James Lane v. John Anderson ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2153
JAMES LANE,
Plaintiff - Appellant,
v.
SHERIFF JOHN W. ANDERSON; MAYOR & CITY COUNCIL OF BALTIMORE,
Defendants – Appellees,
and
COL. MARCUS L. BROWN,
Defendant.
-------------------------
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND;
PUBLIC JUSTICE CENTER, INC.,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cv-03739-RDB)
Argued: May 12, 2016 Decided: August 17, 2016
Before KING, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Howard Benjamin Hoffman, Rockville, Maryland, for
Appellant. Jason L. Levine, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Annapolis, Maryland; Jason Robert Foltin, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON
BRIEF: Steven H. Goldblatt, Director, Shon Hopwood, Appellate
Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Brian E. Frosh, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee Anderson. George A. Nilson, City
Solicitor, William R. Phelan, Jr., Chief Solicitor, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellee Mayor and
City Council of Baltimore. Deborah A. Jeon, Sonia Kumar,
Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND,
Baltimore, Maryland; Debra Gardner, Tassity Johnson, PUBLIC
JUSTICE CENTER, Baltimore, Maryland, for Amici American Civil
Liberties Union Foundation of Maryland and Public Justice
Center.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
James Lane (“Appellant”) appeals the district court’s
dismissal of his complaint against the Mayor and City Council of
Baltimore (“Baltimore City”) and the Sheriff of Baltimore City,
John W. Anderson in his official and individual capacities
(“Sheriff Anderson”) (collectively, “Appellees”). Appellant, a
deputy sheriff at the time, was shot in the face during the
execution of an arrest warrant. After the shooting incident,
Appellant voiced doubts, alleging possible friendly fire and an
official cover-up of that possibility, and thereafter, Sheriff
Anderson fired him. Appellant then sued Appellees, claiming a
violation of his First Amendment rights.
The district court dismissed Appellant’s complaint,
holding that it lacked subject matter jurisdiction, Sheriff
Anderson was entitled to qualified immunity and Eleventh
Amendment immunity, and Baltimore City was not liable for
Sheriff Anderson’s employment actions because he was not a final
policymaker for Baltimore City.
For the reasons that follow, we affirm the dismissal
of Appellant’s claim against Baltimore City. But because
subject matter jurisdiction exists and Sheriff Anderson is not
entitled to immunity, we reverse and remand in all other
respects.
3
I.
A.
Appellant became a deputy sheriff with the Baltimore
City Sheriff’s Office (“BCSO”) in 2003. On September 15, 2008,
while executing an arrest warrant with other law enforcement
officers from the Warrant Apprehension Task Force, Appellant
suffered a gunshot wound to the face. Purportedly, the subject
of the arrest warrant (the “Suspect”) shot Appellant. Another
officer then shot the Suspect, killing him. The subsequent
internal investigation of the incident concluded that it was the
Suspect who shot Appellant. But Appellant still had his doubts,
as he suspected another law enforcement officer accidentally
shot him. When Appellant expressed his concerns to his
superiors, they “told him to forget about it.” J.A. 8. 1 When
Appellant and two other deputy sheriffs continued to question
the shooting, they were all transferred out of the task force.
On December 15, 2010, Appellant expressed his
reservations about the shooting in interviews with certain media
outlets -- namely, Fox 45 News (television) and “Investigative
Voice” (web-based). The interviews revealed not only
Appellant’s doubts about the investigation, but also his
1
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
4
suspicion about a potential cover-up. Appellant also expressed
his belief that the other officer he suspected had accidentally
shot him lied about the incident because that officer had failed
a polygraph examination.
Three months later, in March 2011, the BCSO
administratively charged Appellant with six counts of prohibited
conduct stemming from his interviews with the media.
Ultimately, in December 2011, a hearing board found Appellant
guilty of five of the six charges, including two counts for
engaging in conduct that reflected unfavorably upon the BCSO,
two counts for representing the BCSO without permission, and one
count for publicly criticizing the BCSO. He was found not
guilty of making a false statement. The hearing board made a
non-binding recommendation of a five-day suspension without pay
to Sheriff Anderson.
Sheriff Anderson declined to follow the recommendation
and instead terminated Appellant. In explaining this decision,
Sheriff Anderson said that he could “no longer trust
[Appellant’s] reliability and [Appellant’s] credibility”;
Appellant’s violations brought the BCSO “into disrepute”;
Appellant’s appearances on television and the internet displayed
“sullenness and anger” towards the BCSO; Appellant’s criticisms
and accusations of another officer lying were “divisive[] [and]
disloyal to the mission of the [BCSO] and intended to undermine
5
the effective operation of the [BCSO]”; and Appellant had
“become a polarizing force within the [BCSO].” J.A. 177-78.
B.
Appellant appealed his termination to the Maryland
Circuit Court for Baltimore City, asserting that he was found
guilty despite insufficient evidence, and that he was terminated
for conduct that was both not charged and outside the record.
The Maryland Circuit Court reversed the termination and ordered
reinstatement, but on appeal, the Court of Special Appeals of
Maryland, which considered “only . . . the ultimate sanction
imposed,” J.A. 72, upheld Appellant’s termination.
Thereafter, on December 1, 2014, Appellant filed a
complaint in the United States District Court for the District
of Maryland against Sheriff Anderson, in his official and
individual capacities, and Baltimore City. 2 Pursuant to 42
U.S.C. § 1983, Appellant claimed retaliatory discharge in
violation of his First Amendment right to freedom of speech.
Additionally, he claimed violations of the Maryland Declaration
of Rights. Appellant sought injunctive relief to permit his
2
Appellant also alleged that Colonel Marcus Brown, in his
official capacity as the chair of the Maryland Police Training
Commission, violated his First Amendment rights and his due
process rights. The district court granted Appellant’s motion
to voluntarily dismiss the claims against Colonel Brown on
August 13, 2015. Accordingly, these respective allegations are
no longer part of the complaint on appeal.
6
reinstatement as a deputy sheriff, declaratory relief, and money
damages.
Appellees moved to dismiss the complaint, and the
district court granted the motions. See Lane v. Anderson, No.
1:14-cv-3739, 2015 WL 5136035 (D. Md. Sept. 1, 2015). The
district court, reasoning that Appellant was seeking federal
review of a state-court decision, held that it lacked subject
matter jurisdiction over Appellant’s injunctive relief claims
pursuant to the Rooker-Feldman 3 doctrine. See id. at *8.
The district court further concluded that Sheriff
Anderson, in his individual capacity, was entitled to qualified
immunity because, at the time he terminated Appellant, the law
was not clearly established that doing so was a violation of
Appellant’s First Amendment rights. See Lane, 2015 WL 5136035,
at *6-7. Finally, the district court determined Sheriff
Anderson enjoyed Eleventh Amendment immunity from the claim for
monetary damages brought against him in his official capacity
because, pursuant to Maryland law, he was an arm of the state.
See id. at *4-6.
As for Baltimore City’s involvement, the district
court reasoned that Baltimore City could not be liable for
3 See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
7
Sheriff Anderson’s actions because Sheriff Anderson was a
Maryland official, not an official acting on behalf of Baltimore
City. 4 See Lane, 2015 WL 5136035, at *8.
Appellant timely appealed.
II.
Subject Matter Jurisdiction
A.
As an initial matter, Appellant challenges the
district court’s determination that it lacked subject matter
jurisdiction. Because the jurisdictional question is a
“threshold issue,” we address it before proceeding to the merits
of the appeal. Elyazidi v. SunTrust Bank, 780 F.3d 227, 232
(4th Cir. 2015). We review challenges to subject matter
jurisdiction de novo. See Flame S.A. v. Freight Bulk Pte. Ltd.,
807 F.3d 572, 580 (4th Cir. 2015).
4As for the state law claim pursuant to the Maryland
Declaration of Rights against Baltimore City, the district court
concluded that because Sheriff Anderson was not a Baltimore City
employee, Baltimore City could not be liable. See Lane v.
Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *9 (D. Md. Sept.
1, 2015). Appellant does not challenge on appeal the dismissal
of Baltimore City’s liability premised on the Maryland
Declaration of Rights. Accordingly, that argument is waived.
See United States v. Avila, 770 F.3d 1100, 1104 n.1 (4th Cir.
2014) (failing to raise an argument in the opening briefs
constitutes an abandonment of that issue).
8
B.
Appellant argues that the Rooker-Feldman doctrine,
which would deprive us of jurisdiction if applicable, does not
apply here because he is not challenging the state court’s
decision. See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718
(4th Cir. 2006). Rather, he seeks relief for the termination
that Sheriff Anderson imposed upon him. We agree.
Pursuant to the Rooker-Feldman doctrine, district
courts are generally barred from reviewing state-court
decisions. See D.C. Court of Appeals v. Feldman, 460 U.S. 462,
483 n.16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
415-16 (1923). Notwithstanding that premise, federal courts may
still entertain claims the state court examined, so long as
those claims do not challenge the state-court decision itself.
See Elyazidi, 780 F.3d at 233 (claims not challenging the state-
court judgment do not present a jurisdictional bar). Instead,
“[t]he Rooker–Feldman doctrine . . . is confined to cases
. . . brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review
and rejection of those judgments.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005) (emphasis
supplied). So, “[i]f [the state-court loser] is not challenging
9
the state-court decision, the Rooker-Feldman doctrine does not
apply.” Davani, 434 F.3d at 718.
Here, Appellant is not challenging the Maryland
court’s decision or judgment, but rather the injury that Sheriff
Anderson imposed, that is, Appellant’s termination. See Exxon,
544 U.S. at 284. In Davani, a state employee challenged his
termination for discrimination and retaliation, and the
administrative agency upheld the termination. See Davani, 434
F.3d at 715. The state court dismissed his appeal, and the
employee filed a complaint in federal court alleging retaliation
and discrimination, which thereafter was dismissed for lack of
subject matter jurisdiction pursuant to the Rooker-Feldman
doctrine. See id. We reversed, concluding that the employee
was not “seek[ing] redress for an injury caused by the
state-court decision itself,” id. at 718, but rather for the
injury that the employer caused when it terminated the employee,
see id. at 719.
Like in Davani, the state-court judgment here did not
cause Appellant’s injury when it upheld Sheriff Anderson’s
decision to terminate Appellant. Appellant’s complaint does not
allege that the state court caused the injury, and instead, he
alleges that Sheriff Anderson caused his termination, an event
that happened prior to the state-court decision. Accordingly,
we hold that Appellant’s claims are not barred by
10
Rooker-Feldman, and therefore, federal subject matter
jurisdiction remains intact.
III.
Qualified Immunity
A.
On a motion to dismiss pursuant to qualified immunity,
we review the district court’s conclusion de novo. See Occupy
Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013). The
official asserting qualified immunity carries the burden of
establishing his right to it. See Durham v. Jones, 737 F.3d
291, 299 (4th Cir. 2013).
B.
In assessing whether Sheriff Anderson was entitled to
qualified immunity, the district court assumed that terminating
Appellant in retaliation for speaking to the media violated a
right protected by the First Amendment, but held that the right
was not clearly established when the violation occurred. See
Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *7 (D.
Md. Sept. 1, 2015). Therefore, the district court held Sheriff
Anderson was entitled to qualified immunity. See id. This
holding is contrary to our precedent.
C.
When a government official is sued in his individual
capacity, he may be entitled to a qualified immunity defense.
11
See Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013).
However, qualified immunity is not bestowed when “(1) the
allegations underlying the claim, if true, substantiate [a]
violation of a federal statutory or constitutional right; and
(2) this violation was of a clearly established right of which a
reasonable person would have known.” Smith v. Gilchrist, 749
F.3d 302, 308 (4th Cir. 2014) (alteration in original) (quoting
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306
(4th Cir. 2006)); see also Saucier v. Katz, 533 U.S. 194 (2001).
A clearly established right exists when “existing precedent
. . . place[s] the . . . constitutional question beyond debate.”
Gilchrist, 749 F.3d at 308 (quoting Ashcroft v. al-Kidd, 131 S.
Ct. 2074, 2083 (2011)). When the official acts in legal “gray
areas,” he is entitled to qualified immunity. Id. at 307.
With these principles in mind, we address the
qualified immunity inquiry, considering first the constitutional
right at issue, and second, whether this right was clearly
established when the alleged violation occurred.
1.
First Amendment Right
The First Amendment protects “the right to be free
from retaliation by a public official for the exercise of
[freedom of speech].” Gilchrist, 749 F.3d at 308 (internal
quotation marks omitted). However, this right is not limitless,
12
particularly for public employees. See id. (citing McVey v.
Stacy, 157 F.3d 271, 277 (4th Cir. 1998)). “[T]he government,
as an employer, ‘is entitled to maintain discipline and ensure
harmony as necessary to the operation and mission of its
agencies,’” and therefore has “an interest in regulating the
speech of its employees.” Id. (quoting McVey, 157 F.3d at 277).
As the Supreme Court explained in Pickering v. Board of
Education, 391 U.S. 563 (1968),
The problem in any case is to arrive at a
balance between the interests of the [public
employee], as a citizen, in commenting upon
matters of public concern and the interest
of the State, as an employer, in promoting
the efficiency of the public services it
performs through its employees.
391 U.S. at 568. Finally, when an employee asserts a § 1983
retaliation claim based on his exercise of free speech, we
analyze the claim using the following three queries:
(1) [W]hether the public employee was
speaking as a citizen upon a matter of
public concern or as an employee about a
matter of personal interest;
(2)[W]hether the employee’s interest in
speaking upon the matter of public concern
outweighed the government’s interest in
providing effective and efficient services
to the public; and
(3) [W]hether the employee’s speech was a
substantial factor in the employee’s
termination decision.
McVey, 157 F.3d at 277-78. The first two prongs present
questions of law to be resolved by the court, and the third
13
prong is a question of fact best resolved on “summary judgment
only in those instances when there are no causal facts in
dispute.” Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir.
2004).
a.
With respect to the first McVey prong, we cannot agree
with Sheriff Anderson that Appellant stated his concerns merely
as a self-serving complaint. Rather, Appellant, as a private
citizen, spoke on a matter of public concern when he questioned
a police shooting, which resulted in a fatality, and the
subsequent investigation.
When Appellant communicated with the media, he was
acting outside the scope of his duties as a deputy sheriff.
Although Appellant’s “expressions related to [his] job,” the
First Amendment affords him protection when he conveys these
views as a private citizen. Garcetti v. Ceballos, 547 U.S. 410,
421 (2006). It is “antithetical to our jurisprudence to
conclude . . . speech by public employees regarding information
learned through their employment [] may never form the basis for
a First Amendment retaliation claim”. Hunter v. Town of
Mocksville, 789 F.3d 389, 396-97 (4th Cir. 2015).
Appellant’s speech was not just an airing of a
personal grievance. It was a matter of public concern.
14
Speech involves matters of public concern when it can
be fairly considered as relating to any matter of
political, social, or other concern to the community,
or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value
and concern to the public.
Lane v. Franks, 134 S. Ct. 2369, 2380 (2014) (internal quotation
marks omitted). We consider the character of speech in this
regard by taking into account “the content, form, and context of
a given statement.” Durham, 737 F.3d at 299 (quoting Connick v.
Myers, 461 U.S. 138, 147-48 (1983)). “Matters relating to
public safety are quintessential matters of public concern.”
Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337,
353 (4th Cir. 2000). By contrast, comments properly
characterized as personal grievances “about conditions of
employment” are not matters of public concern. Durham, 737 F.3d
at 300 (internal quotation marks omitted).
The content of Appellant’s speech here was undeniably
a matter of public concern. He questioned a shooting in which a
suspect was killed (and Appellant himself injured). He
questioned an allegedly botched investigation, which he
suspected was cloaked in a police cover-up. And he ultimately
questioned whether friendly fire occurred, as opposed to the
Suspect having allegedly shot him, which resulted in the
Suspect’s death.
15
The form and context of Appellant’s speech further
strengthens the conclusion that Appellant spoke on a matter of
public concern. Appellant spoke to a broad audience, through
both television and internet. Clearly, Appellant’s story
interested the local press, and in two different mediums, no
less. See Durham, 737 F.3d at 301 (explaining “interest[]
[from] the media indicates that [the issue] was of public
interest”); Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998)
(public dissemination through press shows matter of public
concern).
For these reasons, we hold that Appellant’s speech
satisfied the first McVey prong as protected speech.
b.
With respect to the second prong, we must assess
whether Appellant’s interest in speaking about the September
2008 shooting and the subsequent internal investigation
outweighs the government’s legitimate interest in providing
efficient public services. See Gilchrist, 749 F.3d at 308. It
is the government’s burden to justify the termination on
legitimate grounds. See id. at 309. As we explained in
Ridpath, we evaluate the government’s interests utilizing the
following factors:
[W]hether a public employee’s speech
(1) impaired the maintenance of discipline
by supervisors; (2) impaired harmony among
16
coworkers; (3) damaged close personal
relationships; (4) impeded the performance
of the public employee’s duties;
(5) interfered with the operation of the
institution; (6) undermined the mission of
the institution; (7) was communicated to the
public or to coworkers in private;
(8) conflicted with the responsibilities of
the employee within the institution; and
(9) abused the authority and public
accountability that the employee’s role
entailed.
447 F.3d at 317. In this context, law enforcement agencies are
afforded some leeway to restrict their employees’ speech because
“they are paramilitary -- discipline is demanded, and freedom
must be correspondingly denied.” Durham, 737 F.3d at 301
(internal quotation marks omitted). And, “[a] stronger showing
of public interest in the speech requires a concomitantly
stronger showing of government-employer interest to overcome
it.” McVey, 157 F.3d at 279 (Murnaghan, J., concurring).
Moreover, the government need not “prove that the
employee’s speech actually disrupted efficiency”; rather, its
burden is to show “an adverse effect was reasonably to be
apprehended.” Gilchrist, 749 F.3d at 309 (internal quotation
marks omitted); see also Durham, 737 F.3d at 302 (stating that
more than “vague references” and “lip service to ostensible
damage” to morale, relationships, and general office
functionality is necessary).
17
Here, as previously discussed, Appellant’s speech
dealt with a matter of public concern: he suspected friendly
fire ultimately resulted in a person being killed, and yet, when
he voiced that suspicion, he was told not to worry about
uncovering the truth. Akin to our holding in Durham, the facts
here do not tip the balance in favor of Appellees. See 737 F.3d
at 302-03. To the contrary.
As for the Government, Sheriff Anderson has spoken of
Appellant’s alleged effect on the office in mere generalities.
He has offered no concrete examples to back up his claim that
Appellant brought “disrepute” to the agency, and was divisive,
disloyal, and a “polarizing force.” J.A. 73. Sheriff Anderson
has asserted nothing more than “lip service” and “vague
references” in this regard. Durham, 737 F.3d at 302 (explaining
that a showing of an actual disruption is not needed, and, at
the same time, indicating an articulation of “a reasonable
apprehension of such a disruption” is required).
Ultimately, at the motion to dismiss stage, based upon
these generalized statements, we cannot conclude that Sheriff
Anderson has met his burden of justifying the Appellant’s
termination on legitimate grounds, particularly considering the
significant public interests raised by Appellant. See
Gilchrist, 749 F.3d at 309.
18
c.
The third McVey prong, which presents an issue of fact
as to whether Appellant’s speech was “a substantial factor” in
his termination, can be swiftly dispensed. McVey, 157 F.3d at
277-78. When reviewing a Rule 12(b)(6) motion to dismiss, we
view the facts in the light most favorable to Appellant. When
dealing with a First Amendment retaliation claim in this
posture, we generally infer causation based on the facts alleged
in the complaint because, at the motion to dismiss stage, “we
are unable and unwilling to speculate as to the outcome.” Tobey
v. Jones, 706 F.3d 379, 391 (4th Cir. 2013).
Here, as in Tobey, Appellant has adequately set forth
a plausible claim that his First Amendment rights were violated
when his comments directly precipitated his firing. As a direct
result of his media interviews, Appellant faced internal
charges, and ultimately termination. Sheriff Anderson’s stated
basis for terminating Appellant included the fact that Appellant
had commented publicly about the internal investigation. In
fact, Sheriff Anderson said, “I find that . . . . [Appellant’s]
appearance on television, [and] on the website, [were]
disrespectful, accusatory, and . . . displayed an attitude of
sullenness and anger towards the [BCSO]. . . . Nothing short of
termination will permit the division and discord caused by
[Appellant’s] conduct to heal.” J.A. 177-78. Thus, we readily
19
conclude that Appellant’s speech was “a substantial factor” that
led to his firing. McVey, 157 F.3d at 277-78.
2.
Clearly Established Right
Having concluded that Appellant’s speech should be
accorded First Amendment protection, we now turn to the second
prong of the qualified immunity analysis: whether every
reasonable official would have known that terminating Appellant
for speaking out would be in violation of his First Amendment
rights. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam). Appellees maintain that Maryland state law,
specifically the Law Enforcement Officers’ Bill of Rights,
expressly provides that the law enforcement agency’s
chief -- here, Sheriff Anderson -- is permitted to punish
Appellant for “divulg[ing] information” that is contrary to the
department’s policy. Appellees’ Br. 28. If Sheriff Anderson
complied with this express statutory right, Appellees’ argument
goes, “he had no reason to doubt the constitutionality of the
policies.” Id. at 29. But, the position urged by Appellees,
and adopted by the district court, that the Sheriff was acting
within his legal authority because he was acting pursuant to
Maryland law, ignores clearly established precedent. See Lane,
2015 WL 5136035, at *7.
20
Sheriff Anderson’s adherence to state law is not
helpful here. An independent basis for sanctions does not
provide a shield from liability when the speech is
constitutionally protected. See Durham, 737 F.3d at 304; Am.
Civ. Liberties Union of Md., Inc. v. Wicomico Cty., 999 F.2d
780, 785 (4th Cir. 1993) (per curiam) (recognizing
“[r]etaliation by a public official for the exercise of a
constitutional right is actionable under 42 U.S.C. § 1983, even
if the act, when taken for different reasons, would have been
proper”).
More significantly, years before Sheriff Anderson
terminated Appellant, there was ample authority reinforcing the
notion that Appellant’s speech was of the type that was afforded
protection. See Durham, 737 F.3d 291; Andrew v. Clark, 561 F.3d
261 (4th Cir. 2009); see also Hunter, 789 F.3d at 402 (holding
that the law was clearly established in December 2011 that
speech about serious misconduct was protected).
In Andrew -- decided two years before the incident at
issue -- we held that a police commander in the Baltimore Police
Department stated a First Amendment claim when he alleged that
he was terminated for leaking information to the media about a
police-involved shooting and its investigation. See Andrew, 561
F.3d at 263. In Durham, the right at issue was of a deputy
sheriff to speak out on “serious governmental misconduct,”
21
specifically, his right to accuse “high-ranking law enforcement
officials . . . of falsifying law enforcement reports and
. . . authorizing aggressive threats against a member of their
own agency if he persisted in his opposition to such a
practice.” Durham, 737 F.3d at 303. There, we held, “[w]e have
been clear that where public employees are speaking out on
government misconduct, their speech warrants protection.” Id.
at 303 (citing Balog, 160 F.3d at 189).
Thus, when Sheriff Anderson terminated Appellant in
2012, the law was not in any “gray area[].” Gilchrist, 749 F.3d
at 307. Rather, the law was clearly established. After our
decisions in Andrew and Durham, no reasonable official could
have believed that a law enforcement officer’s statements to
media outlets regarding misconduct and corruption surrounding a
police-involved shooting lacked First Amendment protection.
Therefore, we hold that Sheriff Anderson is not entitled to
qualified immunity, and Appellant can continue to press the
damages claim brought against Sheriff Anderson in his individual
capacity. 5
5
We note that this case is unlike Brickey v. Hall, where we
held that a police chief was entitled to qualified immunity
after he had been sued under § 1983 for terminating a
subordinate in violation of the First Amendment. No. 14-1910,
2016 WL 3648462, at *1 (4th Cir. July 8, 2016) (published
opinion). In Brickey, a police officer who was running for a
town council seat made statements in two newspapers that
(Continued)
22
IV.
Eleventh Amendment Immunity
A.
“Whether an action is barred by the Eleventh Amendment
is a question of law that we review de novo.” Hutto v. S.
Carolina Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014).
B.
We next address the Eleventh Amendment immunity
defense raised by Sheriff Anderson in his official capacity.
The Eleventh Amendment protects a state entity from
suit in federal court. See U.S. Const., amend. XI. This
protection is also accorded to “state agents and state
instrumentalities,” or in other words, arms of the state.
suggested that the police chief misused -- either through
negligence or malfeasance -- $500 in the Drug Abuse Resistance
Education (“D.A.R.E.”) budget. Id. at *1, *5. After
commissioning an independent investigation into the officer’s
statements, the police chief terminated him. Id. at *2–3.
There are at least four key differences between Brickey and
the instant case. First and most notably, the misconduct
Appellant alleges is far more serious than the misconduct
alleged in Brickey. Second, unlike Sheriff Anderson, the police
chief in Brickey did more than merely “‘pa[y] lip service’ to
potential disruption to his police force.” Id. at *7. Third,
the allegations in Brickey were shown to be false. Id. at *8.
Finally, unlike Appellant, the officer in Brickey did not intend
to accuse the police chief of wrongdoing. Id. Based on these
differences -- which also distinguished Brickey from Durham, id.
at *7–8 -- Brickey does not control our decision here.
23
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997);
see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280 (1977). Yet, not every entity exercising a “slice of
state power” is entitled to protection, Lake Country Estates,
Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 400-01
(1979), and immunity “does not extend to counties and similar
municipal corporations,” Mt. Healthy, 429 U.S. at 280.
“Whether an entity is an arm of the state is
ultimately a question of federal law, ‘[b]ut that federal
question can be answered only after considering the provisions
of state law that define the agency’s character.’” United
States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745
F.3d 131, 138 (4th Cir. 2014) (quoting Doe, 519 U.S. at 429
n.5).
The district court held that Sheriff Anderson enjoyed
Eleventh Amendment immunity because he was a state officer.
However, the district court came to this conclusion without
analyzing the test we have outlined for such a determination.
See Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *6
(D. Md. Sept. 1, 2015); Ram Ditta v. Md. Nat’l Capital Park &
Planning Comm’n, 822 F.2d 456, 457–58 (4th Cir. 1987).
In assessing whether an entity is state or local in
character, we have employed the four-factor test described in
Ram Ditta, 822 F.2d at 457–58. The first factor to be
24
considered is “whether the state treasury will be responsible
for paying any judgment that might be awarded.” Id. at 457; see
Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir.
2001). We have concluded that a judgment’s effect on the state
treasury, though still “of considerable importance, does not
deserve dispositive preeminence.” Oberg, 745 F.3d at 137 n.4
(internal quotation marks and citations omitted); cf. Cash, 242
F.3d at 223; Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,
48 (1994) (stating treasury factor is “the most salient factor
in Eleventh Amendment determinations”). The other three Ram
Ditta factors are: “[W]hether the entity exercises a significant
degree of autonomy from the state, whether [the entity] is
involved with local versus statewide concerns, and how [the
entity] is treated as a matter of state law.” Ram Ditta, 822
F.2d at 457-58 (internal footnotes omitted).
Upon consideration of all of these factors, we must
“determine whether the governmental entity is so connected to
the State that the legal action against the entity would
. . . amount to ‘the indignity of subjecting a State to the
coercive process of judicial tribunals at the instance of
private parties.’” Cash, 242 F.3d at 224 (quoting Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)).
Here, the district court admittedly did not engage in
the Ram Ditta analysis at all: “[T]his Court need not apply the
25
Ram Ditta test to the subject action. Maryland Code and case
law make clear that sheriffs are state officers, with authority
derived from state law.” Lane, 2015 WL 5136035, at *6. The
district court based its reasoning on the fact that sheriffs are
elected state officials, see Md. Const. art. IV, § 44; are
defined as “state personnel” for the purposes of the Maryland
Tort Claims Act, see Md. Code Ann., State Gov’t § 12-101(a)(6),
Rucker v. Harford Cty., 558 A.2d 399, 412 (Md. 1989); are
granted authority by state law to hire deputy sheriffs, see Md.
Code Ann., Cts. & Jud. Proc. § 2-309(d)(1)(ii); and are state
officials, not local government officials, see Lane, 2015 WL
5136035, at *5 (citing cases).
Yet, this is only part of the analysis, and the
district court’s failure to apply the proper legal framework was
erroneous. See Gray v. Laws, 51 F.3d 426, 434–35 (4th Cir.
1995) (remanding when the district court did not “undertake the
appropriate Eleventh Amendment analysis”). As a result, we
reverse and remand the district court’s holding in this regard
so that it can fully consider the issue pursuant to the proper
Ram Ditta test.
26
V.
Baltimore City’s Liability
A.
We review the district court’s grant of a motion to
dismiss de novo, accepting as true all well-pled facts in the
complaint and construing them in the light most favorable to the
plaintiff. See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d
412, 422 (4th Cir. 2015).
B.
Appellant asserts that the district court erred in
dismissing his claim against Baltimore City on the theory that
Sheriff Anderson was acting as the Baltimore City policymaker in
making BCSO employment decisions. Therefore, Appellant
contends, Baltimore City can also be held liable for his
termination. We disagree.
In Monell v. Department of Social Services of New
York, the Supreme Court held that a municipality (a local
government entity) may be liable for a constitutional violation
pursuant to § 1983 if a plaintiff can show “a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body’s officers” resulted in a
constitutional violation. 436 U.S. 658, 690 (1978) (stating
that municipalities are “persons” subject to suit pursuant to
§ 1983). This “‘official policy’ requirement was intended to
27
distinguish acts of the municipality from acts of employees of
the municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is
actually responsible.” Riddick v. Sch. Bd. of Portsmouth, 238
F.3d 518, 523 (4th Cir. 2000) (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986)). Municipal liability
results when the acts have been “officially sanctioned or
ordered” by the municipality. Love-Lane v. Martin, 355 F.3d
766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at 480).
Under appropriate circumstances, a single decision by
a policymaker can result in municipal liability. See Pembaur,
475 U.S. at 480. “Municipal liability attaches only where the
decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered.” Id. at 481; see
also McMillian v. Monroe Cty., 520 U.S. 781, 784-85 (1997) (“A
court’s task is to identify those officials or governmental
bodies who speak with final policymaking authority for the local
governmental actor concerning the action alleged to have caused
the particular constitutional or statutory violation at issue.”
(internal quotation marks omitted)); Love-Lane, 355 F.3d at 782.
“To qualify as a ‘final policymaking official,’ a
municipal official must have the responsibility and authority to
implement final municipal policy with respect to a particular
course of action.” Riddick, 238 F.3d at 523 (quoting Pembaur,
28
475 U.S. at 483); see also Spell v. McDaniel, 824 F.2d 1380,
1386 (4th Cir. 1987) (“‘[P]olicymaking authority’ implies
authority to set and implement general goals and programs of
municipal government, as opposed to discretionary authority in
purely operational aspects of government.”).
Here, Baltimore City “does not dispute that Sheriff
Anderson has final policymaking authority” for employment
matters relating to those decisions within the BCSO. Appellees’
Br. 7; see also Pembaur, 475 U.S. at 483. However, the issue
lies in whether Sheriff Anderson made the unfavorable employment
decision for Baltimore City.
C.
In determining whether Sheriff Anderson acted as the
final policymaker for Baltimore City, our analysis “is guided by
two principles.” McMillian, 520 U.S. at 785. First, “the
question is not whether [a sheriff] acts for [the state] or [a
county] in some categorical, ‘all or nothing’ manner.” Id.
Rather, the question is whether the sheriff was a final
policymaker “for the local government in a particular area, or
on a particular issue.” Id.
Second, we resolve this issue based upon state law,
“[r]eviewing the relevant legal materials, including state and
local positive law, as well as custom or usage having the force
of law.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
29
(1989) (internal quotation marks omitted). “[S]imply labeling
as a state official an official who clearly makes county policy”
cannot answer the question. McMillian, 520 U.S. at 786; see
Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) (“[T]he
Sheriff is not always a state employee or always a county
employee. He may, on occasion, be both, or sometimes one and
sometimes the other. It all depends on the particular function
the Sheriff is performing.”); Rucker v. Harford Cty., 558 A.2d
399, 406 (Md. 1989) (“This conclusion does not mean that, for
some purposes and in some contexts, a sheriff may not be treated
as a local government employee.”).
Here, we conclude that, as a matter of Maryland law,
Sheriff Anderson is not a final policymaker for Baltimore City.
State law, rather than the local government, provides Sheriff
Anderson with his power. See Md. Const. art. IV, § 44 (stating
that the sheriff “in each county and in Baltimore City” shall
“exercise such powers and perform such duties as now are or may
hereafter be fixed by law”); Prince George’s County v. Aluisi,
731 A.2d 888, 894 (Md. 1999) (explaining that, pursuant to the
Maryland Constitution, “the duties of the sheriffs are those
prescribed by the common law, the enactments of the General
Assembly, and the rules of the Court of Appeals”). Moreover,
the Court of Appeals of Maryland has explained that the duties
of sheriffs “are determined by state law, not locally enacted
30
ordinances.” Aluisi, 731 A.2d at 895. And here, the Charter of
Baltimore City does not include the sheriff’s department as a
principal agency of Baltimore City, or more generally, even
reference the sheriff’s position or the sheriff’s department
within its provisions. See generally Charter of Balt. City art.
I to IX.
With respect to a sheriff’s personnel decision-making
authority, state law establishes the authority for hiring and
discipline, including termination processes. See Md. Code Ann.,
Cts. & Jud. Proc. § 2-309(d)(1)(viii) (requiring the sheriff to
“select[] [his deputy sheriffs] according to the provisions of
the State Personnel and Pensions Article”); Md. Code Ann., Pub.
Safety § 3-102(c) (providing the Law Enforcement Officers’ Bill
of Rights “does not limit the authority of the [sheriff] to
regulate the competent and efficient operation and management of
a law enforcement agency by any reasonable means including
transfer and reassignment if . . . the [sheriff] determines that
action to be in the best interests of the internal management of
the law enforcement agency”); Md. Code Ann., Pub. Safety
§ 3-108(d) (granting chief of law enforcement agency authority
to make final decision regarding discipline of subordinate
officers subject to certain procedural requirements mandated by
Sections 3-101 to -109 of the Code of Maryland); Md. Code Ann.,
St. Pers. & Pens. § 11-104 (granting the sheriff power to take
31
disciplinary actions, including demotion and termination,
against any employee).
Further, although state law does not conclusively
establish the state’s liability for a judgment against Sheriff
Anderson in a § 1983 claim, it indicates that, in a tort claim
brought pursuant to state law, the state, as opposed to
Baltimore City, would cover a judgment against the sheriff based
on his personnel decisions. See generally Md. Code Ann., State
Fin. & Proc. § 9-108 (providing that, pursuant to the Maryland
Tort Claims Act, the state of Maryland, and not Baltimore City,
is liable for tort claims against a sheriff for those claims
relating to “personnel and other administrative activities”);
Rucker, 558 A.2d at 401 (though not deciding whether sheriffs
were state or local employees for federal purposes, which was
not before the court, holding sheriffs are state personnel
pursuant to the Maryland Tort Claims Act -- and thus the state
bore responsibility for judgments). This suggests that
personnel decisions do not create local municipal liability and
are not paid by the local government entity. See State v. Card,
656 A.2d 400, 402–03 (Md. Ct. Spec. App. 1995) (explaining that
in the early 1990s, the Maryland legislature amended the
Maryland code “to sort out the various functions performed by
sheriffs and their deputies throughout the State . . . and to
provide an umbrella of State protection, with the cost of that
32
protection to be assessed to the State or the county, depending
on the function involved”).
In sum, we hold that Sheriff Anderson did not act as a
Baltimore City policymaker when making employment and personnel
decisions. Accordingly, Appellant’s Monell claim was properly
dismissed. 6
VI.
For the reasons set forth herein, we affirm the
judgment of district court to the extent it dismisses
Appellant’s claim against Baltimore City. In all other
respects, we reverse the judgment of the district court and
remand for further proceedings consistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
6 We note that our resolution of the Monell liability issue
does not resolve the Eleventh Amendment immunity question that
the district court will consider on remand. See Gray, 51 F.3d
at 435 (explaining that the district court erred by “appl[ying]
in the Eleventh Amendment context principles applicable only
under section 1983”).
33