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Media Alerts - Bland v. Roberts - Fourth Circuit
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September 28, 2013
  Bland v. Roberts - Fourth Circuit
Headline: Sheriff's Deputies' Facebook "Likes" Are Protected by First Amendment

Area of Law: First Amendment

Issue Presented: Whether a sheriff, who fired deputies because they supported a rival candidate, can be sued individually and officially for violating the deputies' First Amendment rights

Brief Summary: Six deputy sheriffs were not reinstated after the town election for Sheriff. They claimed their termination was retaliation for their support of the rival candidate. Some of the deputies had, among other things, expressed support for the rival by "liking" his campaign page on Facebook, putting bumper stickers on their cars, and making statements in favor of him. The Sheriff was aware of what the deputies were doing, and made statements threatening them. The terminated deputies sued, claiming they lost their jobs due to the Sheriff's retaliation. The district court held that because deputy sheriffs have a policymaking role, they can be fired for political reasons. The Fourth Circuit reversed, finding that while its prior decisions were unclear, in this case the deputies were not engaged in policymaking and therefore could not be fired due to their political views. Although three of these employees had valid First Amendment claims, the Fourth Circuit noted that the Sheriff was still entitled to qualified immunity, and that they could not recover monetary damages. These three could still proceed, however, on claims for reinstatement.

Extended Summary: B.J. Roberts, the Sheriff of Hampton, Virginia, was running for reelection in 2009 after serving for 17 years. Roberts asked his deputies to support his campaign, such as by working at his campaign fundraisers. Additionally, he warned them to refrain from supporting the rival candidate, Jim Adams, a former senior deputy in the office. During the campaign, Roberts was told that certain deputies were supporting Adams. After the election, Roberts did not reinstate 12 of his 159 employees, six of whom sued him in his individual and official capacities for retaliation in violation of their First Amendment rights.

Carter, Dixon, and McCoy were deputy sheriffs who supported Adams in 2009. Carter and McCoy, for instance, posted on Facebook that they "liked" Adams' campaign page, and were seen in pictures at an Adams' campaign cookout co-hosted by Carter. Dixon, while working at a polling place, made a dismissive comment about Roberts' campaign materials to another Sheriff's Office employee. In September 2009, Roberts addressed his employees' support of Adams in speeches he gave during various shift changes. He said he disapproved of employees expressing support on Facebook, and threatened that he would fire those who openly supported Adams. Following the election, Roberts made good on his threat. When the terminated deputies sued, the district court granted summary judgment to Roberts, finding he was entitled to immunity in both his individual and official capacities.

The United States Court of Appeals for the Fourth Circuit reversed in part. The court first noted that public employees may be fired for their political speech and associations if they hold "policy-making" positions. In Jenkins v. Medford, the Fourth Circuit suggested that all deputy sheriffs "play a special role in implementing the sheriff's policies and goals." Accordingly, political loyalty was seen in Jenkins to be an appropriate requirement for effective performance. In Knight v. Vernon, however, the Fourth Circuit clarified that courts should look to the particular duties of an employee to determine if they are in a policymaking role. In that case, where the sheriff's office employee was engaged primarily in the duties of "a low-level jailer," the court found that he was not a policymaking official and could not be fired for political association. Using this analysis in the case before it, the Fourth Circuit found that Carter, McCoy, and Dixon served many of the same "custodial" duties as the employee in Knight (such as cleaning holding cells and assisting with the management of arrestees) and had never made an arrest. They could not, therefore, be fired for their political speech. The Fourth Circuit specifically noted that "liking" a political candidate's page on Facebook could be protected speech under the First Amendment, likening it to the "internet equivalent of displaying a political sign in one's front yard." Furthermore, Dixon had engaged in protected speech when he made his "polling place comment," since it was made about a matter of public concern, not his official duties.

The Fourth Circuit further found that Roberts was entitled to Eleventh Amendment immunity for the official capacity claims. Any judgment in federal court against Roberts acting as Sheriff would be paid by the Commonwealth of Virginia, and the Eleventh Amendment protects States from this monetary liability in federal court. Roberts was not, however, entitled to Eleventh Amendment immunity on the reinstatement claims, since the Supreme Court has crafted an exception in the cases of non-monetary awards. Roberts was also entitled to qualified immunity for claims brought against him in an individual capacity. The court found that in light of the apparent discrepancy between the Jenkins and Knight decisions, "in December 2009 a reasonable sheriff could have believed he had the right to choose not to reappoint his sworn deputies for political reasons, including speech indicating the deputies' support for the Sheriff's political opponent."

Judge Hollander, sitting by designation, wrote a dissenting opinion on the qualified immunity issue. Because the Supreme Court has "long required courts to 'examine the particular responsibilities of the position' to determine whether a given public employee comes within the exception to the rule against patronage dismissals," Judge Hollander rejected the Majority's view that the legal standard was unclear at the time. In her reading, there was no conflict between Jenkins and Knight, so a reasonable sheriff should have known he could not fire the plaintiffs for political reasons.

Panel: Judges Traxler, Thacker, and District Judge Hollander (by designation)

Date of Issued Opinion: 09/18/2013

Docket Number: No. 12-1671

Case Alert Author: Caleb Karpay

Counsel: ARGUED: James Harrell Shoemaker, Jr., PATTEN, WORNOM, HATTEN & DIAMONSTEIN, LC, Newport News, Virginia, for Appellants. Aaron M. Panner, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Amicus Facebook, Inc. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellee.
ON BRIEF: Lisa Ehrich, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellee. Andrew E. Goldsmith, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Amicus Facebook, Inc. Aden J. Fine, Kathryn A. Wood, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC., Richmond, Virginia, for Amici American Civil Liberties Union and ACLU of Virginia. J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William
J. Johnson, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS, Alexandria, Virginia, for Amicus National Association of Police Organizations.

Author of Opinion: Traxler, C.J.; Hollander, J. (dissenting in part)

Case Alert Circuit Supervisor: Renée Hutchins

    Posted By: Renee Hutchins @ 09/28/2013 07:37 AM     4th Circuit  

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