Donald Morgan v. Michael Robinson

Donald Morgan sued his boss Michael Robinson for First Amendment

retaliation under 42 U.S.C. § 1983. Robinson moved for summary judgment based

on qualified immunity. The district court denied the motion. This court reverses and

remands.

I.

Morgan is a deputy in the Washington County, Nebraska Sheriff’s Department.

Robinson is the elected sheriff. In 2014, Morgan ran against Robinson in the primary

election. During the campaign, Morgan publicly made statements about the sheriff’s

department and his plans to improve it. Robinson won. Six days later, Robinson

terminated Morgan’s employment, claiming his campaign statements violated the

department’s rules of conduct.

Morgan sued Robinson for retaliatory discharge in violation of the First

Amendment. Robinson moved for summary judgment based on qualified immunity.

The district court denied the motion, finding “genuine issues of material fact

regarding the constitutionality of the termination, and whether Robinson should have

reasonably known the termination was unlawful.” Morgan v. Robinson, 2016 WL

10636372, at *5 (D. Neb. Dec. 8, 2016). On appeal, a panel of this court affirmed.

Morgan v. Robinson, 881 F.3d 646, 650 (8th Cir. 2018), reh’g en banc granted,

opinion vacated (Mar. 21, 2018). This court granted rehearing en banc, vacated the

panel decision, and now reverses.

II.

Summary judgment is proper when “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). Ordinarily, this court lacks jurisdiction over a denial of summary judgment

“because such an order is not a final decision.” Division of Emp’t Sec. v. Board of

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Police Comm’rs, 864 F.3d 974, 978 (8th Cir. 2017). However, if the moving party

claims qualified immunity, “an immediate appeal is appropriate . . . because immunity

is effectively lost if a case is erroneously permitted to go to trial.” Id. This court

reviews de novo denials of summary judgment based on qualified immunity. Id. See

Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667, 670 (8th Cir. 2013) (“This court

reviews de novo a grant of summary judgment, construing all facts and making all

reasonable inferences favorable to the nonmovant.”).

Qualified immunity shields officials from civil liability in § 1983 actions when

their conduct “‘does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S.

223, 231 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified

immunity analysis requires a two-step inquiry: (1) whether the facts shown by the

plaintiff make out a violation of a constitutional or statutory right, and (2) whether

that right was clearly established at the time of the defendant’s alleged misconduct.”

Nord v. Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014) (internal quotation marks

omitted). “Unless both of these questions are answered affirmatively, an appellant

is entitled to qualified immunity.” Id. “And, courts are ‘permitted to exercise their

sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first.’” Id. at 738-39, quoting Pearson, 555 U.S. at 236.

III.

The district court found “a genuine issue of material factors” on “the first prong

of the qualified immunity analysis.” Morgan, 2016 WL 10636372, at *5. A panel

of this court found that Morgan’s termination “violated a right secured by the First

Amendment.” Morgan, 881 F.3d at 656. This court need not decide the issue

because Robinson did not violate a “clearly established statutory or constitutional

right[] of which a reasonable person would have known.” Pearson, 555 U.S. at 231.

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A clearly established right is one that is “sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”

Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and

alteration omitted). “[T]he longstanding principle” is that “‘clearly established law’

should not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548,

552 (2017), quoting Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011). Instead, “the

clearly established law must be ‘particularized’ to the facts of the case.” Id., quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987). There need not be a case “directly

on point, but existing precedent must have placed the statutory or constitutional

question beyond debate.” al-Kidd, 563 U.S. at 741. See District of Columbia v.

Wesby, 138 S. Ct. 577, 590 (2018) (requiring that the “clearly established standard”

be defined with a “high degree of specificity” (internal quotation marks omitted)).

In other words, qualified immunity “gives government officials breathing room to

make reasonable but mistaken judgments, and protects all but the plainly incompetent

or those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per

curiam) (internal quotation marks omitted). Morgan has the burden to demonstrate

that the law is clearly established. Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002).

To determine whether the law was clearly established at the time of Morgan’s

termination, this court needs to look no further than Nord v. Walsh. Nord, 757 F.3d

734. There, a deputy sheriff in Walsh County, North Dakota, ran against his current

boss. Id. at 737. During the campaign, he made comments critical of the sheriff. Id.

at 742. The sheriff won. Id. at 738. The next day, after consulting the county

attorney and human resources consultant, he fired the deputy. Id. The deputy sued

under § 1983 for violations of the First and Fourteenth Amendments. The district

court denied the sheriff’s motion for summary judgment based on qualified immunity.

Id., citing Nord v. Walsh Cnty., 2012 WL 12848433 (D.N.D. Aug. 30, 2012), rev’d,

757 F.3d 734 (8th Cir. 2014). This court reversed, finding the sheriff entitled to

qualified immunity. Id. at 745. This court said, “considering North Dakota law and

well-established state and federal jurisprudence, and especially the advice given by

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the Walsh County attorney and its human resources consultant, Sheriff Wild could

have logically and rationally believed that his decision to terminate Nord was well

within the breathing room accorded him as a public official in making a reasonable,

even if mistaken, judgment under the circumstances.” Id. at 743, citing Stanton, 571

U.S. at 6.

The facts of this case are similar to Nord. Here, as there, the Washington

County Sheriff’s Department enforces the police powers in the county. Compare

Neb. Rev. Stat. § 23-1701.02 (“It shall be the duty of every sheriff to apprehend . .

. all felons and disturbers and violators of the criminal laws of this state, to suppress

all riots, affrays, and unlawful assemblies . . . and generally to keep the peace in his

or her proper city.”), with Nord, 757 F.3d at 740 (noting that the “sheriff manages and

enforces a substantive portion of the sovereign’s policing powers”). Both

departments are relatively small. In Washington County, three deputies typically

work each shift, with two working one half of the county and the third working the

county at large. This “presumably means that there will be times when a single

deputy will present the face of the sheriff in the county, at least in the assigned

district.” Nord, 757 F.3d at 741. The deputies thus represent the sheriff in public,

executing the duties and responsibilities of the department.

The Washington County sheriff, like the sheriff in Nord, has the power to

appoint and terminate deputies. See Neb. Rev. Stat. § 23-1704.01 (“The sheriff may

appoint such number of deputies as he or she sees fit for whose acts he or she will be

responsible.”); Neb. Rev. Stat. § 23-1734 (“Any deputy sheriff may be removed,

suspended with or without pay, or reduced in either rank or grade or both rank and

grade by the sheriff . . . .”). This power necessitates deference “in executing . . .

official duties, including the hiring and firing of employees—especially subordinate

officers.” Nord, 757 F.3d at 741. In both counties, the sheriff “has an interest in

maintaining the efficient operation” of the office. Morgan, 881 F.3d at 653-54, citing

Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

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There are two distinctions between the cases, but neither warrants a different

outcome. One is the speech at issue. In Nord, the speech focused on the sheriff,

including comments that his health was poor, his wife did not want him to run, and

he planned to resign. Nord, 757 F.3d at 742. The sheriff contended these statements

were lies and not matters of public concern. Id. Here, the speech focused on the

county and the sheriff’s department. During the campaign, Morgan said: (1) the

county communications center had not been completed; (2) rural fire departments

lacked adequate radio systems; (3) the county needed more deputies on the road; (4)

the office budget did not consider the public’s needs; (5) department morale was

poor; (6) the department was not doing well; and (7) people were leaving the office

because they did not feel respected. The parties dispute whether all of Morgan’s

statements were true; but they agree some involved matters of public concern.

Morgan argues this difference “render[s] Nord irrelevant for purposes of

determining whether the law was clearly established in this case.” Specifically, he

contends Nord is inapplicable because the speech there was untruthful, not a matter

of public concern, and undeserving of First Amendment protection. This argument

has no merit. Although the speech here arguably is entitled to greater protection—an

issue this court need not decide—the speech does not necessarily override the

sheriff’s interest in maintaining the “discipline and harmony” of the office. Id. at

743. The Nord court said that “even if” the deputy’s speech “was fully protected by

the Constitution,” the sheriff “could have reasonably believed that the speech would

be at least potentially damaging . . . and disruptive” and thus the sheriff “could have

logically and rationally believed that his decision to terminate Nord was well within

the breathing room accorded him as a public official in making a reasonable . . .

judgment under the circumstances.” Id.

Another difference is the impact of the speech. In Nord, apparently there was

no evidence of disruption or potential disruption. The sheriff there “testified that,

during the campaign period, there were no complaints about how the office was run

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nor were there any communication problems between the employees.” Id. at 748

(Shepherd, J., dissenting). Here, Robinson testified he believed Morgan’s statements

were detrimental to the office, harmful to morale, and adversely impacted the public’s

trust of the office. Deputies expressed similar concerns. They said Morgan’s

statements bred “uneasiness,” made some employees feel uncomfortable, contributed

to lack of morale, and created turmoil. Five of these deputies—the entire command

staff—recommended his termination. The termination letter said Morgan had

“violated the trust” of the administration and his fellow officers and created

“disharmony in the office.”

Morgan argues that Robinson “has not proven any disruption” and thus should

have known that firing him would violate a clearly established right. The dissent also

advances this argument, claiming that Robinson provides “no evidence” of “actual

disruption,” “actual impact,” “demonstrated impact,” or “indicators of poor morale”

created by Morgan’s speech. This argument misstates the record. The termination

letter and the deposition testimony of Robinson and the command staff about the

effect of Morgan’s statements are evidence of “actual disruption” and “demonstrated

impact.”

Even without this evidence, however, Robinson could claim qualified

immunity. As the Supreme Court has said, there is no “necessity for an employer to

allow events to unfold to the extent that the disruption of the office and the

destruction of working relationships is manifest before taking action.” Connick v.

Myers, 461 U.S. 138, 152, 154 (1983) (holding that Myer’s First Amendment interest

did “not require that Connick tolerate action which he reasonably believed would

disrupt the office, undermine his authority, and destroy close working relationships”).

See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“A government entity has

broader discretion to restrict speech when it acts in its role as employer, but the

restrictions it imposes must be directed at speech that has some potential to affect the

entity’s operations.”) (emphasis added); Waters v. Churchill, 511 U.S. 661, 673

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(1994) (“[W]e have consistently given greater deference to government predictions

of harm used to justify restriction of employee speech than to predictions of harm

used to justify restrictions on the speech of the public at large. Few of the examples

we have discussed involve tangible, present interference with the agency’s operation.

The danger in them is mostly speculative. . . . But we have given substantial weight

to government employers’ reasonable predictions of disruption, even when the speech

involved is on a matter of public concern.”); Hara v. Pennsylvania Dep’t of Educ.,

492 F. App’x 266, 268 (3d Cir. 2012) (citing Garcetti and noting that “[a]ctual

disruption is not necessary”).

This is particularly true here given the “latitude the courts accord a managing

law enforcement officer in executing his official duties, including the hiring and

firing of employees—especially subordinate officers.” Nord, 757 F.3d at 741. See

Buzek v. County of Saunders, 972 F.2d 992, 995 (8th Cir. 1992) (“[L]aw

enforcement agencies, more than other public employers, have special organizational

needs that permit greater restrictions on employee speech.”); Crain v. Board of

Police Comm’rs, 920 F.2d 1402, 1411 (8th Cir. 1990) (“More so than the typical

government employer, the [Missouri Highway] Patrol has a significant government

interest in regulating the speech activities of its officers in order to promote

efficiency, foster loyalty and obedience to superior officers, maintain morale, and

instill public confidence in the law enforcement institution.”) (internal quotation

marks omitted).

The termination letter, Robinson’s testimony, and the testimony of five other

deputies, show—even more so than in Nord—that Robinson “could have reasonably

believed” that Morgan’s speech was “at least potentially damaging to and disruptive

of the discipline and harmony of and among co-workers in the sheriff’s office and

detrimental to the close working relationships and personal loyalties necessary for an

effective and trusted local policing operation.” Nord, 757 F.3d at 743.

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Nord was decided in June 2014. Robinson fired Morgan one month earlier.

Thus, he did not have the benefit of the Nord decision to support his belief that he

was not violating a clearly established right. Still, Nord supports Robinson. A

clearly established right must be one that is “sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Reichle,

566 U.S. at 664 (internal quotation marks and alteration omitted). “[E]xisting

precedent must . . . place[] the statutory or constitutional question beyond debate.”

al-Kidd, 563 U.S. at 741. The facts here are similar to Nord. That decision held the

law not clearly established in November 2010. Neither Morgan nor this court finds

any intervening law that clearly established the law before his termination. See

White, 137 S. Ct. at 552 (requiring that clearly established law be “particularized” to

the facts of the case); Hanson as Tr. for Layton v. Best, 915 F.3d 543, 548 (8th Cir.

2019) (holding that the plaintiff “must identify controlling authority from the

Supreme Court or our prior case law or a robust consensus of cases of persuasive

authority that places the constitutional question beyond debate” (internal quotation

marks omitted)). See also Brickey v. Hall, 828 F.3d 298, 305 (4th Cir. 2016)

(holding officer entitled to qualified immunity where the plaintiff had “not directed

us to any case that would have clearly warned [the officer] that terminating” the

plaintiff for his comments “would violate his First Amendment rights”). Thus, Nord

shows the constitutional question was not “beyond debate” in May 2014.2 al-Kidd,

563 U.S. at 741.

2Morgan cites no applicable precedent that puts the constitutional question

beyond debate or shows that a reasonable person would have known the termination

was a violation of a clearly established right. Although he cites Bearden v. Lemon,

475 F.3d 926 (8th Cir. 2007), for the proposition that “a Deputy Sheriff has a clearly

established First Amendment right to make truthful statements on matters of public

concern during a campaign for Sheriff,” Bearden was decided on jurisdictional

grounds and does not clearly establish Morgan’s right here.

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At the time of Morgan’s termination, the law was not “sufficiently clear” so

that Robinson would have known that terminating him violated his First Amendment

rights. See Reichle, 566 U.S. at 664. Robinson is entitled to qualified immunity. See

Nord, 757 F.3d at 743-44. See, e.g., Bland v. Roberts, 730 F.3d 368, 391 (4th Cir.

2013) (holding a sheriff entitled to qualified immunity because 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”); Randall v. Scott, 610 F.3d 701, 715-16 (11th Cir. 2010)

(affirming qualified immunity for a district attorney who fired her chief of staff for

running against her husband in a county election, holding that the staffer’s rights

“were not clearly established under broad case law” or cases with “materially similar

facts”).

* * * * * * *

The judgment is reversed and the case remanded for proceedings consistent

with this opinion.

SHEPHERD, Circuit Judge, with whom KELLY and ERICKSON, Circuit Judges,

join, dissenting.

The majority’s holding that Sheriff Robinson is entitled to qualified immunity

rests on the impermissible factual finding that Robinson terminated Deputy Morgan

because of the potentially damaging and disruptive consequences of Morgan’s

campaign speech. When viewed through the proper lens of a summary judgment

appeal, the record does not support the majority’s holding. Rather, viewing the facts

in the light most favorable to Deputy Morgan, as we must, Sheriff Robinson

terminated Morgan’s employment solely because of his personal objections to the

content of Morgan’s campaign speech without the reasonable belief that the

statements would have a disruptive effect on the operation of the Sheriff’s

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Department. I would therefore affirm the district court’s denial of qualified immunity

to Robinson and I respectfully dissent.

I.

Robinson is the elected Sheriff of Washington County, Nebraska, who has held

the position since 2000. He stood for reelection in 2014. Morgan, a deputy in the

Washington County Sheriff’s Department, ran against Robinson in the 2014 primary

election. During the campaign, Morgan made public statements about the operations

of the Sheriff’s Department and his proposed improvements should he be elected.

Robinson won the primary election and six days later terminated Morgan’s

employment on the grounds that Morgan’s campaign statements were untruthful. In

the Termination Notice, Robinson cited the following statements made by Morgan

during the campaign as the reasons for the termination: the communications system

was not completed after ten years of construction; the Fire and Rescue agencies could

not communicate and someone would be hurt or killed if it was not fixed; morale at

the Sheriff’s Department was bad and several deputies were actively looking for

employment; Morgan’s K-9 had been taken from him in an act of retribution; and

portable radio coverage was poor. Dist. Ct. Dkt. 93-3.

Morgan initially filed a grievance under a labor contract that applied to his

position, which he lost. He then filed this suit in district court asserting claims of

retaliation and deprivation of due process, under 42 U.S.C. § 1983, and breach of the

labor contract. The district court compelled arbitration on the breach of the labor

contract claim. The arbitrator ruled in Morgan’s favor and reinstated his employment

with the Sheriff’s Department.

After returning to district court, Robinson filed a motion for summary judgment

asserting qualified immunity with respect to Morgan’s retaliation claim. The district

court denied the motion, ruling that Robinson was not entitled to qualified immunity

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because there were genuine disputes of material fact concerning the public value of

Morgan’s statements and whether the statements caused disruption in the operation

of the Sheriff’s Department. Robinson appeals this decision.

II.

We review de novo the decision of the district court denying qualified

immunity. Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). Summary

judgment should be granted if “the movant shows that there is no genuine issue as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “In resolving questions of qualified immunity at summary judgment,

courts engage in a two-pronged inquiry. The first asks whether the facts, ‘taken in

the light most favorable to the party asserting the injury, . . . show that the officer’s

conduct violated a [federal] right[.]’” Tolan v. Cotton, 572 U.S. 650, 655-56 (2014)

(alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). “The

second prong of the qualified immunity analysis asks whether the right in question

was ‘clearly established’ at the time of the violation.” Id. at 656. “Courts have

discretion to decide the order in which to engage these two prongs. But under either

prong, courts may not resolve genuine disputes of fact in favor of the party seeking

summary judgment.” Id. (citation omitted).

With respect to the requirement that we view the facts favorably to the nonmoving

party, the Supreme Court has stated:

This is not a rule specific to qualified immunity; it is simply an

application of the more general rule that a “judge’s function” at

summary judgment is “not to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.”

Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242,] 249 [(1986)].

Summary judgment is appropriate only if “the movant shows that there

is no genuine issue as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. Rule Civ. Proc. 56(a). In making

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that determination, a court must view the evidence “in the light most

favorable to the opposing party.” Adickes v. S.H. Kress & Co., 398 U.S.

144, 157 (1970); see also Anderson, [477 U.S.] at 255.

Id. at 656-57.

Failing to remain faithful to these limits on our review of the facts and instead

summarily and improperly weighing the evidence and finding critical facts in the light

most favorable to Sheriff Robinson, the majority concludes that Sheriff Robinson

terminated Morgan because he could have reasonably believed that Morgan’s

statements during the 2014 campaign for Sheriff of Washington County would be

potentially damaging to and disruptive of the discipline and harmony of the Sheriff’s

Department. Such a conclusion can only be reached by accepting the Sheriff’s posthoc

litigation position and improperly viewing the facts in the light most favorable

to the Sheriff.

Contrary to the majority’s suggestion that this dissent misstates the record, I

do no more than carry out our duty to view the evidence “in the light most favorable”

to the party opposing summary judgment, here Deputy Morgan. See Adickes, 398

U.S. at 157. With this mandate in mind, the record shows the following:

• Sheriff Robinson has been Washington County Sheriff since

2000. In July 2013, Morgan notified Robinson that he intended

to oppose Robinson in the 2014 primary.

• Morgan has been a full-time Washington County deputy since

2002. In his last performance evaluation prior to the 2014

primary, Morgan was rated as performing at a level meeting or

exceeding standards in all areas. Morgan’s sergeant described

Morgan as a “good example of what a patrol deputy should be,

i.e. on time, good public relations, gets along with fellow

deputies.” Morgan’s sergeant signed off on the evaluation on

December 30, 2013; Morgan’s captain signed off on February 24,

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2014; the chief deputy signed off on February 24, 2014; and

Sheriff Robinson signed off on March 30, 2014.

• Robinson won the primary election which was held on May 13,

2014.

• On May 16, 2014, Robinson called a meeting of his command

staff to discuss Morgan. The command staff consisted of Patrol

Captain Kevin Willis; Chief Deputy Ben Scherer; Captain Phillip

Brazelton of the communications center; Lieutenant Shawn

Thalas; and Captain Robert Bellamy, the Jail Administrator.

• The command staff recommended Morgan’s discharge. These

officers testified that they made the recommendation to terminate

Morgan because certain public statements made by Morgan

during the campaign were critical of the status of the Sheriff’s

Department, were untrue, misled the public, and revealed Morgan

to be untrustworthy.

• Captain Bellamy, who was also Sheriff Robinson’s campaign

manager, testified that he (Bellamy) was “old school”; that “I

don’t believe that you bite the hand that feeds you”; and that a

deputy should not run against the sitting Sheriff. Dist. Ct. Dkt.

89-2.

• Brian Beckman, Patrol Sergeant in the Sheriff’s Department,

testified that during the campaign Sheriff Robinson asked him

about morale in the Sheriff’s Department, and he responded that

he “felt morale was good and that to my knowledge, nobody was

looking for a job.” Dist. Ct. Dkt. 89-8.

• Robinson identified Morgan’s campaign statements to which he

objected as Morgan’s assertions that there was a lack of deputies

on the road; the office budget did not consider the public’s needs;

the County communication center had not been completed; that

morale in the Department was poor; that the entire department

was not doing well; that rural fire departments lacked adequate

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radio systems; and that people had been leaving the office

because they didn’t feel respected. Dist. Ct. Dkt. 90.

• During the campaign, Sheriff Robinson asked three sergeants in

the Sheriff’s Department about morale; each stated that morale

was fine.

• Morgan’s written Termination Notice, dated May 19, 2014,

stated that under the “circumstances” Morgan violated rules of

conduct pertaining to “obedience to laws and orders,” “false

statements,” “slander[ing] or speak[ing] detrimentally about the

office or another employee,” and the expectation that

“[e]mployees shall always display absolute honesty.” The

Termination Notice specified Morgan’s campaign statements as

violating these rules. Dist. Ct. Dkt. 93-3.

• The Arbitrator determined that Morgan’s campaign statements

were not “outright lies or falsehoods” and his statements “did not

demonstrate moral turpitude, his statements were not falsehoods

intent upon personal gain and he did not slander or speak

detrimentally about the sheriff’s office or another employee.”

Dist. Ct. Dkt. 93-7.

• “A significant amount of time had passed between at least some

of Morgan’s statements and his termination . . . yet, Robinson has

not alleged that Morgan’s statements caused any disruption in that

time.” Dist. Ct. Dkt. 103.

• Neither Robinson nor any other witness has identified any

concrete examples of poor morale or department disruption

caused by Morgan’s statements.

III.

Having established the facts in the summary judgment record, I now turn to the

qualified immunity analysis. In deciding this appeal on the second prong of the

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analysis, and concluding that “at the time of Morgan’s termination, the law was not

‘sufficiently clear’ so that Robinson would have known that terminating him violated

his First Amendment rights,” Opn. 9, the majority hints that Morgan’s campaign

speech discussing and criticizing Sheriff Robinson’s administration and operation of

his department warrants First Amendment protection. I would not be so hesitant and

I find that, viewing the facts in the light most favorable to Morgan, Morgan’s

campaign speech addressed matters of public concern. Even Robinson agrees,

conceding that at least some of Morgan’s statements so qualify.

“Speech by citizens on matters of public concern lies at the heart of the First

Amendment, . . . [and] [t]his remains true when speech concerns information related

to or learned through public employment.” Lane v. Franks, 573 U.S. 228, 235-36

(2014). Indeed, “[t]here is considerable value . . . in encouraging, rather than

inhibiting, speech by public employees [because] ‘[g]overnment employees are often

in the best position to know what ails the agencies for which they work.’” Id. (third

alteration in original) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)).

Where an employee speaks as a citizen on a matter of public concern, “the possibility

of a First Amendment claim arises.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

I believe, on the summary judgment record, that Deputy Morgan’s statements

were made as a citizen on a matter of public concern because they “can be fairly

considered . . . a subject of legitimate news interest; that is, a subject of general

interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453

(2011) (internal quotation marks and citations omitted). Morgan made the statements

as part of his political campaign, where “the First Amendment has its fullest and most

urgent application[.]” Burson v. Freeman, 504 U.S. 191, 196 (1992) (quoting Eu v.

San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)). The

statements were critical of the manner in which Robinson performed his duties as

Sheriff, and “[s]peech that criticizes a public employer in his capacity as a public

official . . . addresses matters of public concern.” Belk v. City of Eldon, 228 F.3d

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872, 878 (8th Cir. 2000). In addition, the statements were made on Morgan’s

campaign website, during campaign forums, or published in the newspaper; none

were disseminated to a closed audience or reported as a part of Morgan’s official job

duties. Cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762

(1985); see also Garcetti, 547 U.S. at 421.

The Court impermissibly makes a key factual finding that Robinson reasonably

believed that Morgan’s campaign speech was “at least potentially” damaging and

disruptive. I conclude, however, that viewing the facts in the light most favorable to

Morgan, it was not reasonable for Robinson to so conclude nor was that the reason

behind his decision to discharge Morgan.

Undercutting Sheriff Robinson’s purported rationale for terminating Morgan

is the record evidence—which we must view in the light most favorable to

Morgan—demonstrating that Morgan’s termination was not actually tied to potential

office disruption. Morgan’s Termination Notice explained the reasons for his firing

as violating the Sheriff’s Department’s Rules of Conduct by slandering or speaking

detrimentally about the office. This charge, which an arbitrator later determined to

be unfounded based on the truthfulness of Morgan’s statements, is centered more on

the disdain that Robinson and others had for Morgan’s campaign speech than on any

potential disruption that they feared might occur due to Morgan’s candidacy. Captain

Bellamy, Robinson’s campaign manager and member of the “command staff” that

recommended Morgan’s discharge, openly admitted that he objected to Morgan’s

campaign because “you don’t bite the hand that feeds you” by running against the

sitting sheriff, while several others who were involved in the recommendation to

terminate Morgan also stated that the recommendation for dismissal was based on

Morgan’s purported violation of the Code of Conduct by speaking out against the

sitting sheriff. Dist. Ct. Dkt. 89-2.

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A passing reference to “office disharmony” in a notice of termination and

generalized statements about the natural consequences of political elections, in my

view, do not overcome the significant evidence showing that Morgan was terminated

solely for the content of his campaign speech challenging Robinson’s record and

calling attention to his view of the status of Sheriff Department operations. Viewing

the evidence in the light most favorable to Morgan—which we are bound to do at this

juncture—Sheriff Robinson’s termination of Morgan was motivated solely by the

critical content of Morgan’s campaign speech and not by a concern for potential

disruption.

Further, no evidence is before the Court of any actual disruption or indicators

of poor morale within the Department of any kind or occurring at any time, much less

issues created by Morgan’s campaign speech. The district court fairly noted that “the

evidence presented on this motion establishes that a significant amount of time has

passed between at least some of Morgan’s statements and his termination. . . . Yet,

Robinson has not alleged Morgan’s statements caused any disruption in that time.”

Dist. Ct. Dkt. 103, 8-9. Indeed, Robinson presents no evidence as to the actual

impact of Morgan’s campaign speech on the efficiency of the Sheriff’s Department.

Cf. Shockency v. Ramsey Cnty., 493 F.3d 941, 949-50 (8th Cir. 2007) (“Qualified

immunity cannot be based on a simple assertion by the employer . . . without

supporting evidence of the adverse effect of the speech on workplace efficiency.”

(alteration in original) (internal quotation marks omitted)); Dunn v. Carroll, 40 F.3d

287, 293 (8th Cir. 1994) (“[I]f the defendants have failed to produce evidence

weighing against permitting the employee’s expressive conduct, or if there is a

question of fact as to whether they reasonably believed the conduct to be disruptive,

then the defendants are not entitled to qualified immunity.” (citations omitted)).

Robinson and the Court remind us of the Supreme Court’s admonition that

there is no “necessity for an employer to allow events to unfold to the extent that the

disruption of the office and the destruction of working relationships is manifest

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before taking action.” Connick v. Myers, 461 U.S. 138, 152 (1983). While

undoubtedly accurate, this proposition has no application to the facts of this case. In

Connick, an assistant district attorney who was resisting an ordered interdepartmental

transfer, was terminated on the same day that she had created a “miniinsurrection”

within the district attorney’s office by distributing a survey concerning

office policies and grievances, which she had composed, to 15 assistant district

attorneys. Id. at 141-42. Here, Robinson terminated Morgan weeks after Robinson’s

campaign speech had occurred, after the election campaign had concluded and

Morgan’s campaign speech had come to an end, and in the absence of any examples

of deteriorating morale or office disruption. Under the facts before us, Robinson did

wait, and unfolding events revealed to Robinson no “disruption of the office and the

destruction of working relationships.”

Proceeding to the balancing of the “interests of [Morgan], as a citizen, in

commenting upon matters of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its

employees,” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), and viewing the

evidence in the light most favorable to Morgan, the district court correctly observed

that no facts support the conclusion that Morgan’s past campaign speech was

reasonably likely to cause disharmony or damage morale in the Sheriff’s office.

Accordingly, because a rational jury could find that Morgan was terminated solely

because Robinson was personally offended by Morgan’s campaign speech, the

Pickering balance falls sharply and overwhelmingly in favor of Morgan’s right to

comment on matters of public concern. Thus the statements are afforded First

Amendment protection and I believe Morgan has sufficiently shown a violation of a

protected constitutional right in the form of his termination for engaging in campaign

speech. Thus, I easily conclude that Deputy Morgan satisfies the first part of the

qualified immunity analysis.

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I also disagree with the majority’s analysis and would conclude that it is clearly

established that Sheriff Robinson could not terminate Deputy Morgan for exercising

his First Amendment rights during the campaign. The majority, despite our directive

to view the evidence in the light most favorable to Morgan, frames this inquiry as

asking whether Sheriff Robinson could terminate Deputy Morgan for Morgan’s

campaign statements when Robinson believed the statements were potentially

damaging and disruptive. The evidence, particularly when viewed with the applicable

summary judgment standard, does not support the majority’s formulation of the

question as including Sheriff Robinson’s belief that Morgan’s statements would cause

potential disruption. I believe this incorrect framing of the question leads to the

majority’s erroneous conclusion that the right was not clearly established; I address

what I believe the proper inquiry to be: “Could [Robinson] reasonably have believed,

at the time he fired [Morgan], that a government employer could fire an employee on

account of” the employee exercising his First Amendment right to free speech during

a run for political office where that speech had no disruptive impact on office

functioning? Cf. Lane, 573 U.S. at 243. In my view, the answer to this question is

an unequivocal “no.”

In Bearden v. Lemon—a case we ultimately decided on jurisdictional

grounds—we commented that “[t]he right not to be terminated for [exercising one’s

right to free] speech has been clearly established for some time.” 475 F.3d 926, 929

(8th Cir. 2007). In support of this statement, we cited Hartman v. Moore, 547 U.S.

250, 256 (2006) (“[T]he law is settled that as a general matter the First Amendment

prohibits government officials from subjecting an individual to retaliatory actions .

. . for speaking out . . . .”), and Rankin v. McPherson, 483 U.S. 378, 383 (1987) (“It

is clearly established that a State may not discharge an employee on a basis that

infringes that employee’s constitutionally protected interest in freedom of speech.”).

As the Supreme Court has recently emphasized, general statements of the law

may, in some circumstances, “giv[e] fair and clear warning” to government officials

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where the unlawfulness of the challenged action is readily apparent in light of preexisting

law. White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting United States v.

Lanier, 520 U.S. 259, 271 (1997)).

No one disputes that “political speech . . . is central to the meaning and

purposes of the First Amendment,” Citizens United v. FEC, 558 U.S. 310, 329

(2010), or that “the First Amendment has its fullest and most urgent application to

speech uttered during a campaign for political office.” Burson, 504 U.S. at 196

(quoting Eu, 489 U.S. at 223). For this reason, “the [Supreme] Court has frequently

reaffirmed that speech on public issues occupies the ‘highest rung of the h[ie]rarchy

of First Amendment values,’ and is entitled to special protection.” Connick, 461 U.S.

at 145 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).

Indeed, this is the very foundation upon which the Supreme Court decided Pickering:

What we do have before us is a case in which a teacher has made

erroneous public statements upon issues then currently the subject of

public attention, which are critical of his ultimate employer but which

are neither shown nor can be presumed to have in any way either

impeded the teacher’s proper performance of his daily duties in the

classroom or to have interfered with the regular operation of the schools

generally. In these circumstances we conclude that the interest of the

school administration in limiting teachers’ opportunities to contribute to

public debate is not significantly greater than its interest in limiting a

similar contribution by any member of the general public.

391 U.S. at 572-73.

Therefore, public officials have been on notice since the Court decided

Pickering in 1968 that they may not sanction an employee for uttering protected

speech when that speech neither impacts the employee’s official duties nor detracts

from office efficiency. This is all the more true given the context in which Morgan

spoke here: a political campaign, where “the First Amendment has its fullest and most

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urgent application.” Burson, 504 U.S. at 196 (quoting Eu, 489 U.S. at 223). And

although I acknowledge “that in many free speech cases the outcome of the Pickering

balancing test would be unclear to a reasonable official[,]” Sexton v. Martin, 210 F.3d

905, 914 (8th Cir. 2000), I cannot conclude that this is one such case. Indeed, this is

the very point that our Court recognized in Sexton, where then-District Judge Melloy,

joined by Circuit Judges Richard Arnold and Hansen, concluded that the law could

be clearly established where the Pickering balance weighed so heavily in the

employees’ favor:

[W]here the employees have spoken out on a matter of great public

concern, and the evidence that the speech caused disruption in the

workplace is minimal at best, the imprecision of the Pickering balance

makes little difference in our determination. We conclude that at the

time of the plaintiffs’ termination, the law was clearly established that

the balance would have weighed heavily in favor of the plaintiffs’

exercise of free speech.

Id.

In my view, it is clearly established that a public employee cannot be

terminated for making protected statements during a campaign for public office where

that speech has no demonstrated impact on the efficiency of office operations. Cf.

Smith v. Gilchrist, 749 F.3d 302, 313 (4th Cir. 2014) (“In sum, a reasonable DA in

Gilchrist’s position would have known that he could not fire an ADA running for

public office for speaking publicly in his capacity as a candidate on matters of public

concern.”).

In concluding that the right is not clearly established, the majority looks no

further than Nord v. Walsh, 757 F.3d 734 (8th Cir. 2014). But the majority

diminishes critical distinctions in Nord, namely that the nature and contents of the

statements in Nord challenged the personal fitness of the sheriff. That the sheriff’s

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departments in Nord and in this case function similarly does nothing to address the

fact I find dispositive: Morgan spoke out about issues related to department

operations as a whole, while the deputy in Nord attacked the sheriff’s personal

attributes and fitness for office. Further distinguishing Nord is that the sheriff relied

on advice of human resources and legal counsel, which factored into the

reasonableness of his belief that he could terminate the deputy for speech during the

political campaign. Finally, to bolster its view that it is not clearly established that

Robinson could not terminate Morgan for his political speech during the campaign,

the majority offers several cases discussing the permissibility of limiting the speech

of department employees for the purposes of managing the department. But those

cases do not involve the context of political elections, where “the First Amendment

has its fullest and most urgent application.” Burson, 504 U.S. at 196 (quoting Eu,

489 U.S. at 223).

The Supreme Court has repeatedly expressed the importance of protecting First

Amendment activity, especially in the context of elections. The majority’s

conclusion, which relies on a factually distinguishable case, sidesteps this precedent.

I would conclude that it is clearly established that Sheriff Robinson could not

terminate Deputy Morgan for speech made during a political campaign that related

to the department operations and caused no disruption or other negative impact on the

department.

IV.

In closing, I note the reality of small-county politics that the majority is so

willing to cast aside. Although I dissent because I believe Deputy Morgan has shown

a violation of a clearly established constitutional right, I believe discussion of the

practical implications of today’s majority opinion is warranted. Washington County

is a rural Nebraska county with a population of approximately 20,000 people and a

Sheriff’s Department of 13 road deputies. Washington County is not a major

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metropolitan area or population center; it is small and rural. And small-county

politics differ from politics in major metropolitan areas like Kansas City, St. Louis,

or Minneapolis. The population and workforce in less-populated areas do not provide

the same pool of candidates with vast differences in background and experience.

Office holders are often entrenched incumbents; indeed, Sheriff Robinson has held

the position of Washington County Sheriff since 2000. Typically, the deepest pool

for political challengers comes from within a department or organization itself. This

necessarily involves department- or organization-born challengers to incumbents.

After today’s majority opinion, in-office challengers to incumbents must appreciate

the risk that comes with critical campaign speech: the incumbent can terminate them

for the critical speech without the reasonable belief that the speech would be

potentially damaging or disruptive to the office. Viewing the record under our

summary judgment standard, Sheriff Robinson terminated Deputy Morgan because

he did not like the critical content of Deputy Morgan’s speech; Sheriff Robinson had

no reasonable basis to believe that the speech would be potentially damaging or

disruptive to the functions of the Sheriff’s Department. Because I cannot sanction

shielding Robinson from suit for such an act, I dissent. I would affirm the judgment

of the district court.

Reversed and remanded.