dissenting:
Today, the court holds a sheriff and an undersheriff responsible, ex post facto, for legal rules that did not exist at the time they acted. Because it would be wrong to hold these law enforcement officers to standards which the court’s analysis reveals it cannot meet itself, I respectfully dissent.
I
A sheriffs office “would be unmanageable if its head had to ... retain his political enemies ... in positions of confidence or positions in which they would be ... exercising discretion in the implementation of policy.” Fazio v. City and County of San Francisco, 125 F.3d 1328, 1333 (9th Cir.1997) (quotations omitted). Thus judges must be careful before interpreting the Constitution to place such a heavy burden on public employers. I agree with the court that in this circuit deputy sheriffs are not per se policymakers. I agree that the inquiry must be fact-specific. But I cannot agree with the court’s misreading of the ease law, a misreading that threatens to place heavy burdens on public officials forced to implement, through politically disloyal employees, policies the public elected them to enact.
We simply do not have sufficient information in the record to determine whether DiRuzza was a policymaker who could be fired after publicly campaigning for the sheriffs electoral rival. The district court did not inquire into this because it relied on out-of-circuit cases to conclude that deputy sheriffs are per se policymakers. Moreover, DiRuzza has presented little evidence of her job responsibilities under Sheriff Blanusa, describing instead her limited responsibilities after Sheriff Heard took over. Thus, were I not to conclude that the defendants are qualifiedly immune, I would simply remand the case to the district court so that it could determine whether DiRuzza’s authority and responsibilities made her a policymaker. With the utmost respect, but because the court, in *1316ray view, mischaraeterizes the facts and the applicable law, I must dissent to its analysis. I would affirm the district court’s holding that Sheriff Heard and Un-dersheriff Floyd were entitled to qualified immunity.
II
I agree with the court that Thomas v. Carpenter, 881 F.2d 828 (9th Cir.1989), precludes any per se rule that deputy sheriffs are policymakers and that we must proceed to the analysis we laid out in Fazio. 125 F.3d at 1334 n. 5.1 To determine, then, whether political loyalty is a reasonably appropriate requirement for an employee in DiRuzza’s position we consider her responsibilities, relative pay, technical competence, power to control others, authority to speak in the name of policy makers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan polities and political leaders. See id. We should do so mindful of the admonition in Fazio that “a public employee need not literally make policy in order to fit within the Elrod policymaker exception.” Id. at 1332.
First, the position of deputy sheriff has the broadest and vaguest of responsibilities. Under California law, “both the general statutes and decisional law establish that [deputy sheriffs] possess[ ] all of the powers and may perform all of the duties attached by law to the office of sheriff.” People v. Woods, 7 Cal.App.3d 382, 387, 86 Cal.Rptr. 508, 511 (1970); see also Cal. Gov’t Code § 24100. As such they are charged broadly with “preserv[ing] peace.” See Cal. Gov’t Code § 26600. DiRuzza need not regularly exercise these powers in order to qualify as a policymaker. See Fazio, 125 F.3d at 1333 (citing Mummau v. Ranck, 687 F.2d 9 (3d Cir.1982) (holding that an assistant district attorney (ADA) who only prosecuted juvenile cases and was not involved in the policymaking details of the office was a policymaker because regardless of whether the ADAs actually exercised all their powers, the powers granted to -ADAs were broad)). “So long as the applicable statute, regulations and case law contemplate that the public officer might be relied upon to ... implement! ] policy the official may be fired for political reasons without offending the First Amendment.” Id. (quotations omitted); see also Dickeson v. Quarberg, 844 F.2d 1435, 1442 (10th Cir.1988) (“We focus on the inherent powers of the positions as well as on the actual duties performed”). As a deputy sheriff, DiRuzza potentially enjoyed broad power, but the record does not contain sufficient information regarding her specific responsibilities to allow us to determine the duties she actually performed.
Second, DiRuzza’s technical competence appears to be quite high. She has been chosen at least twice for extensive assignments relating to prison policy. The majority leaps from the fact that she has worked in positions associated with the jails to the conclusion that she worked in a “custodial position” in which her duties were limited to the care of prisoners. Supra at 1311. But the record reveals that DiRuzza’s responsibilities were far more expansive. She first worked on a “Federal litigation project” assisting at depositions and at trial. Later, the sheriff appointed her as the number two deputy on the jail construction project, charging her with revising the policy manual for prison procedures. The majority’s dismissive account of her responsibilities in this role betrays its own deaf ear to precedent instructing us that a policy maker need not literally make policy. See Fazio, 125 F.3d at 1332. DiRuzza was chosen for this second position precisely because of the technical competence and expertise she had acquired *1317while working on the federal prison litigation. Determined not to allow a repetition of the poor policies and procedures which had led to the federal litigation, Sheriff Blanusa put DiRuzza in charge of drafting a new policy manual which would ensure that the prison complied with all of the pertinent laws.
Third, DiRuzza had extensive contact with and had to be responsive to elected officials, most obviously the elected sheriff, to whom she answered directly. As deputy sheriff, DiRuzza was responsible for implementing the policies of this elected official. While working, “sheriffs deputies are often called upon to make on-the-spot split-second decisions effectuating the objectives and law enforcement policies which a particular sheriff has chosen to pursue.” McBee v. Jim Hogg County, 703 F.2d 834, 839 (5th Cir.1983), vacated on other grounds, 730 F.2d 1009 (5th Cir.1984) (en banc). In rural Tehama County a deputy sheriff has wide latitude and discretion in implementing the sheriffs policies while on patrol. In fact her authority and responsibilities continued even when she was not on duty. See Melendez v. City of Los Angeles, 63 Cal.App.4th 1, 8-9, 73 Cal.Rptr.2d 469, 473-474 (1998). While the sheriff generally is responsible for developing policy, DiRuzza “may, in carrying out [her] duties, make some decisions that will actually create policy.” Fazio, 125 F.3d at 1332 (quotations omitted).
Fourth, the public would reasonably perceive that the uniformed deputy sheriff speaks for the sheriff. “In order to promote public confidence in law enforcement, the Sheriff depends on his deputies to publicly project his competence and the competence of the office.” Upton v. Thompson, 930 F.2d 1209, 1215 (7th Cir.1991). In the prison and on the beat she was the face and voice of the sheriff and his policies.
Thus, on remand, and with the benefit of more evidence, the district court may well conclude that DiRuzza’s responsibilities in her position of deputy sheriff indicate the need for her political loyalty “ ‘not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.’ ” Thomas, 881 F.2d at 831 (quoting Elrod, 427 U.S. at 367, 96 S.Ct. 2673). Fewer acts convey greater opposition to an elected supervisor’s policies than actively campaigning for a rival candidate.2 Unlike the plaintiffs in Elrod and Branti, DiRuzza does not allege that Sheriff Heard retaliated against her merely for belonging to the wrong political party.3 The court’s misapplication of the law and its characterization of the facts would force a sheriff to implement his policies through, and to entrust the enforcement of his programs, to a poli-cymaking deputy who actively campaigned against these policies and programs by appearing in television commercials for his opponent.
Ill
More troubling, the court holds that Sheriff Heard and Undersheriff Floyd cannot benefit from qualified immunity because they violated Deputy Sheriff DiRuz-*1318za’s clearly established rights. Despite the fact that the Supreme Court’s reasoning in this area has shifted, that the circuits are split on the question, and that the four Article III judges who have examined the very question in this case are equally divided on whether the First Amendment protects DiRuzza’s disloyalty, the court concludes that the Sheriff and Undersher-iff could have known in 1995 that DiRuzza had a clearly established right not to be fired under these circumstances.
Even if Sheriff Heard and Undersheriff Floyd improperly fired DiRuzza for her support of then-Sheriff Blanusa, they may only be held liable if, at the time they acted, the “law governing [their] conduct was clearly established” and if “given this clearly established standard, a reasonable official could believe that his or her conduct was lawful.” Biggs v. Best, Best & Krieger, 189 F.3d 989, 994 (9th Cir.1999) (citation omitted). “A right is ‘clearly established’ if ‘the contours of [that] right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” B.C. v. Plumas Unified School District, 192 F.3d 1260, 1268 (9th Cir.1999) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “To show that the right in question here was clearly established, [DiRuzza] need not establish that [Heard’s and Floyd’s] behavior had been previously declared unconstitutional, only that the unlawfulness was apparent in light of preexisting law.” Id. (quotations and citations omitted).
The question then is whether “the contours of [DiRuzza’s] right were sufficiently clear” when Sheriff Heard and Undersher-iff Floyd acted in 1995 that “a reasonable official would [have understood] that what he [was] doing violate® that right.” Id. No one could disagree that by 1995, the time the defendants acted, it was clearly established that a non-policymaking public employee is protected from political retaliation. But this begs the question. Rather, we must ask whether the defendants could have known that a deputy sheriff with DiRuzza’s job responsibilities was a non-policymaking employee. The district court got it right: they could not have.
Recall that, Thomas, decided in 1989, held that political loyalty is not necessarily a job requirement in a sheriffs office. This case, however, was decided on a motion to dismiss and the court explicitly left open the possibility that a defendant could establish at the summary judgment stage that loyalty is necessary for the position. Thomas, therefore, cannot stand for the proposition that it was clearly established that a deputy sheriff with DiRuzza’s responsibilities was not a policymaker. Because Thomas does not clearly establish that DiRuzza was a policymaker, it cannot be said that this rule was clearly established at the time the defendants acted. After Thomas, and before 1995, there simply were no other Ninth Circuit cases to give the defendants guidance on who was and who was not a policymaking employee.
Most revealing is the majority’s extensive reliance on Fazio, a case decided two years after the defendants acted. Although the majority is careful to avoid citing it in Part B of its decision, to reach the conclusion in Part A that DiRuzza was not a policymaker on these facts, it had to rely heavily on the Fazio factors. Fazio, however, was decided in 1997, two years after Sheriff Heard’s actions, and thus cannot be construed against him. If the right had been clearly established by 1995, then presumably the majority could have concluded in Part A that DiRuzza was not a policymaker without ever discussing Fazio. In reaching its conclusion by leaning so heavily on Fazio, the majority holds Sheriff Heard and Undersheriff Floyd (who could not have been aware of that decision) to a standard of legal reasoning it cannot meet itself. “Given such an underdeveloped state of the law, the officers in this case cannot have been expected to predict the future course of constitutional law.” Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 1701, 143 L.Ed.2d 818 (1999).4
*1319The Supreme Court’s splintered and shifting jurisprudence in this area of the law provides the backdrop for the conclusion that it was not clearly established when the defendants acted that DiRuzza was a protected non-policymaker. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the first case fashioning such a rule, no rationale could command a majority of the justices. Then in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court shifted the “ultimate inquiry ... [from] whether the label ‘policymaker’ or ‘confidential’ fits a particular position” to whether political loyalty “is an appropriate requirement for the effective performance of the public office involved.” Id. at 518, 100 S.Ct. 1287. This formulation of the inquiry caused Justice Stewart who had concurred in Elrod to dissent in Branti. See id. at 520, 100 S.Ct. 1287 (Stewart, J., dissenting). Finally, in O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996), the Supreme Court cast doubt on the rationale underlying the application of the First Amendment to this area and rephrased the standard, shifting from whether political loyalty is essential or needed to whether it is “reasonably appropriate.” 518 U.S. at 712, 116 S.Ct. 2353.5
The lack of clear direction from the Supreme Court in this area has lead to a circuit split on the precise issue before us. As the majority notes, three circuits have upheld the legality of politically motivated dismissals of deputy sheriffs on the ground that they are policymakers. See Jenkins v. Medford, 119 F.3d 1156 (4th Cir.1997) (en banc); Upton, 930 F.2d 1209 at 1218 (7th Cir.1991); Terry v. Cook, 866 F.2d 373 (11th Cir.1989). On the other hand, at least two circuits have held that employees in such positions are not policymakers, see Burns v. County of Cambria, 971 F.2d 1015 (3rd Cir.1992);6 Hall v. Tollett, 128 F.3d 418 (6th Cir.1997),7 yet another that determining the applicability of First Amendment protection requires a fact-specific balancing test, see McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir.1984) (en banc). Justice Powell predicted this confusion in Branti. “The standard articulated by the court is framed in vague and sweeping language certain to create vast uncertainty. Elected and appointed officials at all levels ... no longer will know when political affiliation is an appropriate consideration in filling a position.” 445 U.S. at 524, 100 S.Ct. 1287 (Powell, J., dissenting); see also Rutan v. Republican Party of Illinois, 497 U.S. 62, 111-113, 110 5.Ct. 2729, 111 L.Ed.2d 52 & nn. 5-21 (1990) (Scalia, J., dissenting) (listing the many conflicting cases regarding which government positions are protected from politically motivated dismissal to illustrate the “inconsistent and unpredictable re-*1320suits”). Nevertheless, peering through all of this legal fog and the nearly unfathomable variations of fact-specific analyses, the majority discerns that Sheriff Heard and Undersheriff Floyd could have known in 1995 that they could not fire Deputy Sheriff DiRuzza for campaigning against him.
For my part, I simply cannot agree that “the only reasonable conclusion from binding authority [was] that the disputed right existed ... [such that the Tehama County sheriff and undersheriff] would be on notice of the right, and [are not] qualifiedly immune [when] they acted to offend it.” B.C., 192 F.3d at 1268 (quoting Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir.1997)). The tests for determining when political loyalty is an appropriate requirement are “so general that for most positions it is impossible to know whether party affiliation is a permissible requirement until a court renders a decision.” Rutan, 497 U.S. at 111, 110 S.Ct. 2729 (Scalia, J„ dissenting). Today’s case proves the point. The four Article III judges who have examined this question have reached three different conclusions and two different results. One, the district court judge, ruled that DiRuzza was a policymaker. The three judges on this panel have now held that we do not know enough to decide, but only reached this result after conducting two significantly different anal-yses of the case law, including a pivotal case that did not even exist when the defendants acted. “If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” Wilson, 119 S.Ct. at 1701. Given this level of confusion, “[e]ach of [the] defendants could ‘have believed that [his] conduct was lawful.’ ” B.C., 192 F.3d at 1268 (quoting Jensen v. City of Oxnard, 145 F.3d 1078, 1086 (9th Cir.1998)). As no case law by 1995 clearly established that the Constitution protected Deputy DiRuz-za’s political disloyalty, I would affirm the district court’s decision that the defendants are qualifiedly immune.
IV
Qualified immunity protects all but the plainly incompetent and the willful violators of the law. A public official should not be held to such high standards of clairvoyance that he is civilly liable for failing to comply with legal authority that did not even exist when he acted. I must respectfully dissent.
. I use the term "policymaker” only as shorthand for a position in which political loyalty may reasonably be- required. I am mindful of the Supreme Court's instruction that “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 is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. 1287.
. "We can think of no clearer way for a deputy to demonstrate opposition to a candidate for sheriff, and thus actual or potential disloyalty once the candidate takes office, than to actively campaign against the candidate’s opponent.” Jenkins v. Medford, 119 F.3d 1156, 1164-65 (4th Cir.1997) (en banc); cf. Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir.1993) ("The declaration of candidacy in these circumstances is a declaration of war.”); Upton, 930 F.2d at 1218 ("This contrasts sharply with the politically active deputy who, by vociferously campaigning for the loser, encounters Matthew 26:52: 'All they that take the sword shall perish with the sword.’ ”)
. " 'If a public official is permitted to fire a confidential or policymaking employee merely because the latter quietly, inoffensively, undemonstratively belongs to the wrong political party ... the official should be permitted to fire the same employee when the latter asks the electorate to the throw the rascal out....' ” Fazio, 125 F.3d at 1332 (quoting, Wilbur, 3 F.3d at 218).
. Contrary to the majority's assertion in its note 4, I do not suggest that Fazio decided for *1319the first time that a non-policymaking employee is protected from retaliation; rather, as the majority’s reliance on the case implicitly acknowledges, Fazio is the first case which would allow defendants to determine whether a deputy with DiRuzza’s job responsibilities was a policymaking employee.
."It was by no means self-evident whether our First Amendment precedents applied, for as Justice Powell explained in dissent, the patronage practices at issue had been sanctioned by history and had been thought by some to contribute to the effective operation of political parties. If indeed those patronage practices fortify the party system, they may serve important First Amendment interests, since parties promote and generate political discourse." O’Hare, 518 U.S. at 717-18, 116 S.Ct. 2353 (citations omitted).
. This case does not support the majority’s conclusion as much as the majority implies because the extent of the responsibilities of the deputy sheriff in this case was limited to serving process, transporting prisoners and providing court security. Burns, 971 F.2d at 1022. DiRuzza’s responsibilities and powers were far more extensive.
. Contrary to the majority’s assertion, its holding is not consistent with Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir.1988). The plaintiffs in Dickeson were a non-deputized head jailer who job was "housing and feeding prisoners” and a non-swom administrative assistant whose job was “essentially secretarial." Id. at 1437, 1443 & n. 7. Thus the case is not analogous to this one.