SMITH v. GILCHRIST, No. 12-2503
Decided: May 14, 2014
The Fourth Circuit overturned a summary judgment motion in favor of District Attorney (DA) Peter Gilchrist, holding that there was a jury question on whether Gilchrist was entitled to a qualified immunity defense for firing Assistant District Attorney (ADA) Sean Smith in violation of Smith’s First Amendment right to free speech.
In 2010, Smith informed Gilchrist that he had decided to run for the office of the county district court judge. Within the scope of his candidacy for judicial office, and unrelated to his duties as ADA, Smith gave a public interview, in which he expressed concerns about “defensive-driving” courses that were offered to ticketed drivers. Smith stated that he was worried that ticketed drivers were not paying attention during the courses; that police officers were “improperly providing” legal advice to ticketed drivers by giving them information pamphlets with their tickets; and that ticketed drivers were “unwittingly” making decisions detrimental to their legal interests. The DA office had a policy of supporting the program, which reduced its caseload and allowed the office to allocate those resources elsewhere. When Gilchrist heard about Smith’s interview, he and the Deputy DA met with Smith to discuss Smith’s disagreement with the DA office’s policy in regard to the defensive-driving courses. During this meeting, Smith disclosed that he disagreed with other DA office policies as well, but he declined to specify which these were. The next day, Gilchrist fired Smith for insubordination. Smith brought this claim under 42 U.S.C. § 1983 against Gilchrist in his personal capacity for allegedly violating Smith’s First Amendment right to free speech. The District Court ruled that Gilchrist was entitled to qualified immunity as a public official, and Smith appealed.
To overcome Gilchrist’s qualified immunity claim, Smith had to satisfy a two-pronged test: (1) Smith’s allegations must “substantiate [a] violation of a federal statutory or constitutional right”, and (2) the violation must be of a “clearly established right of which a reasonable person would have known.”
The Court used a three-prong test to determine whether Gilchrist violated Smith’s First Amendment right to free speech as a public employee. Smith must have been (1) “‘speaking as a citizen upon a matter of public concern’ rather than ‘as an employee about a matter of personal interest’”; (2) “his ‘interest in speaking upon the matter of public concern [must have] outweighed the government’s interest in providing effective and efficient services to the public’”; and (3) “his ‘speech [must be] a substantial factor’ in the employer’s decision to take action against him.” The Court held that Smith satisfied the first two prongs. First, whether ticketed drivers were attentive during the courses, receiving improper legal advice from police officers, and acting against their best legal interests, were all matters of public concern. Second, Smith’s concerns outweighed the DA office’s interests in providing effective and efficient services because Smith merely expressed concerns over the defensive-driving courses, actions taken by police officers, and ticketed drivers, not DA policy. The Court gave little weight to the possibility that a change in the defensive-driving courses would impact the DA office’s effectiveness and efficiency by increasing its caseload. The Court also gave little weight to Gilchrist’s testimony that he disagreed with the “vision” Smith expressed in his public statements because they related to “critical services” that the DA office had “no legitimate interest in opposing.” Finally, in regard to the third prong, the Court declined to opine on whether Smith’s public statements were a “substantial factor” in Gilchrist’s decision to terminate him.
The Court also held that Smith satisfied the second prong of the qualified immunity test – whether Gilchrist violated a “clearly established” right, and a “reasonable [DA] official” would have known that Smith’s interests outweighed those of the DA office. Any reasonable official would know that Smith had a clearly established right to make the public comments because they were made in Smith’s capacity as a candidate for public office, concerned matters of public concern, and did not negatively impact the DA office. Furthermore, a reasonable DA official would have known Smith’s interests outweighed those of the DA office because there was nothing weighing in favor of the DA office – there was no evidence that the speech would affect the DA office’s efficiency.
James Bull Sterling