plaintiff (Doc. #174, pp. 82–83; Doc. #174-13; Doc. #174-14); that Plaintiff’s
job performance had been satisfactory (Doc. #174, p. 83; Doc. #174-38; Doc. #174-39); that
there was close temporal proximity between the election and Plaintiff’s dismissal (Doc. #174, pp.
83–84); that there is “me too” evidence from other deputies who were fired after they supported
retaliatory prosecution claims, which fundamentally differ from Elrod-Branti claims because retaliatory prosecution
claims allege that animus by one government agent (such as a law enforcement officer) caused retaliatory action by
another government agent (a prosecutor). See Hartman, 547 U.S. at 259 (explaining that “the need to demonstrate
causation in the retaliatory-prosecution context presents an additional difficulty that can be understood by
comparing the requisite causation in ordinary retaliation claims, where the government agent allegedly harboring the
animus is also the individual allegedly taking the adverse action, with causation in a case like this one” where the
required causal connection “is not merely between the retaliatory animus of one person and that person’s own
injurious action, but between the retaliatory animus of one person and the action of another”).
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Mills (Doc. #174, p. 80) (citing Hawkins v. Hennepin Tech Ctr., 900 F.2d 153, 155–56 (8th Cir.
1990)); that Plaintiff’s workplace environment around the time of the election and at the time
Defendant Cole assumed the position of sheriff could indicate political affiliation as a motive for
Plaintiff’s dismissal (Doc. #174, pp. 85–86; Doc. #169-8; Doc. #174-3; Doc. #174-16; Doc.
#174-18; Doc. #174-20); and that Defendants’ stated reasons for dismissing Plaintiff could be
unfounded or pretextual. (Doc. #174, p. 86; Doc. #174-36).
Taken together, this is evidence from which a jury could reasonably infer that Plaintiff’s
political affiliation with Mills was a substantial or motivating factor in Plaintiff’s dismissal.
See Hudson v. Norris, 227 F.3d 1047, 1051–52 (8th Cir. 2000) (holding that plaintiff produced
sufficient causation evidence to survive summary judgment in part due to evidence “that the
reasons that the defendants gave for some of their adverse employment decisions were
unfounded,” noting that such evidence “does double duty for a plaintiff: [i]t tends to show a
causal link between the protected conduct and the adverse action, and it also tends to show that
the justification given by a defendant was pretextual”). Defendants challenge this evidence,
arguing that it is not probative, that it does not give rise to an inference of pretext, and that a
reasonable jury would be compelled to find for Defendants. These challenges further illustrate
why there is a genuine dispute of material fact as to causation.
Second, Defendants’ Mt. Healthy defense does not warrant summary judgment.
Defendants have not shown that the record would compel a reasonable jury to find that
Defendant Cole would have dismissed Plaintiff regardless of Plaintiff’s support for Mills. 4
While Defendants may have provided evidence of lawful grounds to dismiss Plaintiff, i.e., that
4
In the portion of their summary judgment motion addressing causation, Defendants do not argue that “the political
motive is an appropriate requirement for the job.” See Mahn, 891 F.3d 1096 (quoting Langley, 393 F.3d at 817).
This Court will therefore consider only Defendants’ Mt. Healthy defense in its causation analysis.
8
Plaintiff’s dismissal “would have been warranted anyway,” such evidence would not necessarily
compel a reasonable jury to find that Plaintiff’s dismissal “would have occurred anyway.” See
Mahn, 891 F.3d at 1098 (emphasis in original) (defendants not entitled to summary judgment on
plaintiff’s Elrod-Branti claim because, despite defendants’ evidence of plaintiff’s performance
issues, defendants did not show “[plaintiff’s] performance would have indisputably caused her
termination”). For instance, the Eighth Circuit recently held in an unpublished opinion that a
plaintiff—the chief deputy clerk of the Circuit Court of Jefferson County, Missouri—produced
sufficient evidence from which a reasonable jury could infer that her political affiliation with the
newly elected clerk of court’s electoral opponent was a substantial or motivating factor in the
clerk of court’s decision to dismiss the plaintiff. McKee v. Reuter, No. 17-2948, 2019 WL
123589, at *5 (8th Cir. Jan. 8, 2019). The McKee court also rejected the defendants’ Mt. Healthy
defense. Id. at *7. While not having precedential effect, this opinion helps inform this Court as
to the proper path. Here, because there are genuine disputes of material fact for trial regarding
whether political affiliation was a substantial or motivating factor behind Plaintiff’s dismissal
and whether Plaintiff would have been dismissed regardless of his political affiliation, summary
judgment is not warranted on causation grounds. See Mahn, 891 F.3d at 1098.
B. Qualified Immunity
Under the doctrine of qualified immunity a government officer sued in his individual
capacity is “shielded from liability for civil damages” when performing discretionary functions
unless his conduct “violate[s] clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Thompson, 852 F.3d at 790. Because qualified immunity “is an immunity from suit,” the issue
“should be resolved ‘at the earliest possible stage in litigation’ to ensure that insubstantial
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damage claims against government officials are resolved ‘prior to discovery.’” Johnson v.
Moody, 903 F.3d 766, 773 (2018) (quoting Pearson v. Callahan, 555 U.S. 223, 231–32 (2009)).
When determining whether a government official is entitled to qualified immunity, courts
apply a two-prong inquiry: “(1) whether the facts alleged demonstrate a violation of the
employee’s constitutional right and (2) whether that right was clearly established at the time of
the employee’s firing.” Thompson, 852 F.3d at 790 (quoting Anzaldua v. Ne. Ambulance & Fire
Prot. Dist., 793 F.3d 822, 832 (8th Cir. 2015)). Regarding prong two of the qualified immunity
analysis, “[f]or a constitutional right to be clearly established, its contours ‘must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.’” Nord
v. Walsh Cty., 757 F.3d 734, 739 (8th Cir. 2014) (quoting Hope v. Pelzer, 536 U.S. 730, 739
(2002)). To make this showing “it is unnecessary to have ‘a case directly on point, but existing
precedent must have placed the statutory or constitutional question beyond debate.’” Vester v.
Hallock, 864 F.3d 884, 887 (8th Cir. 2017) (quoting Parker v. Chard, 777 F.3d 977, 980 (8th
Cir. 2015)). District courts have “discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.” Pearson, 555 U.S. at 236.
Defendants argue that in August 2015 a reasonable official in Defendant Cole’s position
would have believed he could dismiss Plaintiff for supporting Mills because under Elrod-Branti
“a public employer may terminate or demote an employee for supporting an opposing candidate
if political affiliation is a reasonable requirement of the employee’s position” and “political
affiliation/association may be a reasonable requirement when the position requires loyalty.”
(Doc. #169, pp. 47) (citing Nord, 757 F.3d at 744)). Plaintiff argues that, at the time Defendant
Cole dismissed Plaintiff, the law clearly established that “Missouri deputy sheriffs are not subject
10
to patronage dismissals.” (Doc. #174, p. 90). Plaintiff argues that political loyalty is not an
appropriate job requirement for Missouri deputy sheriffs and suggests that Defendant Cole
cannot “simultaneously trumpet the alleged ‘fact’ that he retained other deputies who did not
support him . . . while also implicitly claiming that his deputies’ political support of him was
necessary to allow those deputies to effectively do their jobs.” (Doc. #174, pp. 95–96) (noting
that Defendant Cole “makes no real attempt to meet his burden to show that party affiliation is a
requirement for the effective performance of the investigative duties Plaintiff performed”).
Here, Plaintiff has shown that his First Amendment protection against a patronage
dismissal was clearly established at the time Defendant Cole dismissed him. Defendants have
not shown that political loyalty was “necessary to” a Christian County deputy sheriff’s “effective
job performance.” Shockency, 493 F.3d at 950. The uncontroverted facts regarding Plaintiff’s
job duties are that Plaintiff was a “detective” at the time he was terminated. (Doc. #174, p. 11).
As such, Plaintiff “frequently interacted with victims, suspects and witnesses within the county,”
“was responsible for investigating and solving” crimes, “had the discretion to process crime
scenes” and “perform other duties,” and had the discretion to “make other decisions incident to
those responsibilities.” (Doc. #174, pp. 11–12). At the time Defendant Cole dismissed Plaintiff,
the Eighth Circuit’s only decision addressing a Missouri sheriff’s qualified immunity defense
against a deputy’s Elrod-Branti claim held that the deputy’s right not to be dismissed for his
political affiliation was clearly established at the time the sheriff dismissed him. See Shockency,
493 F.3d at 951. The Elrod decision itself held that a deputy sheriff stated a claim that his First
Amendment rights were violated when he was dismissed for political affiliation. 427 U.S. at
373. Moreover, at the time Defendant Cole dismissed Plaintiff, Missouri statute expressly
11
forbade counties from “prohibiting any first responder,” including deputy sheriffs,5 “from
engaging in any political activity while off duty and not in uniform.” Mo. Rev. Stat. § 67.145
(2013). At the time Defendant Cole dismissed Plaintiff, the law clearly established that
dismissing someone in Plaintiff’s position for political affiliation reasons would violate that
person’s First Amendment rights such that a reasonable officer in Defendant Cole’s position
would understand that dismissing Plaintiff for those reasons would violate those rights.
Defendants’ reasoning is not persuasive. First, Defendants conflate political affiliation
with loyalty in general. See Horton, 767 F.2d at 476 (“As to loyalty, Branti requires that a
distinction be drawn between political loyalty and other kinds.”). Defendants have not shown
that political loyalty in particular, as opposed to the general loyalty typically expected of an
employee towards the employer, is necessary for the effective performance of a deputy sheriff
working as a detective. Second, Defendants downplay the rule that, while “[g]overnment
officials may indeed terminate at-will relationships unmodified by any legal constraints, without
cause[,] . . . it does not follow that this discretion can be exercised to impose conditions on
expressing, or not expressing, specific political views. O’Hare, 518 U.S. at 725–26 (citing Perry
v. Sindermann, 408 U.S. 593, 597 (1972)). The fact that an employment relationship is “at-will”
does not itself authorize demotions or firings that would otherwise violate the First Amendment.
Moreover, while Defendants argue at length about why Mo. Rev. Stat. § 67.145 does not apply
to Defendant Cole’s conduct, Defendants do not discuss the core issue under Elrod-Branti that is
their burden to demonstrate: why political loyalty is an appropriate requirement for the effective
performance of a deputy sheriff in Christian County, Missouri.
5
As of August 2015, Missouri statute stated that “No political subdivision of this state shall prohibit any first
responder . . . from engaging in any political activity while off duty and not in uniform . . . ,” where “first responder”
was defined as “any person trained and authorized by law to render emergency medical assistance or treatment”
such as “deputy sheriffs.” Mo. Rev. Stat. §§ 67.145, 192.800 (2013).
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Defendants’ reliance on Nord does not change the outcome. The Nord court applied the
Pickering-Connick balancing test and ruled that a county sheriff in North Dakota was entitled to
qualified immunity from a deputy sheriff’s First Amendment retaliation claim. 757 F.3d at 743.
The plaintiff in that case ran against the incumbent sheriff, lost the election, and was fired by the
re-elected sheriff the next day. Id. at 737–38. Here, Nord does not control because that court
applied only the Pickering-Connick test, 757 F.3d at 740, 744, which does not apply in this case.
Moreover, the Nord court’s discussion of the Fourth Circuit’s Jenkins case, which Defendants’
argue this Court should follow, does not change the analysis because that decision is not binding
on this Court and is based on the law of states other than Missouri. See Shockency, 493 F.3d at
950–51. Shockency, on which Plaintiff relies, is on point here because the court in that case, in
which the plaintiff was a deputy sheriff, applied Elrod-Branti to reach its decision. In
Shockency, the court found that political loyalty was not an appropriate requirement for the
effective performance of Minnesota deputy sheriffs. 493 F.3d at 951. Defendants seek to
distinguish Shockency from the present case, but the distinctions Defendants identify between the
Minnesota deputy sheriffs in Shockency and Missouri deputy sheriffs do not change the outcome
in this case. None of these distinctions have to do with the “actual duties” a Missouri deputy
sheriff performs compared to the duties of a Minnesota deputy sheriff. See Horton, 767 F.2d at
477.
The core question is whether the employer can show that political affiliation “is an
appropriate requirement for the effective performance of the public office involved.” O’Hare,
518 U.S. at 719 (quoting Branti, 445 U.S. at 518). Defendants have not made such a showing.
The two dismissed deputy sheriffs in Shockency performed many important duties. One of the
deputies “was promoted twice,” “attain[ed] the rank of lieutenant,” “supervised 80 employees,”
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“held the highest job available for his rank,” “supervised several units, communicated
department policy to the public, developed enforcement strategies for community policing,
assisted with budget preparation, and composed strategy for long range improvements of the
uniformed patrol division.” Shockency, 493 F.3d at 945. The other deputy “was put in charge of
the [patrol division] midnight shift,” was “the senior officer on duty,” “communicated with the
afternoon and morning shifts to resolve all outstanding issues, reviewed all calls and reports,
helped officers prepare for the night shift, processed outgoing mail, worked with dispatch on
paperwork,” “monitored deputies in the street by radio,” was “responsible for coordinating all
first responders in times of emergency,” “coordinat[ed] with surrounding departments,”
“decid[ed] when it was necessary to contact supervisors,” and “developed and implemented the
field training officer program, a ‘substantial responsibility.’” Id. at 946. Despite these duties,
the Shockency court held that “a reasonable official would not have thought that [these deputies]
held policymaking positions” for which “political loyalty is necessary to an effective job
performance” and “could not have reasonably relied on [Elrod-Branti] in taking adverse
employment actions against them.” Id. at 950–51. In sum, at the time Defendant Cole dismissed
Plaintiff it was beyond debate—and thus clearly established—that patronage dismissals violate
the First Amendment, Elrod, 427 U.S. at 373, and that Plaintiff does not meet the exception that
applies when “party affiliation is necessary to do [the job at issue] effectively.” Shockency, 493
F.3d at 950; Horton, 767 F.2d at 472. Accordingly, Defendant Cole is not entitled to qualified
immunity regarding his decision to dismiss Plaintiff.
Finally, because neither causation nor qualified immunity provides a basis for this Court
to grant summary judgment, the Court will not address whether Defendant Christian County
would have still faced liability had the Court granted summary judgment on either ground.
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IV.
Conclusion
Accordingly, Defendants’ Motion for Summary Judgment (Doc. #168) is denied.
IT IS SO ORDERED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: January 17, 2019
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