concurring in the judgment.
I agree with the court’s apparent conclusion that, assuming, arguendo, the plaintiffs have alleged a violation of the First Amendment, Sheriff Osborne was entitled to qualified immunity because the law in December 1999 was not clearly established that a sheriff in Virginia could not lawfully terminate for political affiliation reasons a dispatcher with privity to confidential information. I write further to more fully explain my rationale for finding that Sheriff Osborne was entitled to qualified immunity.
The law in this circuit is clear that sheriffs in Virginia have the right to lawfully terminate their deputies for political affiliation reasons. Jenkins v. Medford, 119 F.3d 1156, 1163-65 (4th Cir.1997) (en banc) (overruling Jones v. Dodson, 727 F.2d 1329 (4th Cir.1984)). However, we have not addressed the question of whether sheriffs have the right to lawfully terminate their dispatchers for political affiliation reasons. Our decision in Jenkins sends mixed signals to sheriffs in this regard. On the one hand, a dispatcher with access to confidential information, arguably, is the equivalent of your everyday clerical worker, especially when, as in this case, each dispatcher did mostly clerical work, did not wear a uniform, did not have a badge, had no arrest authority, and had no discretionary authority. Id. at 1165 (“[Dismissals based on today’s holding [are limited] 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. Because the deputies in the instant case were law enforcement officers, they are not protected by this limitation.”) (footnotes omitted), id. n. 66 (citing Zorzi v. County of Putnam, 30 F.3d 885, 892 (7th Cir.1994), which held that dispatchers were not involved in law enforcement activities or making policy, and, therefore, *74political affiliation was not an inappropriate job requirement). On the other hand, Jenkins says privity to confidential information permits a lawful termination based on political affiliation reasons. 119 F.3d at 1164 (“If the position resembles a policymaker, a communicator, or a privy to confidential information, then loyalty to the sheriff is an appropriate requirement for the job.”) (internal quotation marks and footnote omitted).
Jenkins is confusing, at best, on the point of whether sheriffs in Virginia can lawfully terminate for political affiliation reasons dispatchers with privity to confidential information. Accordingly, because the law was not clearly established in December 1999 that a sheriff could not lawfully terminate for political affiliation reasons a dispatcher with privity to confidential information, Sheriff Osborne was entitled to qualified immunity.*
For purposes of our discussion, Sheriff Osborne does not dispute that his decision not to reappoint plaintiffs was tantamount to a dismissal of the plaintiffs from their employment.