Brickey v. Hall, No. 14-1910 (4th Cir. 2016)
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After plaintiff was terminated from his position as a police officer, he filed suit under 42 U.S.C. 1983, alleging retaliatory discharge in violation of the First Amendment based on the comments he made as a candidate for town council that were critical of his employer. The district court denied Police Chief Rob Hall qualified immunity. The court concluded, however, that Hall is entitled to qualified immunity because it was debatable at the time of plaintiff's dismissal that his speech interests as a citizen outweighed Hall’s interests as a public employer. Accordingly, the court reversed and remanded.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1910 RANDALL E. BRICKEY, Plaintiff - Appellee, v. ROBB HALL, Defendant – Appellant, and DICKIE DYE; T. MICHAEL TAYLOR; ERIK C. PUCKETT; JOHNSON; C. TODD YOUNG; TOM HOLLY; VINCENT MAIDEN, NEIL Defendants. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. Glen E. Conrad, Chief District Judge. (1:13−cv−00073−GEC−PMS) Argued: December 10, 2015 Decided: July 8, 2016 Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Reversed and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Keenan joined. ARGUED: Jeremy E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Edward Kyle McNew, MICHIEHAMLETT PLLC, Charlottesville, Virginia, for Appellee. ON BRIEF: Andrea Kay Hopkins, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Virginia, for Appellee. 2 Hilary K. Johnson, Abingdon, DIAZ, Circuit Judge: Police officer Randall Brickey was fired for comments he made as a candidate for town council that were critical of his employer, the Saltville Police Department, and its Police Chief, Rob Hall. Brickey filed suit under 42 U.S.C. § 1983 retaliatory discharge in violation of the First Amendment. district court denied Hall interlocutory appeal followed. time of Brickey’s dismissal qualified immunity, and for The this Because it was debatable at the that his speech interests as a citizen outweighed Hall’s interests as a public employer, we conclude that Hall is entitled to qualified immunity. We therefore reverse. I. A. Brickey was an officer with the Saltville Police Department from December 1, 2006, to May 21, 2012, the day his employment was terminated. Hall became Police Chief in July 2011, taking over a department struggling with well-publicized problems of financial mismanagement, officer misconduct, and a general lack of professionalism. operations changes, and In an effort to improve the department’s public including image, increased Hall foot code, and new payroll procedures. 3 instituted patrols, a several stricter policy dress In early 2012, Brickey decided to run for Saltville Town Council. the He discussed the plan with Hall, who indicated that campaign would not cause employment problems so long as Brickey did not campaign in uniform or disparage the department in contravention of departmental policy. During the campaign, two local newspapers posed questions to the candidates, publication. inviting them to submit responses for One paper provided this prompt: “Motivation for seeking office/why should the voters choose you?” J.A. 337. After identifying himself as a member of the Saltville Police Department with twenty-three years of experience as a police officer, Brickey responded in relevant part as follows: I teach the D.A.R.E. [i.e., Drug Abuse Resistance Education] Program at Saltville Elementary School. . . . I went in to talk to Chief (Rob) Hall about ordering the supplies for the D.A.R.E. graduation. I was told there was no money to place the order. After checking with the accounts payable clerk to see where the $500 in the police department budget had been spent, I was shown several invoices that were charged to the D.A.R.E. account. The items on the invoices had nothing to do with the D.A.R.E. program. I also found, from looking at a copy of the budget that I obtained from the town, that the town receives $225,000 in highway maintenance funds from the state. Only $3,000 is approved in the budget for paving. Seeing this, along with the other misuse of taxpayers’ money, shows me that we have a very poor management at the council level and there needs to be a change. Id. 4 Next, in response to a question about the town’s “greatest needs,” Brickey noted road paving, improved management of the town pool, and the following changes to the Saltville Police Department: “The professional. town police department needs to be more Officers need to do more foot patrols during the day shift and become more familiar with business owners. police department needs to be more [aggressive] investigations and focus more on drug trafficking.” The on Id. Finally, Brickey responded to a question as to how to meet those needs. He first noted that he had “been told by some business owners in town during [his] campaign for town council that they would like to see more foot patrols from the police department, hours.” and Id. would like to see the chief during daytime He went on to propose the addition of a full-time investigator, stating that the town had a serious drug problem and that he knew of “cases that need to be investigated by the police department.” Id. Brickey’s statements were printed in late April 2012. About a week later, Hall informed Brickey that he believed Brickey’s statements violated departmental policy. The alleged violations of the Police Department Policy Manual included (1) a failure to subordinates, “display and respect for associates”; [his] superior (2) “speak[ing] officers, rumors detrimental to the department or another employee”; (3) “us[ing] 5 or attempt[ing] credentials to for use [his] personal or official financial (4) “communicat[ing] . . . information activities or matters of police position, gain or or advantage”; concerning business, badge operations, the release of which . . . may have an adverse impact on the department image, operations, or administration”; and (5) “criticiz[ing] or ridicul[ing] the Department, its policies, or other employees by speech . . . [that] undermines the effectiveness of the Department, interferes with the maintenance of discipline, or is made with reckless disregard for truth or falsity.” J.A. 352- 55, 357-70. Hall hired Gary Reynolds—an out-of-state, former police chief—to investigate the allegations and to determine whether Brickey in fact violated departmental interviewed Hall, Brickey, Assistant Saltville town auditor, police department. and the policies. Chief other Erik five Reynolds Puckett, officers in the the In speaking with Reynolds, Brickey withdrew or attempted to clarify some of his statements. Asked about his comments on the professionalism of the department, Brickey said, “It’s not that I meant they are unprofessional, we just need to be on patrol more.” J.A. 373. Regarding the D.A.R.E. comments, Brickey admitted that the $500 was in fact accounted for in a different line item of the budget. J.A. 384. He also conceded that he “should have said mismanagement of funds versus misuse 6 of funds.” J.A. 387. Brickey insisted that his “statements regarding the DARE account were not about Chief Hall, they were about the [town] council members.” J.A. 383. According to Reynolds’s investigation, Brickey’s statements caused concern department. within the Saltville government and police A town auditor interpreted Brickey’s statements as alleging that Chief Hall was misusing funds. J.A. 381. This “upset” the auditor, who, after looking into the matter, “found no misuse of taxpayer money by Chief Hall.” officers believed that the comments Id. reflected Some police poorly on the department, though at least two officers told Reynolds that they had not read Brickey’s comments. J.A. 381-83, 386. In Reynolds’s final estimation, Brickey’s statements to the newspapers violated departmental policies. to Reynolds, Brickey’s statements J.A. 387. regarding the According “misuse” of D.A.R.E. funds “clearly ‘bad mouthed’ the Police Department and especially the Police Chief, and thus were harmful to the public trust of Chief Hall as well as his integrity.” Id. Moreover, Reynolds faulted Brickey for failing to investigate properly or verify his allegations that police funds were being misused. J.A. 388. Specifically, Reynolds found that Brickey overlooked the fact that the D.A.R.E. budget line item also included funds for “Community Relations,” and that the invoices Brickey observed were for legitimate community-relations expenses. 7 Id. After notifying Brickey of the results of the investigation, Hall held a meeting with Brickey, Reynolds, and Puckett in which Brickey was given an opportunity to respond to the allegations and the findings of the report. 2012, Hall terminated Brickey’s employment. On May 21, Brickey pursued the department’s grievance procedures to no avail. B. Brickey filed suit under § 1983, naming as defendants Hall and a number of other individuals who played a role in his dismissal. In discharge claim, substantive addition to Brickey due-process his First also claims. Amendment asserted The retaliatory- procedural due-process claims and were dismissed on a 12(b)(6) motion, as was a request for punitive damages. The retaliatory-discharge claim survived, and the defendants later moved for summary judgment, attacking the claim on the merits and also asserting qualified immunity. The district court granted the motion in part and denied it in part. Brickey v. Hall, No. 1:13-CV-00073, 2014 WL 4351602, at *9 (W.D. Va. Sept. 2, 2014). Summary judgment was granted as to all defendants except Chief Hall—none of the other officials, the court held, had “caused” Brickey’s injury, as Hall was the lone decisionmaker. Id. at *8. As to Hall, the district court denied qualified immunity. Id. The district court first held that, taking the record in 8 the light most favorable to Brickey, Hall violated Brickey’s First Amendment rights. Id. at *4–7. Having found a violation, the district court determined that Brickey’s right not to be fired for his speech was clearly established at the time of his termination. Id. at *7–8. Relying on Citizens United v. FEC, 558 U.S. 310 (2010), the court stated that political speech was clearly entitled to strong protection. Id. at *8. And relying on Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), the court stated that public employees’ misconduct warrants protection. speech regarding governmental Id. This interlocutory appeal followed. 1 II. We review de novo the denial of qualified immunity. Altman v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003). Qualified immunity shields government officials from personal liability when “their conduct does not violate clearly established . . . rights of which a reasonable person would have known.” Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) 1 Although “interlocutory appeals are generally disallowed, ‘a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is [immediately appealable] notwithstanding the absence of a final judgment,’ under the collateral-order doctrine.” Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1982)). 9 (quoting Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)). That is, qualified immunity protects government officials when they act in legal “gray areas.” Id. (quoting Occupy Columbia v. Haley, 738 F.3d 107, 118 (4th Cir. 2013)). entitled to qualified immunity unless An official is “(1) the allegations underlying the claim, if true, substantiate [a] violation of a federal statutory violation was reasonable of person or a constitutional clearly would right; established have known.” and right Id. (2) this of at which 308 a (quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 (4th Cir. required 2006)). for established, a While court “existing to a case directly conclude precedent that must on the have constitutional question beyond debate.” point law was placed is not clearly the . . . Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The burden of proof rests with the official asserting the defense. Durham, 737 F.3d at 299. Brickey alleges retaliatory discharge in violation of the First Amendment. On appeal, Hall does not challenge the district court’s holding that Brickey has properly alleged a constitutional violation—the first qualified-immunity prong. Instead, Hall contends that the right Brickey asserts was not clearly established in 2012 when Brickey was terminated. Our review, therefore, is confined to the question of what law was 10 clearly established—we do not reach the merits of Brickey’s constitutional claim. A First Amendment retaliation claim poses three questions: (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether 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) whether the employee’s speech was a substantial factor in the employee’s termination decision. McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998). The third question is not in dispute; Hall concedes that he terminated Brickey because of his speech. But Hall contends that the law was not clearly established on the first two questions. Because we hold that the law was not clearly established as to the second employer’s question—the interests—Hall is balancing of the employee’s entitled to qualified and immunity. Consequently, we need not reach the question of whether it was clearly established that Brickey spoke as a citizen on a matter of public concern. A. Under the Supreme Court’s decision in Pickering v. Board of Education, a court’s charge in a First Amendment retaliation case is “to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the 11 State, as an employer, in promoting the efficiency through its employees.” of the public services 391 U.S. 563, 568 (1968). it performs The public’s interest in hearing the employee’s speech also weighs in the balance: “A stronger showing of public interest in the speech requires a concomitantly stronger showing of government–employer interest to overcome it.” McVey, 157 F.3d at 279 (Murnaghan, J., concurring). 2 “The Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.” U.S. 138, 150 (1983). Connick v. Myers, 461 Prior to Brickey’s termination, the test for striking the appropriate balance was clear: “[W]e must take into account the context of the employee’s speech” and “the extent to which it disrupts the operation and mission” of the institution. 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 institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed. 2 At this point in his concurrence, Judge Murnaghan speaks for a majority of the McVey panel. See 157 F.3d at 282 (Michael, J., concurring in the lead opinion “except to the extent it is qualified by Judge Murnaghan’s separate opinion”). 12 Ridpath, 447 F.3d at 317 (citation omitted) (quoting McVey, 157 F.3d at 278). “but only The employer need not prove actual disruption, that apprehended.’” an adverse effect was ‘reasonably to be Maciarello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992) (quoting Jurgensen v. Fairfax Cty., 745 F.2d 868, 879 (4th Cir. 1984)). It was clearly established in 2012 that police officials are entitled to impose more restrictions on speech than other public employers discipline is because demanded, a police and force freedom must is be “‘paramilitary’— correspondingly denied.” Id. (quoting Jurgensen, 745 F.2d at 880) (granting qualified immunity officers for to a police conducting an official unauthorized who terminated investigation alleged evidence tampering in the police force). this heightened “greater ranks.” need latitude . . . for in discipline, dealing police with into Because of officials dissension two in have their Id. The key comments in this case involve the allegedly missing D.A.R.E. funds. 3 As an initial matter, despite Brickey’s claim 3 We agree with the district court that it was clearly established that Brickey’s other comments were entitled to First Amendment protection. Statements that the department “needs to be more professional,” “needs to be more [aggressive] on investigations,” or ought to hire an investigator do not raise a reasonable apprehension of disruption. J.A. 337. Not only do these statements offer modest criticism of the department and (Continued) 13 that he did not intend to impugn his chief, Hall could reasonably have read the comments—as some others in Saltville did—to accuse him of incompetence or even malfeasance. A town auditor, for example, read the comments to allege misuse on the Chief’s part, and (according to declarations given by Hall, Assistant Chief Puckett, and the town manager) some members of the police force and the public expressed concerns of police misconduct in the wake of the articles. See J.A. 93 (Hall: “Some residents also construed Brickey’s comments as accusing me and the department of corruption and misusing funds.”); J.A. 312 (Puckett: “I was asked questions about the articles from members of the public who expressed concern that officers were engaging in misconduct.”); J.A. 316 (Town Manager: “Officers expressed their belief that Brickey had accused them of improper behavior . . . .”); id. (“Many people who commented about the articles expressed concern that someone was stealing money from the Town.”). The clearly established principles outlined above did not put the outcome of the Pickering balancing in this case “beyond debate.” The context and the extent of disruption D.A.R.E. comments weighed on both sides of the scale. of the First, its chief, but they also touch on weaknesses of the department that were already well known in Saltville. 14 Brickey spoke as a political candidate in a public forum. In general terms, speaking as a political candidate weighs in favor of speech. Brickey’s At the same time, however, the public nature of comments increased their capacity for disruption. Second, Brickey’s speech criticized a superior officer. As our cases reflect, discipline and respect for superior officers are critical in a police force. Because speech accusing a superior officer of incompetence or malfeasance goes to the heart of the superior’s authority, Hall could reasonably have believed that Brickey’s comments would undermine his authority in the eyes of the public and within the police department. See J.A. 316 (Town Manager stating that “[b]ased on my observations of officers in the Police Department, Brickey’s comments hampered morale and discipline in the department”). the close working conditions Such a concern is amplified in of a small police force, “mutual confidence and co-operation are essential.” Johnson, 590 F.2d 559, 562 (4th Cir. 1979). was working to restore credibility to the where Cooper v. Furthermore, Hall department. He reasonably could have believed that Brickey’s comments would set back his efforts and increase public distrust in him and the department as a whole. Finally, Reynolds conducted an independent investigation of Brickey’s statements and concluded that they “were harmful to the public trust of Chief Hall as 15 well as his integrity.” J.A. 387. Such a finding supports the conclusion that Hall reasonably apprehended disruption. In sum, the parties have not directed us to any case that would have clearly warned Hall that terminating Brickey for his comments about the Amendment rights. D.A.R.E. funds would violate his First On the contrary, our case law had stressed the broad discretion granted police officials to limit speech when discipline is at stake. As a result, we cannot say that it was beyond debate that Brickey’s interests outweighed Hall’s. B. Brickey’s counter-arguments principally on which that held Citizens the United are v. government unpersuasive. FEC, may 558 not U.S. He 310 prohibit relies (2010), corporate expenditures to support or criticize political candidates. Brickey’s view, “[n]othing could have been more In clearly established in May 2012 than the sanctity of political speech.” Appellee’s Br. at 28. However, such a broadly framed right could not have answered the question facing Hall: when does a police chief’s need to maintain discipline and harmony permit him to infringe on an officer’s right to make public statements as a political candidate insinuating wrongdoing by a superior officer? not See al-Kidd, 563 U.S. at 742 (stating that courts may “define clearly established generality”). 16 law at a high level of While a case directly on point is not required to clearly establish the answer to this question, Citizens United addresses only one side of the Pickering scale, and it does so on very different facts. Cases more closely on point have not treated political speech as inviolate in the public-employment context. See, e.g., Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013) (holding that reasonable choose it was sheriff not to clearly could have reappoint established believed his sworn in that “a had he 2009 the right to deputies for political reasons, including speech indicating the deputies’ support for the Sheriff’s political opponent”); see also Waters v. Churchill, 511 U.S. 661, 672 (1994) (plurality opinion) (“Even something as participation close in to the political core of campaigns the First may be Amendment as prohibited to government employees.”). Brickey next contends that Hall has nothing on his side of the Pickering scale but “rank speculation,” and he likens the anticipated disruption here to that in Smith v. Gilchrist and Durham v. Jones. explained that Appellee’s Br. at 31-32. 4 Hall had a “reasonable 4 We have already apprehension” of Both Smith and Durham were published after May 21, 2012 (the date of Brickey’s termination), but they held that certain rights were clearly established prior to that date. While the cases could not have assisted Hall, we are nevertheless bound by their holdings. 17 disruption, 5 and we now explain why Smith and Durham are distinguishable. In Smith, an assistant district attorney (“ADA”) running for public office gave a televised interview criticized a local defensive-driving program. in which he 749 F.3d at 305. Because completion of the program allowed ticketed drivers to receive a “prayer for judgment continued,” the district attorney’s office (the “government”) benefitted from the program by a substantially reduced caseload. attorney terminated the ADA’s Id. When the district employment soon after the interview, the ADA brought a First Amendment retaliation suit. Id. at 306. In the district court, the government conceded that the ADA “had forecasted evidence sufficient to establish interest in speaking outweighed the government’s.” Nevertheless, the government argued that the that his Id. at 309. outcome of the balancing test was not clearly established in the ADA’s favor, as the district attorney reasonably could have apprehended that the ADA’s criticism of the defensive-driving program would harm 5 Brickey also contends that Hall effectively conceded a lack of disruption by hiring Reynolds to conduct an investigation. We disagree. Hiring an impartial investigator in this circumstance, where Hall felt personally aggrieved, more clearly reflects prudence than a lack of evidence. 18 the district attorney’s office by increasing its workload. Id. at 307. We rejected the government’s argument, relying largely on its prior concession that “[t]here are no relevant facts to challenge [the] finding that [the ADA’s] interest in speaking outweighed the government’s interest in providing effective and efficient services to the public,” but also further noting that the government lacked “any evidence that [it] had any reason to believe that [the ADA’s] interview would negatively affect the efficiency or effectiveness of the DA’s office.” Id. at 309–10. Here, the Hall balancing government has not conceded test, and we in Smith, had the have outcome found reason to that of Hall, believe Pickering unlike that the Brickey’s comments would cause disruption. In Durham, the right at issue was of public employees to speak out on “serious governmental misconduct,” specifically, a police officer’s right to accuse “high-ranking law enforcement officials . . . of falsifying law enforcement reports and . . . authorizing aggressive threats against a member of their own agency if he persisted in his opposition to such a practice.” 737 F.3d at 303. Although the employer “paid lip service to ostensible to damage office morale, relationships between colleagues, and the function of the office generally,” we found that the employer “was unable to articulate any way in which the 19 office would have been different or was actually different due to [the employee’s] statements.” 737 F.3d at 302. Indeed, the employer ultimately conceded that he had no reason to think that the employee’s speech would prevent the police department from carrying out its mission. Id. We held that the employer’s weak evidence of disruption could not outweigh the importance of the employee’s speech. Id. (“Serious, to say nothing of corrupt, law enforcement misconduct is a substantial concern that must be met with a similarly substantial disruption in the calibration of the controlling balancing test.”). Durham First, is and not most controlling importantly, for Hall at has least not four merely reasons. “paid lip service” to potential disruption to his police force, as we have already explained. reasonably have Unlike the employer in Durham, Hall could apprehended that the D.A.R.E. comments would undermine his authority. Second, Brickey’s speech did not clearly allege misconduct of the same magnitude as that alleged in Durham. While the possibility that $500 of public funds had been mislaid or even misused may well have been significant to the citizens of Saltville, Hall could reasonably have believed that it was not the kind of “serious governmental misconduct” that our case law had protected. ranking police Durham involved clear accusations that highofficials were 20 forcing officers to falsify reports of incidents involving the officers’ use of force. at 296. is Id. Such a core abuse of the mission of a police department reasonably distinguishable from vague allegations of mismanagement and even misuse of funds. 6 Third, Brickey claimed during the Reynolds investigation that he never intended to accuse Hall of any wrongdoing. The employee in Durham, by contrast, made unmistakable allegations of misconduct with the intention of exposing the wrongdoing and alerting the public. expose misconduct, Knowing that Brickey did not intend to Hall could reasonably have believed that Brickey’s speech did not deserve the same protection as that of a whistleblower. Fourth, Brickey’s misleading. Hall knew statements from about the the Reynolds misuse investigation of funds that proved As Brickey admitted, the D.A.R.E. funds were not 6 In holding that it was clearly established that the First Amendment protects allegations of “serious governmental misconduct,” Durham relies on Robinson v. Balog, 160 F.3d 183 (4th Cir. 1998). In Balog, which was available to Hall, publicworks employees suffered retaliation for their allegations that a contributor to the mayor’s reelection campaign was illegally rewarded with a contract to repair a landfill leachate pond and subsequently failed to make the needed repairs. Id. at 184–85. That these allegations of blatant, large-scale corruption endangering public health were protected, see id. at 185, did not clearly establish protection for Brickey’s statements. Moreover, as in Smith and Durham, we based our decision to deny qualified immunity in large part on “the lack of evidence supporting the [government’s] interest in disciplining [the employees] for their speech.” Id. at 189. 21 missing, and there were no improper charges to the account. 7 The employee the in Durham did not make such employer before his termination. believed their that value the and inaccuracy increased concession to Hall could reasonably have of his a Brickey’s own future statements of the same kind. statements interests in reduced suppressing See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) (“False statements of fact are particularly valueless; they interfere with the truth- seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective.”); Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1081 (4th Cir. 1987) (noting an employer’s need 7 for “protection from false After oral argument, Brickey submitted a letter bringing to our attention the Supreme Court’s recent decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016). See Fed. R. App. P. 28(j). In Heffernan, “a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor.” 136 S. Ct. at 1416. The Court held that even though the employee had not supported the candidate—and therefore had not engaged in a constitutionally protected activity—he nevertheless was entitled to bring a First Amendment retaliation claim because “the government’s reason for demoting [an employee] is what counts.” Id. at 1418. According to Brickey, Heffernan establishes the broad rule that “a mistake of fact does not defeat a First Amendment retaliation claim,” even when an employee makes factually inaccurate claims regarding his employer. See Appellee’s 28(j) Letter. Heffernan lends Brickey no support. Not only does the case assume without deciding the merits of the First Amendment claim, see id. at 1419, but more to the point, it simply does not address the issue of factually inaccurate employee speech. 22 accusations that may prove difficult to counter given the employee’s supposed access to inside information”). III. We hold that it was not clearly established on the date of Brickey’s termination that his speech interests as a citizen outweighed Hall’s interests as an employer. entitled to qualified immunity. Hall is therefore Accordingly, we reverse the district court’s denial of summary judgment and remand for entry of an order consistent with this opinion. REVERSED AND REMANDED 23
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