Keri Borzilleri v. Marilyn Mosby, 2017 U.S. App. LEXIS 20245

Marilyn Mosby took office as Baltimore City State’s Attorney on January 5, 2015, and three days later fired Assistant State’s Attorney Keri Borzilleri, who had served about nine years.
Borzilleri had supported Mosby’s primary opponent (Gregg Bernstein) in the 2014 campaign by attending events, hosting a gathering, and displaying a sign; she alleges her firing was motivated solely by that political support.
As an ASA Borzilleri made charging decisions, negotiated plea deals, tried serious cases, and served as one of three “Community Prosecutors” who liaised with police and the public.
Borzilleri sued under 42 U.S.C. § 1983 for violations of the First Amendment (free association and free speech), Maryland Article 40 (free association), and state tort law for abusive discharge.
The district court dismissed the federal claims (holding ASAs are policymakers exempt from patronage protection) and dismissed state claims either with prejudice (where intertwined) or without prejudice; Borzilleri appealed.
The Fourth Circuit affirmed, finding ASAs are policymakers under Elrod–Branti and that Pickering balancing favors the government for policymaking employees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an Assistant State’s Attorney is a "policymaker" such that patronage dismissal based on political affiliation is permissible	Borzilleri: ASAs are officers of the court and not policymaking positions entitled to patronage exception; her duties constrain political control	Mosby: ASAs make discretionary, policy-implementing decisions; political loyalty to the elected State’s Attorney is an appropriate job requirement	Held: ASAs are policymakers under Elrod–Branti (and Stott), so political dismissal does not violate the First Amendment free association right
Whether firing for political support/speech violated free speech (Pickering/Garcetti framework)	Borzilleri: Her campaign support and speech were private-citizen political expression on matters of public concern and protected	Mosby: Government interest in cohesive implementation of electoral mandate and managerial prerogative outweighs employee’s speech, especially for policymakers	Held: Even treating the acts as private political speech on public concern, Pickering balance favors the government for policymaking subordinates; no First Amendment free-speech violation

Elrod v. Burns, 427 U.S. 347 (1976) (plurality holding partisan patronage dismissals impermissible for nonpolicymaking employees)
Branti v. Finkel, 445 U.S. 507 (1980) (refining policymaker exception: party affiliation must be an appropriate requirement for effective performance)
Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing public-employee speech on matters of public concern against government interest in efficient public service)
Garcetti v. Ceballos, 547 U.S. 410 (2006) (speech pursuant to official duties is not protected by the First Amendment)
Connick v. Myers, 461 U.S. 138 (1983) (threshold inquiry whether speech addresses matter of public concern)
Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990) (adopting two-part test to determine policymaker status)
Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (recognizing deputies as alter egos of elected official and policymaking subordinates)
Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) (noting overlap between association/patronage and free-speech protections)