Bobby Bland v. B. Roberts

(2010). 1484, “essentially Cot- uncontroverted.” See 1473, 176 L.Ed.2d S.Ct. ton, Fur- Here, 122 S.Ct. 1781. advantages 535 U.S. appearance ther, rife order for warped govern- hypocrisy it is first disadvantages such, Dyess’s As admis- that we should government proclaim ment to misconduct. dispos- not quantity plain should there has drug sion not notice error because to analysis. “fairness, Apprendi damage integrity itive in our been no reputation judicial proceed- or public case, to this applies if error plain Even be- ings.” investigator’s See id. The lead contends, Cotton does majority as the ju- havior and misconduct undermined majority The cor- control the outcome. in this case. The best proceedings dicial Cotton, the rectly Supreme that in explains prosecution way repair for the plain to notice error under Court declined to re- damage would have been concede put test prong the fourth forward conciliatory in a sentencing effort to con- Olano, 725, 732, 507 U.S. United States Instead, history. mess demn this (1993), L.Ed.2d S.Ct. headlong government charges towards se- drug quantity was evidence of trou- “essentially curing a life sentence under these uncontro- “overwhelming,” and Cotton, I bling Ante 361 circumstances. cannot condone (quoting verted.” 1781). Ultimately, I respectfully U.S. at this. dissent. that while there Court found Cotton error,

may plain Apprendi there have been concluding the error

was “no basis fairness,

seriously integrity, affected the judicial proceedings.” public reputation BLAND; Ray Carter, Jr.; Bobby Daniel 632-33, Cotton, 122 S.Ct. 1781. Dixon; McCoy; Robert David W. W. Cotton, pervasive Unlike in nature Sandhofer; C. Debra H. Wood John committed the govern- the misconduct ward, Plaintiffs-Appellants, ment in this case has discredited a sub- against stantial amount the evidence individually ROBERTS, and in his B.J. instance, Dyess. For Rader admitted City capacity official as Sheriff of the she she created lied when testified she Hampton, Virginia, Defendant-Ap illustrating exhibits demonstrative pellee. drugs Dyess had observed quantity of she 89-94, 621-24. men- handle. See J.A. As Union; Ameri American Civil Liberties above, investigator created tioned lead Virginia can Liberties Union of Civil J.A. He those 621. then coached exhibits. Foundation; Facebook, Inc.; National exhibits, testify about the Rader on how Organizations, Police Association Of angry and abusive when she became Supporting Appellants. Amici told could him she not remember or did No. 12-1671. drugs much she not know how had seen. J.A. 623-24. Appeals, States Court of United affirmed Fourth Circuit.

While we the district finding that sufficient untainted ev- court’s Argued: May 2013. conviction, idence remained sustain Sept. Decided: it is that government undeniable miscon- Sept. As Amended severely duct in case weakened remaining against Dyess. evidence “overwhelming”

untainted evidence

Hansen, Todd, & P.L.L.C., Evans Figel, D.C., Washington, Facebook, for Amicus Rosen, Pender & Coward, Inc. PC, Jeff W. Beach, VA, Virginia for Appellee. ON Ehrich, Pender & Coward, BRIEF: Lisa PC, Beach, VA, Virginia Appellee. An- Goldsmith, Huber, drew E. Kellogg, Han- sen, Todd, Evans & P.L.L.C., Figel, Wash- D.C., ington, Facebook, for Amicus Inc. Fine, Wood, Kathryn Aden J. A. American Foundation, Civil Union Liberties New York, NY; Glenberg, Rebecca K. Ameri- Civil Virginia can Liberties Union Of Inc., Foundation, VA, Richmond, for Amici American Civil Liberties and Union ACLU Virginia. McGuinness, Michael J. The Firm, Elizabethtown, McGuinness Law NC; Johnson, William J. Associa- National Organizations, Alexandria, tion Police CA, for Amicus National Association of Organizations. Police TRAXLER, Judge, Before Chief THACKER, Judge, Circuit and ELLEN HOLLANDER, LIPTON States United District Judge for District of Maryland, sitting designation. part, in part, Affirmed reversed in by published opinion. remanded Chief Judge TRAXLER in opinion, wrote the joined. THACKER Judge Judge which separate opinion HOLLANDER wrote a concurring part dissenting part. TRAXLER, Judge: Chief plaintiffs appeal Six court district or- granting summary judgment against der against them in their action B.J. Roberts capacity in his individual and in official capacity City as the Sheriff of the Hampton, alleges Virginia. suit against plaintiffs Roberts retaliated rights First violation their Amendment by choosing reappoint them because Shoemaker, ARGUED: James Harrell Jr., Patten, Wornom, Hatten & Diamon- opponent. his electoral stein, LC, News, VA, Newport part, part, affirm in Appel- We reverse Panner, Huber, lants. Aaron Kellogg, M. remand for trial. long has about half as curriculum

I. which the Basic Law Enforcement course. light most fa- facts in the Viewing the general have Although powers did not as we must in plaintiffs, to the vorable arrest, deputies of immediate did summary- granting order reviewing an authority to make “incidental arrest[s] them, the record reveals against judgment range of J.A. 297. work.” [the] [their] Bland, Bobby Ray Daniel following. Dixon, Carter, Jr., Robert W. David W. deputies, Bland and Woodward were not Sandhofer, Debra H. McCoy, C. John rather worked in non-sworn adminis- but Plaintiffs”) (“the are all former Woodward positions. trative train- Woodward Hampton Sheriffs Office employees of Bland was a finance ing coordinator and Office”). (“the Sheriffs payable and accounts officer. in No- up re-election Roberts was Notwithstanding regulations laws and 2009, having as sheriff for served vember equipment the use of state prohibiting years. Jim Adams announced prior see activities, resources Hatch against run would early seq.; et. Act, § Va. Ad- 5 U.S.C. had worked in Sheriff Roberts. Adams (2012), § min. Code 40-675-210 years Office for 16 the Sheriffs Roberts used his office and resources officer, the third most senior become controlled, including employees’ that he colonel, he lieutenant when re- rank of manpower, further his own re-election January run. in 2009 to signed His staff often efforts. senior recruited City Department Hampton Police The in employees Office to assist Sheriffs responsibility for law enforce- primary has example, efforts. he these For used his However, the Hampton. Sheriffs ment in employees work at his annual bar- city all correctional facili- Office maintains fundraiser, beque/golf tournament courts, ties, city’s and serves secures pressured employees and his subordinates warrants. civil and criminal December buy fundraising to sell and tickets to his appoin- had 190 the Sheriffs Office events. tees, including deputy 128 full-time sworn The Sheriff won reelection November sheriffs, civilians, unassigned full-time reappointed He subsequently 147 of military, duty part-time and 28 em- active employees. his 159 full-time Those Carter, Dixon, and San- ployees. McCoy, reappointed included the six Plaintiffs as sworn, uniformed dhofer were sheriffs deputies as five and one well other other jailers as deputies who worked civilian. Corrections Division.1 Sheriffs Office 4, 2011, On March the Plaintiffs filed Virginia Depart- taken They had not against in federal suit district court Sheriff ment of Criminal Justice Services’ “Basic Roberts in his and official capac- individual course, completion of Law Enforcement” § under 42 ities U.S.C. 1983. All six for an required Virginia which offi- alleged Plaintiffs that the Sheriff violated and have immediate arrest patrol cer to However, right to powers.2 they did take the their First Amendment free asso- “Ba- course, reappoint when he sic Jailer and Court Services” ciation refused to them jailer Virginia Department worked for most of 2. The of Criminal Jus- Sandhofer Office, Services, Enforcement, although Law time in the Sheriff's he tice Division of short overseeing process responsibility worked as a civil server Sher- has and man- training aging regulations iff’s Office Civil for the final standards and Process Division justice community. three months of his tenure. the criminal Cir.2000). (4th allegiance on their lack of Summary judgment based ap- Additionally, him in the 2009 “if propriate election. the movant shows that there Carter, Dixon, al- McCoy, and Woodward genuine dispute is no toas material leged the Sheriff violated their First fact and the movant is judg- entitled to right speech Amendment to free when ment matter as a of law.” Fed.R.Civ.P. to reappoint refused them because of vari- 56(a). they sup- instances of speech ous made allege The Plaintiffs they of Adams’s port campaign. Among against were retaliated exercising their requested remedies Plaintiffs were com- rights First Amendment speech free pensation pay for lost back and compensa- Amendment, and association. The First or, alternatively, tion for lost front pay provides relevant part, “Congress reinstatement. answered abridging shall make no law ... the free complaint Plaintiffs’ and asserted several Const, dom speech.” U.S. amend. I. The affirmative defenses. prohi Fourteenth Amendment makes this subsequently Roberts moved for sum- bition applicable the states. See Fisher mary judgment, district court (4th Cir.2000). King, v. 232 F.3d Roberts, granted it. See Bland only Not pro does First Amendment (E.D.Va.2012). F.Supp.2d Regarding tect speech, freedom of it also protects claims, free-speech the district court “the to be right free from retaliation Carter, McCoy, concluded and Wood- public official for the exercise of that all allege ward had failed to Indus, right.” McGraw, Gorp. Suarez engaged expressive speech and that Cir.2000). Although alleged Dixon had not that his shown government employees not forfeit do public was on a matter concern. work, rights constitutional it is well Regarding See id. 603-06. the associa- “that government may established the im claims, tion the court concluded that Plain- pose certain its employees’ restraints on failed to tiffs establish causal relation- speech and take action against them that ship between their of Adams’s applied would be unconstitutional if to the and campaign non-reappointment. their general public.” Adams v. Trustees the of

See Finally, id. 606-07. ar- assuming 550, Univ. N.C.-Wilmington, 640 F.3d guendo that the Sheriff did violate Plain- (4th Cir.2011) (internal quotation 560 rights, First tiffs’ Amendment the district omitted). marks court quali- concluded he was entitled to immunity fied individual-capacity on the Supreme in Court Connick v. claims and Eleventh Amendment immuni- Myers, 138, 1684, 461 U.S. 103 S.Ct. 75 the ty official-capacity id. claims. See (1983), L.Ed.2d 708 Pickering v. at 608-10. Education, 563, Board 391 U.S. 1731, (1968), explained 20 L.Ed.2d 811 has II. rights public employees how the appeal, On the Plaintiffs maintain that speak be private as citizens must balanced the court in granting district erred sum- against government the interest of the mary judgment against them. efficient ensuring operation. light its interests, these we have competing held court de

This reviews novo a district employee for a public order order granting summary judgment, court’s prove that an applying employment the same standards as adverse action the district Assocs., Square rights court. See Providence violated his First Amendment G.D.F., Inc., 846, (1) v. 211 speech, L.L.C. F.3d 850 freedom of establish must 374 confidential, public or con- upon policymaking, a citizen speaking

that he “was role out in a manner that speaks than tact public concern” rather “as matter opera- or undermines the personal interferes with a matter of about employee mission, public or its (2) tion of its interest”; employee’s agency, “the interest the confidence, substantially less enjoys con- First public the matter of speaking upon does lower protection Amendment than government’s the interest outweighed cern 157 F.3d employee.” McVey, services level efficient effective providing (3) employ- “the public”; merge principle “This tends to factor in a substantial speech was ee’s jurisprudence governing the established McVey decision.” employee’s termination public employees discharge 271, 277-78 Cir. Stacy, 157 F.3d v. and affiliation.” beliefs 1998).3 balancing test in conducting analyzed must under Id. Such claims consider the we must prong, the second principles established Elrod v. made, context which Bums, 347, 2673, S.Ct. 49 427 U.S. 96 and the ex- employee’s role including the (1976), Finkel, and Branti v. L.Ed.2d 547 the effi- speech impairs tent to which 100 63 445 U.S. S.Ct. L.Ed.2d Rankin v. ciency workplace. of the See (1980). Prater, 566 Fields v. F.3d McPherson, 388-91, (4th Cir.2009). These 385-86 cases (1987). 2891, L.Ed.2d 315 S.Ct. Amendment gen make clear that First inquiry to this include Factors relevant erally firing employees of public bars the (1) employee’s speech public “solely for the reason that were not discipline impaired the maintenance particular political party affiliated with a (2) impaired harmony by supervisors; Vernon, candidate,” Knight F.3d (3) coworkers; damaged close among (4th Cir.2000) (internal quotation (4) impeded relationships; personal omitted), firings can impose marks as such employee’s public performance of restraints “on freedoms of belief asso (5) duties; operation with the interfered ciation,” Elrod, 355, 96 427 U.S. at (6) undermined mis- [agency]; (plurality opinion); Frye, see Smith (7) [agency]; was communi- sion (4th Cir.2007).4 Still, coworkers in public or to cated Supreme Court Elrod created narrow (8) responsi- with the private; conflicted exception give effect to the democratic “to [agen- employee bilities of the within process” allowing patronage dismissals (9) authority cy]; abused the employees occupying of those public poli accountability employee’s the public cymaking Medford, v. positions. Jenkins role entailed. Cir.1997) (4th (en 1156, 119 F.3d 1161 banc). exception “the Ridpath impor v. Governors Marshall This served Board of (4th Cir.2006). Univ., 292, government goal assuring 317 tant ‘the im 447 F.3d employee plementation policies who has a new adminis- Accordingly, public [a] “a right a 'right 4. “The of free appropriately [is] 3. The does not contend association simply closely that the the Plaintiffs were speech right fact that and a allied to freedom of being reappointed opposed which, other- speech, the like free lies at foundation —as ” constitutionality discharged wise the Brown, society.’ a free 88 Cromer v. F.3d —affects pur- of his for our actions. The critical fact 1315, (4th 1996) (quoting 1331 Cir. Shelton v. poses the Plaintiffs' is that termination of the Tucker, 479, 486, 247, S.Ct. 364 U.S. 81 5 employment Office was not with the Sheriff's (1960)). L.Ed.2d 231 Finkel, v. the Plaintiffs' decision. See Branti 1287, 507, 6, 445 U.S. S.Ct. 63 512 n. 100 (1980). L.Ed.2d 574 375 tration, by office, policies presumably given sanctioned ers inherent in a opposed ” Elrod, Id. (quoting the electorate.’ 427 the performed by functions a particular 2673). Branti, at U.S. In the occupant Stott, of that office.” 916 F.2d at modified Elrod Supreme Court test regard, this job focus on the “reeognize[] that the somewhat to labels description position question ignored used in reali- practical Elrod “only past look description where job duty ties of and structure.” Id. Under plaintiff systematic demonstrates some modified, inquiry the test as “the ultimate unreliability, such as where description is ‘policymaker’ not whether label or been manipulated has some manner a particular position; ‘confidential’ fits expand officials looking rather, question hiring is whether the Blair, power.” Nader v. 549 F.3d 961 authority party can demonstrate that affili- (4th Cir.2008) (internal quotation marks political allegiance] ation is an appro- [or omitted).5 priate requirement per- the effective analysis Our causation for the asso public formance of the office involved.” ciation claims same as for the Branti, 445 100 U.S. S.Ct. 1287. plaintiff claims. The bears the initial bur Haworth, v. F.2d Stott of proving den that his exercise (4th Cir.1990), we adopted two-part test First rights Amendment “was a ‘substan Fields, analysis. See conducting or tial’ factor in ‘motivating’ employer’s First, 566 F.3d at 386. we consider decision to Wagner terminate him.” v. [plaintiffs] position whether “the involve[s] Wheeler, (4th Cir.1993); F.3d government decisionmaking issues Grant, Sales 775-76 where there is room for disagree Cir.1998). if plaintiff And satisfies ment goals their implementation.” burden, the defendant liabil will avoid Stott, (internal at 141 quotation F.2d demonstrate, if ity he can by preponder omitted). does, marks If it we then “ex evidence, ance of the that he would have amine particular responsibilities employment made the same decision ab position to determine whether it resembles Sales, protected expression. sent policymaker, a privy to confidential infor (citing 158 F.3d at 776 O’Hare Truck mation, communicator, or some other Serv., Northlake, Inc. City office holder whose function is such that 712, 725, 135 L.Ed.2d 874 party political allegiance] affiliation [or (1996)). an equally appropriate requirement.” Id. challenge Plaintiffs (internal district court’s omitted). quotation marks rulings regard to the merits both The first step inquiry requires us to their association and their speech claims as examine the issues dealt with the em regard qualified well as with ployee very and Elev- high “at a level generality,” Immunity. begin while enth Amendment step requires “[t]he second a much We analysis analysis more our with the specific posi concrete of the merits of Plaintiffs’ Fields, tion at issue.” F.3d 386. At association claims and will then address the step, pow- second “courts the speech focus on the merits of the claims before 1997) (en banc) 5. We note that in cases in the (holding which Elrod- Cir. that because exception applies, Branti employer pleadings and an excep- established that Elrod-Branti political thus employees applied, can terminate his for tion deputies failed to state First disloyalty, may speech he also terminate them dep- for Amendment retaliation that claim disloyalty. that against constitutes such See uties campaigning were dismissed sheriff). Medford, Jenkins v. the that goals,” and quali- ing policies and the sheriffs Amendment turning Eleventh to likely at least sheriff include immunity. “[t]he fied of advis- deputies group in his core some Association Claims A. Merits ors,” deputies significant “exercisfe] that jobs” in when performing their discretion Carter, McCoy, and that We conclude patrol, that relies they “[t]he are on sheriff genuine factual dis- Dixon at least created deputies public to foster confidence his the Sheriff violat- whether putes regarding enforcement,” them expects that law but that San- rights, ed association accu- him with the “truthful and provide Woodward, dhofer, Bland did not. and needs, information” the sheriff and rate 1. Elrod-Branti the sher- deputies that sometimes serve as agents expose whose acts can general iffs claims, we regard to these With liability. id. at civil the sheriff the Sheriff had by asking whether start “that in 1162-63. We therefore concluded reappoint the right to choose not Carolina, deputy the office of sheriff North Certainly reasons. political Plaintiffs for policymaker, deputy of a that that and disagreement there is over legitimate ego are the alter of the sheriff sheriffs goals of the of a goals implementation generally, for conduct he is liable.” whose office; accordingly, sheriffs outcome basis, On Id. at 1164. we determined test will turn on outcome Stott deputy “that such North Carolina sheriffs See, step. e.g., Knight, Stott’s second lawfully political may be terminated Thus, part it is F.3d 548-51. exception under the Elrod-Branti reasons our attention. test on which we focus Id.; political to prohibited terminations.” all Carter, McCoy, occupied Dixon (“We newly see also id. hold elected the Sheriffs Office.6 position same deputies or reelected sheriffs dismiss They jailers they held were uniformed or cam- party either affiliation they deputy. the title sheriffs Because activity.”). paign “[b]e- We reasoned title, much the debate held that between campaigned cause [the sheriffs] application parties concerning deputies the instant case opponents, test to these three men the Elrod-Bmnti right no constitutional to continued relates our decision Jenkins. election, and so employment after analyzed First Amend- Jenkins to state a claim 42 U.S.C. failed under ment North Carolina claims several § 1983.” Id. alleged that deputies sheriffs who there, analysis our Had Jenkins’s ended failing sheriff them for fired Carter’s, McCoy’s, review of Elrod-Bmnti other can- supporting election bid and for straight- Dixon’s claims would be quite didates. we considered the doing, so But analysis did not sheriff, specific forward. Jenkins’s of a duties role judges there. Several from performed by deputies, and the end dissented sheriffs decision, majority’s resulting and the relationship dep- between a sheriff exchange opinions included an of particular uties it affects the execution of Jenkins, here. The dissent sheriffs 119 F.3d at relevance maintained policies. See majority broadly generally concluded that that “the holds all 1162-64. We regard- in North deputies special implement- deputy role sheriffs “play a Carolina — Sandhofer, disputes regarding whether lack of 6. We do address Woodward, Bland be terminated for allegiance or could was a substantial basis their because, allegiance political lack of as we will non-reappointment. discuss, they genuine have not created factual actual policymak- brings less of their duties —are That us to question of how to (Motz, J., ing at 1166 officials.” Id. dis- read Despite Jenkins. a significant senting). The dissent contended had amount language opinion in the seem- proper review con- ingly Elrod-Branti been indicating that all North Carolina ducted, “analysis focusing partic- of the deputies could terminated for political ular of each result of deputy,” duties regardless specific reasons of the duties of the case would been different. Id. particular deputy question, and de- spite the allegation dissent’s that the ma- rejected part, majority flatly For its jority held indeed that all North Carolina claim the dissent’s that the was decision deputies reasons, political be fired for not deputies based the duties of the majority explicitly stated that ana- it before court. majority The stated: lyzed plaintiffs the duties of the not today’s We limit dismissals based on merely deputies those of generally. See holding deputies actually to those sworn (majority end, id. opinion). In the engage in law enforcement activities majority explained dep- that it was the on behalf of the sheriff. We issue this uties’ role as sworn offi- law enforcement limitation caution sheriffs that courts dispositive cers and suggests job position, examine duties of the might the result have been different had title, merely and not of those dism deputies’ duties working consisted of issed.[FN66:] deputies Because dispatchers. as See id. at 1165 & nn. 66- instant case were offi law enforcement Jenkins, Accordingly, to 67. be true to cers, are they protected by this limit must too consider whether requiring politi- ation.[FN67] an loyalty cal FN66. gee appropriate requirement Stott, 142; F.2d Zorzi Putnam, County performance Cir. for the effective of the public 1994) (dispatchers not involved in law enforce- employment of the deputies before us in policy, political ment activities or so affiliation light particular posi- the duties their inappropriate job requirement). tions. misunderstanding dissent manifests holding. applies only of our It to those who According descrip- their formal requirements meet the the rule we as state tion, the deputies’ responsibili- duties and it, 13,600 and does not to all extend officers “[pjrovide ties jail were to protection Carolina, suggests. North as the dissent FN67. ¶ Complaint, Amended personnel public,” and the “[p]rovide safekeeping prisoners,” welfare of (majority opinion). Respond- Id. at 1165 “[p]rotect[ society by preventing] ... ing ] to the conclusion that the deputies’ law rounds,” ... escapes,” security “[c]onduct enforcement duties made their activities,” “[supervise inmate “[p]rovide loyalty to an appropriate the sheriff re- cleaning clean supplies to inmates to quirement for the performance effective cells,” “[p]ass out razors on jobs, appro- the deputies’ the dissent emphasized priate days,” only throughout “[e]scort inmates allegations relevant jail required,” log plaintiffs’ floor complaint “[m]aintain depu- were activities,” daily inmate in- “job requirements “[e]nsure per- ties’ consisted [fed],” mates are recreation and forming “[r]un ministerial law enforcement authorized,” visitation as scheduled or duties for which affiliation correspondences inmate appropriate requirement” “[a]nswer and that none grievances,” of the de- plaintiffs “occupied policymaking “[s]upervise laundry position.” tail.” confidential Id. at 1166 J.A. None men (internal (Motz, J., responsibilities, nor dissenting) quotation leadership were omitted). marks confidants of the Sheriff. arrest, power a general power of essentially identical to has the are

These duties Knight v. in Carolina plaintiff in Vernon. that be exercised North those case, whether In that considered who extensive only by we officer receives summary granting erred in district court criminal training in the enforcement of employ- office a sheriffs judgment against at also that “[a] law.” Id. 550. We noted political firing Amendment ee on her First ego: deputy is the sheriffs alter he sworn employee could that the claim the basis princi- conterminous with his powers has for rea- lawfully terminated (internal quo- Id. pal, the elected sheriff.” at 548. Un- Knight, sons. See omitted). contrast, marks we tation Dixon, Carter, did McCoy, Knight and like authority jailer’s that “is explained deputy, but title sheriffs “[h]er more circumscribed” and much a Knight for North Carolina sher- worked which much more limited than training, is jailer. as a department, iffs low-level mat- is concentrated on deputy, that of Noting that central “[t]he id. at 550. supervision.” custodial care and ters of message specific is that of Jenkins power Id. “exercising We noted that employee’s public position duties of the job not one of the duties arrest political allegiance her govern jailer,” “was in Knight and not out job employer appropriate require- is an county engaging in law enforcement activi- ment,” closely at we examined see id. sheriff,” on behalf of the and she was ties Knight’s job applying the the duties of not “a confidant of the sheriff.” Id. We analysis summary at Elrod-Branti noted she neither further “advise[d] judgment stage: nor policy him on matters” was “involved jailer Knight responsible As a Ms. communicating policies the sheriffs care, supervision for and processing, positions Although to the public.” Id. we transportation Ms. inmates. job of recognized jailer that the involves fin- Knight’s processing duties included discretion, exercise of some we con- inmates, gerprinting obtaining new their jailer that “a does not exercise cluded kin, (addresses, next personal data ” discretion’ the North ‘significant etc.), marking and their storing personal deputies generally Carolina exercise. Id. belongings, routing physical them Rather, at because she “worked 551. examinations, and their arranging for mostly jail at the ministerial performing changes initial clean baths into duties,” she “not entrusted broad clothing. Knight’s daily supervision Ms. discretion,” rely sheriff did not and “[t]he in- monitoring and care duties involved implementing on her for assistance hour, every mates half distributing platform.” law enforcement Id. supplies, their medications and logging that the sheriff We therefore determined food, serving managing them law had not established as matter of Knight filled Occasionally, visitors. Ms. re- political loyalty appropriate was an help as a cook when was short quirement performance of her Knight’s jail’s Finally, Knight kitchen. Ms. as- jailer. aas inmates to transporting prisons sisted in identity and medical facilities. conclude that the near be- We deputy plaintiffs tween duties of holding did not Id. Jenkins Knight’s case and duties warrants the allow Knight the sheriff terminate Rob- Although Sheriff same result here. reasons, Knight’s contrasted between points erts various differences deputy duties with those sheriffs plaintiffs here Knight deputy noted that “a Jenkins. We claims make this case more like Jenkins [and thus] sworn law enforcement officer requires like we conclude that vices Knight, they and less officers to take before sufficiently significant none of them is to statutorily the granted gen- exercise justify a different outcome. And, eral power. arrest while evi- the dence the record was that the deputies

First, although correctly the Sheriff were authorized to make of- arrests for Carter, points McCoy, out that and Dixon occurring fenses before them in the course the that deputies, they were all sworn oath “everyday of their responsibilities,” J.A. simply took was to the federal and 297, the Plaintiffs offered that evidence Virginia faithfully and constitutions and their technical authorization to ar- impartially their to make discharge duties the appreciable rests had no effect ability. best of then* See Va.Code Ann. whatsoever 49-1; Cnty. § Thore Bd. on the position. duties their Ac- Chesterfield Supervisors, Va.App. 391 S.E.2d cording Carter, the to declarations of (1990). one No contends that Dixon, McCoy, only had none of took a these men law enforcement officer’s arrest, them ever made an they but were oath, plaintiffs Jenkins did. See they not even aware authority had the to event, § N.C. 11-11. In any Gen.Stat. fact, do so. In Adams stated in his decla- Knight specifically rejected argu- ration years Hampton that in at the ment Knight that result in would have Office, during Sheriffs he which rose been different had Knight even taken a officer, the level of third most senior oath, noting law enforcement officer’s that could not deputy making recall sheriffs specific it is public duties em- single Thus, this stage arrest. of the ployees that must be focus litigation, the Sheriff has established inquiry. Knight, Elrod-Branti jailers’ that arrest duties were suffi- Knight’s F.3d at 551. Because duties were ciently significant that would affect “essentially she, custodial” and unlike the political allegiance their Jenkins, deputies in empowered was not an appropriate requirement Sheriff was front, stand in for the on a sheriff broad performance jobs. the effective of their we held that she could not be required Carter, The Sheriff also notes that politically loyal to the sheriff. Id. McCoy, sought Dixon each and re- deputies Sheriff Roberts that on the page book made statements “a policymaker, resembled those duties their for his cam- page indicating support information, a com- privy a to confidential paign. Specifically, Carter “liked” municator, holder or some other office a message page posted and “wrote party affiliation that whose function such encouragement” signed. that he J.A. 570. appro- an allegiance] equally political [or McCoy entry page on the “posted also Stott, F.2d at requirement.” priate indicating [his] [Adams’s] demon- Accordingly, he also has not 142. campaign.” J.A. 586.7 Carter’s ap- allegiance was an political that strated McCoy’s Facebook actions became well- jailers’ per- requirement for the propriate many known in the Sheriffs Office as jobs. Accord DiRuzza formance of their “they appeared not were shocked because Tehama, 1304,1310- County to 681.8 supporting sheriff.” J.A. (9th Cir.2000) (holding that did sheriff Bowden, Colonel who was the second application Elrodr-Branti establish Office, most senior officer in the Sheriffs of law in the case of exception as a matter McCoy’s presence learned of Carter’s worked deputy a sheriff who California Page Facebook and informed Adams’s Thus, jailer). a hold that the Sheriff Sheriff Roberts. summary judgment on

was not entitled to In the late summer of Carter and Carter, he could terminate basis that Hampton Ramona sheriffs Jones9 —also political Dixon for their lack of McCoy, and (“the August deputy cookout —co-hosted allegiance him. cookout”) many attended Of- by Sheriffs employees, including fice Adams. 2. Causation work, day next at was approached Jones by her supervisor, Crystal now of wheth Lieutenant turn to issue We Cooke, allegiance told that she heard er the Plaintiffs’ lack of who Jones basis for that Adams had her cookout. the Sheriff was a substantial attended reappoint truthfully Jones told that decision not Cooke Carter Sheriffs thereafter, Wagner, Shortly F.3d at 90. For had invited Adams. them. See then-Captain explain, ap- we conclude Richardson reasons that we will Kenneth Carter, proached that and Dixon have all at and asked her who had McCoy, Jones re genuine dispute least factual attended. She told him that Adams had created allegiance there, been and Richardson that garding “state[d] whether lack non-reap appearance was a for their the event had the of a cam- substantial basis Sandhofer, Woodward, ‘it pointment, paign specifically event and said that but that ” good.’ does not told Bland have not. look J.A. Jones sup- verbally expressed posting 7. Both men also would risk his with the when he port people, and becoming for Adams al- only away to several 18 months from vig- though Indeed, both had and worked volunteered eligible for retirement. J.A. 162. orously past campaigns, did Roberts’s McCoy eventually posting took his down. volunteer all for Roberts election. 9.Jones was named Ramona Larkins at the time. McCoy approached "was testified that he why people” ten or 15 who asked him he Cooke, Richardson, deed, had told that it as she Sheriff testified that conver- Adams, Carter had invited and sation reason who was the chose not to reappoint “needed responded flatly Richardson Jones Carter. Carter denied explain that the Sheriff.” J.A. 702. Roberts made reference Car- Indeed, conversation, the Sheriff learned about the cook- ter’s wife during howev- out and that Adams had attended. Pic- er.11 McCoy showing

tures Sandhofer and If jury credited account Carter’s event posted were Facebook however, exchange, their heated it could early October. reasonably conclude that Roberts was not early September, telling Sheriff Roberts ad- the truth in an attempt to cover up his for employees’ support illegal dressed Adams his retaliation. See Reeves v. Sand- Prods., speeches during Inc., in he gave the various erson Plumbing 2097,147 changes. expressed disap- (2000) shift He his L.Ed.2d 105 with proval support the decision of some to (explaining “[pjroof that that defen- candidacy Adams’s He explanation Facebook. stat- dant’s is unworthy of credence that he be sheriff long ed would for as ... one form circumstantial evidence he wanted and thus that his train was probative that is of intentional discrimina- (internal “long tion, train.” quotation J.A. 572 and it be quite persuasive”). omitted). Sheriff, all, marks He indicated that The specifically after had Adams’s train was the “short employees train” and warned his to support that those who openly supported Adams Adams through Facebook and had told 572(internal jobs. would lose their J.A. support Carter that his for Adams would omitted). quotation Additionally, reasons, marks cost him job. his For these meeting after conclusion of the that conclude that a jury reasonable could find occurred before change, Carter’s shift that of political allegiance Carter’s lack angrily approached Carter and the Sheriff was a substantial motivation for intimidating “ma[de] several reappoint statements.” the Sheriffs decision not to him. added, 572. your J.A. He then “You made Based on the evidence of Roberts’s bed, you’re and now going to lie it— strong employ- animus toward those of his election, you’re gone.” after J.A. 572 Adams, ees who supported a reasonable (internal omitted). quotation marks jury could also conclude that Roberts’s represented The Sheriff that his knowledge McCoy’s heated support Adams exchange with strongly Carter after one of Rob- would have motivated Roberts not “long speeches erts’s train” pertained reappoint McCoy. claimed Roberts his objections Carter’s about disciplinary pro- primary reason reappointing ceedings concerning McCoy Carter’s wife rather McCoy was that had had “heated than to Carter’s arguments deputies of Adams.10 In- with when he was in performance. 10. Carter’s wife was also a Sheriff's Office his Carter conceded that he employee. disciplinary had had several actions taken against allowing him for mistakes he made declaration, According to Carter’s Carter prisoners prematurely. to be released How- worked for the Sheriff’s Office more than ever, discipline only formal his record years, performed exemplary his "in an years was more than five old at time he manner,” always performance received reappointed, was not and the Sheriff did not average.” evaluations of "above J.A. 568. testify past disciplinary those actions supervi- Neither his first- nor his second-level played any part reap- in his not to decision any prior sor indicated at time to his termi- point Carter. regarding nation that concerns Dixon was not denies that up him The Sheriff “switched that Roberts civil” of his lack of to corrections.” reappointed back brought him however, Rather, represents he allegiance. stated that the Sheriff McCoy, J.A. go for more in fact let because he Office that Dixon the Sheriffs had worked always polling-place “above making received used years profanity than evaluations, and “outstanding” comment, does not although the Sheriff average” non-reappoint- his and admits prior no time the source his belief that at indicate supervisor or sec- his immediate side of the sought did never Dixon’s ment they had indicate that supervisor Appel- story replacing him.12 See ond-level before performance. 10; any problems (stating J.A. “[I]t lee’s brief at that supporters threat understanding” the Sheriffs light Sheriffs] was [the jobs lose their would said, ing ‘You can take Adams Dixon f— disapproval of em- can.”). specific statement , stuff, trash and throw it in the s — page, Facebook being Adams’s ployees any pro- using Dixon denies part, For his jury could that a reasonable we conclude com- making polling-place fanity alle- lack McCoy’s conclude jury conclude that if a credited ment. We moti- substantial giance to Roberts reasonably testimony, it could also Dixon’s to decision not for the Sheriffs vation find knew Dixon that the Sheriff reappoint him. support used and that his for profanity Adams, polling-place revealed as

Dixon sticker, substantially bumper comment Dixon presented evidence that Plaintiffs Dixon. reappoint him not to motivated man- exemplary “in an his performed Reeves, 147,120 years with during more than ner” his Office, always earning per-

the Sheriffs Sandhofer “above least formance evaluations contrast, In that Plaintiffs we conclude “out- earning rating average” genuine to create a factual failed At no standing” in evaluation. his last po- dispute regarding whether Sandhofer’s supervi- his second-level time did first-or to Roberts was a disloyalty litical Sheriff performance. his express with sor concerns non-reappoint- substantial basis for his ment. The Sheriff had used Sandhofer— n opposition to Sheriff Dixon voiced his working for a down- Day experience to who had candidacy on Election Roberts’s marketing organization signifi- polls town Pope, working Frances was who —for fundraising way marketing efforts Dixon’s cant for Roberts’s On campaign. result, out, Colonel Bowden asked campaign 2008. As referring to the Sheriffs material, prominent sign Sandhofer in 2009 to obtain Pope he that she should told (“the among Hampton polling- locations downtown busi- “just away” throw that stuff (internal comment”). conjunction the 2009 elec- quota- nesses place J.A. omitted). agreed help in a tion. the Sheriff spoke Dixon Sandhofer tion marks actually way, though did in even he never friendly, tone and nonconfrontational also was or- through. Sandhofer any Dixon also had followed expletives. not use Harding to his that he dered Lieutenant Miranda bumper car Adams sticker Day, but he polls 148. work the Election “pretty saw.” J.A. people sure training process requesting offi- after to be that he also consid- 12. The testified deciding could not han- multiple that he transferred cer but later ered the fact that Dixon pressures position. dle of that working jail civil times and in between “family During years that his her declined on basis more than 11 with the Office, Additionally, J.A. 169. he performance comes first.” Sheriffs Woodward’s verbally support expressed always Adams evaluations had been aver- “above possible, (internal people, discreetly to several as age” “outstanding.” J.A. 601 August omitted). and he attended the cookout and quotation According marks pictures of the depicted Woodward, cookout very “[i]t was well known with- posted on Facebook. Plaintiffs further office was close Jim [she] point girlfriend out that Sandhofer’s drove early 2009, Adams.” J.A. Wood- campaign him to work and to debates in supervisor mentor, ward’s former car, her an Adams bumper which had Davis, Deborah became the treasurer Sergeant Mey- sticker affixed it. John campaign. Adams’s Woodward in- also ers “mentioned” the sticker to Sandhofer formed several her coworkers that she on at least one occasion. J.A. 591. supported candidacy, Adams’s although generally keep she tried to her support

We conclude that this is simply evidence quiet protect job. her too thin to create a genuine dispute factual regarding lack po- whether Sandhofer’s During prior Roberts’s campaigns, allegiance litical to the Sheriff was a sub- “tirelessfly]” Woodward had worked hand- basis for non-reappointment. stantial ing flyers, polls, out working the placing attending reception Sandhofer admitted signs, events, yard attending campaign for the campaign mayor’s Sheriffs at the selling and purchasing tickets. J.A. 599. And, house at request. the Sheriffs he Adams, light her howev- agreeing help admitted the Sheriff lo- er, things she did none those election, signs although cate for the 2009 except purchasing golf tournament actually signs. never located (because coerced). felt tickets she Furthermore, while he refused to work the In the summer of Woodward no- on Election polls Day, gave reason he ticed that her colleague, Lieutenant to do nothing supporting with Adams. Perkins, George circulating petition was more, simply there not suffi- Without place to the Sheriffs name the ballot. cient evidence that the Sheriff identified complained Sergeant Woodward to Sharon as an supporter, Sandhofer Adams even himself, Mays, Sergeant Meyers, Perkins assuming that girl- the Sheriff believed his others, on the that basis Perkins was friend supporting was Adams. And there Hampton only Hampton not a resident and no jury was reasonable basis for a to con- petitions. residents could circulate such clude that the Sheriff would have declined She also learned that another non-resident to reappoint simply Sandhofer based circulating was petitions and she had vari- his lack of affirmative assistance Mays ous conversations with about that as 2009 campaign. Sheriffs We therefore well. conclude that the district court properly end, however, In the that it we conclude granted summary judgment the Sheriff speculation jury be for a would mere on Sandhofer’s claim. go conclude that was let be- Woodward Woodward allegiance cause of lack of to Rob- petition complaints, erts. Outside of her We also conclude that Woodward did not significant is no there evidence that would genuine create a dispute factual concern- support that the Sheriff be- ing political allegiance whether her lack of inference supporting to the lieved was Sheriff was a substantial basis for Woodward Adams. non-reappointment. her her Woodward conceded that she shared only she assistance to Sheriffs people volunteer

preference Adams feelings her secret. keep having provided many thought campaign would after that the peti- maintained And past Woodward cam- for the Sheriffs types support not on the fact complaints were based tion very to be paigns. He was also known subject the peti- that Roberts was Davis, who had left the close Deborah principle that should but on the tions Adams’s Office become Sheriffs workplace by circulated in not be early campaign treasurer in There is no evi- non-Hampton resident. However, purchasing Bland admitted or not the Sheriff others did dence that fundraising for the Sheriffs raffle tickets face complaints her value other- take tournament, he admitted golf also goal her true was wise assumed that equipment the helping up to set electronic against campaign. work Roberts’s election. He further admitted night that he testified the reason actively he Adams’s that did and Bland reappoint did Woodward campaign way that Woodward expected that he the number was told only person even allocated deputies he would be Something intention to vote for Adams.13 reduced, Compensation Board would necessary in war- more would be order to declining population based on the rant reasonable inference Bland’s Ann. Hampton City Jail. See Va.Code Rob- allegiance lack to Sheriff § Bland count- 15.2-1609.1.Woodward for the erts a substantial basis Sher- against that allotment and the Sheriff ed reappoint not to him. iffs decision maintains that he he needed to decided deputies in and Bland’s Woodward’s Free-Speech B. Merits of Claims positions. Although Woodward’s and in conflict accounts are concern- Sheriffs argue The Plaintiffs next that the dis- ing he ever offered Woodward the granting summary trict court erred in opportunity deputy, to become a we con- judgment against them on their simply not a clude that conflict Carter, McCoy, claims. We conclude sufficient for a inference basis reasonable genuine and Dixon at least created factual political allegiance to Rob- her lack disputes regarding whether the Sheriff vi- for her erts was a substantial motivation free-speech rights, olated their but that non-reappointment. not. Woodward did Bland Carter Finally, that Plaintiffs we determine question The first to be with addressed a to factual issue genuine failed create claims regard speech is whether a lack of alle- concerning whether the employee pre- conduct that maintains giance a substantial basis for the cipitated non-reappointment his constitut- Bland. reappoint Sheriffs decision not speech ed at all. conduct consist- Carter’s position Bland a financial had Sher- “liking” campaign page ed of Adams’s iffs Administration Division. He Office The court concluded on Facebook. district Department with the Sheriffs worked “merely ‘liking’ page a Facebook is performed more nine “in an years, than insufficient to merit constitutional manner,” perform- exemplary and received protection” and that the record did not average.” ance evaluations of “above provide significant sufficiently Bland describe what statement had declined Indeed, 13. that he Adams. even Bland's wife did know favored Bland, McCoy F.Supp.2d Pages made. that [the User] on Face- follow[s] To consider whether this conduct Feed?, Facebook, book.” What is News speech, we first must amounted under- http://www.facebook.com/help/ stand, matter, it as a factual what means (last visited Sept. “like” a Facebook page. 2013). is an social “Facebook online network “Liking” on Facebook a way for Face- develop personalized where members web book users to share information each with interact profiles to and share information button, repre- other. The “like” which is Facebook, other Lane v. with members.” icon, by a thumbs-up sented and the word Inc., (9th Cir.2012). appear “like” next to types different Members can types share various infor- Liking Facebook something content. mation, headlines, including photo- “news easy Facebook “is an way to let someone videos, stories, graphs, personal and activ- you enjoy know that it.” What it does ity updates.” Daily Id. more than 500 something?, Facebook, mean to “Like” million Facebook members use the site http://www.facebook.com/help/ than and more billion three “likes” and (last visited Sept. posted. comments are See Brief Face- 2013). Liking a Page Facebook “means book, Cvtriae, Inc. as Amicus you connecting are Page. you to that When Every profile, Facebook user a has Page, appear your connect a it will includes, “typically among which other you timeline and appear Page will on the name; things, photos the User’s the User person Page. as a likes Page who placed on (including has the website one post your will also be able to content into photo profile serves as the User’s News Feed.” What’s between difference sketch; photo); a biographical brief a list liking an posts liking item a friend individual Facebook Users whom Facebook, Page?, http://www.facebook. ‘friends’]; [interacts, the User known as (last com/help/452446998120360 visited and ... list ‘Pages’ of Facebook 2013). Sept. (footnote has Liked.” at 4 User Id. omit- ted). “[Businesses, organizations and Here, Carter visited the Jim brands,” “Pages” can also use similar (the campaign Adams’s Facebook page purposes. Page?, What is a Facebook Fa- which was “Campaign Page”), named “Jim cebook, http://www.facebook.com/help/ Sheriff,” Hampton Adams for (last Sept. visited 2013). Campaign clicked the “like” button on the so, Page. Campaign When he did Facebook, logs When a user on to Page’s photo name of Adams—which page home is the thing typi- first that he campaign representative Adams had se cally page sees. on a home Included Page’s as lected the icon—were added to feed, “which, Users, news most is the profile, which Carter’s all Facebook users primary place where see and interact could view. Cam profile, On Carter’s the with news and from about stories their paign Page name as a to the served link Pages they Friends and have connected Campaign Page. clicking on the Carter’s Facebook, Facebook.” Brief of “like” button also caused an announcement Curiae, 5; Inc. as Amicus see What is Page that the Feed, Campaign Carter liked Facebook, Nevus http://www. (last appear news of the feeds Carter’s facebook.com/help/327131014036297 17, 2013). it caused Sept. visited It “is a friends. And Carter’s name constantly updating people profile photo list stories from to be Cam- added the 386 who viewed This” would be understood those Like Page’s “People

paign [Who] Jones, 379, it”); Tobey v. see also list. Cir.2013). n. 388 3 the nature of Once one understands liking Campaign what Carter did sum, In a liking candidate’s that his conduct apparent it Page, becomes campaign page communicates the user’s the most basic as On qualifies speech.14 supports the approval of the candidate and literally level, the “like” button clicking on it. by associating the user with campaign that the statement published causes to be equivalent it Internet way, In this is the which is itself something, the User “likes” front displaying political sign a in one’s context statement. substantive held is yard, Supreme which the Court has page, Facebook political campaign’s v. speech. City Ladue substantive See approves meaning that the user 2038, Gilleo, 43, 54-56, 114 S.Ct. 512 U.S. liked being is candidacy page whose (1994). 129 L.Ed.2d 36 Just Carter’s use a may That a user unmistakable. sign in his an “Adams for Sheriff’ placing message produce mouse that single click those yard conveyed front would have page typing likes instead that he passing supported his home that he message key with several individual same liking campaign, Adams’s Carter’s significance. is of constitutional strokes no Page conveyed Campaign that Adams’s liking from fact that the Cam- Aside viewing profile or the message those speech, it Page pure constituted also paign fact, Page.15 hardly it is sur Campaign The symbolic expression. distribution was that the that this is prising record reflects up” universally “thumbs understood was under exactly how Carter’s action cam- symbol in with Adams’s association (McCoy’s testimony stood. See J.A. 160 liking the actual text that paign page, like light liking that of Carter’s Adams’s conveyed produced, that Carter page Campaign Page, “everybody saying candidacy. Spence supported Adams’s that ... Carter is out of there because he 405, 410-11, Washington, 94 U.S. supported openly”); see J.A. Adams also (1974) (per S.Ct. 41 L.Ed.2d (Sheriffs employee stating Office curiam) engaged (holding person employees Roberts had said “certain there expressive “[a]n when conduct page oppo were on the Facebook of his message convey particularized intent nent, Adams, indicating their ..., surrounding Jim circumstances Sheriff’). great message of Adams for likelihood was rejected sign Supreme Displaying a one’s own resi- Court the notion from has worthy quite message that online somehow dence often carries distinct speech. protection else, as other the same level of someplace placing sign the same from ACLU, See Reno v. U.S. conveying picture by or text or same (1997); L.Ed.2d 874 see also Precisely other means. because of ACLU, location, Ashcroft provide signs such information (2004). 159 L.Ed.2d identity “speaker.” ... about the cheap signs unusually are Residential Indeed, holding an ordinance ban- convenient form of communication. signs signs except ning for those residences Especially persons of modest means exceptions fitting particular violated within yard sign mobility, a or window limited rights, plaintiff-resident's free-speech practical no substitute. aspects highlighted Court several Gilleo Gilleo, 56-57, 43, City Ladue 512 U.S. v. political signs displaying at one's residence 2038, (1994). 114 S.Ct. 129 L.Ed.2d 36 liking apply well to a Facebook cam- as paign page:

387 Grant, 422, part 414, 425, The v. McVey’s second 486 U.S. 108 S.Ct. concerning prong, 1886, (1988) first whether Carter 100 L.Ed.2d 425 (describing private on a speaking was as a citizen protection constitutional political of “core concern, public not matter of need detain (internal speech” being as “at zenith” its dispute us does long. omitted)); quotation marks see Con- also speech, if it was was speech, Carter’s made nick, (“We 152, 461 U.S. at 103 S.Ct. 1684 in capacity private his as a citizen. Cf. stronger caution that a showing disrup- [of Ceballos, 410, 421, Garcetti v. 126 U.S. may necessary employee’s tion] if the (2006) 1951,164 (holding S.Ct. L.Ed.2d speech more substantially involved matters employee speak a private does as concern.”). Indeed, of public public’s citizen to speech “pursuant when his in opinions interest Carter’s regarding the duties”). And, [his] official it is well estab election particular have had to value an employee speak lished that can as a in public light of his status a Sher- private in workplace, citizen even if the See, employee. e.g., iffs Office Waters speech content of the is “related to the Churchill, 661, 674, 511 U.S. Id.; job.” speaker’s see Pickering, 391 (1994) 1878, 128 (plurality L.Edüd 686 564-65, U.S. at (holding 88 S.Ct. 1731 (“Government opinion) employees are of- newspaper letter to local from teacher con position ten in the best to know what ails policies cerning protect school board they work; agencies for which public Further, speech). ed expressed the idea may gain debate much from their informed in speech supported Carter’s —that contrast, opinions.”). despite the Sher- clearly Adams relat election— harmony iffs reference the need for to public ed to a matter of concern. See Office, discipline nothing the Sheriffs Comm’n, Citizens United v. Fed. Election the record in this case indicates that Car- (2010) (describing political support L.Ed.2d 753 ter’s Facebook cam- Adams’s speech to meaning as “central did paign anything particular disrupt Amendment”); purpose First McIn the office or more would have made it Comm’n, tyre v. Ohio Elections U.S. Carter, Sheriff, difficult or others 346, 115 S.Ct. 131 L.Ed.2d 426 perform efficiently. work See (1995) (“Discussion public issues and Ridge Goldstein Chestnut Vohmteer qualifications debate of candidates Co., (4th Cir.2000) Fire integral system are operation (holding that “generalized unsubstan- government our established Consti tiated “in morale maintaining interests” tution. The First Amendment affords the efficiency” within fire department protection broadest to such political ex outweigh plaintiffs did not inter- speech pression in order to assure the unfettered est). The regard Sheriffs case interchange bringing for the ideas about especially considering that he weak has political changes social desired jailers occupied failed show that the (internal people.” quotation marks “confidential, con- policymaking, public omitted)). McVey, tact role” the Sheriffs Office. Next, us, on the record before Carter’s 157 F.3d at 278. expressing interest his fa- Finally, for the same reasons outweighed vored candidate the Sheriffs genuine we hold that has created a Carter in providing interest effective and efficient regarding factual issue whether he was public. services to the Carter’s terminated lack of speech, which is entitled Sheriff, the highest protection. Meyer allegiance level of we conclude that McCoy support his for genuine express a factual issue used Carter has created support Facebook is immaterial as there concerning campaign whether his Adams’s also a substantial factor. for no in the record that that was dispute Adams was sup- Carter that his McCoy The Sheriff warned message conveyed. that Addi- him job, cost his port would of Adams many that although were shocked tionally, would, take the reasonably a could Sheriff jury McCoy support openly so Sheriff his word. in the record opponent, nothing Roberts’s speech that created sort indicates his

McCoy explains how the Sheriffs disruption McVey test application Our operating interest Sheriffs Office very claim McCoy’s speech similar efficiently outweigh McCoy’s could interest McCoy of it to Carter’s. application our supporting opponent the Sheriffs engaged that he presented evidence Goldstein, F.3d election. See he “went speech Amendment when First Further, that for the same reasons page campaign on Facebook Jim Adams’ jury that a could find conclude reasonable entry page indicating on the posted an McCoy’s political disloyalty that was a sub- 586; campaign.” J.A. support for his [his] deci- stantial motivation the Sheriffs that he (stating see J.A. 156 “went also him, jury reappoint sion not to such a “posted page” [Adams’s] Facebook McCoy’s (politically could also find that Indeed, a supporter”). ... as picture [his] disloyal) speech also mo- was a substantial many in indicated that evidence non-reappointment. his tivation for With by Sheriffs Office were “shocked” having specifically the Sheriff warned his McCoy it that posting because indicated employees support through not Adams ... sheriff.” J.A. supporting was “not having threatened that Facebook concluded that 681. The district court supporters reappoint- Adams would not be allege that McCoy sufficiently did not ed, a find jury reasonably could engaged record did speech simply through followed not sufficiently what statement describe reappointing McCoy. threat Bland, F.Supp.2d McCoy made. See at 604. Dixon Fa- Certainly campaign’s posting on a alleges reappointed Dixon he was not Page indicating support cebook displayed bumper because he Adams within the candidate constitutes sticker on his car and because he made the For meaning of the First Amendment.16 polling-place comment. The district court applied the same as to Carter’s reasons that there was no evidence that concluded speech, speech was made in McCoy’s Roberts or other senior Sheriffs Office capacity on matter of private citizen employees knowledge his bumper public concern, Adams namely, whether sticker comment polling-place should be Sheriff. That Hampton elected merely personal the record the exact rather grievance does not reflect words See, speech. e.g., argument, argued 16. At oral the Sheriff status as Rankin McPher- actually son, 378, 387, McCoy the first did not time U.S. posted support intend his to be (1987) statement of (holding L.Ed.2d constable’s Page, Campaign and thus engaged employee protected speech office message speech. That did not constitute private political when she made a remark that McCoy may expression intended his person a third she did not overheard kept private to be rather than made earshot). realize was in however, public, deprive does it of its

389 touching of than a statement on a matter Woodward Bland, public F.Supp.2d 857 concern. See alleged Woodward’s protected speech at 605. occurred she complained when about Lieu- George tenant of Perkins’s circulation the Sheriff Although evidence the petition support in of Sheriff Roberts on or his senior officers knew of Dixon’s Hampton the basis that Perkins not a thin, least, bumper say sticker was the resident. already As explained, the admits he Dix- Sheriff terminated however, we conclude that it would be on polling-place comment. speculative jury for a to conclude that And, Pope “just the statement that should complaint regarding peti- Woodward’s campaign throw Roberts [her materials] tion was on anything based other than the away” clearly constituted on mat- time, reasons she voiced which were public ter of of Rob- concern—the merits question unrelated to the of whether she in campaign capacity erts’s Dixon’s —made supported Adams or Roberts the elec- private as a citizen. See McIntyre, 514 tion. We therefore conclude she has not 346, 1511; U.S. at 115 v. S.Ct. Cohen cf. created a genuine dispute regard- factual 15, 18, California, 1780, 403 U.S. 91 S.Ct. ing whether her complaint was a substan- (1971) 29 (concluding L.Ed.2d 284 tial motivation her non-reappointment. power California to punish” “lack[ed] wearing jacket bearing plainly Immunity C. Eleventh Amendment -“F visible words -k the Draft” on based next argue Plaintiffs the district underlying “the ... position evident court in ruling erred that Eleventh draft”). inutility immorality or of the Dix- immunity Amendment would bar claims represented that he made the state- against advanced Sheriff his official nonconfrontational, ment in a friendly capacity. agree to We the extent that the manner, specific and no evidence remedy Plaintiffs seek the of reinstate- record indicated how ment. might Adams have created a lack of har- The Eleventh Amendment mony in Hampton Sheriffs Office. the United provides: States Constitution causation, As for the Sheriff does not power “The Judicial of the United States deny fact that polling-place Dixon’s shall not be construed to extend to comment was the reap- reason was not equity, in law prose suit or commenced or pointed. The Sheriff simply maintained against by cuted one of the United States profanity he believed Dixon used State, Citizens another Citizens or making the although he does Subjects any Foreign State.” Eleventh comment— explain source his belief. Were immunity protects unwilling Amendment jury to credit Dixon’s denial of that states from suit federal court. Will charge, reasonably Police, it Dep’t could conclude that Michigan v. U.S. State 491 actually what 70-71, motivated Sheriff S.Ct. 109 105 L.Ed.2d 45 (1989); Jordan, reappoint Dixon fact was the that Dixon v. Edelman 662-63, disapproval voiced his of the can- Sheriffs 662 L.Ed.2d (1974).17 didacy. immunity protects This also Athletics, Although language Equity Eleventh to bar such suits. See Inc. explicitly apply Amendment does not to suits ofEduc., Department n. brought against a state one its own Cir.2011). citizens, the has Amendment been construed instrumentalities,” won judgments against pay adverse agents and state “state Bland, Doe, capacity.” in his official Cal. JJniv. Regents Thus, 425, 429, 137 L.Ed.2d the court con- F.Supp.2d U.S. (1997), protects cluded, “arm[s] that it the meaning against “a suit Sheriff 55 officials, Mt. against and State in fact a the capacity of the State” official is suit v. Bd. Educ. abroga- Dist. Healthy City Sch. no of Finding State.” Id. evidence of 568, 274, 280, S.Ct. 50 97 Doyle, 429 U.S. immunity by the Com- tion waiver of (1977). a judgment When L.Ed.2d 471 monwealth, reasoned district court entity would against governmental suit is immune from that “the Sheriff treasury, paid from State’s to be capacity.” in that Id. against claims him of entity is arm the State an governmental dispute do that the Com- Plaintiffs not See purposes. Eleventh Amendment any mon- pay be liable to monwealth would Educ., 242 Cnty. Bd. v. Granville Cash Howev- ey judgment against Sheriff. Cir.2001). (4th The Su- 219, F.3d 223 664-65, Edelman, er, at 94 citing 415 U.S. Court, however, an ex- delineated preme 1347, that Elev- Plaintiffs contend S.Ct. of the Eleventh ception application immunity apply enth Amendment does Young, parte in Ex Amendment against claims Sheriff (1908). 441, 123, 52 L.Ed. 714 28 S.Ct. capacity Plaintiffs’ re- official a federal court to “permits That exception quests pay lost are for reinstatement and injunctive relief against prospective, issue immunity to which the equitable claims viola- prevent ongoing a state officer apply. does law, that on the rationale tions of federal is a form Because reinstatement against the state is not a suit such suit relief, provide the refusal to prospective Amendment.” purposes Eleventh Cuccinelli, 393, requested F.3d 399 when it can consti 616 that relief is McBumey v. (4th Cir.2010).18 operation of ongoing The violation of federal law tute thus case Young exception Eleventh Amendment parte such Ex is an Welch, Roberts depends on whether Sheriff Coakley v. 877 F.2d applies. See and, so, the Ex (4th arm of if whether Cir.1989); the State 304, Emps. State Bar 307 exception parte Young applies. Rowland, Agent v. 494 gaining Coal. F.3d (2d Cir.2007). 71, Plaintiffs are there 96 Virgi- The court determined district correct that the Sheriff is not entitled fore officers, see nia are constitutional sheriffs immunity to the Eleventh Amendment 4; Ann. § Art. Va.Code Va. Const. VII extent that seek reinstatement. See Weatherholtz, 15.2-1609; 909 § v. Jenkins 307; Emps. Coakley, 877 F.2d State (4th Cir.1990), 105, F.2d that sher- 107 Coal., Agent 494 F.3d 96. Bargaining State, Blankenship iffs are arms of the see however, 970, to the explained, As we have Cnty., F.Supp. 918 973-74 Warren (W.D.Va.1996). monetary extent the claims seek re court also de- district lief, they against are an arm the would be liable to claims termined that “the State George’s immunity immunity. per- See Lee-Thomas v. Prince sovereign "[A] State's Sch., 244, Cnty. 249 Cir. privilege plea- waive at Pub. sonal it which 2012) (" 'Congress may abrogate Prepaid States’ College sure.” v. Florida Sav. Bank Bd., immunity it when both Postsecondaiy Expense U.S. Eleventh Amendment Educ. 527 2219, pur- unequivocally to do and acts L.Ed.2d 605 intends so S.Ct. 144 omitted). (1999) (internal grant quotation to a valid of constitutional author- marks suant ” However, (quoting Univ. any ity.' waiver Board Tntstees is no there indication Garrett, U.S. been Con- Ala. in this Nor has there case. (2001))). gressional 148 L.Ed.2d 866 abrogation the Commonwealth’s Cash, Thus, high Edwards, F.3d at 223. particularity.” State. level of extent that claims seek mone- 178 F.3d at For a plaintiff to defeat a tary against relief Sheriff in his official claim of qualified immunity, the contours correctly capacity, the district court ruled right of the constitutional “must be suffi- entitled to Eleventh ciently clear that a reasonable official immunity. Amendment would understand what he 'is doing Pelzer, right.” violates that Hope v. Qualified Immunity D. 730, 739, U.S. 153 L.Ed.2d argues The Sheriff that even if (2002) (internal quotation marks omit- genuine some Plaintiffs created fac ted). disputes concerning

tual whether he violat We conclude that the Sheriff is entitled ed their or free-speeeh rights association qualified immunity Carter’s, concerning them, reappointing he is neverthe McCoy’s, and Dixon’s claims because in qualified immunity less entitled to to the a December 2009 sheriff reasonable could against extent the claims are asserted have believed he had the right to choose capacity. him his individual reappoint not to his deputies sworn for government A official who is sued reasons, political including speech indicat- capacity may qualified individual invoke ing deputies’ support for the Sheriffs immunity. Ridpath, 447 F.3d at 306. political opponent. “Qualified immunity protects government Simply put, very Jenkins sent mixed § officials from a damages civil signals. Although today we conclude action insofar as their conduct does not the reasons discussed earlier that Jenkins clearly statutory violate established or con- is best analyzing read as duties of rights stitutional of which a reasonable court, particular deputies before the much person would have known.” Edivards v. the opinion’s language seemed to indi- Goldsboro, City F.3d cate that a North sheriff Carolina could Cir.1999) (internal quotation marks omit- ted). deputies terminate his for political reasons determining whether a defendant regardless of particular the duties of their qualified immunity, is entitled to a court (1) Truthfully, positions. majori- must the Jenkins decide whether the defendant has ty opinion .right plain- separate violated constitutional of the reads almost like two (2) opinions tiff and whether that right clearly that are in tension one an- at time alleged established of the mis- analysis All majority’s up other. of the George’s conduct. See Walker v. Prince opinion’s page final deputies concerns (4th Cir.2009). Cnty., 575 F.3d deputies, generally or North Carolina However, “judges of the courts district particular references of deputies, duties the courts of appeals permitted [are] indicating that plaintiffs without exercise their sound deciding discretion in see, duties, e.g., those F.3d at 1162 prongs qualified which of the two (“The likely sheriff is to include at least immunity analysis should be addressed deputies group some core of advis- in light first the circumstances Deputies patrol ors. work autonomous- particular case at hand.” Pearson Cal- discretion, ly, exercising significant in per- lahan, 223, 236, 808,172 (footnote omitted)). forming jobs.” (2009). L.Ed.2d 565 analysis up This leads the broad conclu- deputy that “North Carolina sheriffs analyzing whether the defendant has sion may lawfully plain- be right violated constitutional terminated tiff, identify right the court should exception “at reasons under the Elrod-Branti (like plaintiffs in Jenkins Id. ment officer terminations.” prohibited our majority rejected Knight earlier like the dissent concluded 1164. The took and

at Dodson, took). 727 F.2d 1329 551; at at 555 decision Jones See id. id. Knight (4th Cir.1984), that no where we concluded (Widener, J., dissenting). concurring and policymaker be a deputy could ever majority’s Knight explanation But the courts are to that “district held instead Knight had why it immaterial whether examining Stott-type analysis, engage in a oath the law enforcement officer taken issue, as at we specific position reasonably taken as could itself Jenkins, 119 today.” F.3d here done reading for the broad Jenkins. majority later announced 1164. The majority Knight stated: possibly not “h[o]ld[ing]” even broader Jenkins, “ex- emphasized in As we sheriffs limited to North Carolina even position,” amine the duties of “newly or re- it elected when declared Knight’s duties as and Ms. F.3d deputies ei- elected dismiss sheriffs essentially She jailer were custodial. or cam- party affiliation ther because special simply lacked the status of Id. paign activity.” sheriff, empowered deputy who already not language As if were this on a broad stand in for sheriff front. reading for a strong support broader added). (emphasis Id. A sheriff at 551 Jenkins, out, pointed have the dis- as we all reasonably reading painting Jenkins as well, way that in read it as sent Jenkins a well deputies with broad brush could “holding] all accusing majority of that same, or, doing the Knight have viewed as in Carolina —re- deputy sheriffs North least, very weighing not in on policy- actual duties —are gardless of their (“The responsi- also at 550 issue. See id. J., (Motz, Id. at 1166 making officials.” are jailer, Knight, of a such as Ms. bilities (“This all-encom- dissenting); see also id. comparison in to those routine and limited holding inqui- is made without passing sheriff, fired for deputy of a who ry job depu- of the into the actual duties (“A affiliation.”); jailer is id. political (“The us.”); majority ... ties id. before not the sheriffs ‘second self in the sense analysis particular no engages in is.”). deputy that a (“[T]he ma- deputy.”); duties of id. each is also reading The broader of Jenkins jority that North Carolina ... finds all in a another of deputy policymakers are line with statement from sheriffs —without held after considering positions ever each our was opinions, which issued Osborne, their specific at issue or deputies Knight. In Pike v. 301 F.3d duties.”). (4th Cir.2002), that, a claim we held a for dispatcher that a sheriff terminated (cid:127) Vernon, Knight Additionally, while reasons, affiliation political the sheriff regarding the important to our decision in qualified immunity entitled Carter’s, McCoy’s, and Dixon’s merits of clearly not estab- December 1999 it was claims, clearly did not estab- constitutional Virginia a in could not lished that sheriff reading lish that broader Jenkins terminate, lawfully political for affiliation Knight in Although worked incorrect. reasons, dispatcher privy a who was office, not a deputy. she was sheriffs Pike, information. See confidential It Knight, 214 F.3d at 546. is true See J., (Hamilton, concurring in F.3d at majority opined Knight (Broadwater, J., con- judgment); id. have Knight’s would not had sheriff Judge judgment) (adopting curring right to fire her for reasons even Hamilton reasoning). Judge Hamilton’s if she taken the oath of a law enforce- began analysis in case with the For the previously, reasons stated we statement, “The law of this circuit is clear we signals believe have sent mixed as to in Virginia right that sheriffs have the sheriff when a could fire a deputy deputies lawfully politi- terminate their political reasons we have been unclear Id. Jen- cal (citing affiliation reasons.” as to when he could and when he could ). kins He then proceeded why to explain parts not. Some en banc our decision the law not clear regard- was nevertheless Jenkins indicate he could do so and other ing dispatcher access parts it. prohibit would dissent information, confidential who was Jenkins expressed own its confusion as to deputy, could be terminated the holding Jenkins was and what lan- affiliation reasons. See id.19 since, guage in our cases well as those courts, from other have interpreted the

For the reasons we explained review- Jenkins holding broadly and consistent issue, the Elrod-Branti ing the merits short, with the Sheriffs. we under- language, believe that this while con- why stand a sheriff would find the law sistent with the Jenkins dissent’s charac- Jenkins’s, clear, situation particularly given reasoning, terization of lay is a person. of the Jenkins ma- in light overstatement jority’s rejection of specific the dissent’s not expect judges We do sheriffs to be analysis. characterization its Neverthe- training through and to to sort less, considering conflicting signals every intricacy hardly law that case sent, Jenkins Pike we conclude Lawyer City clarity. model of that a reasonable sheriff December Bluffs, Council 2009 could have that he believed was au- Cir.2004) (holding that defendants were any deputies thorized to terminate of his qualified immunity entitled to because for political reasons.20 “[pjolice expected parse officers not are language though they partici- code were If we the deciding were what law was Lassiter seminar”); a pating in law school December 2009 the a regarding legality of Trustees, v. Alabama A & M Univ. Bd. reasons, sheriff a firing deputy political for (11th Cir.1994) 28 F.3d 1152 n. 8 we agree colleague would our with dis- (“Even expert if legal some would have sent a that the law was that sheriff could then concluded that a hearing was re- political deputy not fire for a reasons sher- quired, quali- iff defendants would still be due jailer. with limited of a duties immunity university fied if offi- Where in our reasonable we believe we differ assess- it.”), ment of case cials would not known is whether that law have about Hope on grounds by established and would have overruled other v. clearly Pelzer, been 122 recognized by judge so trained 153 (2002). law, Rather, by in the but 666 reasonable sheriff. L.Ed.2d in consider- have, times, emphasize 19. Other courts also described We that even sheriff who read See, holding broadly. e.g., v. Jenkins’s Hall holding specific Jenkins as limited Tollett, (6th Cir.1997) (stat- 128 F.3d 428 deputies law North Carolina involved in en- ing political that Jenkins “held that affiliation reasonably forcement could still con- appropriate requirement deputy is an for that, squarely presented if cluded we were sheriffs”); Beaufort, County Fields v. issue, with hold sheriff would that a ("The (D.S.C.2010) F.Supp.2d deputies politi- his could terminate Fourth that Circuit determined the office of regardless particular cal reasons of their therefore, deputy policymaker, that of a duties. deputies lawfully po- were terminated for reasons.”). litical Carter, concerning immunity the claims rights were constitutional ing Dixon.22 qualified-immunity McCoy, clearly established the issue from “the we view purposes, Reed, Ross layman’s perspective,” E. Conclusion (4th Cir.1983), recogniz- 689, 696 n. 8 F.2d Sandhofer, sum, as to the claims of regard legal

ing “[particularly Bland, Woodward, we conclude conclusions, obviously cannot lay officers the merits properly analyzed court district at the level achiev- expected perform claims, and we affirm therefore law,” Kroll trained able those judgment in favor of the grant summary Police, Capitol States United Carter, to the claims of Sheriff. As (D.C.Cir.1988) (Robinson, J., concur- Dixon, the court erred McCoy, and district omitted). (footnote judgment) ring that the failed concluding Plaintiffs in cases in which note that We fact dispute material genuine create a applies, exception Elrodr-Bmnti violated regarding whether Sheriff does violate employer therefore rights. Amendment Neverthe- First rights by terminat employee’s association less, properly court ruled the district disloyalty, employ him for ing immu- qualified entitled to Sheriff was free employee’s er also does not violate Carter’s, Dixon’s nity McCoy’s, and terminating him for rights by speech money seeking damages against claims disloyalty.21 speech displaying and that capacity, Sheriff in his individual Jenkins, (holding F.3d at Eleventh was entitled to that Elrodr- pleadings established immunity those claims against Amendment deputies failed exception applied, Branti monetary seek relief to the extent retalia state First Amendment against capacity. in his official him claim were dismissed deputies tion not entitled to Eleventh Amend- Sheriff is sheriff). Thus, a campaigning against Carter’s, however, immunity, ment 2009 who reasonable sheriff in December and Dixon’s claims to the extent McCoy’s, exception believed that the Elrod-Branti remedy sought is reinstatement. could have also applied deputies to his that he could choose

reasonably believed III. not to them their reappoint reasons, disloyalty Accordingly, foregoing to him. indicating political summary judg- grant McCoy’s And Facebook activ reverse Carter’s and Carter’s, ment poll regarding sticker and to the Sheriff ity bumper and Dixon’s certainly reinstatement McCoy’s, fall into that Dixon’s ing-place comment reason, claims, to the we remand these claims we conclude category. For this further We proceedings. court for qualified that the entitled to district Sheriff was not 'clearly 22. maintain that the Sheriff is “[Ojnly it be es- Plaintiffs infrequently will immunity qualified because employee's speech on entitled to public tablished’ that a testimony actu- constitutionally that he Sheriff’s demonstrated public a matter of concern emplees ally inquiry that he cannot fire his protected, relevant re- realizes political opposition to balancing on of their quires particularized that is sub- the basis However, tle, depends qualified immunity yet well-de- him. apply, difficult to Haines, 790, at the the actual knew not on what sheriff DiMeglio v. 45 F.3d fined.” hypotheti- (4th Cir.1995) (internal deposition but what a quotation time his marks omit- cal, 271, ted); would Stacy, objectively reasonable sheriff McVey see also (4th Cir.1998). in December 2009. known grant summary political otherwise affirm the san affiliation or nonaffiliation judgment to the Sheriff. deprivation state claim for of constitu- rights tional secured the First and PART, IN AFFIRMED REVERSED Elrod, Fourteenth Amendments.” PART, IN AND REMANDED. 349, at U.S. 96 S.Ct. This case HOLLANDER, ELLEN LIPTON scope concerns the of “a exception” narrow Judge, concurring rule, District part 374, to that Maj. baseline atOp. dissenting in part: qualified immunity which frames the anal- ysis.

I Judge concur in Chief Trader’s excel- opinion, lent one exception. with The ma- Pursuant to the Elrod- exception to the that, jority time, Branti doctrine, concludes at the relevant politi- dismissal based on “a sheriff reasonable could have believed cal affiliation is lawful hiring if “the au- right reappoint thority had the choose not can party demonstrate that affilia- reasons,” his sworn deputies is an appropriate requirement tion for the 391, and, Maj. Op. basis, on this it performance effective public office Branti, protect- determines that Sheriff Roberts is 518, involved.” U.S. by qualified immunity ed respect Supreme S.Ct. 1287. The Court’s formula- Dixon, Carter, discharge and tion of the clearly puts doctrine the onus McCoy. view, In my deputies employer when these on the partic- establish that a discharged were employee December ular exception comes within the law clearly established that a barring sheriffs to the discharge public rule aof jailer deputy with the duties employee of a could on political based affiliation. be fired the basis of that, affilia- The majority correctly concludes Therefore, tion. I respectfully disagree light they most favorable to plaintiffs, majority’s with the ruling qualified were dismissed in violation rights of their immunity. This, under the First Amendment.1 turn, requires consideration of Sheriff In general, practice “the patronage of qualified immunity. Roberts’ defense dismissals is unconstitutional under Fourteenth Amendments.” El- First and “Qualified immunity impor- balances two Bums, rod v. 427 U.S. 96 S.Ct. tant interests —the need to offi- public hold (1976) see cials accountable when (plurality); L.Ed.2d 547 they pow- exercise Finkel, Branti v. 507, 516-17,100 445 U.S. irresponsibly er and the need shield (1980) harassment, (recog- distraction, 63 L.Ed.2d 574 officials from nizing, generally, liability that “the First perform Amend- when their duties Callahan, prohibits ment of a public Pearson reasonably.” dismissal 223, 231, employee solely private because of po- 172 L.Ed.2d 565 beliefs”). (2009). litical Based on what is known qualified immunity analysis The Elrod-Branti doctrine, “public as the first, em- involves inquiries: two the ployees allege who they alleged, light were dis- facts in the most “[t]aken charged solely ... parti- because of their injury, favorable to the party asserting the observes, majority 1. As the the employees political disloyal- both free ex- terminate his pression ty, and affiliation claims of also terminate them Carter, McCoy, and disloyalty.” Maj. Op. Dixon stand or fall on the that constitutes such question plaintiffs Accordingly, qualified immunity of whether 375 n. those come 5. the exception within analysis applies equally expression the to the Elrod-Branti rule to the free because, “in cases in which and the Elrod-Branti affiliation three claims of these exception applies, employer deputies. and an thus can 396 1090, 881, 139 L.Ed.2d 869 conduct violated a 118 S.Ct. the officer’s

... show Vernon, (1998), statutory] right,” Knight Saucier v. 214 F.3d 544 [or constitutional 194, 201, (4th Cir.2000). Katz, 121 S.Ct. my view, these same (2001); second, 272 150 L.Ed.2d dispositive as the second cases are “ clearly at issue ‘was right whether the inquiry. immunity of the prong qualified context specific of established in Knight clearly established Jenkins is, it was clear to a [whether] case—that requires the Elrod-Branti doctrine conduct reasonable officer deputy’s of a actual re- consideration engaged was unlawful allegedly which he sponsibilities, rather than the title ” Merchant he confronted.’ in the situation position. (4th Cir.) Bauer, F.3d Supreme The formulation Court’s — cert, denied, (citation omitted), U.S. doctrine, course, paramount. El- -, 184 L.Ed.2d 582 S.Ct. rod, newly a sheriff elected Democratic (2012). ... may be inquiries The “two discharged Republican employees several sequence.” Id. in either at 661- assessed “solely of the Sheriffs Office did not and were not members of established, right clearly “To a must be Party....” the Democratic 427 U.S. at every clear ‘that reasonable sufficiently 350-51, 96 S.Ct. 2673. One of dis- that what understood] official would [have charged employees Deputy was “Chief right.’ doing he is In other violates supervised the Process Division and all words, ‘existing precedent must have at a departments the Sheriffs Office” statutory or placed ques- constitutional location; employee another was a certain ” Howards, beyond Reichle v. tion debate.’ security guard”; courthouse “bailiff and — 2088, 2093, -, U.S. 132 S.Ct. employee process third server (2012) (quoting L.Ed.2d v. al- Ashcroft grounds, Id. On office. First Amendment U.S.-, Kidd, 2074, 2078, 131 S.Ct. employees court sued federal (2011)) (some 2083, 179 L.Ed.2d 1149 in- enjoin justices their termination. Three quotation ternal marks and citations omit- Court, Supreme joined by two concur- ted). light The is “assessed in issue ring justices, held that the district court ‘clearly legal rules that were established’ granted injunction. should disputed at the of the conduct. Mes- time” three-justice id. at — Millender, -, serschmidt v. U.S. plurality opined practice pa- that “the (2012) 1235,1245, 182 L.Ed.2d 47 tronage dismissals is unconstitutional” be- (citation quotation some internal “any of patronage cause contribution dis- omitted). Accordingly, marks must process to the democratic does missals consider the state the law December suffice to encroach- override severe discharged when Sheriff Roberts ment on First Amendment freedoms.” Id. Carter, Dixon, McCoy. 96 S.Ct. 2673. prong inquiry, As to the first concurring justices The two articulated of the claim of which evaluates merits exception general principle, to that violation, majority constitutional deter- only viewing presenting “sin- case that, light mines most favorable gle question”: “whether non- substantive plaintiffs, improperly Roberts dis- govern- policymaking, conclusion, reaching missed them. In nonconfidential employee discharged can be ment or engages analysis in a careful majority (4th joba discharge from Medford, of 119 F.3d threatened Jenkins v. 1156 cert, Cir.1997) (en denied, banc), upon the satisfactorily performing 522 he is U.S.

397 Id. political of his beliefs.” at ground given public employee sole comes within the (Stewart, J., 375, concurring) S.Ct. 2673 exception 96 against patronage the rule added).2 (emphasis concurring jus- The Maj. Op. dismissals. at 375 (quoting Stott Haworth, “agree[d] plurality” tices with the v. 134, (4th 916 F.2d 142 Cir. 1990)). Stott, employee such an could not be dismissed the court a articulated Id. political on the basis of affiliation. two-part guide test to the analysis. The “ part requires first examination of ‘wheth- Branti, supra, years later, Four position issue, er at no matter how 507, 1287, majority U.S. S.Ct. a of the be, policy-influencing or confidential it Court reaffirmed Elrod’s holding, partisan relates to political ... interests firing context of the imminent of two Re- ” Stott, (ci- [or] concerns.’ 916 F.2d at 141 publican assistant public defenders tations quotation and some internal marks defender. See id. at public Democratic “ omitted). If position does ‘involve 508-09, 100 doing, S.Ct. In so government decision-making on issues Branti Court Elrod con- reformulated political where there is room for disagree- exception prohibition currence’s to the of ” goals ment on or implementation,’ political dismissals the basis of affilia- “ ‘step the second to examine partic- is “policymaking” tion for or “confidential” responsibilities ular of position to de- Branti employees. Court said: termine whether it resembles a policymak- inquiry ultimate “[T]he whether the er, a privy information, to confidential ‘policymaker’ label or ‘confidential’ fits a communicator, rather, position; or some other particular question office holder whose function authority party is such that hiring can affiliation demon- ” is an party equally appropriate requirement.’ strate that is an appropri- affiliation (citation omitted). Id. at 141-42 requirement perform- ate for the effective The court office involved.” Id. public recognized ance political of affiliation as an appro- “ 518, job 100 S.Ct. 1287. It priate requirement concluded that the ‘when there is public assistant defenders did not fall rational into connection between shared ideolo- ” exception (cita- Id. at 142 general gy performance.’ rule barring omitted). termination tion basis affilia- tion, though, respects, even some This circuit’s Elrod-Branti case law has

were involved in policymaking privy continued to adhere Stott’s focus on the Id. 519-20, confidential information. See, job responsibilities given position. 1287.3 e.g., Prater, Fields v. 381, 386-87 Branti, (4th Cir.2009) Elrod Stott

Consistent with (applying analysis); Blair, Nader v. long required 953, circuit’s case law has F.3d courts 959-62 “ Cir.2008) (same). particular responsibilities to ‘examine the Commenting on the test ” Stott, position’ to determine whether a the court said in Jen- endorsed (1990) concurring justices’ 2. Because the votes were 110 S.Ct. 111 L.Ed.2d 52 necessary judgment, to the (holding their more ap- narrow that Elrod-Branti doctrine also transfer, recall, holding view stated the Court plies “promotion, under the and hir- grounds” decisions”); Service, "narrowest ing doctrine Marks v. Truck O’Hare Inc. States, Northlake, United 430 U.S. 97 S.Ct. City U.S. (1977). L.Ed.2d (1996) (holding 135 L.Ed.2d 874 applies govern- Elrod-Branti doctrine "where cases, against [independent] two ment subsequent Supreme a[n] retaliates contractor, services, regular provider Court extended the Elrod-Branti doctrine in or a ways that germane rights are not for the this case. See exercise of associa- Illinois, Republican Party Rutan expression political allegiance”). or the tion announced, kins 119 F.3d at 1164: kins, 1162: “Our Court 119 F.3d at cases the extent it analyses.” disagree “We with Dodson to ... to position-specific moved ever suggests deputy that no sheriff can be that, at the majority’s conclusion The policymaker.” time, to deputy law as sheriffs relevant the in largely is The dissent Jenkins maintained that clearly based was not established engage in “very majority “refus[ed] sent mixed the the Jenkins on its belief that ” Id. proper analysis.... of a Elrodr-Branti at as to the status sheriffs signals” (Motz, J., Pointing dissenting). under Elrod-Branti doctrine. deputy the Jenkins, broad, employed categorical language the at 391. which involved Maj. Op. by the dissent rea- majority, ten North the Jenkins the termination of Carolina majority in soned that the had found “all deputies, contains instances sheriffs (more 1988) that, 4,600 than in North Carolina language the court broad which used here, majority deputy policymakers,” thereby sheriffs are according arguably “call[ing] question into the numer- that a could terminate suggested (more reasons, troopers ous political without re- North Carolina state deputy 1988) But, 1,100 than police actual Id. officers gard to duties. the Jenkins (more 1988) 7,900 ‘policy- than are also majority pains scope took to define the any can be at will holding its and to resolve “tension” makers’ who dismissed political regime.” (emphasis its Id. each language. created at 391-92. new Id. in original). that, majority The stated “in Jenkins Carolina, majority ex- deputy response, North the office sheriff Jenkins policymaker, deputy pressly rejected that of a and ... construction dissent’s its ego holding, explaining holding are alter of the sheriff its sheriffs liable,” deputies actually conduct generally, “limit[ed]” whose “those “that engage and concluded from this such North sworn to in law activ- enforcement may lawfully ities Id. at deputy Carolina sheriffs behalf of sheriff.” added). Further, (emphasis reasons terminated for under the the Jenkins exception prohibited polit- majority holding “applies insisted that Elrod-Branti its Jenkins, only at requirements ical terminations.” 119 F.3d to those who meet the majority it,” state at 1165 n. Jenkins also said: rule we id. 13,600 or newly hold that elected reelected and did “not extend to officers in “We all Carolina, deputies suggests.” North as the sheriffs dismiss either be- dissent party affiliation or ac- Id. It campaign “deputies cause reasoned tivity.” Id. instant case” fell the Elrod-Branti within “[bjecause” exception they were “law en- cannot be These statements read iso- (emphasis Id. at forcement officers.” lation, majority The Jenkins however. added). engaged overruling ear- court’s Dodson, here, Of import majority lier decision Jones v. Jenkins (4th Cir.1984), which had directed that “the district courts are held engage Stott-type deputy analysis, examining sheriffs could not be on the in a fired ” affiliation, position Id. specific basis “no matter issue.... added). office, Moreover, specific (emphasis what the size of the involved, power majority directly position or the custom- Jenkins admonished Circuit, intimacy ary stating: of the associations sheriffs within the Fourth within office, or the need mutual “We this limitation to caution sher- undoubted issue job duties trust and within law en- that courts examine the confidence iffs title, agency.” position, merely forcement Id. at 1338. The Jen- (emphasis analysis, those dismissed.” Id. at 1165 its majority the reiterated added). particularly message This directive is sa- the “central of Jenkins is that the lient, given qualified immunity specific public employee’s is duties the “a predicated govern on the notion that reason- position political allegiance ably competent public official should know to her is an employer job appropriate re- added). governing quirement.” the law his conduct.” Harlow v. Id. 549 (emphasis 818-19, Fitzgerald, 457 U.S. Focusing particular on the job duties of (1982); 73 L.Ed.2d 396 accord Tru- jailer, Knight the majority emphasized (4th Freeh, lock v. 275 F.3d Cir. “circumscribed,” “routine,” the and “limit- cert, denied, 2001), 1045,123 responsibilities ed” in position, the con- (2002). 621,154 L.Ed.2d trast of a deputy those sheriffs with Notably, majority the “the general here acknowl- power arrest.” Id. at 550. edges majority’s specific “the “exercising Jenkins re- It noted that power the of ar- jection job of the dissent’s characterization jailer. rest not one duties of analysis.” Maj. But, its Op. at even Her simply duties are to supervise and assuming jail.” that Jenkins left state of care for in county inmates Id. precedent circuit unclear the applica- Knight majority as to The also observed: “Ms. tion of the to depu- Knight Elrod-Branti doctrine in county engaging not out ty sheriffs, court’s subsequent decision in law enforcement activities on behalf of Vernon, in Knight supra, the sheriff. was not a She confidant of the sheriff, laid ambiguity respect to rest did not him she advise on deputies serving jailers. sheriffs as Nor policy matters. was she involved in communicating policies po- sheriffs Knight, the district court had relied public.” sitions to the Id. summary on granting judgment Jenkins in to a sheriff jailer, merits, who fired a on the analysis majori- based its district acknowledges court’s conclusion that the role of a here ty job that the duties of jailer Carter, a deputy. similar the role of McCoy, and Dixon were “essential- Vernon, Knight F.Supp.2d See ly identical those of plaintiff (M.D.N.C.1998), ajfd Knight rev’d in part, Maj. Op. v. Vernon.” at 377-78. part grounds, goes other 214 F.3d 544 It say, the context of their Cir.2000). termination, This court disagreed, thereby identity “the near be- clarifying any possible confusion to the tween the deputy plaintiffs duties proper construction of Knight’s Jenkins. this case and duties warrants the result I readily same here.” Id. at 378. expressly court held that “a sheriff agree majority with the that there is no cannot loyalty job insist on as a cognizable purposes distinction requirement a county jailer214 jailer Elrod-Branti doctrine between “political F.3d at 548. It reasoned jailers case, Knight and the As I this allegiance to not an ap- [the sheriff] it, that end immu- qualified see should propriate requirement performance for the nity inquiry. jailer,” id. at [the] [of] if jailer sure, jailers would be so even the To had taken the sworn here were But, oath of a deputy deputy sheriff. Id. at 551.4 In sheriffs. did not exercise here, determined, According Knight majority, majority the record alterna- Knight was clear that tive, never took law en- Knight Ms. “even if did take such an Knight, forcement officer's oath. 214 F.3d at oath, change it would not our Id. decision.” disagreed. 546. The id. dissent at 555 (majority). (Widener, J., But, dissenting). significance (or, at forcement of criminal law.” Id. A reason- responsibilities law enforcement reading Knight sheriff would realize able least, factual genuine dispute raised a description “deputy” that such a of a did). did The district court they toas whether Carter, McCoy, Dixon, encompass not that, the “officers in this asserted jailers, as who served would have sworn, deputies,” uniformed case were in warning Knight the both heeded court’s v. they power “the of arrest.” Bland had “ ‘courts examine the and Jenkins (E.D.Va. Roberts, 599, 609 F.Supp.2d 857 merely not position, duties the the 2012). But, observes, majority as see the title, Knight, of those dismissed.’” Maj. deputies at the here could Op. Jenkins, (quoting F.3d at 549 119 F.3d at power, the lawfully exercise arrest ex- not 1165) (emphasis in Knight). circumstances, be- cept extraordinary pertinent of its view that the jailers as cause been trained clearly plain- not law was established when officers, as enforcement rather than law discharged were tiffs December power apprecia- was not an and the arrest majority places emphasis the unwarranted Indeed, duties. aspect ble of their (4th Osborne, on Pike v. 301 F.3d dep- that no undisputed evidence is record Cir.2002). case, In that the court held that uty Department had made the Sheriffs a qualified immunity sheriff was entitled to years. sixteen preceding arrest in connection with the termination in 1999 out, Moreover, majority points as the decided) (i.e., Knight before was two that, jail- although is clear record dispatchers, political based affilia- oath, they ers this case took an did concurrence, In a tion. one member of the a oath. take law enforcement officer’s See panel concluded that the law not clear- Maj. at 378-79. This renders find- Op. ly point “on established still, immunity ing qualified weaker be- lawfully in Virginia sheriffs can terminate Knight cause the Court concluded that political dispatchers affiliation reasons a jailer even who does take a law enforce- privity with to confidential information.” discharged ment officer’s oath cannot be Pike, (Hamilton, J., at con- F.3d of political basis affiliation. See added).5 curring) concur- (emphasis Knight, 214 F.3d at 551. prefaced rence its of the sher- discussion qualified immunity iffs entitlement with “jailer” In contrasting the role of a upon majority which the statement here sheriff, may that of be “deputy who fired relies: the “law in this circuit clear that affiliation,” for his id. in Virginia right sheriffs have the to law- Knight referring type Court was fully deputies terminate their deputy a deputy discussed “in Jenkins (citing affiliation reasons.” Id. at 186 Jen- who “is a sworn law enforcement officer” ). kins arrest, power general who “has power may But, dicta, be exercised North clearly this assertion was be- by an Virginia] only depu- Carolina officer Pike [and cause did not involve sheriffs And, training who en- informa- privity receives extensive ties.6 confidential although opinion, 5. The labeled a concur- received the full and careful consideration of ” rence, joined by one the other two court uttered it.’ Co. Pittston judges panel. on the States, (4th United 199 F.3d Cir. 1999) (citation omitted); Cingular accord New judicial opinion "Dictum is ‘statement in a PCS, Finley, Wireless LLC seriously that could have deleted without been Cir.2012). impairing analytical foundations of the holding that, being peripheral, not have — “ turned, tion, upon holding right which ‘must be clear sufficiently Pike’s [so] majority at issue here. The acknowl- official reasonable would understand that ” the Pike concurrence over- edges (Ci- doing right.’ what he is violates that holding Maj. Op. stated the of Jenkins. omitted). Yet, Supreme tation Court Jenkins, 393. As of December “very also underscored that the action in “ Knight, part well as Stott and were question” need not ‘previously been ” clearly law of established this circuit. if, held “in light pre- unlawful’ view, it if my troubling precedent sets a existing law the appar- unlawfulness [is] clearly this circuit’s established law can (citations omitted). ent.” Id. See also by dicta. undone Kittoe, (4th 392, Wilson v. 337 F.3d 403 emphasized importance Cir.2003) ana- Stott of (qualified immunity may be de- “ job lyzing duties in cases such one. as this nied even in the ‘a absence of ease hold- banc, Speaking en the Jenkins Court ex- ing the defendant’s identical conduct to be pressly admonished sheriffs that “courts unlawful....’”) (citation omitted). job position, examine duties “Qualified immunity to protect extends title, merely the of those dismissed.” officials commit ‘who constitutional viola- Jenkins, 119 1165 add- (emphasis F.3d at who, tions in light clearly but of estab- ed). And, Knight point, reinforced that law, lished could reasonably believe that characterizing message it as “central ” their were actions lawful’ Williams v. 214 Knight, of Jenkins.” F.3d at Ozmint, Cir.2013) 801, F.3d 716 805 Knight also made clear that a sheriff Purnell, (quoting Henry 524, 652 F.3d reasons, for jailer political not terminate a — cert, (4th Cir.) (en banc), denied, 531 jailer if the even took oath as a law U.S.-, 781, 181 L.Ed.2d 488 See Knight, enforcement officer. 214 F.3d (2011)); Homer, accord Durham v. 690 any at 551. Pike did not alter of this. (4th Cir.2012). 183, F.3d 188 It is intend- The salient facts this case of are so close “protect[] public ed to officials from ‘bad in Knight any to the facts reasonable ” Durham, guesses gray areas.’ predicted would sheriff that both (quoting at F.3d Maciariello v. Sum- yield would the same result. cases To cert, ner, 295, (4th Cir.1992), extent there is be- distinction denied, 506 U.S. S.Ct. ease, Knight

tween it concerns (1993)). gray L.Ed.2d 356 There were no only positions the title of held areas here. Yet, clearly employees. it was established this court an unequiv- delivered legal title itself is no signifi- ocally message Di- Therefore, lay clear sheriffs. cance. Sheriff Roberts should sheriffs, rectly addressing have known that he could not Jenkins discharge jailers on the their political basis of affilia- Court announced: “We ... caution sher- tion. iffs that courts examine the duties of merely title, position, and not that, majority in stating is correct Jenkins, those dismissed.” 119 F.3d at considering clearly the law Any person capable serving qualified purposes established immu- surely sheriff would have understood that nity, perspective lay- we look to the of a directive, was subsequently which reiterat- person, lawyer. Maj. Op. not a Knight, grasped ed in and would have And, Supreme rec- 393-94. as the Court Pelzer, panel agree what all the members of this ognized Hope v. law ... 153 L.Ed.2d 666 was “the December 2009 re- (2002), legality the “contours” of the constitutional garding firing of a sheriff Maj. No. 11-30936. Op. reasons.”

deputy 393.7 Appeals, United States Court Fifth Circuit. Roberts’ dismissal of sum, Carter, Dixon on the basis of McCoy, and 9, 2013. April allegiance, ultimately prov- if en, on the basis of be excused cannot Rosenblum, Esq., Alida David C. Carl Therefore, I immunity. respect- qualified Hainkel, Hurley, Mar- Esq., Grady Schell major- portion from the fully dissent McKeithen, Counsel, Esq., jorie Ann Jones finding upholds ity opinion LLP, Orleans, LA, Fon- John Walker New immunity for Sheriff Roberts qualified Venable, L.L.P., Washington, Cooney, tana to the First Amendment with respect DC, Plaintiffs-Appellees. Carter, McCoy, and Dix- lodged claims Brabender, Esq., U.S. De- Allen Michael on. DC, Justice, Mi- partment Washington, Gray, Department Thomas U.S.

chael Jacksonville, FL, Justice, M. Peter Mans- field, Attor- Attorney, Assistant U.S. U.S. Office, Orleans, LA, for Defen- ney’s New dants-Appellants. SERVICES, OFFSHORE

HORNBECK Bee, L.L.C.;

L.L.C.; Bee Mar-Worker Fabricators, L.L.C.;

North American L.L.C.; Mar, Support Bee Offshore WIENER, ELROD, and Before L.L.C.; al., Services, Plaintiffs-Ap et SOUTHWICK, Judges. Circuit pellees REQUEST ON ON FOR POLL EN BANC REHEARING SALAZAR, Secretary, Depart

Kenneth PER CURIAM: Interior, known Ken ment also as Department Salazar; having polled request court at the States United (see Safety Interior; Oper- Internal Bureau of and Envi member the court Enforcement; accompanying R. 5th Cir. R. ating Michael Procedure ronmental Capacity Bromwich, Poll on “Requesting In His Court’s Own Official Safety Motion”), Director, judges who majority Bureau of and Envi Enforcement, regular and not Defendants- are active service dis- ronmental (see Appellants. qualified having voted in favor plaintiffs correctly disregarded to fire the "for rea- majority 7. The has entitled subjective Instead, understanding of disputed Sheriff Roberts’ JA Roberts sons.” objective analysis applying the law in politi- plaintiffs’ claim that fired them immunity qualified called doctrine. unanimously cal reasons. As the court con- Maj. noting, Op. at 394 n. 22. It is worth 380-83, cludes, Maj. Op. see there are however, indication Sher- that there no disputes genuine of material fact as laboring misappre- iff under Roberts Carter, termination of basis for Roberts' deposition, law. At his Rob- hension of the McCoy, and Dixon. believe he was erts stated that he did not notes “ approval perform Duty ceived ‘Extra Jenkins, case, present like those in Employment’ comprising security work were entitled to stand their sheriff during outside of the Sheriffs Office which not, way one Knight namely, by that could they were in uniform armed.” J.A. making an arrest. is true in Virgi- It It is hard to see how fact signifi- this could are, sheriffs, nia deputies sheriffs like cantly our impact analysis Elrod-Branti un- statutorily authorized make arrests however, stage, considering this der range a wide of circumstances. See record is silent what concerning duties 19.2~81(A)(2). § Ann. Va.Code That all plaintiff deputies concerning “ex- deputies general have been granted arrest Moreover, tra” work. the Sheriff did not statute, however, powers by does not mean any showing make such apparently exercising powers appre- those was an optional work “outside of Sheriffs Of- part ciable of the duties of particular fice,” part J.A. of “the specific fact, Carter, positions. McCoy, and public employee[s’] position.” duties of the jailers, Dixon were it trained as Knight, 214 F.3d at 549. undisputed that they did not take the “Ba- sum, sic stage Law Enforcement” course that the we hold that at this Vir- ginia Department litigation, Sheriff Criminal Justice Ser- has not demonstrated Carter, McCoy Dix- McCoy, and Carter and that the duties Knight’s duties from on differed In the late summer of Carter and we conclude significant way, Face- McCoy campaign Adams’s visited that their has not shown Roberts

Case Details

Case Name: Bobby Bland v. B. Roberts

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 18, 2013

Citation: 730 F.3d 368

Docket Number: 12-1671

Court Abbreviation: 4th Cir.