February 13, 2012
Ninth Circuit: Pol Immune from Suit for Firing Subordinate for Campaign Speech
A three-judge panel of the Ninth Circuit ruled on Monday in Hunt v. County of Orange that a local sheriff enjoyed qualified immunity against a civil rights suit by his lieutenant after the sheriff fired the lieutenant for campaigning against him.
The case arose after the sheriff's lieutenant campaigned against the sheriff and his "culture of corruption." The sheriff placed the lieutenant on administrative leave and then demoted him, prompting the lieutenant to sue the sheriff under 42 U.S.C. Sec. 1983 for retaliation for exercising his First Amendment rights.
The district court dismissed the case, holding that the lieutenant fell into the "policymaker" exception to the general First Amendment rule against politically-motivated dismissals. Alternatively, the court ruled that the sheriff was entitled to qualified immunity.
The Ninth Circuit ruled that the lieutenant was not a policymaker and therefore not within the policymaker exception under Elrod v. Burns. But the panel ruled that the sheriff shouldn't have reasonably known this--and thus was entitled to qualified immunity:
[The lieutenant's] First Amendment right to be free from demotion for campaigning against [the sheriff] was clearly established as of June 2006. . . . However, the critical question here is whether a reasonable official in [the sheriff's] position should have known that [the lieutenant] was not a policymaker whose political loyalty was important to the effective performance of his job. . . .
We conclude, like the district court, that [the sheriff] could have reasonably but mistakenly believed that [the lieutenant's] demotion was not unconstitutional, given the unique nature of his job as Chief of Police Services for the City of San Clemente. . . . We have carefully analyzed the development of the policymaker exception, its underlying purpose, the high burden on the government to prove that political fidelity was a necessary requirement of [the lieutenant's] job, and balanced the nine-factor [policymaker] analysis that requires a fact-dependent inquiry. Even if [the sheriff] engaged in the appropriate analysis and wrongly concluded that [the lieutenant] was a policymaker such that demoting him was constitutional, we cannot say that he acted objectively unreasonably in concluding he could demote [the lieutenant] without violating his constitutional rights.
Judge Leavy would have ruled that the lieutenant was a policymaker, fell into the exception, and thus failed to state a First Amendment claim.
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