Suzanne Bailey, Senior Attorney, National Legal Research Group
The Lawletter Vol 39 No 1
A recent decision from the Fourth Circuit Court of Appeals illustrates the risk a public employer takes when it attempts to suppress an employee's speech in order to avoid a potential lawsuit from a member of the public. Ironically, in Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), there is no indication that the feared lawsuit by an arrestee was ever filed, but the defendant county sheriff was held liable to a terminated deputy sheriff for $1.1 million.
The 42 U.S.C. § 1983 suit of the plaintiff, Deputy First Class Durham, against the defendant, Sheriff Jones, had its genesis in Durham's use of force on a suspectCpepper spray, two forearm blows to the ridge area under the suspect's nose, and two knee blows to the left side of the suspect's body—in the course of assisting a state trooper in the arrest of the suspect, who was fleeing from the trooper on a motorcycle. In a string of escalating requests after Durham had submitted a use-of-force report to his immediate supervisors, detailing the use of force, other supervisors from the Sheriff's Department demanded that he file another use-of-force report, suggested that he go to the hospital to document medical attention as a result of the incident,
and ordered him to charge the suspect with assault and resisting arrest or face assault charges himself. Durham, who had about 20 years' experience in law enforcement, did not incorporate the changes in follow-up reports or file charges against the suspect, but he did document these exchanges with superiors in subsequent reports. After being advised in writing that two specially trained criminal investigators would help him correct the "deficiencies" in his report, Durham contacted his union attorney.
Two days later, Durham was subjected to a two-hour interrogation by the criminal investigators. He was refused permission to contact his attorney and was required to sign a document containing Miranda warnings. The investigators threatened him with both internal and criminal charges of assaulting the suspect if he did not revise his original report and delete the reports describing the requests of superiors to change the original. In spite of his misgivings about swearing a false oath, Durham ultimately made the changes under the investigators' supervision after they took his gun, ID, and badge. The items were subsequently returned to him. Durham suspected that the investigators wanted to create a better record in case the arrestee filed an excessive force complaint.
Following the interrogation, Durham filed an internal grievance and requested an outside investigation into the matter. On that same day, Sheriff Jones demoted Durham from Deputy First Class to Deputy and suspended him with pay. After learning that the grievance would be
investigated by the very officials against whom the grievance had been made, Durham prepared a cover letter to a set of documents, which included a memorandum summarizing the events arising from his encounter with the suspect, addressed to his immediate supervisor, his original police report, the deleted follow-up reports, the false police report he created during his interrogation, the signed Miranda form, a copy of the grievance he had filed, and his suspension paperwork. He sent this packet of materials to the County State's Attorney, the Governor, the Police Academy where he had been trained, the state Police Training Commission, and the State Police, as well as to a number of media outlets, such as the local newspaper and two local television stations. He later sent the materials to additional political officials and news outlets until Sheriff Jones ordered him to stop.
Following Durham's transmission of information, which Jones agreed did not reveal confidential interrogation methods, special police tactics, or the identity of confidential informants, Durham was brought up on departmental charges and was acquitted of all of the charges except those related to disseminating information without authorization. The hearing tribunal recommended 10 days' suspension, but Sheriff Jones notified Durham that he was considering an increase in the sanction. When Durham appeared for the penalty hearing, he was given a notice of termination.
Durham sued Jones under 42 U.S.C. § 1983, alleging that he had been terminated for exercising his free speech rights under the First Amendment. The district court denied Sheriff Jones's motion to dismiss on the ground of qualified immunity, and the case went to trial, where the jury also rejected that affirmative defense.
Qualified immunity shields governmental officials who have committed constitutional violations in their individual capacities but who, in light of clearly established law, could easonably have believed that they were acting lawfully. To prevail on that defense—and avoid suit—a public official must show either that there was no constitutional violation or that the right violated was not clearly established at the time of the violation. Jones showed neither. In determining whether Durham's free speech rights had been violated when Jones terminated him, the court employed the test developed by the U.S. Supreme Court in Connick v. Myers, 461 U.S. 138, 142 (1983), and Pickering v. Board of Education, 391 U.S. 563, 568 (1968): (1) Was the employee speaking out as a citizen on a matter of public concern or as an employee concerned with a personal interest? (2) If the employee spoke out on a matter of public concern, was the employee's interest in speaking outweighed by the Government's interest in managing the workplace? (3) If the first two criteria are resolved in favor of the employee, was his or her speech a substantial factor in the decision to terminate him or her?
In this case, Sheriff Jones admitted that Durham's speech was a substantial factor in his decision to discharge Durham, satisfying the third factor. The Fourth Circuit found that, notwithstanding that the information Durham communicated to the public was relevant to his
internal grievance and disciplinary proceedings, his rationale for disseminating the documents was to alert the public to serious and pervasive law enforcement misconduct in the Sheriff's Office, which was clearly a matter of public concern, as demonstrated by the interest in the story shown by the media. Thus, the first factor was satisfied. The second factor was satisfied because Sheriff Jones presented no evidence showing that Durham's actions had created any disruption in the Sheriff's Office.
It was established that Durham's First Amendment rights had been violated, so in order to be granted qualified immunity, Jones was required to show that a reasonable officer would not have known that Durham's right not to be fired for speaking out in the manner that he did was not clearly established at the time of his termination from employment. The Fourth Circuit rejected Jones's argument that the lack of a bright-line rule to address Durham's situation meant that the right was not clearly established. The court observed that it had been clear in prior opinions in holding that public employees who speak out about misconduct warrant protection. Moreover, the circumstances of Durham's termination, which included coercion to lie under oath and threats against him, took the situation out of the realm of the ordinary workplace dispute. Accordingly, the right was clearly established, and the judgment of the district court was affirmed.
