Billioni v. Bryant et al

Filing 213

ORDER AND OPINION granting 145 MOTION for Summary Judgment of Defendants York County and Sheriff Bruce Bryant, individually and in his official capacity as York County Sheriff, as to the claims against Defendant Sheriff Bryant alleging infringement of Plaintiff's First Amendment rights. Signed by Honorable J Michelle Childs on 10/10/2019. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Michael Billioni,

)
)
Plaintiff,
)
)
v.
)
)
York County and Sheriff Bruce Bryant,
)
individually and in his official capacity as )
York County Sheriff,
)
)
Defendants.
)
___________________________________ )

Civil Action No.: 0:14-cv-03060-JMC

ORDER ON REMAND

Plaintiff Michael Billioni filed this action against Defendants York County and Sheriff
Bruce Bryant, individually and in his official capacity as York County Sheriff (“Sheriff Bryant”),
(together “Defendants”) seeking damages and injunctive relief stemming from the termination of
his employment. (ECF No. 120.) On June 20, 2017, the court entered an Order and Opinion
(ECF No. 171) that denied Sheriff Bryant’s Motion for Summary Judgment (ECF No. 145) as to
Plaintiff’s claim alleging infringement of his right to free speech under the First Amendment for
comments made to his wife on October 22, 2013, regarding what Plaintiff saw on a video
recording of the incident that led to Joshua Grose’s death.
This matter is before the court on remand from the United States Court of Appeals for the
Fourth Circuit, which vacated this court’s decision regarding Plaintiff’s First Amendment claim
and remanded the matter for the court “to apply the correct legal standard to determine whether
Billioni’s speech is protected under the First Amendment.”

(See ECF No. 193 at 15.)

Specifically, the Fourth Circuit found error in the aforementioned opinion because in applying

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the second prong of the McVey test,1 the court erroneously required Defendants to show an
“actual disruption” instead of a reasonable apprehension of disruption based on the court’s
observation that “any disruption caused by the internal investigation that was conducted by the
YCSO,2 such disruption is clearly outweighed ‘by the public’s interest in the disclosure of
misconduct or malfeasance.’” (See id. at 12; see also ECF No. 171 at 23.) As a result of the
Fourth Circuit’s decision to remand, the court is required to consider “whether the evidence
permits a conclusion that a reasonable factfinder could find that Sheriff Bryant reasonably
apprehended disruption within the YCSO as a result of Billioni telling his wife about the
surveillance video that outweighs Billioni’s interest in speaking out about the surveillance
video.” (ECF No. 193 at 13.)
In light of the Fourth Circuit’s opinion, the court permitted the parties to submit briefing
and oral argument regarding the issue on remand. (See ECF Nos. 204, 205, 208, 209, 212.)
I.
A.

ANALYSIS

The Parties’ Arguments
In his brief, Sheriff Bryant contends that a reasonable apprehension of disruption within

the YCSO is demonstrated by his having to “investigate the source of conflicting information”

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In McVey v. Stacy, the United States Court of Appeals for the Fourth Circuit observed that:
[T]o determine whether a public employee has stated a claim under the First
Amendment for retaliatory discharge, we must determine (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.

157 F.3d. 271, 277–78 (4th Cir. 1998) (citations omitted).
YCSO refers to the York County Sheriff’s Office.

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that resulted from Plaintiff’s “misinformation about Grose’s treatment [that] got to the press.”
(ECF No. 204 at 12.) To this point, Sheriff Bryant asserts that his “staff was telling him the
officers handled Grose properly but the media was accusing the Sheriff’s officers of having
murdered Grose, and now the Sheriff had to reconcile the two versions of events, if he could at
all.” (Id. at 15.) More specifically, Sheriff Bryant argues that:
Had Plaintiff reported his concerns up the chain of command or even to SLED in
the first instance and been disciplined, this might be a different case. Whatever
information Plaintiff had, it would have been conveyed directly to investigators
with no chance for miscommunication and no chance for misinformation being
released to the public. Instead, however, Plaintiff took confidential Sheriff’s
Office information to his wife for the express purpose of getting her to take the
story straight to her TV-station employer without giving the investigation that the
Sheriff’s Office had ordered, and Plaintiff knew was ongoing, any time to come to
a conclusion. In so doing, the facts reaching the media got warped into Grose’s
being hit in the head twelve times – something everyone agrees did not happen –
before succumbing to death in the Sheriff’s custody. That this false information
was in the press was in and of itself disruptive because, as Sheriff Bryant and
Chief Arwood testified, it contradicted what the SLED investigators were telling
them and, thus, had to be investigated from the ground up. They had to determine
who gave the information to the press, what that person saw, and how, if at all,
what that person saw fit with what SLED had disclosed to the Sheriff’s Office.
(ECF No. 204 at 16–17.) Moreover, in consideration of the foregoing, Sheriff Bryant posits he is
entitled to summary judgment because “[t]here simply is no credible argument that Plaintiff’s
interest in rushing to judge his colleagues based on incomplete information outweighed the
Sheriff’s interest in enforcing a policy designed to provide the public with accurate information.”
(Id. at 23.)
In his remand brief, Plaintiff argues that “a reasonable factfinder could find [][his] speech
would not cause a reasonable apprehension of disruption.” (ECF No. 205 at 3.) In support of his
argument, Plaintiff asserts that “[t]he deposition testimony of his work colleagues, clearly
establishes that [][his] speech did not impair the disciplinary authority of supervisors; impair
harmony among his coworkers; impede[] the performance of his duties; interfere with the
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operation of the institution; or undermine[] the mission of the institution.” (Id. (citing ECF Nos.
205-1, 205-2, 205-3, 205-4).) However, Plaintiff asserts that “even if this Court were to find
[][his] speech created a reasonable apprehension of disruption, it would be outweighed due to the
importance of his speech.” (Id. at 7.)
B.

The Court’s Review
1. The Standard of Review
As the second prong of the test the Fourth Circuit described in McVey v. Stacey, 157

F.3d. 271 (4th Cir. 1998), the court balances “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.” Id. at 277; see also Pickering v. Bd. of Educ. of Twp. High Sch.
Dist. 205, Will Cty., Ill., 391 U.S. 563, 568 (1968) (“The problem in any case is to arrive at a
balance between the interests of the teacher, 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.”). “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.’” Brickey v.
Hall, 828 F.3d 298, 304 (4th Cir. 2016) (quoting McVey, 157 F.3d at 279). “Whether the
employee’s interest in speaking outweighs the government’s interest is a question of law for the
court.” Smith v. Gilchrist, 749 F.3d 302, 309 (4th Cir. 2014) (citing Joyner v. Lancaster, 815
F.2d 20, 23 (4th Cir. 1987)). Moreover, when balancing the competing interests, the public
employer is not required “to prove that the employee’s speech actually disrupted efficiency, but
only that an adverse effect was “reasonably to be apprehended.” Maciariello v. Sumner, 973
F.2d 295, 300 (4th Cir. 1992) (citing Jurgensen v. Fairfax Cty., Va., 745 F.2d 868, 879 (4th Cir.

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1984)).
To accomplish this balancing, the court “must take into account the context of the
employee’s speech, including the employee’s role in the government agency, and the extent to
which it disrupts the operation and mission of the agency.” McVey, 157 F.3d at 278 (citing
Rankin v. McPherson, 483 U.S. 378, 388–91 (1987)). “Factors relevant to this inquiry include
whether the employee’s speech (1) ‘impairs discipline by superiors’; (2) impairs ‘harmony
among co-workers’; (3) ‘has a detrimental impact on close working relationships’; (4) impedes
the performance of the public employee’s duties; (5) interferes with the operation of the agency;
(6) undermines the mission of the agency; (7) is communicated to the public or to co-workers in
private; (8) conflicts with the ‘responsibilities of the employee within the agency’; and (9) makes
use of the ‘authority and public accountability the employee’s role entails.’” Id. (quoting/citing
Rankin, 483 U.S. at 388–91). “Of particular relevance to this case, police entities have a
uniquely strong interest in maintaining orderly operations because they are ‘paramilitary,’ such
that ‘discipline is demanded, and freedom must be correspondingly denied.’”

Supinger v.

Virginia, 259 F. Supp. 3d 419, 446 (W.D. Va. 2017) (quoting Maciariello, 973 F.2d at 300).3

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As to police departments, the court in Maciariello further observed:
A police department has an undeniable interest in discouraging unofficial internal
investigations. If personal investigations were the usual way for an officer to
check out suspicious activities of a fellow officer, the effect on efficiency and
morale could be very disrupting, and the effectiveness of the police force might
deteriorate. Instead of concentrating on their traditional duties in the community,
officers with personal hostilities could become preoccupied with personal
investigations of one another. Esprit de corps could collapse into a kafkaesque
nightmare of improper investigations into the impropriety of improper
investigations.

Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992).
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2. Sheriff Bryant’s Interest
Sheriff Bryant asserts that he has an interest “in maintaining effective and efficient law
enforcement operations.”

(ECF No. 204 at 12.)

To accomplish this task, Sheriff Bryant

specifies that he has policies in place to (1) protect the confidentiality of inmate data,4 (2) ensure
the accuracy of information conveyed to the public,5 and (3) require honesty and full cooperation
of officers regarding any observed violations of the law.6 (Id. at 13.) Sheriff Bryant further
points out that Plaintiff admits that he violated these provisions. (Id. at 12 (citing ECF No. 145-6
at 140:8–141:6).) As for the adverse effect of Plaintiff’s speech on the Sheriff’s Office’s ability
to serve the public effectively and efficiently, Sheriff Bryant posits that he had to essentially
divert resources to investigate the source of information conflicting with reports coming from an

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In the York County Detention Center Policy & Procedures Manual, the “confidential
information” policy provides as follows:
1. Inmate and employee records are considered confidential information. No
employee is to divulge information pertaining to inmates and/or employees of the
Detention Center except for official business purposes and then only authorized
persons and agencies with official need to know.
2. Employees are not to discuss information pertaining to inmates and/or employees
except for official business purposes and then only with those persons who have
an official reason to know the information.

(ECF No. 145-6 at 221 § VII.)
The York County Detention Center Policy & Procedures Manual requires employees to
“COMMUNICATE [w]ith people in or outside of the jail, whether by phone, written word, or
mouth, in such a way so as not to reflect in a negative manner upon my agency.” (ECF No. 1456 at 217.)
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In the York County Detention Center Policy & Procedures Manual, the employee conduct
policy provides as follows:
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Employees will comply will all Federal, State, and local laws and ordinances and
immediately report any violation. Employees will not make any false statements,
or intentionally misrepresent or mislead facts. Employees are required to answer
questions and cooperate fully in the course of any internal investigation whether
conducted by the Detention Center or other authorized external agency.
(ECF No. 145-6 at 222 ¶ 16.)
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investigation that the South Carolina Law Enforcement Division was conducting. (ECF No.
145-8 at 48:8–11 (“I would not allow my employees to talk about an investigation that would
prohibit that investigation from being concluded.”).) In this regard, Sheriff Bryant testified as
follows:
Q: What was your response to Ms. Jordan[, Sheriff’s Office General Counsel], after
she told you about this phone call [from local television reporter Stuart Watson]?
A: My response was that we needed to get to the bottom of that. I do recall that that
bothered me a lot. The reason was that she was telling me things that I had not
heard from my staff.
Q: Other than the information about the strikes to the head, what other specific
information did you gain from her as a result of the conversation?
A: I can’t remember the exact information that Kristie passed to me in regard to that
or what all Stuart Watson [the reporter] told her. The amount of information that
she passed on to me caused me concern, and I wanted to get to the bottom of it for
the mere fact that I didn’t want false accusations about what went on in my
facility. As a result, I informed my staff that we had to get to the bottom of it, and
I wanted to know if we had a witness over there that saw something, that we
hadn’t talked to or knew something that we didn’t know.
(ECF No. 145-9 at 9:18–10:11.)
Upon consideration of the foregoing, the court observes that Plaintiff’s speech, and his
actions in support of that speech, clearly violated policies of the YCSO and caused Sheriff
Bryant to devote resources to engage in an internal investigation of criminal conduct by officers
of the York County Detention Center alleged by a local television reporter, even while SLED
was already conducting an investigation into the events surrounding Grose’s death. Accordingly,
the court is constrained to find that Sheriff Bryant’s evidence sufficiently demonstrates a
reasonable apprehension of disruption within the YCSO as a result of Plaintiff’s speech.
3.

Plaintiff’s Interest

“Speech involves a matter of public concern when it involves an issue of social, political,
or other interest to a community.” Kirby v. City of Elizabeth City, N.C., 388 F.3d 440, 446 (4th
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Cir. 2004) (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). As it observed in the June 20,
2017 Order, Plaintiff’s interest in his speech is a public concern because it involved “alleged
misconduct by correctional officers in a situation wherein an inmate died” while in the custody
of the YCSO. (ECF No. 171 at 23 (citing Brawner v. City of Richardson, Tex., 855 F.2d 187,
191–92 (5th Cir. 1988) (“The disclosure of misbehavior by public officials is a matter of public
interest and therefore deserves constitutional protection, especially when it concerns the
operation of a police department.”)).)
4. The Balancing of Sheriff Bryant’s Interest and Plaintiff’s Interest
In attempting to balance the disruptiveness of Plaintiff’s speech and its First Amendment
value, the court observes that the record does not support any finding that Plaintiff’s speech
impaired the maintenance of discipline at the YCSO, hurt workplace morale, or impeded
Plaintiff from carrying out his duties. However, as emphasized in the following paragraph, the
court finds that the evidence is uncontroverted that Plaintiff’s speech substantially interfered with
the efficient operation of the YCSO and the investigation into the events surrounding Joshua
Grose’s death:
Plaintiff here knew that the State Law Enforcement Division, an independent state
agency, was investigating the death. He knew SLED had access to the same
information and videos he did. In fact, SLED had access to more information than
Plaintiff because SLED investigators interviewed the officers involved in the
incident – which Sheriff Bryant had requested immediately upon learning of
Grose’s death. Yet Plaintiff gave SLED’s investigation no chance to reach a
conclusion before Plaintiff ran to the media (his wife) to accuse his fellow officers
and superiors of misconduct. Nor did Plaintiff take whatever concerns he had to
his superiors, or to SLED.7

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Plaintiff testified as follows:
Q. And you had not reported that information, these concerns that you had, or what
not to anybody else.
A. No.
Q. No one in your chain of command?
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(ECF No. 204 at 12.) In this regard, the court agrees with Sheriff Bryant that “Plaintiff’s interest
in rushing to judge his colleagues based on incomplete information” does not outweigh “the
Sheriff’s interest in enforcing a policy [or policies] designed to provide the public with accurate
information” regarding the Grose investigation. (Id. at 23); see also Shelton Police Union, Inc. v.
Voccola, 125 F. Supp. 2d 604, 625 (D. Conn. 2001) (“In order to function effectively, the police
department must have control over statements attributed to it and must be able to protect
information about pending investigations so as not to put the investigation or those involved in it
at risk.”). Therefore, the court finds that Plaintiff cannot satisfy the second prong of the McVey
test. Accordingly, the court concludes that his speech is not protected by the First Amendment
as a matter of law.8
II.

CONCLUSION

Upon careful consideration of the entire record on remand, the court hereby GRANTS
the Motion for Summary Judgment (ECF No. 145) of Defendants York County and Sheriff
Bruce Bryant, individually and in his official capacity as York County Sheriff, as to the claims
against Defendant Sheriff Bryant alleging infringement of Plaintiff’s First Amendment rights.

A.
Q.
A.
Q.

No.
No one who could investigate it.
No.
If you had concerns about the things that you’ve testified to earlier, wouldn’t
SLED be an appropriate place to lodge those concerns?
A. Not in this instance.

(ECF No. 145-6 at 140:20–141:6.)
Because Plaintiff’s First Amendment claim fails on its merits, the court is not required to
address Sheriff Bryant’s qualified immunity defense. Saucier v. Katz, 533 U.S. 194, 201 (2001)
(“If no constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.”).
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IT IS SO ORDERED.

United States District Judge
October 10, 2019
Columbia, South Carolina

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