September 18, 2013 4th Circuit published opinion

Bland v Roberts

Bland and five other plaintiffs were not reappointed to their positions in the sheriff’s department after Roberts was reelected. They sued claiming their nonrenewal was based on their opposition to Roberts’ reelection. The district court granted summary judgment to Roberts. The panel, with one judge concurring in part and dissenting in part, affirmed in part, reversed in part and remanded. The panel held that each plaintiff’s position must be examined individually to determine if its duties allowed the sheriff to base employment decisions on political considerations. Three of the plaintiffs were jailers and the panel held they were protected from nonrenewal for political reasons as they had limited duties in comparison with patrol deputies, did not have general arrest power and did not serve to as an alter ego to Roberts in implementing department policy. Those plaintiffs also created a genuine issue of fact about causation in that their support for Roberts’ opponent was known by Roberts as they posted support on Facebook, made statements of support to Roberts’ campaign workers and attended events for the other candidate and Roberts threatened to fire all employees who supported his opponent. Bland and two other plaintiffs, however, did not create a genuine issue as to causation as their expressions of support were made to people who would not share with sheriff. As to the free speech claims, the panel held that “liking” a campaign Facebook page is speech just as putting a campaign sign in your yard is speech, that the “liking” was done as private citizen on an issue of public importance and the political speech outweighs any interest in a harmonious workplace. The panel held that a plaintiff who made a statements of disapproving Roberts’ campaign to a poll worker of Roberts created a genuine issue of material fact as the dispute as to whether he used profanity is for the jury to decide and the sheriff admitted firing that plaintiff for making the statement. The panel held that the three plaintiffs whose claims survive summary judgment could seek reinstatement as a remedy for an ongoing violation of their rights, but, the 11th Amendment bars monetary relief as the Commonwealth of Virginia would be liable for the judgment and no waiver of immunity occurred din this matter. Finally the majority held that Roberts was entitled to qualified immunity on the individual claims against him as a reasonable sheriff would have been confused as to the law in the 4th Circuit given the mixed signals in the precedent as to when a sheriff can fire an employee for political reasons. Thus, only the reinstatement claims were remanded for further proceedings. The dissent argued that at the time of the nonrenewal, the law in the 4th Circuit was clear that jailers cannot be fired for political reasons and the dissent would have allowed the individual claims to proceed.

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