Bobby Bland v. B. Roberts

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1671

BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT
W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD,

Plaintiffs - Appellants,

v.

B. J. ROBERTS, individually and in his official capacity as
Sheriff of the City of Hampton, Virginia,

Defendant - Appellee.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−--

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA FOUNDATION; FACEBOOK, INC.; NATIONAL
ASSOCIATION OF POLICE ORGANIZATIONS,

Amici Supporting Appellants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:11-cv-00045-RAJ-TEM)

Argued: May 16, 2013 Decided: September 18, 2013

Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen
Lipton HOLLANDER, United States District Judge for the District
of Maryland, sitting by designation.

Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion, in which Judge
Thacker joined. Judge Hollander wrote a separate opinion
concurring in part and dissenting in part.

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.

2
TRAXLER, Chief Judge:

Six plaintiffs appeal a district court order granting

summary judgment against them in their action against B.J.

Roberts in his individual capacity and in his official capacity

as the Sheriff of the City of Hampton, Virginia. The suit

alleges that Roberts retaliated against the plaintiffs in

violation of their First Amendment rights by choosing not to

reappoint them because of their support of his electoral

opponent. We affirm in part, reverse in part, and remand for

trial.

I.

Viewing the facts in the light most favorable to the

plaintiffs, as we must in reviewing an order granting summary

judgment against them, the record reveals the following. Bobby

Bland, Daniel Ray Carter, Jr., David W. Dixon, Robert W. McCoy,

John C. Sandhofer, and Debra H. Woodward (“the Plaintiffs”) are

all former employees of the Hampton Sheriff’s Office (“the

Sheriff’s Office”).

Roberts was up for re-election in November 2009, having

served as sheriff for the prior 17 years. Jim Adams announced

in early 2009 that he would run against Sheriff Roberts. Adams

had worked in the Sheriff’s Office for 16 years and had become

the third most senior officer, with a rank of lieutenant

colonel, when he resigned in January 2009 to run.

3
 The Hampton City Police Department has primary

responsibility for law enforcement in Hampton. However, the

Sheriff’s Office maintains all city correctional facilities,

secures the city’s courts, and serves civil and criminal

warrants. In December 2009, the Sheriff’s Office had 190

appointees, including 128 full-time sworn deputy sheriffs, 31

full-time civilians, 3 unassigned active duty military, and 28

part-time employees. Carter, McCoy, Dixon, and Sandhofer were

sworn, uniformed sheriff’s deputies who worked as jailers in the

Sheriff’s Office Corrections Division. 1 They had not taken the

Virginia Department of Criminal Justice Services’ “Basic Law

Enforcement” course, completion of which was required in

Virginia for an officer to patrol and have immediate arrest

powers. 2 However, they did take the “Basic Jailer and Court

Services” course, which has about half as long a curriculum as

the Basic Law Enforcement course. Although they did not have

general powers of immediate arrest, the deputies did have the

1
Sandhofer worked as a jailer for most of his short time in
the Sheriff’s Office, although he worked as a civil process
server in the Sheriff’s Office Civil Process Division for the
final three months of his tenure.
2
The Virginia Department of Criminal Justice Services,
Division of Law Enforcement, has the responsibility of
overseeing and managing training standards and regulations for
the criminal justice community.

4
authority to make “incidental arrest[s] in [the] range of

[their] work.” J.A. 297.

Bland and Woodward were not deputies, but rather worked in

non-sworn administrative positions. Woodward was a training

coordinator and Bland was a finance and accounts payable

officer.

Notwithstanding laws and regulations prohibiting the use of

state equipment or resources for political activities, see Hatch

Act, 5 U.S.C. § 1501, et. seq.; 22 Va. Admin. Code § 40-675-210

(2012), Sheriff Roberts used his office and the resources that

he controlled, including his employees’ manpower, to further his

own re-election efforts. His senior staff often recruited

Sheriff’s Office employees to assist in these efforts. For

example, he used his employees to work at his annual

barbeque/golf tournament political fundraiser, and his

subordinates pressured employees to sell and buy tickets to his

fundraising events.

The Sheriff won reelection in November 2009. He

subsequently reappointed 147 of his 159 full-time employees.

Those not reappointed included the six Plaintiffs as well as

five other deputies and one other civilian.

On March 4, 2011, the Plaintiffs filed suit in federal

district court against Sheriff Roberts in his individual and

official capacities under 42 U.S.C. § 1983. All six Plaintiffs

5
alleged that the Sheriff violated their First Amendment right to

free association when he refused to reappoint them based on

their lack of political allegiance to him in the 2009 election.

Additionally, Carter, McCoy, Dixon, and Woodward alleged that

the Sheriff violated their First Amendment right to free speech

when he refused to reappoint them because of various instances

of speech they made in support of Adams’s campaign. Among the

remedies Plaintiffs requested were compensation for lost back

pay and compensation for lost front pay or, alternatively,

reinstatement. The Sheriff answered Plaintiffs’ complaint and

asserted several affirmative defenses.

Roberts subsequently moved for summary judgment, and the

district court granted it. See Bland v. Roberts, 857 F. Supp.

2d 599 (E.D. Va. 2012). Regarding the free-speech claims, the

district court concluded that Carter, McCoy, and Woodward had

all failed to allege that they engaged in expressive speech and

that Dixon had not shown that his alleged speech was on a matter

of public concern. See id. at 603-06. Regarding the

association claims, the court concluded that Plaintiffs failed

to establish any causal relationship between their support of

Adams’s campaign and their non-reappointment. See id. at 606-

07. Finally, assuming arguendo that the Sheriff did violate

Plaintiffs’ First Amendment rights, the district court concluded

he was entitled to qualified immunity on the individual-capacity

6
claims and Eleventh Amendment immunity on the official-capacity

claims. See id. at 608-10.

II.

On appeal, the Plaintiffs maintain that the district court

erred in granting summary judgment against them.

This court reviews de novo a district court’s order

granting summary judgment, applying the same standards as the

district court. See Providence Square Assocs., L.L.C. v.

G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary

judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

The Plaintiffs allege that they were retaliated against for

exercising their First Amendment rights to free speech and

association. The First Amendment, in relevant part, provides

that “Congress shall make no law . . . abridging the freedom of

speech.” U.S. Const. amend. I. The Fourteenth Amendment makes

this prohibition applicable to the states. See Fisher v. King,

232 F.3d 391, 396 (4th Cir. 2000). Not only does the First

Amendment protect freedom of speech, it also protects “the right

to be free from retaliation by a public official for the

exercise of that right.” Suarez Corp. Indus. v. McGraw, 202

F.3d 676, 685 (4th Cir. 2000). Although government employees do

7
not forfeit their constitutional rights at work, it is well

established “that the government may impose certain restraints

on its employees’ speech and take action against them that would

be unconstitutional if applied to the general public.” Adams v.

Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th

Cir. 2011) (internal quotation marks omitted).

The Supreme Court in Connick v. Myers, 461 U.S. 138 (1983),

and Pickering v. Board of Education, 391 U.S. 563 (1968), has

explained how the rights of public employees to speak as private

citizens must be balanced against the interest of the government

in ensuring its efficient operation. In light of these

competing interests, we have held that in order for a public

employee to prove that an adverse employment action violated his

First Amendment rights to freedom of speech, he must establish

(1) that he “was speaking as a citizen upon a matter of public

concern or as an employee about a matter of personal interest”;

(2) that “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) that

“the employee’s speech was a substantial factor in the

employee’s termination decision.” McVey v. Stacy, 157 F.3d 271,

8
277-78 (4th Cir. 1998). 3 In conducting the balancing test in the

second prong, we must consider the context in which the speech

was made, including the employee’s role and the extent to which

the speech impairs the efficiency of the workplace. See Rankin

v. McPherson, 483 U.S. 378, 388-91 (1987).

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 [agency]; (6) undermined the mission
of the [agency]; (7) was communicated to the public or
to coworkers in private; (8) conflicted with the
responsibilities of the employee within the [agency];
and (9) abused the authority and public accountability
that the employee’s role entailed.

Ridpath v. Board of Governors Marshall Univ., 447 F.3d 292, 317

(4th Cir. 2006). Accordingly, “a public employee who has a

confidential, policymaking, or public contact role and speaks

out in a manner that interferes with or undermines the operation

of the agency, its mission, or its public confidence, enjoys

substantially less First Amendment protection than does a lower

level employee.” McVey, 157 F.3d at 278.

3
The Sheriff appropriately does not contend that the fact
that the Plaintiffs were simply not reappointed – as opposed to
being otherwise discharged – affects the constitutionality of
his actions. The critical fact for our purposes is that the
termination of the Plaintiffs’ employment with the Sheriff’s
Office was not the Plaintiffs’ decision. See Branti v. Finkel,
445 U.S. 507, 512 n.6 (1980).

9
 “This principle tends to merge with the established

jurisprudence governing the discharge of public employees

because of their political beliefs and affiliation.” Id. Such

claims must be analyzed under the principles established by

Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445

U.S. 507 (1980). See Fields v. Prater, 566 F.3d 381, 385-86

(4th Cir. 2009). These cases make clear that the First

Amendment generally bars the firing of public employees “solely

for the reason that they were not affiliated with a particular

political party or candidate,” Knight v. Vernon, 214 F.3d 544,

548 (4th Cir. 2000) (internal quotation marks omitted), as such

firings can impose restraints “on freedoms of belief and

association,” Elrod, 427 U.S. at 355 (plurality opinion); see

Smith v. Frye, 488 F.3d 263, 268 (4th Cir. 2007). 4 Still, the

Supreme Court in Elrod created a narrow exception “to give

effect to the democratic process” by allowing patronage

dismissals of those public employees occupying policymaking

positions. Jenkins v. Medford, 119 F.3d 1156, 1161 (4th Cir.

1997) (en banc). This exception served “the important

government goal of assuring ‘the implementation of policies of

4
“The ‘right of free association [is] a right closely
allied to freedom of speech and a right which, like free speech,
lies at the foundation of a free society.’” Cromer v. Brown, 88
F.3d 1315, 1331 (4th Cir. 1996) (quoting Shelton v. Tucker, 364
U.S. 479, 486 (1960)).

10
[a] new administration, policies presumably sanctioned by the

electorate.’” Id. (quoting Elrod, 427 U.S. at 367). In Branti,

the Supreme Court modified the Elrod test somewhat to

“recognize[] that the labels used in Elrod ignored the practical

realities of job duty and structure.” Id. Under the test as

modified, “the ultimate inquiry is not whether the label

‘policymaker’ or ‘confidential’ fits a particular position;

rather, the question is whether the hiring authority can

demonstrate that party affiliation [or political allegiance] is

an appropriate requirement for the effective performance of the

public office involved.” Branti, 445 U.S. at 518.

In Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990), we

adopted a two-part test for conducting this analysis. See

Fields, 566 F.3d at 386. First, we consider whether “the

[plaintiff’s] position involve[s] government decisionmaking on

issues where there is room for political disagreement on goals

or their implementation.” Stott, 916 F.2d at 141 (internal

quotation marks omitted). If it does, we then “examine the

particular responsibilities of the position to determine whether

it resembles a policymaker, a privy to confidential information,

a communicator, or some other office holder whose function is

such that party affiliation [or political allegiance] is an

equally appropriate requirement.” Id. at 142 (internal

quotation marks omitted). The first step of the inquiry

11
requires us to examine the issues dealt with by the employee “at

a very high level of generality,” while “[t]he second step

requires a much more concrete analysis of the specific position

at issue.” Fields, 566 F.3d at 386. At the second step,

“courts focus on the powers inherent in a given office, as

opposed to the functions performed by a particular occupant of

that office.” Stott, 916 F.2d at 142. In this regard, we focus

on the job description for the position in question and “only

look past the job description where the plaintiff demonstrates

some systematic unreliability, such as where the description has

been manipulated in some manner by officials looking to expand

their political power.” Nader v. Blair, 549 F.3d 953, 961 (4th

Cir. 2008) (internal quotation marks omitted). 5

Our causation analysis for the association claims is the

same as for the speech claims. The plaintiff bears the initial

burden of proving that his exercise of his First Amendment

rights “was a ‘substantial’ or ‘motivating’ factor in the

employer’s decision to terminate him.” Wagner v. Wheeler, 13

5
We note that in cases in which the Elrod-Branti exception
applies, and an employer thus can terminate his employees for
political disloyalty, he may also terminate them for speech that
constitutes such disloyalty. See Jenkins v. Medford, 119 F.3d
1156, 1164 (4th Cir. 1997) (en banc) (holding that because
pleadings established that Elrod-Branti exception applied,
deputies failed to state a First Amendment speech retaliation
claim that deputies were dismissed for campaigning against the
sheriff).

12
F.3d 86, 90 (4th Cir. 1993); Sales v. Grant, 158 F.3d 768, 775-

76 (4th Cir. 1998). And if the plaintiff satisfies that burden,

the defendant will avoid liability if he can demonstrate, by a

preponderance of the evidence, that he would have made the same

employment decision absent the protected expression. See Sales,

158 F.3d at 776 (citing O’Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712, 725 (1996)).

Plaintiffs challenge the district court’s rulings with

regard to the merits of both their association and their speech

claims as well as with regard to qualified and Eleventh

Amendment Immunity. We begin our analysis with the merits of

Plaintiffs’ association claims and will then address the merits

of the speech claims before turning to Eleventh Amendment and

qualified immunity.

A. Merits of Association Claims

We conclude that Carter, McCoy, and Dixon at least created

genuine factual disputes regarding whether the Sheriff violated

their association rights, but that Sandhofer, Woodward, and

Bland did not.

1. Elrod-Branti

With regard to these claims, we start by asking whether the

Sheriff had the right to choose not to reappoint the Plaintiffs

for political reasons. Certainly there is legitimate

disagreement over the goals and implementation of the goals of a

13
sheriff’s office; accordingly, the outcome of the Stott test

will turn on the outcome in Stott’s second step. See, e.g.,

Knight, 214 F.3d at 548-51. Thus, it is that part of the test

on which we focus our attention.

Carter, McCoy, and Dixon all occupied the same position in

the Sheriff’s Office. 6 They were uniformed jailers and they held

the title of sheriff’s deputy. Because they held that title,

much of the debate between the parties concerning the

application of the Elrod-Branti test to these three men relates

to our decision in Jenkins. In Jenkins we analyzed the First

Amendment claims of several North Carolina sheriff’s deputies

who alleged that the sheriff fired them for failing to support

his election bid and for supporting other candidates. In so

doing, we considered the political role of a sheriff, the

specific duties performed by sheriff’s deputies, and the

relationship between a sheriff and his deputies as it affects

the execution of the sheriff’s policies. See Jenkins, 119 F.3d

at 1162-64. We generally concluded that deputies “play a

special role in implementing the sheriff’s policies and goals,”

that “[t]he sheriff is likely to include at least some deputies

6
We do not address whether Sandhofer, Woodward, or Bland
could be terminated for lack of political allegiance because, as
we will discuss, they have not created genuine factual disputes
regarding whether lack of political allegiance was a substantial
basis for their non-reappointment.

14
in his core group of advisors,” that deputies “exercis[e]

significant discretion in performing their jobs” when they are

on patrol, that “[t]he sheriff relies on his deputies to foster

public confidence in law enforcement,” that he expects them to

provide him with the “truthful and accurate information” the

sheriff needs, and that sometimes deputies serve as the

sheriff’s general agents whose acts can expose the sheriff to

civil liability. See id. at 1162-63. We therefore concluded

“that in North Carolina, the office of deputy sheriff is that of

a policymaker, and that deputy sheriffs are the alter ego of the

sheriff generally, for whose conduct he is liable.” Id. at

1164. On that basis, we determined “that such North Carolina

deputy sheriffs may be lawfully terminated for political reasons

under the Elrod-Branti exception to prohibited political

terminations.” Id.; see also id. (“We hold that newly elected

or reelected sheriffs may dismiss deputies either because of

party affiliation or campaign activity.”). We reasoned that

“[b]ecause they campaigned for [the sheriff’s] opponents, the

deputies in the instant case had no constitutional right to

continued employment after the election, and so have failed to

state a claim under 42 U.S.C. § 1983.” Id.

Had Jenkins’s analysis ended there, our Elrod-Branti review

of Carter’s, McCoy’s, and Dixon’s claims would be quite

straight-forward. But Jenkins’s analysis did not end there.

15
Several judges dissented from the majority’s decision, and the

resulting opinions included an exchange of particular relevance

here. The dissent maintained that “the majority broadly holds

that all deputy sheriffs in North Carolina – regardless of their

actual duties – are policymaking officials.” Id. at 1166 (Motz,

J., dissenting). The dissent contended that had a proper Elrod-

Branti review been conducted, focusing on “analysis of the

particular duties of each deputy,” the result of the case would

have been different. Id.

For its part, the majority flatly rejected the dissent’s

claim that the decision was not based on the duties of the

deputies before the court. The majority stated:

We limit dismissals based on today’s holding to
those deputies actually sworn to engage in law
enforcement activities on behalf of the sheriff. We
issue this limitation to caution sheriffs that courts
examine the job duties of the position, and not merely
the title, of those dismissed.[FN66] Because the
deputies in the instant case were law enforcement
officers, they are not protected by this
limitation.[FN67]

FN66. See Stott, 916 F.2d at 142; Zorzi v.
County of Putnam, 30 F.3d 885, 892 (7th
Cir. 1994) (dispatchers not involved in
law enforcement activities or policy, so
political affiliation inappropriate job
requirement).

The dissent manifests a
misunderstanding of our holding. It
applies only to those who meet the
requirements of the rule as we state
it, and does not extend to all 13,600

16
 officers in North Carolina, as the
dissent suggests.

FN67. Amended Complaint, ¶ 19.

Id. at 1165 (majority opinion). Responding to the conclusion

that the deputies’ law enforcement duties made their political

loyalty to the sheriff an appropriate requirement for the

effective performance of the deputies’ jobs, the dissent

emphasized that the only relevant allegations in the plaintiffs’

complaint were that the deputies’ “job requirements consisted of

performing ministerial law enforcement duties for which

political affiliation is not an appropriate requirement” and

that none of the plaintiffs “occupied a policymaking or

confidential position.” Id. at 1166 (Motz, J., dissenting)

(internal quotation marks omitted).

That brings us to the question of how to read Jenkins.

Despite a significant amount of language in the opinion

seemingly indicating that all North Carolina deputies could be

terminated for political reasons regardless of the specific

duties of the particular deputy in question, and despite the

dissent’s allegation that the majority indeed held that all

North Carolina deputies may be fired for political reasons, the

majority explicitly stated that it analyzed the duties of the

plaintiffs and not merely those of deputies generally. See id.

at 1165 (majority opinion). In the end, the majority explained

17
that it was the deputies’ role as sworn law enforcement officers

that was dispositive and suggests that the result might have

been different had the deputies’ duties consisted of working as

dispatchers. See id. at 1165 & nn. 66-67. Accordingly, to be

true to Jenkins, we too must consider whether requiring

political loyalty was an appropriate requirement for the

effective performance of the public employment of the deputies

before us in light of the duties of their particular positions.

According to their formal job description, the deputies’

duties and responsibilities were to “[p]rovide protection of

jail personnel and the public,” “[p]rovide safekeeping and

welfare of prisoners,” “[p]rotect[] . . . society by

preventi[ng] . . . escapes,” “[c]onduct security rounds,”

“[s]upervise inmate activities,” “[p]rovide cleaning supplies to

inmates to clean their cells,” “[p]ass out razors on appropriate

days,” “[e]scort inmates throughout the jail as required,”

“[m]aintain floor log of daily inmate activities,” “[e]nsure

inmates are [fed],” “[r]un recreation and visitation as

scheduled or authorized,” “[a]nswer inmate correspondences and

grievances,” and “[s]upervise laundry detail.” J.A. 602. None

of the men had leadership responsibilities, nor were they

confidants of the Sheriff.

These duties are essentially identical to those of the

plaintiff in Knight v. Vernon. In that case, we considered

18
whether the district court erred in granting summary judgment

against a sheriff’s office employee on her First Amendment

political firing claim on the basis that the employee could be

lawfully terminated for political reasons. See Knight, 214 F.3d

at 548. Unlike Carter, McCoy, and Dixon, Knight did not have

the title of sheriff’s deputy, but Knight worked for a North

Carolina sheriff’s department as a low-level jailer. See id. at

549, 550. Noting that “[t]he central message of Jenkins is that

the specific duties of the public employee’s position govern

whether political allegiance to her employer is an appropriate

job requirement,” see id. at 549, we closely examined the duties

of Knight’s job in applying the Elrod-Branti analysis at the

summary judgment stage:

As a jailer Ms. Knight was responsible for the
processing, supervision and care, and transportation
of inmates. Ms. Knight’s processing duties included
fingerprinting new inmates, obtaining their personal
data (addresses, next of kin, etc.), marking and
storing their personal belongings, routing them for
physical examinations, and arranging for their initial
baths and changes into clean clothing. Ms. Knight’s
daily supervision and care duties involved monitoring
inmates every half hour, distributing and logging
their medications and supplies, serving them food, and
managing their visitors. Occasionally, Ms. Knight
filled in as a cook when help was short in the jail’s
kitchen. Finally, Ms. Knight assisted in transporting
inmates to prisons and medical facilities.

Id. at 546. In holding that Jenkins did not allow the sheriff

to terminate Knight for political reasons, we contrasted

Knight’s duties with those of the deputy sheriffs in Jenkins.

19
We noted that “a deputy is a sworn law enforcement officer [and

thus] has the general power of arrest, a power that may be

exercised in North Carolina only by an officer who receives

extensive training in the enforcement of criminal law.” Id. at

550. We also noted that “[a] sworn deputy is the sheriff’s

alter ego: he has powers conterminous with his principal, the

elected sheriff.” Id. (internal quotation marks omitted). In

contrast, we explained that the jailer’s authority “is much more

circumscribed” and “[h]er training, which is much more limited

than that of a deputy, is concentrated on matters of custodial

care and supervision.” Id. We noted that “exercising the power

of arrest is not one of the job duties of a jailer,” and Knight

“was not out in the county engaging in law enforcement

activities on behalf of the sheriff,” and she was not “a

confidant of the sheriff.” Id. We further noted that she

neither “advise[d] him on policy matters” nor was “involved in

communicating the sheriff’s policies or positions to the

public.” Id. Although we recognized that the job of jailer

involves the exercise of some discretion, we concluded that “a

jailer does not exercise the ‘significant discretion’” that the

North Carolina deputies generally exercise. Id. at 551.

Rather, because she “worked mostly at the jail performing

ministerial duties,” she was “not entrusted with broad

discretion,” and “[t]he sheriff did not rely on her for

20
assistance in implementing his law enforcement platform.” Id.

at 550. We therefore determined that the sheriff had not

established as a matter of law that political loyalty was an

appropriate requirement for Knight’s performance of her job as a

jailer.

We conclude that the near identity between the duties of

the deputy plaintiffs in this case and Knight’s duties warrants

the same result here. Although Sheriff Roberts points to

various differences between Knight and the plaintiffs here that

he claims make this case more like Jenkins and less like Knight,

we conclude that none of them is sufficiently significant to

justify a different outcome.

First, although the Sheriff correctly points out that

Carter, McCoy, and Dixon were all sworn deputies, the oath that

they took was simply to support the federal and Virginia

constitutions and faithfully and impartially discharge their

duties to the best of their ability. See Va. Code Ann. § 49-1;

Thore v. Chesterfield Cnty. Bd. of Supervisors, 391 S.E.2d 882,

883 (Va. Ct. App. 1990). No one contends that these men took a

law enforcement officer’s oath, as the Jenkins plaintiffs did.

See N.C. Gen. Stat. § 11-11. In any event, in Knight we

specifically rejected the argument that the result in Knight

would have been different even had Knight taken a law

enforcement officer’s oath, noting that it is the specific

21
duties of the public employees that must be the focus of the

Elrod-Branti inquiry. See Knight, 214 F.3d at 551. Because

Knight’s duties were “essentially custodial” and she, unlike the

deputies in Jenkins, was not empowered to stand in for the

sheriff on a broad front, we held that she could not be required

to be politically loyal to the sheriff. Id.

Sheriff Roberts notes that the deputies in the present

case, like those in Jenkins, were entitled to stand in for their

sheriff in one way that Knight could not, namely, by making an

arrest. It is true that in Virginia sheriff’s deputies are,

like sheriffs, statutorily authorized to make arrests under a

wide range of circumstances. See Va. Code Ann. § 19.2-81(A)(2).

That all deputies have been granted general arrest powers by

statute, however, does not mean that exercising those powers was

an appreciable part of the duties of their particular positions.

In fact, Carter, McCoy, and Dixon were trained as jailers, and

it is undisputed that they did not take the “Basic Law

Enforcement” course that the Virginia Department of Criminal

Justice Services requires officers to take before they may

exercise the statutorily granted general arrest power. And,

while the evidence in the record was that the deputies were

authorized to make arrests for offenses occurring before them in

the course of their “everyday responsibilities,” J.A. 297, the

Plaintiffs offered evidence that their technical authorization

22
to make arrests had no appreciable effect whatsoever on the job

duties of their position. According to the declarations of

Carter, McCoy, and Dixon, not only had none of them ever made an

arrest, but they were not even aware they had the authority to

do so. In fact, Adams stated in his declaration that in his 16

years at the Hampton Sheriff’s Office, during which he rose to

the level of third most senior officer, he could not recall a

sheriff’s deputy making a single arrest. Thus, at this stage

of the litigation, the Sheriff has not established that the

jailers’ arrest duties were sufficiently significant that they

would affect whether their political allegiance to the Sheriff

was an appropriate requirement for the effective performance of

their jobs.

The Sheriff also notes that Carter, McCoy, and Dixon each

sought and received approval to perform “‘Extra Duty Employment’

comprising security work outside of the Sheriff’s Office during

which they were in uniform and armed.” J.A. 84. It is hard to

see how this fact could significantly impact our Elrod-Branti

analysis at this stage, however, considering that the record is

silent concerning what duties the plaintiff deputies had

concerning this “extra” work. Moreover, the Sheriff did not

make any showing that such apparently optional work “outside of

the Sheriff’s Office,” J.A. 84, was part of “the specific duties

of the public employee[s’] position.” Knight, 214 F.3d at 549.

23
 In sum, we hold that at this stage of the litigation, the

Sheriff has not demonstrated that the duties of Carter, McCoy,

and Dixon differed from Knight’s duties in any significant way,

and we conclude that Sheriff Roberts has not shown that their

duties resembled those of “a policymaker, a privy to

confidential information, a communicator, or some other office

holder whose function is such that party affiliation [or

political allegiance] is an equally appropriate requirement.”

Stott, 916 F.2d at 142. Accordingly, he also has not

demonstrated that political allegiance was an appropriate

requirement for the jailers’ performance of their jobs. Accord

Diruzza v. County of Tehama, 206 F.3d 1304, 1310-11 (9th Cir.

2000) (holding that sheriff did not establish application of

Elrod-Branti exception as a matter of law in the case of a

California deputy sheriff who worked as a jailer). Thus, we

hold that the Sheriff was not entitled to summary judgment on

the basis that he could terminate Carter, McCoy, and Dixon for

their lack of political allegiance to him.

2. Causation

We now turn to the issue of whether the Plaintiffs’ lack of

political allegiance to the Sheriff was a substantial basis for

the Sheriff’s decision not to reappoint them. See Wagner, 13

F.3d at 90. For reasons that we will explain, we conclude that

Carter, McCoy, and Dixon have all at least created a genuine

24
factual dispute regarding whether lack of political allegiance

was a substantial basis for their non-reappointment, but that

Sandhofer, Woodward, and Bland have not.

Carter and McCoy

In the late summer of 2009, Carter and McCoy visited

Adams’s campaign Facebook page and made statements on the page

indicating their support for his campaign. Specifically, Carter

“liked” the page and “wrote and posted a message of

encouragement” that he signed. J.A. 570. McCoy also “posted an

entry on the page indicating [his] support for [Adams’s]

campaign.” J.A. 586. 7 Carter’s and McCoy’s Facebook actions

became well-known in the Sheriff’s Office as many were shocked

because “they appeared not to be supporting the sheriff.” J.A.

681. 8 Colonel Bowden, who was the second most senior officer in

the Sheriff’s Office, learned of Carter’s and McCoy’s presence

on Adams’s Facebook Page and informed Sheriff Roberts.

7
Both men also verbally expressed their support for Adams
to several people, and although both had volunteered and worked
vigorously for Roberts’s past campaigns, they did not volunteer
at all for Roberts in the 2009 election.
8
McCoy testified that he “was approached by ten or 15
people” who asked him why he would risk his job with the posting
when he was only 18 months away from becoming eligible for
retirement. J.A. 162. Indeed, McCoy eventually took his
posting down.

25
 In the late summer of 2009, Carter and Ramona Jones 9 – also

a Hampton sheriff’s deputy – co-hosted a cookout (“the August

cookout”) attended by many Sheriff’s Office employees, including

Adams. The next day at work, Jones was approached by her

supervisor, Lieutenant Crystal Cooke, who told Jones that she

had heard that Adams had attended her cookout. Jones truthfully

told Cooke that Carter had invited Adams. Shortly thereafter,

then-Captain Kenneth Richardson approached Jones and asked her

who had attended. She told him that Adams had been there, and

Richardson “state[d] that the event had the appearance of a

campaign event and said specifically that ‘it does not look

good.’” J.A. 702. Jones told Richardson, as she had told

Cooke, that it was Carter who had invited Adams, and Richardson

responded that Jones “needed to explain that to the Sheriff.”

J.A. 702. Indeed, the Sheriff learned about the cookout and

that Adams had attended. Pictures showing Sandhofer and McCoy

at the event were posted on Facebook by early October.

In early September, Sheriff Roberts addressed his

employees’ support for Adams in speeches he gave during the

various shift changes. He expressed his disapproval with the

decision of some to support Adams’s candidacy on Facebook. He

stated that he would be sheriff for as long as he wanted and

9
Jones was named Ramona Larkins at the time.

26
thus that his train was the “long train.” J.A. 572 (internal

quotation marks omitted). He indicated that Adams’s train was

the “short train” and that those who openly supported Adams

would lose their jobs. J.A. 572 (internal quotation marks

omitted). Additionally, after the conclusion of the meeting

that occurred before Carter’s shift change, the Sheriff angrily

approached Carter and “ma[de] several intimidating statements.”

J.A. 572. He then added, “You made your bed, and now you’re

going to lie in it – after the election, you’re gone.” J.A. 572

(internal quotation marks omitted).

The Sheriff represented that his heated exchange with

Carter after one of Roberts’s “long train” speeches pertained to

Carter’s objections about disciplinary proceedings concerning

Carter’s wife rather than to Carter’s support of Adams. 10

Indeed, the Sheriff testified that that conversation was the

reason that he chose not to reappoint Carter. Carter flatly

denied that Roberts made any reference to Carter’s wife during

that conversation, however. 11

10
Carter’s wife was also a Sheriff’s Office employee.
11
According to Carter’s declaration, Carter worked for the
Sheriff’s Office for more than 11 years, performed his job “in
an exemplary manner,” and always received performance
evaluations of “above average.” J.A. 568. Neither his first-
nor his second-level supervisor indicated at any time prior to
his termination that they had any concerns regarding his
performance. Carter conceded that he had had several
(Continued)
27
 If a jury credited Carter’s account of their heated

exchange, however, it could reasonably conclude that Roberts was

not telling the truth in an attempt to cover up his illegal

retaliation. See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 147 (2000) (explaining that “[p]roof that the

defendant’s explanation is unworthy of credence is . . . one

form of circumstantial evidence that is probative of intentional

discrimination, and it may be quite persuasive”). The Sheriff,

after all, had specifically warned his employees not to support

Adams through Facebook and had told Carter that his support for

Adams would cost him his job. For these reasons, we conclude

that a reasonable jury could find that Carter’s lack of

political allegiance to the Sheriff was a substantial motivation

for the Sheriff’s decision not to reappoint him.

Based on the evidence of Roberts’s strong animus toward

those of his employees who supported Adams, a reasonable jury

could also conclude that Roberts’s knowledge of McCoy’s support

for Adams would have strongly motivated Roberts not to reappoint

McCoy. Roberts claimed his primary reason for not reappointing

disciplinary actions taken against him for mistakes he made in
allowing prisoners to be released prematurely. However, the
only formal discipline in his record was more than five years
old at the time he was not reappointed, and the Sheriff did not
testify that those past disciplinary actions played any part in
his decision not to reappoint Carter.

28
McCoy was that McCoy had had “heated arguments with deputies

when he was in civil” and that Roberts “switched him up and

brought him back to corrections.” J.A. 102. McCoy, however,

stated that he had worked in the Sheriff’s Office for more than

21 years and always received “above average” or “outstanding”

evaluations, and that at no time prior to his non-reappointment

did his immediate supervisor or second-level supervisor indicate

that they had any problems with his performance. In light of

the Sheriff’s threat that supporters of Adams would lose their

jobs and his specific statement of disapproval of employees

being on Adams’s Facebook page, we conclude that a reasonable

jury could conclude that McCoy’s lack of political allegiance to

Roberts was a substantial motivation for the Sheriff’s decision

not to reappoint him.

Dixon

Plaintiffs presented evidence that Dixon performed his job

“in an exemplary manner” during his more than 13 years with the

Sheriff’s Office, always earning performance evaluations of at

least “above average” and earning a rating of “outstanding” in

his last evaluation. At no time did his first- or second-level

supervisor express concerns with his performance.

Dixon voiced his opposition to Sheriff Roberts’s candidacy

on Election Day to Frances Pope, who was working the polls for

Roberts’s campaign. On Dixon’s way out, referring to the

29
Sheriff’s campaign material, he told Pope that she should “just

throw that stuff away” (“the polling-place comment”). J.A. 581

(internal quotation marks omitted). Dixon spoke in a friendly,

nonconfrontational tone and did not use any expletives. Dixon

also had an Adams bumper sticker on his car that he was “pretty

sure people saw.” J.A. 148.

The Sheriff denies that Dixon was not reappointed because

of his lack of political allegiance. Rather, the Sheriff

represents that Dixon in fact was let go because he used

profanity in making the polling-place comment, although the

Sheriff does not indicate the source of his belief and admits

that he never sought Dixon’s side of the story before replacing

him. 12 See Appellee’s brief at 10; J.A. 99 (stating that “[I]t

was [the Sheriff’s] understanding” that Dixon said, “You can

take this f---ing s---, stuff, and throw it in the trash can.”).

For his part, Dixon denies using any profanity in making the

polling-place comment. We conclude that if a jury credited

Dixon’s testimony, it could also reasonably find that the

Sheriff knew Dixon had not used profanity and that his support

for Adams, as revealed by the polling-place comment and bumper

12
The Sheriff testified that he also considered the fact
that Dixon transferred multiple times between working in the
jail and in civil process after requesting to be a training
officer but later deciding that he could not handle the
pressures of that position.

30
sticker, substantially motivated him not to reappoint Dixon.

See Reeves, 530 U.S. at 147.

Sandhofer

In contrast, we conclude that Plaintiffs have failed to

create a genuine factual dispute regarding whether Sandhofer’s

political disloyalty to Sheriff Roberts was a substantial basis

for his non-reappointment. The Sheriff had used Sandhofer – who

had experience working for a downtown marketing organization −

for significant marketing efforts and fundraising in 2008. As a

result, Colonel Bowden asked Sandhofer in 2009 to obtain

prominent sign locations among downtown Hampton businesses in

conjunction with the 2009 election. Sandhofer agreed to help

the Sheriff in this way, even though he actually never followed

through. Sandhofer also was ordered by Lieutenant Miranda

Harding to work the polls on Election Day, but he declined on

the basis that his “family comes first.” J.A. 169.

Additionally, he verbally expressed his support for Adams to

several people, as discreetly as possible, and he attended the

August cookout and was depicted in pictures of the cookout

posted on Facebook. Plaintiffs further point out that

Sandhofer’s girlfriend drove him to work and to campaign debates

in her car, which had an Adams bumper sticker affixed to it.

Sergeant John Meyers “mentioned” the sticker to Sandhofer on at

least one occasion. J.A. 591.

31
 We conclude that this evidence is simply too thin to create

a genuine factual dispute regarding whether Sandhofer’s lack of

political allegiance to the Sheriff was a substantial basis for

his non-reappointment. Sandhofer admitted attending a reception

for the Sheriff’s campaign at the mayor’s house at the Sheriff’s

request. And, he admitted agreeing to help the Sheriff locate

signs for the 2009 election, although he never actually located

any of the signs. Furthermore, while he refused to work the

polls on Election Day, the reason he gave had nothing to do with

supporting Adams. Without more, there simply is not sufficient

evidence that the Sheriff identified Sandhofer as an Adams

supporter, even assuming that the Sheriff believed his

girlfriend was supporting Adams. And there was no reasonable

basis for a jury to conclude that the Sheriff would have

declined to reappoint Sandhofer based simply on his lack of

affirmative assistance to the Sheriff’s 2009 campaign. We

therefore conclude that the district court properly granted

summary judgment to the Sheriff on Sandhofer’s claim.

Woodward

We also conclude that Woodward did not create a genuine

factual dispute concerning whether her lack of political

allegiance to the Sheriff was a substantial basis for her non-

reappointment.

32
 During her more than 11 years with the Sheriff’s Office,

Woodward’s performance evaluations had always been “above

average” or “outstanding.” J.A. 601 (internal quotation marks

omitted). According to Woodward, “[i]t was very well known

within the office that [she] was close to Jim Adams.” J.A. 600.

In early 2009, Woodward’s former supervisor and mentor, Deborah

Davis, became the treasurer of Adams’s campaign. Woodward also

informed several of her coworkers that she supported Adams’s

candidacy, although she generally tried to keep her support

quiet to protect her job.

During Roberts’s prior campaigns, Woodward had worked

“tireless[ly]” handing out flyers, working the polls, placing

yard signs, attending campaign events, and selling and

purchasing tickets. J.A. 599. In light of her support for

Adams, however, she did none of those things in 2009, except for

purchasing golf tournament tickets (because she felt coerced).

In the summer of 2009, Woodward noticed that her colleague,

Lieutenant George Perkins, was circulating a petition to place

the Sheriff’s name on the ballot. Woodward complained to

Sergeant Sharon Mays, Sergeant Meyers, Perkins himself, and

others, on the basis that Perkins was not a Hampton resident and

only Hampton residents could circulate such petitions. She also

learned that another non-resident was circulating petitions and

she had various conversations with Mays about that as well.

33
 In the end, however, we conclude that it would be mere

speculation for a jury to conclude that Woodward was let go

because of lack of political allegiance to Roberts. Outside of

her petition complaints, there is no significant evidence that

would support an inference that the Sheriff believed Woodward

was supporting Adams. Woodward conceded that she shared her

preference for Adams only with people she thought would keep her

feelings secret. And Woodward maintained that the petition

complaints were not based on the fact that Roberts was the

subject of the petitions but on the principle that they should

not be circulated in the workplace by a non-Hampton resident.

There is no evidence that the Sheriff or others did not take her

complaints at face value or otherwise assumed that her true goal

was to work against Roberts’s campaign.

The Sheriff testified that the reason he did not reappoint

Woodward and Bland was that he expected that the number of

deputies he would be allocated by the Compensation Board would

be reduced, based on the declining population of the Hampton

City Jail. See Va. Code Ann. § 15.2-1609.1. Woodward and Bland

counted against that allotment and the Sheriff maintains that he

decided he needed to have deputies in Woodward’s and Bland’s

positions. Although Woodward’s and the Sheriff’s accounts are

in conflict concerning whether he ever offered Woodward the

opportunity to become a deputy, we conclude that that conflict

34
is simply not a sufficient basis for a reasonable inference that

her lack of political allegiance to Roberts was a substantial

motivation for her non-reappointment.

Bland

Finally, we determine that Plaintiffs failed to create a

genuine factual issue concerning whether a lack of political

allegiance was a substantial basis for the Sheriff’s decision

not to reappoint Bland. Bland had a financial position in the

Sheriff’s Office Administration Division. He had worked with

the Sheriff’s Department for more than nine years, performed “in

an exemplary manner,” and received performance evaluations of

“above average.” Bland had declined to provide significant

volunteer assistance to the Sheriff’s 2009 campaign after having

provided many types of support for the Sheriff’s past campaigns.

He was also known to be very close to Deborah Davis, who had

left the Sheriff’s Office in 2008 to become Adams’s campaign

treasurer in early 2009.

However, Bland admitted purchasing raffle tickets for the

Sheriff’s fundraising golf tournament, and he also admitted

helping to set up electronic equipment the night of the

election. He further admitted that he did not actively support

Adams’s campaign in any way and that Woodward was the only

35
person he even told of his intention to vote for Adams. 13

Something more would be necessary in order to warrant a

reasonable inference that Bland’s lack of political allegiance

to Sheriff Roberts was a substantial basis for the Sheriff’s

decision not to reappoint him.

B. Merits of Free-Speech Claims

The Plaintiffs next argue that the district court erred in

granting summary judgment against them on their speech claims.

We conclude that Carter, McCoy, and Dixon at least created

genuine factual disputes regarding whether the Sheriff violated

their free-speech rights, but that Woodward did not.

Carter

The first question to be addressed with regard to the

speech claims is whether the conduct that the employee maintains

precipitated his non-reappointment constituted speech at all.

Carter’s conduct consisted of his “liking” Adams’s campaign page

on Facebook. The district court concluded that “merely ‘liking’

a Facebook page is insufficient speech to merit constitutional

protection” and that the record did not sufficiently describe

what statement McCoy made. Bland, 857 F. Supp. 2d at 603. To

consider whether this conduct amounted to speech, we first must

13
Indeed, even Bland’s wife did not know that he favored
Adams.

36
understand, as a factual matter, what it means to “like” a

Facebook page.

“Facebook is an online social network where members develop

personalized web profiles to interact and share information with

other members.” Lane v. Facebook, Inc., 696 F.3d 811, 816 (9th

Cir. 2012). Members can share various types of information,

including “news headlines, photographs, videos, personal

stories, and activity updates.” Id. Daily more than 500

million Facebook members use the site and more than three

billion “likes” and comments are posted. See Brief of Facebook,

Inc. as Amicus Curiae, at 3.

Every Facebook user has a profile, which “typically

includes, among other things, the User’s name; photos the User

has placed on the website (including one photo that serves as

the User’s profile photo); a brief biographical sketch; a list

of individual Facebook Users with whom the User [interacts,

known as ‘friends’]; and . . . a list of Facebook ‘Pages’ the

User has Liked.” Id. at 4 (footnote omitted). “[B]usinesses,

organizations and brands,” can also use “Pages” for similar

purposes. What is a Facebook Page?, Facebook,

http://www.facebook.com/help/281592001947683 (last visited Sept.

17, 2013).

When a user logs on to Facebook, his home page is the first

thing that he typically sees. Included on a home page is a news

37
feed, “which, for most Users, is the primary place where they

see and interact with news and stories from and about their

Friends and Pages they have connected with on Facebook.” Brief

of Facebook, Inc. as Amicus Curiae, at 5; see What is News Feed,

Facebook, http://www.facebook.com/help/327131014036297 (last

visited Sept. 17, 2013). It “is a constantly updating list of

stories from people and Pages that [the User] follow[s] on

Facebook.” What is News Feed?, Facebook,

http://www.facebook.com/help/327131014036297 (last visited Sept.

17, 2013).

“Liking” on Facebook is a way for Facebook users to share

information with each other. The “like” button, which is

represented by a thumbs-up icon, and the word “like” appear next

to different types of Facebook content. Liking something on

Facebook “is an easy way to let someone know that you enjoy it.”

What does it mean to “Like” something?, Facebook,

http://www.facebook.com/help/452446998120360 (last visited Sept.

17, 2013). Liking a Facebook Page “means you are connecting to

that Page. When you connect to a Page, it will appear in your

timeline and you will appear on the Page as a person who likes

that Page. The Page will also be able to post content into your

News Feed.” What’s the difference between liking an item a

friend posts and liking a Page?, Facebook,

38
http://www.facebook.com/help/452446998120360 (last visited Sept.

17, 2013).

Here, Carter visited the Jim Adams’s campaign Facebook page

(the “Campaign Page”), which was named “Jim Adams for Hampton

Sheriff,” and he clicked the “like” button on the Campaign Page.

When he did so, the Campaign Page’s name and a photo of Adams –

which an Adams campaign representative had selected as the

Page’s icon – were added to Carter’s profile, which all Facebook

users could view. On Carter’s profile, the Campaign Page name

served as a link to the Campaign Page. Carter’s clicking on the

“like” button also caused an announcement that Carter liked the

Campaign Page to appear in the news feeds of Carter’s friends.

And it caused Carter’s name and his profile photo to be added to

the Campaign Page’s “People [Who] Like This” list.

Once one understands the nature of what Carter did by

liking the Campaign Page, it becomes apparent that his conduct

qualifies as speech. 14 On the most basic level, clicking on the

“like” button literally causes to be published the statement

that the User “likes” something, which is itself a substantive

statement. In the context of a political campaign’s Facebook

14
The Supreme Court has rejected the notion that online
speech is somehow not worthy of the same level of protection as
other speech. See Reno v. ACLU, 521 U.S. 844, 870 (1997); see
also Ashcroft v. ACLU, 542 U.S. 656 (2004).

39
page, the meaning that the user approves of the candidacy whose

page is being liked is unmistakable. That a user may use a

single mouse click to produce that message that he likes the

page instead of typing the same message with several individual

key strokes is of no constitutional significance.

Aside from the fact that liking the Campaign Page

constituted pure speech, it also was symbolic expression. The

distribution of the universally understood “thumbs up” symbol in

association with Adams’s campaign page, like the actual text

that liking the page produced, conveyed that Carter supported

Adams’s candidacy. See Spence v. Washington, 418 U.S. 405, 410-

11 (1974) (per curiam) (holding that person engaged in

expressive conduct when there was “[a]n intent to convey a

particularized message . . ., and in the surrounding

circumstances the likelihood was great that the message would be

understood by those who viewed it”); see also Tobey v. Jones,

706 F.3d 379, 388 n.3 (4th Cir. 2013).

In sum, liking a political candidate’s campaign page

communicates the user’s approval of the candidate and supports

the campaign by associating the user with it. In this way, it

is the Internet equivalent of displaying a political sign in

one’s front yard, which the Supreme Court has held is

substantive speech. See City of Ladue v. Gilleo, 512 U.S. 43,

54-56 (1994). Just as Carter’s placing an “Adams for Sheriff”

40
sign in his front yard would have conveyed to those passing his

home that he supported Adams’s campaign, Carter’s liking Adams’s

Campaign Page conveyed that message to those viewing his profile

or the Campaign Page. 15 In fact, it is hardly surprising that

the record reflects that this is exactly how Carter’s action was

understood. See J.A. 160 (McCoy’s testimony that in light of

Carter’s liking Adams’s Campaign Page, “everybody was saying

that . . . Carter is out of there because he supported Adams

openly”); see also J.A. 793 (Sheriff’s Office employee stating

that Roberts had said that “certain employees were on the

Facebook page of his opponent, Jim Adams, indicating their

support of Adams for Sheriff”).

15
Indeed, in holding that an ordinance banning signs at
residences except for those signs fitting within particular
exceptions violated the plaintiff-resident’s free-speech rights,
the Gilleo Court highlighted several aspects of displaying
political signs at one’s residence that apply as well to liking
a Facebook campaign page:

Displaying a sign from one’s own residence often
carries a message quite distinct from placing the same
sign someplace else, or conveying the same text or
picture by other means. Precisely because of their
location, such signs provide information about the
identity of the “speaker.” . . .

Residential signs are an unusually cheap and
convenient form of communication. Especially for
persons of modest means or limited mobility, a yard or
window sign may have no practical substitute.

City of Ladue v. Gilleo, 512 U.S. 43, 56-57 (1994).

41
 The second part of McVey’s first prong, concerning whether

Carter was speaking as a private citizen on a matter of public

concern, need not detain us long. The Sheriff does not dispute

that Carter’s speech, if it was speech, was made in his capacity

as a private citizen. Cf. Garcetti v. Ceballos, 547 U.S. 410,

421 (2006) (holding that employee does not speak as a private

citizen when his speech is “pursuant to [his] official duties”).

And, it is well established that an employee can speak as a

private citizen in his workplace, even if the content of the

speech is “related to the speaker’s job.” Id.; see Pickering,

391 U.S. at 564-65 (holding that letter to local newspaper from

teacher concerning school board policies was protected speech).

Further, the idea expressed in Carter’s speech − that he

supported Adams in the 2009 election – clearly related to a

matter of public concern. See Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 329 (2010) (describing political speech as

“central to the meaning and purpose of the First Amendment”);

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995)

(“Discussion of public issues and debate on the qualifications

of candidates are integral to the operation of the system of

government established by our Constitution. The First Amendment

affords the broadest protection to such political expression in

order to assure the unfettered interchange of ideas for the

42
bringing about of political and social changes desired by the

people.” (internal quotation marks omitted)).

Next, on the record before us, Carter’s interest in

expressing support for his favored candidate outweighed the

Sheriff’s interest in providing effective and efficient services

to the public. Carter’s speech was political speech, which is

entitled to the highest level of protection. See Meyer v.

Grant, 486 U.S. 414, 422, 425 (1988) (describing constitutional

protection of “core political speech” as being “at its zenith”

(internal quotation marks omitted)); see also Connick, 461 U.S.

at 152 (“We caution that a stronger showing [of disruption] may

be necessary if the employee’s speech more substantially

involved matters of public concern.”). Indeed, the public’s

interest in Carter’s opinions regarding the election may have

had particular value to the public in light of his status as a

Sheriff’s Office employee. See, e.g., Waters v. Churchill, 511

U.S. 661, 674 (1994) (plurality opinion) (“Government employees

are often in the best position to know what ails the agencies

for which they work; public debate may gain much from their

informed opinions.”). In contrast, despite the Sheriff’s

reference to the need for harmony and discipline in the

Sheriff’s Office, nothing in the record in this case indicates

that Carter’s Facebook support of Adams’s campaign did anything

in particular to disrupt the office or would have made it more

43
difficult for Carter, the Sheriff, or others to perform their

work efficiently. See Goldstein v. Chestnut Ridge Volunteer

Fire Co., 218 F.3d 337, 356 (4th Cir. 2000) (holding that

“generalized and unsubstantiated interests” “in maintaining

morale and efficiency” within the fire department did not

outweigh plaintiff’s speech interest). The Sheriff’s case in

this regard is especially weak considering that he has failed to

show that the jailers occupied any “confidential, policymaking,

or public contact role” in the Sheriff’s Office. McVey, 157

F.3d at 278.

Finally, for the same reasons that we hold that Carter has

created a genuine factual issue regarding whether he was

terminated because of his lack of political allegiance to the

Sheriff, we conclude that Carter has created a genuine factual

issue concerning whether his Facebook support for Adams was also

a substantial factor. The Sheriff warned Carter that his

support of Adams would cost him his job, and a jury reasonably

could take the Sheriff at his word.

McCoy

Our application of the McVey test to McCoy’s speech claim

is very similar to our application of it to Carter’s. McCoy

presented evidence that he engaged in First Amendment speech

when he “went on Jim Adams’ campaign Facebook page and posted an

entry on the page indicating [his] support for his campaign.”

44
J.A. 586; see also J.A. 156 (stating that he “went on [Adams’s]

Facebook page” and “posted [his] picture . . . as a supporter”).

Indeed, the evidence indicated that many in the Sheriff’s Office

were “shocked” by the posting because it indicated that McCoy

was “not . . . supporting the sheriff.” J.A. 681. The district

court concluded that McCoy did not sufficiently allege that he

engaged in speech because the record did not sufficiently

describe what statement McCoy made. See Bland, 857 F. Supp. 2d

at 604.

Certainly a posting on a campaign’s Facebook Page

indicating support for the candidate constitutes speech within

the meaning of the First Amendment. 16 For the same reasons as

applied to Carter’s speech, McCoy’s speech was made in his

capacity as a private citizen on a matter of public concern,

namely, whether Adams should be elected Hampton Sheriff. That

the record does not reflect the exact words McCoy used to

express his support for Adams’s campaign is immaterial as there

is no dispute in the record that that was the message that McCoy

16
At oral argument, the Sheriff argued for the first time
that McCoy did not actually intend his statement of support to
be posted on the Campaign Page, and thus that the message did
not constitute speech. That McCoy may have intended his
expression of support to be kept private rather than made
public, however, does not deprive it of its status as speech.
See, e.g., Rankin v. McPherson, 483 U.S. 378, 387 (1987)
(holding that constable’s office employee engaged in protected
speech when she made a private political remark that was
overheard by a third person she did not realize was in earshot).

45
conveyed. Additionally, although many were shocked that McCoy

would so openly support Sheriff Roberts’s opponent, nothing in

the record indicates that his speech created any sort of

disruption or explains how the Sheriff’s interest in operating

the Sheriff’s Office efficiently could outweigh McCoy’s interest

in supporting the Sheriff’s opponent in the election. See

Goldstein, 218 F.3d at 356.

Further, for the same reasons that we conclude that a

reasonable jury could find that McCoy’s political disloyalty was

a substantial motivation for the Sheriff’s decision not to

reappoint him, such a jury could also find that McCoy’s

(politically disloyal) speech was also a substantial motivation

for his non-reappointment. With the Sheriff having specifically

warned his employees not to support Adams through Facebook and

having threatened that Adams supporters would not be

reappointed, a jury could reasonably find that the Sheriff

simply followed through with his threat by not reappointing

McCoy.

Dixon

Dixon alleges he was not reappointed because he displayed

an Adams bumper sticker on his car and because he made the

polling-place comment. The district court concluded that there

was no evidence that Roberts or other senior Sheriff’s Office

employees had knowledge of his bumper sticker and that the

46
polling-place comment was merely a personal grievance rather

than a statement touching on a matter of public concern. See

Bland, 857 F. Supp. 2d at 605.

Although the evidence that the Sheriff or his senior

officers knew of Dixon’s bumper sticker was thin, to say the

least, the Sheriff admits that he terminated Dixon because of

the polling-place comment. And, the statement that Pope should

“just throw [her Roberts campaign materials] away” clearly

constituted speech on a matter of public concern – the merits of

Roberts’s campaign − made in Dixon’s capacity as a private

citizen. See McIntyre, 514 U.S. at 346; cf. Cohen v.

California, 403 U.S. 15, 18 (1971) (concluding that California

“lack[ed] power to punish” the wearing of a jacket bearing the

plainly visible words “F - - k the Draft” based on “the

underlying . . . evident position on the inutility or immorality

of the draft”). Dixon represented that he made the statement in

a nonconfrontational, friendly manner, and no specific evidence

in the record indicated how his support for Adams might have

created a lack of harmony in the Hampton Sheriff’s Office.

As for causation, the Sheriff does not deny the fact that

Dixon’s polling-place comment was the reason he was not

reappointed. The Sheriff simply maintained that he believed

Dixon used profanity in making the comment – although he does

not explain the source of his belief. Were a jury to credit

47
Dixon’s denial of that charge, it could reasonably conclude that

what actually motivated the Sheriff not to reappoint Dixon was

the fact that Dixon voiced his disapproval of the Sheriff’s

candidacy.

Woodward

Woodward’s alleged protected speech occurred when she

complained about Lieutenant George Perkins’s circulation of a

petition in support of Sheriff Roberts on the basis that Perkins

was not a Hampton resident. As we have already explained,

however, we conclude that it would be speculative for a jury to

conclude that Woodward’s complaint regarding the petition was

based on anything other than the reasons she voiced at the time,

which were unrelated to the question of whether she supported

Adams or Roberts in the election. We therefore conclude she has

not created a genuine factual dispute regarding whether her

complaint was a substantial motivation for her non-

reappointment.

C. Eleventh Amendment Immunity

Plaintiffs next argue that the district court erred in

ruling that Eleventh Amendment immunity would bar claims

advanced against the Sheriff in his official capacity. We agree

to the extent that the Plaintiffs seek the remedy of

reinstatement.

48
 The Eleventh Amendment to the United States Constitution

provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.”

Eleventh Amendment immunity protects unwilling states from suit

in federal court. See Will v. Michigan Dep’t of State Police,

491 U.S. 58, 70-71 (1989); Edelman v. Jordan, 415 U.S. 651, 662-

63 (1974). 17 This immunity also protects “state agents and state

instrumentalities,” Regents of the Univ. of Cal. v. Doe, 519

U.S. 425, 429 (1997), meaning that it protects “arm[s] of the

State” and State officials, Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 280 (1977). When a judgment

against a governmental entity would have to be paid from the

State’s treasury, the governmental entity is an arm of the State

for Eleventh Amendment purposes. See Cash v. Granville Cnty.

Bd. of Educ., 242 F.3d 219, 223 (4th Cir. 2001). The Supreme

Court, however, delineated an exception to the application of

the Eleventh Amendment in Ex parte Young, 209 U.S. 123 (1908).

That exception “permits a federal court to issue prospective,

17
Although the language of the Eleventh Amendment does not
explicitly apply to suits brought against a state by one of its
own citizens, the Amendment has been construed to bar such
suits. See Equity in Athletics, Inc. v. Department of Educ.,
639 F.3d 91, 107 n.12 (4th Cir. 2011).

49
injunctive relief against a state officer to prevent ongoing

violations of federal law, on the rationale that such a suit is

not a suit against the state for purposes of the Eleventh

Amendment.” McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.

2010). 18 The operation of the Eleventh Amendment in this case

thus depends on whether Sheriff Roberts is an arm of the State

and, if so, whether the Ex Parte Young exception applies.

The district court determined that Virginia sheriffs are

constitutional officers, see Va. Const. Art. VII § 4; Va. Code

Ann. § 15.2-1609; Jenkins v. Weatherholtz, 909 F.2d 105, 107

(4th Cir. 1990), and that sheriffs are arms of the State, see

Blankenship v. Warren Cnty., 918 F. Supp. 970, 973-74 (W.D. Va.

1996). The district court also determined that “the State would

be liable to pay adverse judgments won against the Sheriff in

his official capacity.” Bland, 857 F. Supp. 2d at 610. Thus,

the court concluded, “a suit against the Sheriff in his official

capacity is in fact a suit against the State.” Id. Finding no

18
“[A] State’s sovereign immunity is a personal privilege
which it may waive at pleasure.” College Sav. Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999) (internal quotation marks omitted). However, there is no
indication of any waiver in this case. Nor has there been any
Congressional abrogation of the Commonwealth’s immunity. See
Lee-Thomas v. Prince George’s Cnty. Pub. Sch., 666 F.3d 244, 249
(4th Cir. 2012) (“‘Congress may abrogate the States’ Eleventh
Amendment immunity when it both unequivocally intends to do so
and acts pursuant to a valid grant of constitutional
authority.’” (quoting Board of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001)).

50
evidence of abrogation or waiver of immunity by the

Commonwealth, the district court reasoned that “the Sheriff is

immune from suit for claims against him in that capacity.” Id.

Plaintiffs do not dispute that the Commonwealth would be

liable to pay any money judgment against the Sheriff. However,

citing Edelman, 415 U.S. at 664-65, Plaintiffs contend that

Eleventh Amendment immunity does not apply to the claims against

the Sheriff in his official capacity because Plaintiffs’

requests for reinstatement and lost pay are equitable claims to

which the immunity does not apply.

Because reinstatement is a form of prospective relief, the

refusal to provide that relief when it is requested can

constitute an ongoing violation of federal law such that the Ex

Parte Young exception applies. See Coakley v. Welch, 877 F.2d

304, 307 (4th Cir. 1989); State Emps. Bargaining Agent Coal. v.

Rowland, 494 F.3d 71, 96 (2d Cir. 2007). Plaintiffs are

therefore correct that the Sheriff is not entitled to Eleventh

Amendment immunity to the extent that they seek reinstatement.

See Coakley, 877 F.2d at 307; State Emps. Bargaining Agent

Coal., 494 F.3d at 96. As we have explained, however, to the

extent that the claims seek monetary relief, they are claims

against an arm of the State. See Cash, 242 F.3d at 223. Thus,

to the extent that the claims seek monetary relief against the

Sheriff in his official capacity, the district court correctly

51
ruled that the Sheriff is entitled to Eleventh Amendment

immunity.

D. Qualified Immunity

The Sheriff argues that even if some of the Plaintiffs

created genuine factual disputes concerning whether he violated

their association or free-speech rights by not reappointing

them, he is nevertheless entitled to qualified immunity to the

extent that the claims are asserted against him in his

individual capacity.

A government official who is sued in his individual

capacity may invoke qualified immunity. See Ridpath, 447 F.3d

at 306. “Qualified immunity protects government officials from

civil damages in a § 1983 action insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Edwards

v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999)

(internal quotation marks omitted). In determining whether a

defendant is entitled to qualified immunity, a court must decide

(1) whether the defendant has violated a constitutional right of

the plaintiff and (2) whether that right was clearly established

at the time of the alleged misconduct. See Walker v. Prince

George’s Cnty., 575 F.3d 426, 429 (4th Cir. 2009). However,

“judges of the district courts and the courts of appeals [are]

permitted to exercise their sound discretion in deciding which

52
of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

In analyzing whether the defendant has violated a

constitutional right of the plaintiff, the court should identify

the right “at a high level of particularity.” Edwards, 178 F.3d

at 251. For a plaintiff to defeat a claim of qualified

immunity, the contours of the constitutional right “must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.” Hope v. Pelzer, 536

U.S. 730, 739 (2002) (internal quotation marks omitted).

We conclude that the Sheriff is entitled to qualified

immunity concerning Carter’s, McCoy’s, and Dixon’s claims

because 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.

Simply put, Jenkins sent very mixed signals. Although we

conclude today for the reasons discussed earlier that Jenkins is

best read as analyzing the duties of the particular deputies

before the court, much of the opinion’s language seemed to

indicate that a North Carolina sheriff could terminate his

deputies for political reasons regardless of the duties of their

particular positions. Truthfully, the Jenkins majority opinion

53
reads almost like two separate opinions that are in tension with

one another. All of the majority’s analysis up to the opinion’s

final page concerns deputies generally or North Carolina

deputies, and references particular duties of deputies without

indicating that the plaintiffs had those duties, see, e.g., 119

F.3d at 1162 (“The sheriff is likely to include at least some

deputies in his core group of advisors. Deputies on patrol work

autonomously, exercising significant discretion in performing

their jobs.” (footnote omitted)). This analysis leads up to the

broad conclusion that “North Carolina deputy sheriffs may be

lawfully terminated for political reasons under the Elrod-Branti

exception to prohibited political terminations.” Id. at 1164.

The majority rejected our earlier decision in Jones v. Dodson,

727 F.2d 1329 (4th Cir. 1984), where we concluded that no deputy

could ever be a policymaker and held instead that “district

courts are to engage in a Stott-type analysis, examining the

specific position at issue, as we have done here today.”

Jenkins, 119 F.3d at 1164. The majority later announced an even

broader “h[o]ld[ing]” possibly not even limited to North

Carolina sheriffs when it declared that “newly elected or re-

elected sheriffs may dismiss deputies either because of party

affiliation or campaign activity.” Id.

As if this language were not already strong support for a

broader reading of Jenkins, as we have pointed out, the dissent

54
in Jenkins read it that way as well, accusing the majority of

“hold[ing] that all deputy sheriffs in North Carolina –

regardless of their actual duties – are policymaking officials.”

Id. at 1166 (Motz, J., dissenting); see also id. (“This all-

encompassing holding is made without any inquiry into the actual

job duties of the deputies before us.”); id. (“The majority . .

. engages in no analysis of the particular duties of each

deputy.”); id. (“[T]he majority . . . finds that all North

Carolina deputy sheriffs are policymakers – without ever

considering the positions held by each of the deputies at issue

or their specific job duties.”).

Additionally, Knight v. Vernon, while important to our

decision regarding the merits of Carter’s, McCoy’s, and Dixon’s

constitutional claims, did not clearly establish that the

broader reading of Jenkins was incorrect. Although Knight

worked in a sheriff’s office, she was not a deputy. See Knight,

214 F.3d at 546. It is true that the Knight majority opined

that Knight’s sheriff would not have had the right to fire her

for political reasons even if she had taken the oath of a law

enforcement officer (like the plaintiffs in Jenkins took and

like the Knight dissent concluded Knight took). See id. at 551;

id. at 555 (Widener, J., concurring and dissenting). But the

Knight majority’s explanation for why it was immaterial whether

Knight had taken the law enforcement officer oath could itself

55
be reasonably taken as support for the broad reading of Jenkins.

The Knight majority stated:

As we emphasized in Jenkins, we “examine the job
duties of the position,” 119 F.3d at 1165, and Ms.
Knight’s duties as a jailer were essentially
custodial. She simply lacked the special status of a
deputy sheriff, who is empowered to stand in for the
sheriff on a broad front.

Id. at 551 (emphasis added). A sheriff reasonably reading

Jenkins as painting all deputies with a broad brush could well

have viewed Knight as doing the same, or, at the very least, not

weighing in on the issue. See also id. at 550 (“The

responsibilities of a jailer, such as Ms. Knight, are routine

and limited in comparison to those of a deputy sheriff, who may

be fired for his political affiliation.”); id. (“A jailer is not

the sheriff’s ‘second self’ in the sense that a deputy is.”).

The broader reading of Jenkins is also in line with a

statement from another of our opinions, which was issued after

Knight. In Pike v. Osborne, 301 F.3d 182 (4th Cir. 2002), we

held that, on a claim that a sheriff terminated a dispatcher for

political affiliation reasons, the sheriff was entitled to

qualified immunity because in December 1999 it was not clearly

established that a sheriff in Virginia could not lawfully

terminate, for political affiliation reasons, a dispatcher who

was privy to confidential information. See Pike, 301 F.3d at

186 (Hamilton, J., concurring in the judgment); id. (Broadwater,

56
J., concurring in the judgment) (adopting Judge Hamilton’s

reasoning). Judge Hamilton began his analysis in that case with

the statement, “The law of this circuit is clear that sheriffs

in Virginia have the right to lawfully terminate their deputies

for political affiliation reasons.” Id. (citing Jenkins). He

then proceeded to explain why the law was nevertheless not clear

regarding whether a dispatcher with access to confidential

information, who was not a deputy, could be terminated for

political affiliation reasons. See id. 19

For the reasons we explained in reviewing the merits of the

Elrod-Branti issue, we believe that this language, while

consistent with the Jenkins dissent’s characterization of

Jenkins’s reasoning, is an overstatement in light of the Jenkins

majority’s specific rejection of the dissent’s characterization

of its analysis. Nevertheless, considering the conflicting

signals that Jenkins and Pike sent, we conclude that a

reasonable sheriff in December 2009 could have believed that he

19
Other courts have, at times, also described Jenkins’s
holding broadly. See, e.g., Hall v. Tollett, 128 F.3d 418, 428
(6th Cir. 1997) (stating that Jenkins “held that political
affiliation is an appropriate requirement for deputy sheriffs”);
Fields v. County of Beaufort, 699 F. Supp. 2d 756, 764 (D.S.C.
2010) (“The Fourth Circuit determined that the office of deputy
is that of a policymaker, and therefore, the deputies were
lawfully terminated for political reasons.”).

57
was authorized to terminate any of his deputies for political

reasons. 20

If we were deciding what the law was in December 2009

regarding the legality of a sheriff firing a deputy for

political reasons, we would agree with our colleague in dissent

that the law was that a sheriff could not fire for political

reasons a deputy sheriff with the limited duties of a jailer.

Where we believe we differ in our assessment of this case is in

whether that law was clearly established and would have been so

recognized not by a judge trained in the law, but by a

reasonable sheriff.

For the reasons stated previously, we believe we have sent

mixed signals as to when a sheriff could fire a deputy for

political reasons and we have been unclear as to when he could

and when he could not. Some parts of our en banc decision in

Jenkins indicate he could do so and other parts would prohibit

it. The dissent in Jenkins expressed its own confusion as to

what the holding of Jenkins was and language in our cases since,

as well as those from other courts, have interpreted the holding

20
We emphasize that even a sheriff who read the specific
holding of Jenkins as limited to North Carolina deputies
involved in law enforcement could still have reasonably
concluded that, if we were squarely presented with the issue, we
would hold that a sheriff could terminate any of his deputies
for political reasons regardless of their particular duties.

58
in Jenkins broadly and consistent with the Sheriff’s. In short,

we understand why a sheriff would not find the law in this

situation clear, particularly given that he is a lay person.

We do not expect sheriffs to be judges and to have the

training to sort through every intricacy of case law that is

hardly a model of clarity. See Lawyer v. City of Council

Bluffs, 361 F.3d 1099, 1108 (8th Cir. 2004) (holding that

defendants were entitled to qualified immunity because “[p]olice

officers are not expected to parse code language as though they

were participating in a law school seminar”); Lassiter v.

Alabama A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1152 n.8 (11th

Cir. 1994) (“Even if some legal expert would have then concluded

that a hearing was required, defendants would still be due

qualified immunity if reasonable university officials would not

have known about it.”), overruled on other grounds by Hope v.

Pelzer, 536 U.S. 730 (2002). Rather, in considering whether

constitutional rights were clearly established for qualified-

immunity purposes, we view the issue from “the layman’s

perspective,” Ross v. Reed, 719 F.2d 689, 696 n.8 (4th Cir.

1983), recognizing that “[p]articularly with regard to legal

conclusions, lay officers obviously cannot be expected to

perform at the level achievable by those trained in the law,”

Kroll v. United States Capitol Police, 847 F.2d 899, 906 (D.C.

59
Cir. 1988) (Robinson, J., concurring in the judgment) (footnote

omitted).

We note that in cases in which the Elrod-Branti exception

applies, and an employer therefore does not violate his

employee’s association rights by terminating him for political

disloyalty, the employer also does not violate his employee’s

free speech rights by terminating him for speech displaying that

political disloyalty. 21 See Jenkins, 119 F.3d at 1164 (holding

that because pleadings established that Elrod-Branti exception

applied, deputies failed to state a First Amendment speech

retaliation claim that deputies were dismissed for campaigning

against the sheriff). Thus, a reasonable sheriff in December

2009 who believed that the Elrod-Branti exception applied to his

deputies could have also reasonably believed that he could

choose not to reappoint them for their speech indicating their

political disloyalty to him. And Carter’s and McCoy’s Facebook

activity and Dixon’s bumper sticker and polling-place comment

certainly fall into that category. For this reason, we conclude

21
“[O]nly infrequently will it be ‘clearly established’
that a public employee’s speech on a matter of public concern is
constitutionally protected, because the relevant inquiry
requires a particularized balancing that is subtle, difficult to
apply, and not yet well-defined.” DiMeglio v. Haines, 45 F.3d
790, 806 (4th Cir. 1995) (internal quotation marks omitted); see
also McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998).

60
that the Sheriff was entitled to qualified immunity concerning

the claims of Carter, McCoy, and Dixon. 22

E. Conclusion

In sum, as to the claims of Sandhofer, Woodward, and Bland,

we conclude the district court properly analyzed the merits of

the claims, and we therefore affirm the grant of summary

judgment in favor of the Sheriff. As to the claims of Carter,

McCoy, and Dixon, the district court erred by concluding that

the Plaintiffs failed to create a genuine dispute of material

fact regarding whether the Sheriff violated their First

Amendment rights. Nevertheless, the district court properly

ruled that the Sheriff was entitled to qualified immunity on

Carter’s, McCoy’s, and Dixon’s claims seeking money damages

against the Sheriff in his individual capacity, and that the

Sheriff was entitled to Eleventh Amendment immunity against

those claims to the extent they seek monetary relief against him

in his official capacity. The Sheriff is not entitled to

Eleventh Amendment immunity, however, on Carter’s, McCoy’s, and

Dixon’s claims to the extent the remedy sought is reinstatement.

22
Plaintiffs maintain that the Sheriff is not entitled to
qualified immunity because the Sheriff’s testimony demonstrated
that he actually realizes that he cannot fire his employees on
the basis of their political opposition to him. However,
qualified immunity depends not on what the actual sheriff knew
at the time of his deposition but on what a hypothetical,
objectively reasonable sheriff would have known in December
2009.

61
 III.

Accordingly, for the foregoing reasons, we reverse the

grant of summary judgment to the Sheriff regarding Carter’s,

McCoy’s, and Dixon’s reinstatement claims, and we remand these

claims to the district court for further proceedings. We

otherwise affirm the grant of summary judgment to the Sheriff.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

62
ELLEN LIPTON HOLLANDER, District Judge, concurring in part and
dissenting in part:

I concur in Chief Judge Traxler’s excellent opinion, with

one exception. The majority concludes that, at the relevant

time, “a reasonable sheriff could have believed he had the right

to choose not to reappoint his sworn deputies for political

reasons,” Maj. Op. at 53, and, on this basis, it determines that

Sheriff Roberts is protected by qualified immunity with respect

to his discharge of Carter, Dixon, and McCoy. In my view, when

these deputies were discharged in December 2009, the law was

clearly established that a sheriff’s deputy with the job duties

of a jailer could not be fired on the basis of political

affiliation. Therefore, I respectfully disagree with the

majority’s ruling as to qualified immunity.

In general, “the practice of patronage dismissals is

unconstitutional under the First and Fourteenth Amendments.”

Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality); see Branti

v. Finkel, 445 U.S. 507, 516-17 (1980) (recognizing, generally,

that “the First Amendment prohibits the dismissal of a public

employee solely because of his private political beliefs”).

Based on what is known as the Elrod-Branti doctrine, “public

employees who allege that they were discharged . . . solely

because of their partisan political affiliation or

nonaffiliation state a claim for deprivation of constitutional

63
rights secured by the First and Fourteenth Amendments.” Elrod,

427 U.S. at 349. This case concerns the scope of “a narrow

exception” to that baseline rule, Maj. Op. at 10, which frames

the qualified immunity analysis.

Pursuant to the exception to the Elrod-Branti doctrine,

dismissal based on political affiliation is lawful if “the

hiring authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of the

public office involved.” Branti, 445 U.S. at 518. The Supreme

Court’s formulation of the doctrine clearly puts the onus on the

employer to establish that a particular employee comes within

the exception to the rule barring discharge of a public employee

based on political affiliation. The majority correctly

concludes that, in the light most favorable to plaintiffs, they

were dismissed in violation of their rights under the First

Amendment. 1 This, in turn, requires consideration of Sheriff

Roberts’ defense of qualified immunity.

1
As the majority observes, both the free expression and
political affiliation claims of Carter, McCoy, and Dixon stand
or fall on the question of whether those plaintiffs come within
the exception to the Elrod-Branti rule because, “in cases in
which the Elrod-Branti exception applies, and an employer thus
can terminate his employees for political disloyalty, he may
also terminate them for speech that constitutes such
disloyalty.” Maj. Op. at 12 n.5. Accordingly, the qualified
immunity analysis applies equally to the free expression and
political affiliation claims of these three deputies.

64
 “Qualified immunity balances two important interests -- the

need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231

(2009). The qualified immunity analysis involves two inquiries:

first, whether the facts alleged, “[t]aken in the light most

favorable to the party asserting the injury, . . . show the

officer’s conduct violated a constitutional [or statutory]

right,” Saucier v. Katz, 533 U.S. 194, 201 (2001); and second,

whether the right at issue “‘was clearly established in the

specific context of the case -- that is, [whether] it was clear

to a reasonable officer that the conduct in which he allegedly

engaged was unlawful in the situation he confronted.’” Merchant

v. Bauer, 677 F.3d 656, 662 (4th Cir.) (citation omitted), cert.

denied, ___ U.S. ___, 133 S. Ct. 789 (2012). The “two

inquiries . . . may be assessed in either sequence.” Id. at

661-62.

“To be clearly established, a right must be sufficiently

clear ‘that every reasonable official would [have understood]

that what he is doing violates that right.’ In other words,

‘existing precedent must have placed the statutory or

constitutional question beyond debate.’” Reichle v. Howards,

___ U.S. ___, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v.

65
al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2078, 2083 (2011)) (some

internal quotation marks and citations omitted). The issue is

“assessed in light of the legal rules that were ‘clearly

established’ at the time” of the disputed conduct.

Messerschmidt v. Millender, ___ U.S. ___, 132 S. Ct. 1235, 1245

(2012) (citation and some internal quotation marks omitted).

Accordingly, we must consider the state of the law in December

2009, when Sheriff Roberts discharged Carter, Dixon, and McCoy.

As to the first prong of the inquiry, which evaluates the

merits of the claim of constitutional violation, the majority

determines that, in the light most favorable to plaintiffs,

Sheriff Roberts improperly dismissed them. In reaching that

conclusion, the majority engages in a careful analysis of

Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc),

cert. denied, 522 U.S. 1090 (1998), and Knight v. Vernon, 214

F.3d 544 (4th Cir. 2000). In my view, these same cases are

dispositive as to the second prong of the qualified immunity

inquiry. Jenkins and Knight clearly established that the Elrod-

Branti doctrine requires consideration of a deputy’s actual job

responsibilities, rather than the title of the position.

The Supreme Court’s formulation of the doctrine, of course,

is paramount. In Elrod, a newly elected Democratic sheriff

discharged several Republican employees of the Sheriff’s Office

“solely because they did not support and were not members of the

66
Democratic Party . . . .” 427 U.S. at 350-51. One of the

discharged employees was “Chief Deputy of the Process Division

and supervised all departments of the Sheriff’s Office” at a

certain location; another employee was a courthouse “bailiff and

security guard”; a third employee was a process server in the

office. Id. On First Amendment grounds, the employees sued in

federal court to enjoin their termination. Three justices of

the Supreme Court, joined by two concurring justices, held that

the district court should have granted the injunction. See id.

at 373. The three-justice plurality opined that “the practice of

patronage dismissals is unconstitutional” because “any

contribution of patronage dismissals to the democratic process

does not suffice to override their severe encroachment on First

Amendment freedoms.” Id. at 373.

The two concurring justices articulated an exception to

that general principle, viewing the case as presenting only a

“single substantive question”: “whether a nonpolicymaking,

nonconfidential government employee can be discharged or

threatened with discharge from a job that he is satisfactorily

performing upon the sole ground of his political beliefs.” Id.

at 375 (Stewart, J., concurring) (emphasis added). 2 The

2
Because the concurring justices’ votes were necessary to
the judgment, their more narrow view stated the holding of the
(Continued)
67
concurring justices “agree[d] with the plurality” that such an

employee could not be dismissed on the basis of political

affiliation. Id.

Four years later, in Branti, supra, 445 U.S. 507, a

majority of the Court reaffirmed Elrod’s holding, in the context

of the imminent firing of two Republican assistant public

defenders by a Democratic public defender. See id. at 508-09.

In so doing, the Branti Court reformulated the Elrod

concurrence’s exception to the prohibition of dismissals on the

basis of political affiliation for “policymaking” or

“confidential” employees. The Branti Court said: “[T]he

ultimate inquiry is not whether the label ‘policymaker’ or

‘confidential’ fits a particular position; rather, the question

is whether the hiring authority can demonstrate that party

affiliation is an appropriate requirement for the effective

performance of the public office involved.” Id. at 518. It

concluded that the assistant public defenders did not fall into

the exception to the general rule barring termination on the

basis of political affiliation, even though, in some respects,

Court under the “narrowest grounds” doctrine of Marks v. United
States, 430 U.S. 188 (1977).

68
they were involved in policymaking or privy to confidential

information. Id. at 519-20. 3

Consistent with Elrod and Branti, this circuit’s case law

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. Maj. Op. at 11 (quoting Stott v. Haworth,

916 F.2d 134, 142 (4th Cir. 1990)). In Stott, the court

articulated a two-part test to guide the analysis. The first

part requires examination of “‘whether the position at issue, no

matter how policy-influencing or confidential it may be, relates

to partisan political interests . . . [or] concerns.’” Stott,

916 F.2d at 141 (citations and some internal quotation marks

omitted). If the position does “‘involve government decision-

making on issues where there is room for political disagreement

on goals or their implementation,’” the second “‘step is to

examine the particular responsibilities of the position to

determine whether it resembles a policymaker, a privy to

3
In two subsequent cases, the Supreme Court extended the
Elrod-Branti doctrine in ways that are not germane to this case.
See Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)
(holding that Elrod-Branti doctrine also applies to “promotion,
transfer, recall, and hiring decisions”); O’Hare Truck Service,
Inc. v. City of Northlake, 518 U.S. 712 (1996) (holding that
Elrod-Branti doctrine applies “where government retaliates
against a[n] [independent] contractor, or a regular provider of
services, for the exercise of rights of political association or
the expression of political allegiance”).

69
confidential information, a communicator, or some other office

holder whose function is such that party affiliation is an

equally appropriate requirement.’” Id. at 141-42 (citation

omitted). The court recognized political affiliation as an

appropriate job requirement “‛when there is a rational

connection between shared ideology and job performance.’” Id.

at 142 (citation omitted).

This circuit’s Elrod-Branti case law has continued to

adhere to Stott’s focus on the job responsibilities of a given

position. See, e.g., Fields v. Prater, 566 F.3d 381, 386-87

(4th Cir. 2009) (applying Stott analysis); Nader v. Blair, 549

F.3d 953, 959-62 (4th Cir. 2008) (same). Commenting on the test

endorsed by Stott, the court said in Jenkins, 119 F.3d at 1162:

“Our cases have moved . . . to position-specific analyses.”

The majority’s conclusion that, at the relevant time, the

law as to deputy sheriffs was not clearly established is based

largely on its belief that Jenkins sent “very mixed signals” as

to the status of a sheriff’s deputy under the Elrod-Branti

doctrine. Maj. Op. at 53. Jenkins, which involved the

termination of ten North Carolina sheriff’s deputies, contains

instances in which the court used broad language that, according

to the majority here, arguably suggested that a Sheriff could

terminate a deputy for political reasons, without regard to

actual duties. Id. But, the Jenkins majority took pains to

70
define the scope of its holding and to resolve any “tension”

created by its language. Id. at 54.

The Jenkins majority stated that, “in North Carolina, the

office of deputy sheriff is that of a policymaker, and . . .

deputy sheriffs are the alter ego of the sheriff generally, for

whose conduct he is liable,” and concluded from this “that such

North Carolina deputy sheriffs may be lawfully terminated for

political reasons under the Elrod-Branti exception to prohibited

political terminations.” Jenkins, 119 F.3d at 1164. The

Jenkins majority also said: “We hold that newly elected or

reelected sheriffs may dismiss deputies either because of party

affiliation or campaign activity.” Id.

These statements cannot be read in isolation, however. The

Jenkins majority was engaged in overruling the court’s earlier

decision in Jones v. Dodson, 727 F.2d 1329 (4th Cir. 1984),

which had held that deputy sheriffs could not be fired on the

basis of political affiliation, “no matter what the size of the

office, or the specific position of power involved, or the

customary intimacy of the associations within the office, or the

undoubted need for mutual trust and confidence within any law

enforcement agency.” Id. at 1338. The Jenkins Court announced,

119 F.3d at 1164: “We disagree with Dodson to the extent it

suggests that no deputy sheriff can ever be a policymaker.”

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 The dissent in Jenkins maintained that the majority

“refus[ed] to engage in the proper Elrod-Branti

analysis . . . .” Id. at 1171 (Motz, J., dissenting). Pointing

to the broad, categorical language employed by the Jenkins

majority, the dissent reasoned that the majority had found that

“all (more than 4,600 in 1988) North Carolina deputy sheriffs

are policymakers,” thereby “call[ing] into question whether the

numerous North Carolina state troopers (more than 1,100 in 1988)

and police officers (more than 7,900 in 1988) are also

‘policymakers’ who can be dismissed at will by each new

political regime.” Id. (emphasis in original).

In response, the Jenkins majority expressly rejected the

dissent’s construction of its holding, explaining that its

holding was “limit[ed]” to “those deputies actually sworn to

engage in law enforcement activities on behalf of the sheriff.”

Id. at 1165 (emphasis added). Further, the Jenkins majority

insisted that its holding “applies only to those who meet the

requirements of the rule as we state it,” id. at 1165 n.66, and

did “not extend to all 13,600 officers in North Carolina, as the

dissent suggests.” Id. It reasoned that the “deputies in the

instant case” fell within the Elrod-Branti exception “[b]ecause”

they were “law enforcement officers.” Id. at 1165 (emphasis

added).

72
 Of import here, the Jenkins majority directed that “the

district courts are to engage in a Stott-type analysis,

examining the specific position at issue . . . .” Id. at 1164

(emphasis added). Moreover, the Jenkins majority directly

admonished sheriffs within the Fourth Circuit, stating: “We

issue this limitation to caution sheriffs that courts examine

the job duties of the position, and not merely the title, of

those dismissed.” Id. at 1165 (emphasis added). This directive

is particularly salient, given that qualified immunity is

predicated on the notion that “a reasonably competent public

official should know the law governing his conduct.” Harlow v.

Fitzgerald, 457 U.S. 800, 818-19 (1982); accord Trulock v.

Freeh, 275 F.3d 391, 400 (4th Cir. 2001), cert. denied, 537 U.S.

1045 (2002).

Notably, the majority here acknowledges “the Jenkins

majority’s specific rejection of the dissent’s characterization

of its analysis.” Maj. Op. at 57. But, even assuming that

Jenkins left the state of circuit precedent unclear as to the

application of the Elrod-Branti doctrine to deputy sheriffs, the

court’s subsequent decision in Knight v. Vernon, supra, 214 F.3d

544, laid to rest any ambiguity with respect to sheriff’s

deputies serving as jailers.

In Knight, the district court had relied on Jenkins in

granting summary judgment to a sheriff who fired a jailer, based

73
on the district court’s conclusion that the role of a jailer is

similar to the role of a deputy. See Knight v. Vernon, 23 F.

Supp. 2d 634, 646 (M.D.N.C. 1998), rev’d in part, aff’d in part

on other grounds, 214 F.3d 544 (4th Cir. 2000). This court

disagreed, thereby clarifying any possible confusion as to the

proper construction of Jenkins.

The court expressly held that “a sheriff cannot insist on

political loyalty as a job requirement for a county

jailer . . . .” 214 F.3d at 548. It reasoned that “political

allegiance to [the sheriff] was not an appropriate requirement

for the performance of [the] job [of] jailer,” id. at 550, and

this would be so even if the jailer had taken the oath of a

deputy sheriff. Id. at 551. 4 In its analysis, the majority

reiterated that the “central message of Jenkins is that the

specific duties of the public employee’s position govern whether

political allegiance to her employer is an appropriate job

requirement.” Id. at 549 (emphasis added).

Focusing on the particular job duties of a jailer, the

Knight majority emphasized the “circumscribed,” “routine,” and

4
According to the Knight majority, the record was clear
that Knight never took a law enforcement officer’s oath.
Knight, 214 F.3d at 546. The dissent disagreed. See id. at 555
(Widener, J., dissenting). But, of significance here, the
majority determined, in the alternative, that “even if Ms.
Knight did take such an oath, it would not change our decision.”
Id. at 551 (majority).

74
“limited” responsibilities of the position, in contrast to those

of a sheriff’s deputy with “the general power of arrest.” Id.

at 550. It noted that “exercising the power of arrest is not

one of the job duties of a jailer. Her duties are simply to

supervise and care for inmates in the county jail.” Id. The

Knight majority also observed: “Ms. Knight was not out in the

county engaging in law enforcement activities on behalf of the

sheriff. She was not a confidant of the sheriff, and she did

not advise him on policy matters. Nor was she involved in

communicating the sheriff’s policies or positions to the

public.” Id.

In its analysis of the merits, the majority here

acknowledges that the job duties of Carter, McCoy, and Dixon

were “essentially identical to those of the plaintiff in Knight

v. Vernon.” Maj. Op. at 18. It goes on to say, in the context

of their termination, that “the near identity between the duties

of the deputy plaintiffs in this case and Knight’s duties

warrants the same result here.” Id. at 21. I readily agree

with the majority that there is no cognizable distinction for

purposes of the Elrod-Branti doctrine between the jailer in

Knight and the jailers in this case. As I see it, that should

end the qualified immunity inquiry.

To be sure, the jailers here were sworn deputy sheriffs.

But, they did not exercise law enforcement responsibilities (or,

75
at least, have raised a genuine factual dispute as to whether

they did). The district court asserted that, because the

“officers in this case were sworn, uniformed deputies,” they had

“the power of arrest.” Bland v. Roberts, 857 F. Supp. 2d 599,

609 (E.D. Va. 2012). But, as the majority observes, see Maj.

Op. at 22-23, the deputies here could not lawfully exercise the

arrest power, except in extraordinary circumstances, because

they had been trained as jailers rather than as law enforcement

officers, and the arrest power was not an appreciable aspect of

their duties. Indeed, the undisputed record evidence is that no

deputy in the Sheriff’s Department had made an arrest in the

preceding sixteen years.

Moreover, as the majority points out, the record is clear

that, although the jailers in this case took an oath, they did

not take a law enforcement officer’s oath. See Maj. Op. at 21.

This renders the finding of qualified immunity weaker still,

because the Knight Court concluded that even a jailer who does

take a law enforcement officer’s oath cannot be discharged on

the basis of political affiliation. See Knight, 214 F.3d at

551.

In contrasting the role of a “jailer” with that of a

“deputy sheriff, who may be fired for his political

affiliation,” id. at 550, the Knight Court was referring to the

type of deputy discussed “in Jenkins”: a deputy who “is a sworn

76
law enforcement officer” and who “has the general power of

arrest, a power that may be exercised in North Carolina [and

Virginia] only by an officer who receives extensive training in

the enforcement of criminal law.” Id. A reasonable sheriff

reading Knight would realize that such a description of a

“deputy” did not encompass Carter, McCoy, and Dixon, who served

as jailers, and would have heeded the court’s warning in both

Knight and Jenkins that “‘courts examine the job duties of the

position, and not merely the title, of those dismissed.’”

Knight, 214 F.3d at 549 (quoting Jenkins, 119 F.3d at 1165)

(emphasis in Knight).

In support of its view that the pertinent law was not

clearly established when plaintiffs were discharged in December

2009, the majority places unwarranted emphasis on Pike v.

Osborne, 301 F.3d 182 (4th Cir. 2002). In that case, the court

held that a sheriff was entitled to qualified immunity in

connection with the termination in 1999 (i.e., before Knight was

decided) of two dispatchers, based on their political

affiliation. In a concurrence, one member of the panel

concluded that the law was not clearly established “on the point

of whether sheriffs in Virginia can lawfully terminate for

political affiliation reasons dispatchers with privity to

confidential information.” Pike, 301 F.3d at 186 (Hamilton, J.,

77
concurring) (emphasis added). 5 The concurrence prefaced its

discussion of the sheriff’s entitlement to qualified immunity

with a statement upon which the majority here relies: the “law

in this circuit is clear that sheriffs in Virginia have the

right to lawfully terminate their deputies for political

affiliation reasons.” Id. at 186 (citing Jenkins).

But, this assertion was clearly dicta, because Pike did not

involve sheriff’s deputies. 6 And, privity to confidential

information, upon which Pike’s holding turned, is not at issue

here. The majority acknowledges that the Pike concurrence

overstated the holding of Jenkins. Maj. Op. at 57. As of

December 2009, Jenkins, as well as Stott and Knight, were part

of the clearly established law of this circuit. In my view, it

sets a troubling precedent if this circuit’s clearly established

law can be undone by dicta.

Stott emphasized the importance of analyzing job duties in

cases such as this one. Speaking en banc, the Jenkins Court

expressly admonished sheriffs that “courts examine the job

5
The opinion, although labeled a concurrence, was joined by
one of the other two judges on the panel.
6
“Dictum is ‘statement in a judicial opinion that could
have been deleted without seriously impairing the analytical
foundations of the holding -- that, being peripheral, may not
have received the full and careful consideration of the court
that uttered it.’” Pittston Co. v. United States, 199 F.3d 694,
703 (4th Cir. 1999) (citation omitted); accord New Cingular
Wireless PCS, LLC v. Finley, 674 F.3d 176, 241 (4th Cir. 2012).

78
duties of the position, and not merely the title, of those

dismissed.” Jenkins, 119 F.3d at 1165 (emphasis added). And,

Knight reinforced that point, characterizing it as the “central

message of Jenkins.” Knight, 214 F.3d at 549. Knight also made

clear that a sheriff may not terminate a jailer for political

reasons, even if the jailer took an oath as a law enforcement

officer. See Knight, 214 F.3d at 551. Pike did not alter any

of this.

The salient facts of this case are so close to the facts in

Knight that any reasonable sheriff would have predicted that

both cases would yield the same result. To the extent that

there is any distinction between Knight and this case, it

concerns only the title of the positions held by the employees.

Yet, it was clearly established that the title itself is of no

legal significance. Therefore, Sheriff Roberts should have

known that he could not discharge his jailers on the basis of

their political affiliation.

The majority is correct in stating that, in considering

whether the law was clearly established for purposes of

qualified immunity, we look to the perspective of a layperson,

not a lawyer. See Maj. Op. at 58-60. And, as the Supreme Court

recognized in Hope v. Pelzer, 536 U.S. 730, 739 (2002), the

“contours” of the constitutional right “‘must be sufficiently

clear [so] that a reasonable official would understand that what

79
he is doing violates that right.’” (Citation omitted). Yet, the

Supreme Court also underscored that the “very action in

question” need not have “‘previously been held unlawful’” if,

“in the light of pre-existing law the unlawfulness [is]

apparent.” Id. (citations omitted). See also Wilson v. Kittoe,

337 F.3d 392, 403 (4th Cir. 2003) (qualified immunity may be

denied even in the absence of “‛a case holding the defendant’s

identical conduct to be unlawful . . . .’”) (citation omitted).

“Qualified immunity extends to protect officials ‘who

commit constitutional violations but who, in light of clearly

established law, could reasonably believe that their actions

were lawful.’” Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir.

2013) (quoting Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.)

(en banc), cert. denied, ___ U.S. ___, 132 S. Ct. 781 (2011));

accord Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012). It

is intended to “protect[ ] public officials from ‘bad guesses in

gray areas.’” Durham, 690 F.3d at 190 (quoting Maciariello v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied, 506

U.S. 1080 (1993)). There were no gray areas here.

In 1997, this court delivered an unequivocally clear

message to lay sheriffs. Directly addressing sheriffs, the

Jenkins Court announced: “We . . . caution sheriffs that courts

examine the job duties of the position, and not merely the

title, of those dismissed.” Jenkins, 119 F.3d at 1165. Any

80
person capable of serving as a sheriff surely would have

understood that directive, which was subsequently reiterated in

Knight, and would have grasped what all the members of this

panel agree was “the law . . . in December 2009 regarding the

legality of a sheriff firing a deputy for political reasons.”

Maj. Op. at 58. 7

In sum, Sheriff Roberts’ dismissal of Carter, McCoy, and

Dixon on the basis of their political allegiance, if ultimately

proven, cannot be excused on the basis of qualified immunity.

Therefore, I respectfully dissent from the portion of the

majority opinion that upholds the finding of qualified immunity

for Sheriff Roberts with respect to the First Amendment claims

lodged by Carter, McCoy, and Dixon.

7
The majority has correctly disregarded Sheriff Roberts’
subjective understanding of the law in applying the objective
analysis called for by the qualified immunity doctrine. See
Maj. Op. at 61 n.22. It is worth noting, however, that there is
no indication that Sheriff Roberts was laboring under a
misapprehension of the law. At his deposition, Roberts stated
that he did not believe he was entitled to fire the plaintiffs
“for political reasons.” JA 96. Instead, Roberts disputed
plaintiffs’ claim that he fired them for political reasons. As
the court unanimously concludes, see Maj. Op. at 25-31, there
are genuine disputes of material fact as to the basis for
Roberts’ termination of Carter, McCoy, and Dixon.

81