Qualified Immunity Creates Nearly Insurmountable Protection for Defendants Against First Amendment Retaliatory Claim: Morgan v. Robinson.

• Author: Greene, Abigail

1. INTRODUCTION

   There are more than 3,000 sheriffs' departments in the United States with varying authority based on the state and county in which they are located. (1) Their authority may be as wide reaching as a "full-service countywide law enforcement agenc[y]" or may be as limited as having "no law enforcement jurisdiction in county areas served by local or municipal police departments." (2) Dissimilar to other law enforcement officials, who are hired after an interview and application process, most sheriffs gain their positions through partisan elections. (3) Offices in forty-one states--more than 2,700 counties--conduct partisan elections for the sheriff position. (4)

   Although the length of an elected sheriff's term varies by jurisdiction, (5) incumbency gives a candidate a significant advantage in an election. (6) In a 2017 study of the 200 largest jails in the United States, all but two of the current sheriffs were incumbents. (7) In the course of a contested election, non-incumbent candidates--who are employed by the sheriff as subordinate officers--may make statements criticizing the office in some way, and promising change for the future. With such a large number of incumbents retaining office, however, those changes are rarely implemented, and sometimes the losing officer is subsequently fired by the incumbent sheriff after he or she wins the election. While it might appear the employee was fired for speaking out during a political campaign--an area considered core protected speech under the First Amendment--the incumbent sheriff likely will not be liable for a First Amendment retaliation claim because he is shielded by qualified immunity.

   The Supreme Court of the United States has consistently held that government officials are entitled to some form of immunity--absolute or qualified--if they meet the requirements of the defense. (8) Immunity covers suits for damages in order to "shield [officials] from undue interference with their duties and from potentially disabling threats of liability." (9) While some individuals are entitled to absolute immunity, most officials, including law enforcement officers, are entitled to qualified immunity. Qualified immunity is a controversial and complicated doctrine that is designed to protect law enforcement officers for actions taken in the line of duty. (10) It has proved to be difficult and complex throughout the jurisdictions based on varying interpretations. One common theme is clear: it is nearly impossible for a plaintiff to win against a government official because courts are so sympathetic to a defendant's qualified immunity arguments.

   This Note examines a recent decision by the United States Court of Appeals for the Eighth Circuit finding qualified immunity applicable to a sheriff when faced with a First Amendment retaliation suit based upon comments made during a political campaign. Part II provides the facts and holding of Morgan. Part III describes and analyzes the legal background of both a First Amendment retaliation claim and the defense of qualified immunity. Part IV states the reasoning behind the Morgan decision. Part V examines the potential practical consequences of the qualified immunity doctrine and the implications on plaintiffs who are seeking recourse. Finally, Part VI summarizes the need to give less protection to incumbent sheriffs when First Amendment retaliatory actions are taken.

2. FACTS AND HOLDING

   In 2014, Donald Morgan ran against Michael Robinson--the incumbent sheriff--in the primary election for sheriff of Washington County, Nebraska. (11) Robinson had been the county's elected sheriff since 2000. (12) Morgan had been a deputy with the sheriff's department since 2002. (13) Throughout the campaign, Morgan made various public statements about the sheriff's department and his plans to improve it if he were elected. (14) Robinson won the election. (15) Six days after the election, Robinson terminated Morgan's employment as deputy. (16) Robinson claimed the reason for the termination was that Morgan violated the sheriff's department's rules of conduct in making his campaign statements. (17) Specifically, the disciplinary action report stated Morgan violated the paragraphs concerning "false statements, slander, and honesty." (18) The statements in question were:

   1. You continued to state that the communications system was not completed after 10 years of construction although the record reflects it was completed on time and under budget in 2006[.] 2. You stated the Fire and Rescue agencies could not communicate and stated someone would be hurt or killed if it was not fixed although the Fire Chiefs submitted a letter to the local paper saying your comments were false. 3. You continued to tell the public that morale at the Sheriff's Office was bad and that "all the employees were waiting for the day after I lost to see me walk out of the office". [sic] You also stated several deputies were actively looking for employment. This was proven false when several of the Deputies were consulted and none were looking and did not know of any deputy looking for employment and I was overwhelmingly supported by the employees of the Sheriff's Office. 4. You stated the K-9 had been taken from you for retribution when in fact you demanded the K-9 be taken because it "hindered your ability to do your job". [sic] 5. You stated portable radio coverage was poor and continued to state the coverage was poor even after being shown the system coverage for portable radios was 99.2% county wide. (19) Initially, Morgan brought a grievance under a labor contract in place for his position, but the grievance was denied and that decision was upheld on appeal. (20) Next, he brought suit in the Federal District Court for the District of Nebraska, alleging claims of "retaliation, deprivation of due process, and breach of the labor contract." (21) The court compelled arbitration, in conformity with the contract, and the arbitrator sustained the grievance, found in favor of Morgan and "reinstated his employment with the sheriff's department." (22) In response, Robinson filed a motion to dismiss for summary judgment on the retaliation claim in the district court. (23)

   Upon returning to the district court, Robinson claimed he was entitled to qualified immunity on Morgan's First Amendment retaliation claim. (24) The district court denied that motion, finding "genuine issues of material fact regarding the constitutionality of the termination, and whether Robinson should have reasonably known the termination was unlawful." (25) Robinson appealed the decision, and an Eighth Circuit panel affirmed. (26) Then, the Eighth Circuit reheard the case en banc, vacated the panel decision, reversed and remanded. (27) The court held that Robinson was entitled to qualified immunity because "the law was not sufficiently clear so that Robinson would have known that terminating him violated his First Amendment rights." (28)

3. LEGAL BACKGROUND

   Section 1983 of the U.S. Code ("Section 1983") allows an individual to sue government officials for money damages when that official causes a deprivation of the individual's constitutional rights. (29) Although "deceptively simple in its construction," Section 1983 is in reality full of complex procedural issues. (30) Section 1983 was adopted by Congress in 1871, and provides "private remedies in the form of money damages and injunctive relief for the infringement of constitutional rights." (31) The statute states in relevant part:

   Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress... (32) The Section became the "procedural keystone for the civil rights litigation of the 1960s" and continues to be a medium that tests the "limits of constitutional rights." (33) It provides protection only in the public sector, not the private sector. (34) Further, "the definition of person has been broadly interpreted to include virtually any governmental entity, including cities, counties, townships, municipal corporations, and the wide variety of local and regional government entities." (35) Finally, Section 1983 provides a remedy of both injunctive and monetary relief against the government entity or individual who has violated another's constitutional rights. (36)

   A public sector employee may not be fired for any reason that violates that employee's constitutional rights because termination "as a consequence for the making of critical comment, regardless of how motivated or directed, violates the individual's protected right of freedom of speech, guaranteed by the First Amendment." (37) However, a public employee's ability to exercise certain First Amendment rights may be restrained, legally, when "it could lead to inability of elected officials to get their jobs done on behalf of the public." (38) In a case of retaliatory termination, which violates an individual's First Amendment rights, a plaintiff must establish a prima facie case and prove: "(1) [h]is speech was protected by the First Amendment; (2) the governmental employer discharged him from employment; and (3) the protected speech was a substantial or motivating factor in the defendant's decision to take the adverse employment action." (39) Even if a plaintiff is able to establish a prima facie case, however, he will not prevail if the defendant is able to establish qualified immunity. (40)

   Qualified--or "good faith"--immunity is an affirmative defense that must be pleaded by a defendant official. (41) The doctrine attempts to strike a balance between "the interest in...