James Durham v. Robert Jones , 737 F.3d 291 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2303
JAMES DURHAM,
Plaintiff-Appellee,
v.
SHERIFF ROBERT N. JONES,
Defendant-Appellant,
and
SOMERSET COUNTY,
Defendant,
and
SOMERSET COUNTY, MARYLAND; HEBRON SAVINGS BANK,
Garnishees.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−---------
THE NATIONAL FRATERNAL ORDER OF POLICE,
Amicus Supporting Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:10-cv-02534-WMN; 1:12-cv-02757-WMN)
Argued: October 30, 2013 Decided: December 10, 2013
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opinion in
which Judge Motz and Judge Gregory joined.
ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland, for Appellant. Howard
Benjamin Hoffman, Rockville, Maryland, for Appellee. ON BRIEF:
Douglas F. Gansler, Attorney General of Maryland, John B.
Howard, Jr., Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Steven
H. Goldblatt, Director, Nilam A. Sanghvi, Supervising Attorney,
Rita K. Lomio, Supervising Attorney, Jeffrey P. DeSousa, Student
Counsel, Robyn R. English, Student Counsel, Lindsey Oken,
Student Counsel, Appellate Litigation Program, GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C., for Appellee. Larry H.
James, Christina L. Corl, CRABBE, BROWN & JAMES, LLP, Columbus,
Ohio, for Amicus Curiae.
2
DAVIS, Circuit Judge:
This appeal arises from a $1.1 million jury award in favor
of a terminated employee on a claim of retaliation for the
exercise of his First Amendment rights.
A veteran deputy sheriff used pepper spray and physical
force to subdue a motorcyclist fleeing from a fellow law
enforcement officer. The deputy duly prepared his report of the
incident and submitted the report to his superiors, who in turn
passed it along to their superiors. Alarmed that a damages
lawsuit against the Office of the Sheriff might result from the
deputy’s actions, officers in the upper echelon of the chain of
command authorized detectives to interrogate him aggressively,
while ordering him to revise his incident report. The deputy
opposed this order as factually and legally unwarranted. After
the deputy broadly publicized to numerous public officials, the
media, and others, what he described as corrupt and unlawful
practices occurring in the Office of the Sheriff, the Sheriff
terminated his employment.
The sole issue presented in this appeal is whether the
district court erred in failing to grant qualified immunity to
the Sheriff. For the reasons stated within, we hold that the
district court did not err and accordingly, we affirm the
judgment.
3
I.
To a significant extent, the cardinal facts underlying this
appeal are undisputed but, as always in an appeal from a
district court’s denial of a motion for judgment, we summarize
the evidence in the light most favorable to the prevailing party
in the district court. Sloas v. CSX Transpo., Inc., 616 F.3d
380, 392 (4th Cir. 2010).
Appellee James “Troy” Durham, who had worked in public
safety and law enforcement for nearly twenty years, was employed
as one of about twenty deputy sheriffs in the Somerset County,
Maryland, Sheriff’s Office (SCSO). On August 21, 2008, while on
routine patrol, Durham used pepper spray and physical force to
detain a suspect in the course of assisting a Maryland state
trooper arresting a man fleeing from the trooper on a
motorcycle. Shortly after the incident, as Durham was preparing
his report, 1 Captain Bill Lewis of the SCSO came into Durham’s
office to confirm that he was preparing a report. Captain Lewis
“slammed his fist down on [Durham’s] desk, and in a very loud,
rude manner, he said, ‘Good, because Mr. Pitts, the suspect, has
been transported to the hospital, claiming that he is injured.’”
J.A. 104.
1
Durham’s incident report consisted of a narrative account
of the incident and a separate “use of force” document.
4
Durham’s report included the following statements
explaining his use of force on the suspect:
Based on DFC[2] Durham’s training, knowledge, and
experience, in self-defense, DFC Durham delivered two
forearm blows to the ridge area under the suspect’s
nose, in an effort to gain control of the suspect and
to overcome the resistance that the suspect was
putting up.
***
DFC Durham then delivered two knee blows to the left
side of the suspect’s body in an effort to gain
control of the suspect and to overcome the resistance
that the suspect was putting up.
J.A. 453. Durham provided copies of his report to his immediate
supervisors. Despite Durham’s use of the terms “self-defense”
and “resistance” in describing the need for force against the
suspect, Durham has unfailingly insisted throughout these
proceedings that he regarded his role in the encounter as merely
one of assisting the pursuing state trooper in detaining the
fleeing suspect. The suspect did not assault Durham and, from
Durham’s perspective, he had no basis whatsoever to charge the
suspect with a criminal offense. 3
2
Durham’s official title with the SCSO was as a Deputy
First Class.
3
After the suspect had been subdued, the state trooper
immediately assumed custody of the suspect and transported him
to the nearby barracks.
5
The next day, August 22, 2008, although Durham’s immediate
supervisors had approved his reports, Captain Lewis asked Durham
to complete another Use of Force report using a different form.
Captain Lewis also asked Durham if he needed to go to the
hospital, suggesting obliquely that Durham surely must require
medical attention as a result of the incident the day before.
Durham stated that he was not hurt or in need of medical
attention. Durham added a follow-up report to his initial report
explaining this exchange with Captain Lewis.
Four days later, on August 26, 2008, Durham’s supervisors
explicitly ordered him to charge the suspect with assaulting
Durham and resisting arrest. The supervisors further told Durham
that if he failed to do so, Durham himself would be charged with
assaulting the suspect. Durham then spoke with other supervisory
officers, and based on those consultations, he decided he would
not place charges against the suspect. Durham also detailed
these exchanges in a second follow-up report.
On August 27, 2008, Durham received a memorandum from
Captain Lewis, advising him that Detective Sergeants Renny Miles
and George Nelson, two specially-trained criminal investigators
with the SCSO, would supervise Durham in correcting the
“deficiencies” in his report. At this time, Durham contacted his
attorney through his collective bargaining organization, the
Fraternal Order of Police, giving him copies of his original
6
report and the memorandum. Again, Durham detailed the exchange
with Captain Lewis in a third follow-up report.
Upon reporting for duty on August 29, 2008, Durham was
escorted into an interrogation room by Detectives Miles and
Nelson, where they aggressively questioned him about his use of
force report. 4 Durham asked to have his attorney present. Miles
refused to permit Durham to contact his attorney, had Durham
read and sign a document containing the Miranda 5 warnings, and
continued to question him with increasing aggressiveness. Durham
then told Miles and Nelson that he had already retained an
attorney and given his attorney a copy of Durham’s original
police report and the follow-up reports. Miles insisted that
Durham must revise his original police report and delete the
follow-up reports; if Durham did not, he would be charged both
internally and criminally with assault on the suspect.
Specifically, Miles instructed Durham to remove the facts
4
Durham testified that, in addition to the tenor and tone
of the overall encounter, Miles pulled his chair so close to
Durham’s chair at the initiation of the interrogation that he
was able to place his leg between Durham’s legs and press up
against them. Miles ignored Durham’s protests over this
maneuver.
5
Miranda v. Arizona, 384 U.S. 436 (1966).
7
concerning his use of force against the suspect. 6 Miles also
instructed Durham to delete the follow-up reports as they each
reported how superior officers had asked him to change his
reports.
Durham did not believe that he should revise any of his
previous reports; as he later testified, it was his
understanding that when any law enforcement officer signs a
report “you’re swearing under oath and swearing to God that
that’s the truth, that’s the facts of the case.” J.A. 108. As
the interrogation continued, Miles threatened to take Durham’s
gun and badge if he did not change his report.
Durham theorized that the reason the superior officers
wanted him to revise his report, and charge the suspect with
assault and battery and resisting arrest, was to “cover the
Sheriff’s office.” J.A. 109. Durham suspected that the
supervisors anticipated the suspect would file a complaint of
excessive force (and perhaps a lawsuit), and “wanted to have
everything lined up in case that event happened[.]” Id. 7
6
This included “[t]he inner forearm that [Durham] used as a
compliance move against [the suspect] in order to get him to
comply. And the knee strikes[.]” J.A. 125.
7
The record before us contains no indication that such a
complaint (or lawsuit) was ever filed. Nor does the record
reflect what if any charges were placed against the suspect by
the arresting state trooper.
8
Durham persisted in his refusal to revise the report, and
eventually Miles demanded Durham’s gun, ID, and badge, which he
deposited in an evidence bag. After this, Durham decided to
revise the reports because he did not want to “lose everything.”
J.A. 112. Using a computer terminal in the interrogation room,
Durham made the revisions and deletions Miles demanded that he
make. After first refusing to return Durham’s service weapon,
ID, and badge, Miles eventually returned the items to Durham. As
Durham left the interrogation room (after more than two hours)
Miles “patted [Durham] on the back, and . . . said [Durham] was
a good boy, a good guy, and that none of this happened.” J.A.
114. SCSO supervisors gave Durham the afternoon off with pay and
he went home, emotionally and psychologically shaken by the
experience. 8
Within days after his interrogation, Durham filed an
internal grievance with his superiors, requesting an outside
investigation into the matter. On the same day that Durham filed
his grievance, Appellant, Sheriff Robert N. Jones, demoted him
from DFC to Deputy. On September 10, 2008, Durham was suspended
with pay pending further investigation. The parties spar over
8
Durham testified that he was so disturbed by the
experience in the interrogation room that he could not pin his
badge back on his uniform shirt when Miles returned it; Miles
had to do it for him.
9
the precise circumstances and sequence of events surrounding the
means Durham originally chose to pursue his grievance.
Apparently, Durham first invoked Somerset County human relations
remedies, but soon County officials seemingly deferred to
proceedings within the purview of the Sheriff’s Office.
In any event, after receiving a letter from the County
Administrator informing him that the grievance would be
investigated by the very officials in the SCSO against whom the
grievance had been made in the first place, Durham decided to
take proactive measures of a highly public nature. Specifically,
he prepared a cover letter to a set of documents, which included
a memorandum summarizing the events arising from his August 21,
2008 encounter with the suspect, addressed to his immediate
supervisor; his original police report; the deleted follow-up
reports; the “false” police report Durham created on the
computer during his interrogation by Miles and Nelson; the
signed Miranda form; a copy of the grievance Durham filed; and
his suspension paperwork. Durham sent this packet of materials
to: (1) the Somerset County State’s Attorney; (2) the Governor
of Maryland; (3) the Police Academy where he had been trained;
(4) the Maryland Police Training Commission; and (5) the
Maryland State Police. In addition, he sent the packet to a
number of media outlets, such as the local newspaper, The Daily
10
Times of Salisbury, Maryland, and two local television stations,
WBOC TV 16 and Fox 21 News.
In the correspondence to which the internal SCSO documents
were attached, Durham stated that he believed Sheriff Jones and
others had “broke public trust and abused their power.” J.A.
141. Durham testified that he sent these materials to the news
media “to expose and to alert the public . . . on what had taken
place involving falsifying reports, deleting reports, placing
false charges on an innocent person, violating county policy,
violating my rights, me being assaulted.” J.A. 143. Durham
explained that he sent these materials to the Maryland State
Police because they are an “independent, unbiased, outside law
enforcement agency. And as a citizen, I was making a complaint.
I was the victim in a complaint and of a crime.” J.A. 144.
Durham continued to send these materials to various
political officials, including a Senator in Virginia, until
Jones issued a “gag order” against him on September 28, 2008.
Durham testified, and Jones agreed, that in the internal SCSO
documents, Durham did not reveal any confidential interrogation
methods, special police tactics, or the identity of any
confidential informants. During the ensuing internal
investigation, Durham told investigators that he had sent out
these materials “to expose and to alert the public of the
corruption that had taken place.” J.A. 157.
11
In May 2009, Durham was departmentally charged pursuant to
the Law Enforcement Officers’ Bill of Rights (“the LEOBR”), Md.
Code, Pub. Safety § 3–101, et seq. (West 2013), with assorted
misconduct, including dissemination of departmental information
and unbecoming conduct. 9 In July 2009, the LEOBR Trial Board,
consisting of three law enforcement commanders from other
counties, conducted a two-day evidentiary hearing on the
charges. The Trial Board acquitted Durham of all the charges
except the two relating to the dissemination of information
outside the agency without authorization. The Trial Board
recommended a punishment of five days’ suspension for each
charge, totaling ten days’ suspension. Jones initially
recommended a penalty of thirty days’ suspension for each of the
charges, totaling sixty days’ suspension.
After the Trial Board issued its decision, Jones sent a
letter to Durham, informing him that, pursuant to the LEOBR, he
(Jones) was considering a possible increase in the sanction. He
invited Durham to appear for a penalty hearing on September 16,
2009. The day after Durham and his attorney appeared before
9
Other charges included failure to obey a lawful order,
failure to show respect for a fellow employee, failure to be
courteous to the public, failure to carry out responsibilities
in a competent manner, failure to take appropriate action,
submission of a false report, use of excessive force, and
failure to conform to law.
12
Jones for the penalty consideration, Durham received notice of
his termination.
II.
Durham sued Jones in his individual capacity under 42
U.S.C. § 1983, alleging that he was terminated in retaliation
for exercising his free speech rights under the First
Amendment. 10 Jones moved to dismiss Durham’s case under Federal
Rule of Civil Procedure 12(b)(6) on grounds of qualified
immunity. The district court denied the motion and the case went
to trial.
Durham and Jones both testified at length. Durham testified
to the incidents leading up to his termination, including his
interactions with Jones and Miles. Jones explained that he
terminated Durham’s employment because Durham had “undermined
the Sheriff’s office . . . . [Durham’s public disclosures were]
full of all kinds of comments about people in my office, me, and
everybody else. We were a joke. It was an embarrassment. We
spent time tracking down witnesses . . . it was just a
nuisance[.]” J.A. 304-05. Jones also testified that if Durham
had not disseminated the information he did, he “probably” would
not have been terminated. J.A. 314. Jones testified that he felt
10
Additional claims Durham asserted against Jones and
against other defendants are not before us in this appeal.
13
that Durham had “stabbed [him] in the back,” and that Durham’s
allegations amounted to calling him a “crook.” J.A. 348.
After Durham presented his case, Jones moved for judgment
as a matter of law under Federal Rule of Civil Procedure 50(a),
again on grounds of qualified immunity. The district court
denied the motion. Jones did not present an affirmative case,
and the matter was submitted to the jury. The jury found in
favor of Durham, awarding him $1,112,200 in combined economic
and non-economic damages.
Jones timely renewed his motion for judgment pursuant to
Federal Rule of Civil Procedure 50(b), once again presenting
arguments on qualified immunity. The district court denied the
motion. This appeal followed. We have jurisdiction pursuant to
28 U.S.C. § 1291.
III.
We review a district court’s denial of a Rule 50(b) motion
de novo. Sloas, 616 F.3d at 380. As to qualified immunity, as
with any claim or defense, we view the evidence adduced at trial
“in the light most favorable to the prevailing party,” id., and,
in circumstances such as those here, we reverse only if “the
evidence favoring the [plaintiff] is [not] legally sufficient to
overcome the defense.” Ortiz v. Jordan, 131 S. Ct. 884, 889
(2011). In our de novo review of the denial of qualified
14
immunity on the record here, we are mindful of the Supreme
Court’s recent admonishment:
Once the case proceeds to trial, the full record
developed in court supersedes the record existing at
the time of the summary judgment motion. A qualified
immunity defense, of course, does not vanish when a
district court declines to rule on the plea summarily.
The plea remains available to the defending officials
at trial; but at that stage, the defense must be
evaluated in light of the character and quality of the
evidence received in court.
Id.
IV.
Jones contends that he is entitled to qualified immunity,
which shields government officials “who commit constitutional
violations but who, in light of clearly established law, could
reasonably believe that their actions were lawful.” Henry v.
Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc) (citing
Saucier v. Katz, 533 U.S. 194, 206 (2001)). “The burden of proof
and persuasion with respect to a defense of qualified immunity
rests on the official asserting that defense.” Meyers v.
Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013). “To
prevail under qualified immunity, [Jones] has to show either
that there was no constitutional violation or that the right
violated was not clearly established.” Gregg v. Ham, 678 F.3d
333, 341 n.7 (4th Cir. 2012) (citing Henry, 652 F.3d at 531).
Jones argues first that there was no violation of Durham’s First
Amendment rights, and second, even if there was a violation, the
15
right was not clearly established. We consider each issue in
turn.
A.
Jones contends that it was not a violation of Durham’s
First Amendment rights to terminate him for his publication of
documents from Durham’s internal grievance proceedings. If he is
correct, then he is entitled to qualified immunity. Chavez v.
Martinez, 538 U.S. 760, 766 (2003) (plurality opinion) (“In
deciding whether an officer is entitled to qualified immunity,
we must first determine whether the officer’s alleged conduct
violated a constitutional right . . . . If not, the officer is
entitled to qualified immunity.”) (internal citations omitted).
We evaluate the exercise of First Amendment rights by
public employees differently from their exercise by other
citizens; we must balance the interests of an employee who, as a
citizen, comments upon matters of public concern, on the one
hand, and the interests of a governmental employer, which must
maintain an effective workplace, on the other. Connick v. Myers,
461 U.S. 138, 142 (1983) (citing Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968)). To determine if a public employee has a
cognizable First Amendment claim for retaliatory discharge, we
apply a three-part test:
First, we consider whether the public employee was
speaking as a citizen upon a matter of public concern
or as an employee about a matter of personal interest.
16
Second, even if the employee spoke upon a matter of
public concern, we must determine whether the
employee's interest in speaking upon the matter of
public concern outweighed the government’s interest in
managing the working environment. And finally, if the
employee’s claim satisfies both of these legal
criteria, the court turns to the factual question of
whether the employee’s speech was a substantial factor
in the employee’s termination decision.
Brooks v. Arthur, 685 F.3d 367, 371 (4th Cir. 2012) (internal
citations and quotation marks omitted).
Jones does not dispute that Durham’s speech was a
substantial factor in his decision to terminate Durham’s
employment. Thus, we are concerned solely with the first two
prongs of Durham’s retaliation claim.
Matter of Public Concern
Jones first argues that Durham’s speech was not on a matter
of public concern, as he was simply publicizing his internal
grievances. The trial record does not bear out Jones’
contention.
The Supreme Court has instructed courts to look to the
“content, form, and context of a given statement” to determine
whether it addresses a matter of public concern. Connick, 461
U.S. at 147-48. “Speech involves a matter of public concern when
it involves an issue of social, political, or other interest to
a community.” Kirby v. City of Elizabeth City, 388 F.3d 440, 446
(4th Cir. 2004). This does not include “personal complaints and
grievances about conditions of employment.” Campbell v.
17
Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (citing Stroman v.
Colleton Cnty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992)).
While Jones is correct that personal grievances are not matters
of public concern, he mischaracterizes Durham’s actions and
misapprehends the focus of Durham’s communications to public
officials and the media.
As the district court correctly ruled, Durham is not
claiming First Amendment protection for the materials he filed
in the internal grievance proceedings (including the attachments
to his letters), or for his filing of an internal grievance.
Rather, Durham is claiming First Amendment protection for his
publicizing of those materials in connection with his
overarching allegations of serious and pervasive law enforcement
misconduct in the SCSO. To be sure, it cannot be denied on this
record that the misconduct alleged came to light mainly because,
or perhaps only because, Durham himself became a victim of the
misconduct. Nevertheless, that circumstance does not undermine
the conclusion that his allegations rose to the level of speech
on a matter of public concern. We have no hesitation in holding
that the trial evidence amply supported the district court’s
determination that the content of Durham’s communication
strongly militated in favor of finding it was on a matter of
public concern.
18
Unlike in Connick, Durham did in fact “seek to inform the
public,” 461 U.S. at 148, of how his superiors were instructing
him to revise his reports in a way that he, as the only
percipient witness to the events, knew and believed to be false.
Durham sought “to bring to light actual or potential
wrongdoing,” id., on the part of his superiors, calling for an
external investigation and media coverage. In his explanatory
letter included with the other materials, Durham outlined the
circumstances of his superiors asking him to falsify police
reports and submit unwarranted charges against the suspect in
the August 21, 2008 incident, on the unmistakable pretextual
basis that doing so would pretermit a citizen complaint or a
damages lawsuit. As we held in Maciariello v. Sumner, 973 F.2d
295, 300 (4th Cir. 1992), “an allegation of evidence tampering
by a high-ranking police officer is a matter in which the public
should be interested.” Durham was disturbed by the misconduct he
saw in the SCSO, and which he experienced first-hand, and he
felt that it needed public attention in order to be remedied. 11
11
At oral argument before us, Jones argued strenuously that
Durham was simply mistaken in his belief that he lacked probable
cause to place charges against the suspect, and that his
supervisors were entitled to take corrective action. We need not
and do not venture into that thicket. If the supervisory
officials in the SCSO genuinely believed that, despite his many
years of law enforcement experience, Durham required additional
or remedial training, then clearly that avenue was open to them.
What was not shielded from public scrutiny, however, were
(Continued)
19
In addition to the content of his statements, the form and
context of their dissemination confirm that they were on a
matter of public concern. Durham did not keep the written
materials internal, but instead sent them to a broad audience:
state and law enforcement offices including the Somerset County
State’s Attorney, the Governor of Maryland, the Police Academy,
the Maryland Police Training Commission, the Maryland State
Police, as well as a number of media outlets, such as The Daily
Times of Salisbury, Maryland, WBOC TV 16, and Fox 21 News. As an
insider in the SCSO, Durham was uniquely positioned to have
knowledge of its practices. Moreover, Jones testified that if
the SCSO engaged in a cover-up, the public would be “concerned”
and “upset,” J.A. 290, and noted that he had given at least one
interview to the news media about Durham’s termination. The fact
that the issue was one which interested the media indicates that
it was of public interest, as we noted in Robinson v. Balog, 160
F.3d 183 (4th Cir. 1998). There, we found that statements made
at a public meeting were protected speech, and a factor in our
consideration was that the meeting led to local press coverage.
Id. at 188-89.
aggressive and corrupt attempts to ward off lawsuits through the
falsification of law enforcement records.
20
In sum, the district court correctly concluded, as a matter
of law, see Connick, 461 U.S. at 148 n.7, that Durham’s
communications were on a matter of public concern, given their
content, form, and context.
Balancing Speech Rights Against Effective Work Environment
Jones argues that even if Durham was addressing a matter of
public concern, the SCSO’s interest in maintaining an efficient
and effective law enforcement agency outweighed Durham’s rights
under the First Amendment. 12 Again, however, we discern no
substantial evidence in the trial record supporting this claim.
12
Durham argues, unpersuasively, that Jones is generally
estopped from arguing the reasonableness of his decision to
terminate Durham, as the Maryland Court of Special Appeals has
ruled that the termination decision was “arbitrary and
capricious.” Durham v. Jones, No. 1382, at *16 (Md. Ct. Sp. App.
Aug. 1, 2012) (unreported). This argument badly misses the mark.
Durham sought judicial review of Sheriff Jones’ administrative
decision in the Circuit Court for Somerset County pursuant to
the provisions of the LEOBR. Although the lower court sustained
the Sheriff’s decision to terminate Durham, finding that he had
not deviated from the discretion granted to him by statute, the
Court of Special Appeals reversed, holding that the Sheriff’s
decision to increase Durham’s penalty from a ten-day suspension
to termination was “so extreme and egregious that it constituted
an arbitrary and capricious action.” Id. at *16. The court’s
decision did not, however, examine whether the Sheriff had
violated Durham’s First Amendment rights; in fact, the court
expressly declined to review the termination on those grounds,
finding that Durham had failed to properly preserve the issue in
the trial court. Id.
Durham argues that this decision collaterally estops Jones
from “relitigating” whether the decision to terminate Durham was
reasonable. Durham mistakes the issue in this appeal. The
question before this panel is not whether Jones had sufficient
(Continued)
21
“The efficient functioning of government offices is a
paramount public interest.” Balog, 160 F.3d at 189. Police are
the most restrictive in this regard as they are “paramilitary –
discipline is demanded, and freedom must be correspondingly
denied.” Maciariello, 973 F.2d at 300 (internal quotation marks
and citations omitted). We consider a number of factors in
determining “the extent to which [the protected speech] disrupts
the operation and mission of the agency.” McVey v. Stacy, 157
F.3d 271, 278 (4th Cir. 1998).
Factors relevant to this inquiry include whether a
public employee’s speech (1) impaired the maintenance
of discipline by supervisors; (2) impaired harmony
among 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.
evidence to justify his termination of Durham in the exercise of
his discretion under the LEOBR, as the Court of Special Appeals
considered. Rather, the question before this panel is whether,
even assuming some sanction could be imposed upon Durham for his
dissemination of internal SCSO documents, Jones violated
Durham’s First Amendment rights by retaliating against him for
speaking on a matter of public concern, under circumstances in
which Durham’s interest outweighed the Sheriff’s interest in an
efficient and orderly law enforcement agency. There has been no
“relitigation” of that issue, which the Court of Special Appeals
specifically declined to review.
22
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317
(4th Cir. 2006) (citing McVey, 157 F.3d at 278).
Tellingly, Jones presented no evidence at trial of any
actual disruption in the SCSO resulting from Durham’s
communications, other than vague references to Durham’s actions
“undermining the public trust.” J.A. 316. While Jones is correct
that “concrete evidence” of an actual disruption is not
required, there must still be a reasonable apprehension of such
a disruption. Maciariello, 973 F.2d at 300. At trial, Jones paid
lip service to ostensible damage to office morale, relationships
between colleagues, and the function of the office generally,
but he was unable to articulate any way in which the office
would have been different or was actually different due to
Durham’s statements. Had Jones imposed the relatively brief
(ten-day) suspension recommended by the LEOBR Trial Board, there
is evidence in the record that deputies and supervisors in the
SCSO were still amenable to working with Durham, including Jones
himself, who had actually rehired Durham when he had earlier
left the SCSO for what he thought might be a better opportunity,
only to return to the SCSO.
It is useful to compare this situation with the one in
Stroman, 981 F.2d at 152. In Stroman, a teacher wrote letters to
his colleagues regarding wage grievances and proposed a “sick-
out” during exam week to send a message to administrators. Id.
23
at 158-59. The potential for disruption in such a situation is
obvious: the school could not be functional without its
teachers, who are essential in providing its services. In
contrast, when Jones was asked whether Durham’s actions
“hamper[ed] the ability of the Somerset County Sheriff’s Office
to protect the public,” Jones responded he “[didn’t] know, but
[he] wouldn’t think so.” J.A. 318.
This is not to say that there was no impact felt in the
SCSO whatsoever. Jones testified that officers had to spend time
on the investigation, and there was office conversation about
Durham and the entire incident. But it is not enough that there
is some disruption; the amount of disruption has to outweigh the
importance of the speech and its concern to the public. See
Connick, 461 U.S. at 152; see also McVey, 157 F.3d at 279
(Murnaghan, J., concurring) (“A stronger showing of public
interest in the speech requires a concomitantly stronger showing
of government-employer interest to overcome it.”).
Whatever artful affidavits might have suggested at summary
judgment, we examine here the trial record, not a hypothetical
rumination on what could have or might have transpired. See
Ortiz, 131 S. Ct. at 889. Serious, to say nothing of corrupt,
law enforcement misconduct is a substantial concern that must be
met with a similarly substantial disruption in the calibration
of the controlling balancing test. Given Jones’ inability to
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show at trial how Durham’s actions had an adverse impact on the
proper functioning of the SCSO in some serious manner, the
balance between Durham’s rights as a private citizen under the
First Amendment and Jones’ interest in ensuring an efficient and
effective work environment tilts heavily in favor of Durham and
his entitlement to enjoy protected speech. Accordingly, we find
that the district court was right to conclude, on the present
record, that Durham’s interests outweighed those on the other
side; Durham proved, as the jury found, that he suffered a
constitutional injury.
B.
Having found that Jones violated Durham’s First Amendment
rights, we must now look to whether, at the time of Durham’s
termination, Durham’s rights were “clearly established” such
that a “reasonable person would have known” the termination of
his employment would be violative of the First Amendment.
Ridpath, 447 F.3d at 313. “[A] constitutional right is clearly
established when ‘its contours [are] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.’” Id. (quoting Hope v. Pelzer, 536 U.S.
730, 739 (2002)).
Jones argues that the right in question here was not
clearly established because there was not a bright line rule to
address Durham’s situation, and there is “scant guidance on the
25
boundaries of public employee speech rights” in the Fourth
Circuit. App. Br. 32. Jones is incorrect. We have been clear
that where public employees are speaking out on government
misconduct, their speech warrants protection. Balog, 160 F.3d at
189. Of course, not every situation involving a government
employee speaking about some workplace dispute qualifies – as we
pointed out in Balog. Id. at 189-90. But just as in Balog, the
situation here is “no ordinary workplace dispute.” Id. at 190.
Nor is this a situation in which Durham’s accusations were
buried in a “rambling” letter full of other incidents and
accusations. See Campbell, 483 F.3d at 271 (granting qualified
immunity as no reasonable person would have known that a
“rambling thirteen-page memo . . . which focused overwhelmingly
on personal grievances and vague gripes about fellow officers
not being very nice to her, touched on a matter of public
concern[.]”).
The incidents at issue here rise far above an ordinary
workplace dispute. Durham accused several high-ranking law
enforcement officials, in positions of authority within the
SCSO, of falsifying law enforcement reports and with authorizing
aggressive threats against a member of their own agency if he
persisted in his opposition to such a practice. As we have
indicated above, Durham’s honest belief, even if it was a
mistaken belief, that his use of force was both justified to
26
assist in the apprehension of the suspect, but (at the same
time) did not arise out of any contemporaneous criminal act by
the suspect, might call for retraining or some other response
from his supervisors. That is their call. But the use of
coercion and threats against him as shown in this record and
accepted as accurate by the jury goes far beyond such
permissible bounds. Durham was being coerced to lie under oath
insofar as they demanded that he revise his reports in a way
contrary to his honestly-held beliefs; he testified that, as
when any law enforcement officer signs a police report, “you’re
swearing under oath and swearing to God that that’s the truth,
that’s the facts of the case.” J.A. 108. This is especially
important to the function of law enforcement, as such reports
“become a piece of evidence that could later on be used in court
to prosecute somebody, to possible even send them to jail, so it
has to be truthful and accurate of the facts.” Id.
In short, it was clearly established in the law of this
Circuit in September 2009 that an employee’s speech about
serious governmental misconduct, and certainly not least of all
serious misconduct in a law enforcement agency, see Andrew v.
Clark, 561 F.3d 261, 269 (4th Cir. 2009), is protected. The mere
fact that Jones may have had an independent basis to impose some
lesser disciplinary sanction on Durham short of outright
termination, such as a short suspension from duty, does not
27
muddle the clarity of that legal principle. Jones’ arguments to
the contrary are unavailing.
V.
For the reasons set forth, the judgment of the district
court is
AFFIRMED.
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