                            PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 14-1081


KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN,

               Plaintiffs – Appellees,

          v.

TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his
official capacity as Administrative Chief of Police of the
Mocksville Police Department and in his individual capacity;
CHRISTINE W. BRALLEY, in her official capacity as Town
Manager of the Town of Mocksville and in her individual
capacity,

               Defendants – Appellants.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,

               Amicus Supporting Appellees.



                           No. 14-1125


KENNETH L. HUNTER; RICK A. DONATHAN; JERRY D. MEDLIN,

               Plaintiffs – Appellants,

          v.

TOWN OF MOCKSVILLE, NORTH CAROLINA; ROBERT W. COOK, in his
official capacity as Administrative Chief of Police of the
Mocksville Police Department and in his individual capacity;
CHRISTINE W. BRALLEY, in her official capacity as Town
Manager of the Town of Mocksville and in her individual
capacity,

                Defendants - Appellees.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−

NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,

                Amicus Supporting Appellants.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cv-00333-CCE-JEP)


Argued:   December 9, 2014                Decided:   June 15, 2015


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Affirmed by published opinion.  Judge Wynn wrote the majority
opinion, in which Judge Diaz joined.   Judge Niemeyer wrote a
dissenting opinion.


ARGUED: Stephen John Dunn, VAN HOY, REUTLINGER, ADAMS & DUNN,
Charlotte,    North  Carolina,   for  Appellants/Cross-Appellees.
Robert Mauldin Elliot, Helen Parsonage, ELLIOT MORGAN PARSONAGE,
PLLC,   Winston-Salem,   North  Carolina,   for   Appellees/Cross-
Appellants.    ON BRIEF: Jaye E. Bingham-Hinch, Raleigh, North
Carolina, Patrick H. Flanagan, CRANFILL, SUMNER & HARTZOG, LLP,
Charlotte, North Carolina; Philip M. Van Hoy, VAN HOY,
REUTLINGER, ADAMS & DUNN, Charlotte, North Carolina, for
Appellants/Cross-Appellees.       J.  Michael    McGuinness,   THE
MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William J.
Johnson,    NATIONAL   ASSOCIATION   OF   POLICE    ORGANIZATIONS,
Alexandria, Virginia, for Amicus Curiae.




                                 2
WYNN, Circuit Judge:

     “Almost 50 years ago, th[e Supreme] Court declared that

citizens    do     not     surrender     their         First    Amendment        rights     by

accepting public employment.”                Lane v. Franks, 134 S. Ct. 2369,

2374 (2014).         A threshold question for determining “whether a

public employee’s speech is entitled to protection” is whether

the employee “spoke as a citizen on a matter of public concern.”

Id. at 2378 (quotation marks and citation omitted).

     In this Section 1983 case alleging First Amendment rights

violations, viewing the evidence in their favor—as we must at

summary judgment, Plaintiffs—officers of the Mocksville Police

Department       (“Mocksville        PD”)    in    Mocksville,        North       Carolina—

reached     out     as     concerned     citizens         to    the      North     Carolina

Governor’s        Office     about     corruption         and    misconduct           at   the

Mocksville PD.           The district court therefore rightly rejected

Defendants’ argument that Plaintiffs’ outreach enjoyed no First

Amendment       protection.      For     this      and    other    reasons        explained

below, we affirm the district court’s denial of summary judgment

to Defendants Robert W. Cook and Christine W. Bralley.



                                             I.

     Viewing       the     evidence     in       the    light     most     favorable        to

Plaintiffs, the non-movants, as we must at the summary judgment

stage,    the     evidence    shows     that      Plaintiffs      Kenneth        L.    Hunter

                                             3
(“Hunter”), Rick A. Donathan (“Donathan”), and Jerry D. Medlin

(“Medlin”), served as police officers with the Mocksville PD.

Hunter, an assistant chief, had worked for the Mocksville PD

since 1985; Donathan, a lieutenant, had been with the Mocksville

PD since 1998; and Medlin had served as an officer since 2006.

All     three     Plaintiffs      had   distinguished     careers      with    the

Mocksville PD, receiving honors and promotions throughout their

tenures.

      Defendant Robert W. Cook (“Cook”) joined the Mocksville PD

as police chief in 2005. 1         Over time, Plaintiffs became concerned

about Cook’s behavior and leadership.                 For example, Plaintiffs

saw   Cook      drink   alcohol    publicly,     excessively,   and    while   in

uniform and feared that it reflected poorly on the Mocksville

PD.         Plaintiffs also believed that Cook violated the law by

driving a police car with blue flashing lights and behaving as

if he were a certified law enforcement officer when, in reality,

he had never been certified and was only an “administrative”

chief.        Plaintiffs suspected that Cook and his ally and deputy

chief, Daniel Matthews, were together mismanaging Mocksville PD

and other public funds and even using those funds for personal

gain.          Plaintiffs   perceived        racial   discrimination     at    the




        1
            Cook no longer serves as the Mocksville PD chief.



                                         4
Mocksville       PD.      And     Plaintiffs        believed       that      Cook        “fixed”

tickets for his friends.

       Plaintiffs       independently        raised      such    concerns           about    Cook

with   Mocksville        Town   Manager,       Defendant        Christine           W.    Bralley

(“Bralley”).        Yet they noticed no improvement after reporting

their concerns to Bralley and instead perceived reasons to worry

about retaliation.             Donathan, for example, raised his concerns

with   Bralley      and   was     soon      thereafter      criticized          by       Matthews

about a concern he had raised with Bralley.                           And a month after

Medlin sent Bralley a sealed letter detailing concerns about the

Mocksville PD, Cook demoted him.                   (That demotion was ultimately

reversed.)

       In   November      2011,       the    situation      at     the      Mocksville        PD

escalated.       Cook reorganized the department, elevating Matthews

to    second-in-command         and    stripping         Hunter,      one      of    only    two

African-Americans         at    the     Mocksville        PD,    of      his     supervisory

responsibilities.          Hunter filed a grievance about his demotion,

but his grievance, and concerns, were dismissed.                               Donathan, on

the    other     hand,    was    invited      to    Cook’s       home,      instructed        to

“adhere     to    the     ‘politics’         of    the    MPD,”       and      promoted       to

lieutenant.       J.A. 161.

       In   early      December       2011,       five    Mocksville        PD       officers,

including all three Plaintiffs, met privately to discuss their

concerns about Cook and his ally Matthews.                            At that meeting,

                                              5
Plaintiffs decided to seek an investigation by an outside agency

into   corruption     at     the   Mocksville       PD.      According     to   Hunter,

Plaintiffs made this decision because they felt, “as citizens of

the    community,     that    Mocksville         deserved    an    effective      police

force that served everyone equally” and not because they felt it

was “part of our job duties.”            J.A. 137.

       Plaintiffs set up a meeting with local representatives of

the National Association for the Advancement of Colored People

(“NAACP”), who, after hearing Plaintiffs’ concerns, advised them

to contact a state agency.              Accordingly, Plaintiffs decided to

contact the North Carolina Attorney General.                          Hunter had his

“daughter purchase a disposable phone at Wal-Mart that could be

used    to   report    our     citizen       complaints      separately     from    our

affiliation with the MPD.”            Id.

       On December 14, 2011, Plaintiffs got together and used the

disposable phone to call the Attorney General’s Office.                              The

Attorney     General,        however,        referred       Plaintiffs     to      local

authorities     who    were        closely       aligned    with    Cook    and    whom

Plaintiffs therefore felt they could not contact.                          Plaintiffs

then called the North Carolina Governor’s Office, again using

the disposable phone.          Without identifying either themselves or

the Mocksville PD, Plaintiffs conveyed some of their concerns,

including    their    suspicions       that       Cook    embezzled    funds,     had   a

drinking problem, and masqueraded as a certified officer with

                                             6
powers to, for example, use blue lights and pull people over

even    though    he    was    only    an    administrative    chief    without   the

authority to do so.            The Governor’s Office representative asked

for a telephone number at which someone could return the call,

and Plaintiffs gave the number for the disposable phone.

       Later that day, someone else from the Governor’s Office

called the disposable phone.                 Donathan answered the call, spoke

to the representative, and identified the Mocksville PD to the

representative.         The Governor’s Office representative offered to

request     that       the     State        Bureau   of    Investigation       (“SBI”)

investigate the Mocksville PD.

       The next week, Medlin saw the local SBI Agent, D.J. Smith,

at the Mocksville PD offices.                 Plaintiffs knew that Smith had a

close    relationship         with    both    Cook   and   Matthews.     Medlin   saw

Smith show Matthews a piece of paper and saw the two men look

for Cook.        On December 22, 2011, Plaintiffs received a message

from    Smith,    who    called       the    disposable    phone.      Smith   left   a

message identifying himself and stating that he was following up

on the request for an investigation.                   Plaintiffs did not return

the call because “we did not trust any local authorities in

investigating our concerns because of Chief Cook’s influence”

and thus “disposed of the phone for fear that Chief Cook may

search the police department and find it.”                  J.A. 140.



                                              7
      As    it   turned        out,    the     phone      was       nevertheless         “found.”

Smith contacted the Davie County Sheriff’s Office, the county in

which Mocksville is located, and asked an officer there to check

whether the phone number used to make that complaint belonged to

anyone     at    the    Sheriff’s           Office.           The    Sheriff’s         Department

officer contacted the Mocksville PD and asked an officer there

to run the number through Mocksville PD records.                                    The officer

also called the disposable phone himself—though Plaintiffs did

not pick up.

      On   December       27,    2011,       Bralley      contacted            Sprint    customer

service to set up an online account, explaining that she wanted

to check call records for a specific telephone number.                                          The

Sprint     invoice      issued       that     same      day    for       the   billing       period

ending December 23, 2011 included phone calls to the disposable

phone’s number.          Both Donathan and Medlin had placed calls to

and   received         calls    from        the       disposable         phone    using       their

Mocksville PD-issued mobile phones.

      On    December       29,        2011,       Chief        Cook       fired        all     three

Plaintiffs.        This    was        the    first      time    Cook       had    fired       anyone

during     his    tenure        as     the     Mocksville           PD     chief.            Officer

misbehavior—including            illegal          drug        use     and       even     criminal

activity—had previously occurred.                        But the officers in those

cases received lesser punishments or were allowed to voluntarily

resign rather than be fired.

                                                  8
       All three Plaintiffs received similar termination letters

that          gave          performance            justifications               such        as

“[i]nsubordinat[ion],” “[a]ttitude,” “[r]umored [f]alse [d]eter

mental       [sic]    [i]nformation,”        and    “other       conduct    unbecoming        a

Officer.”       J.A. 153, 178.            Plaintiffs had been given no notice

of    these    performance      issues       before       they   were    fired.        In   an

after-the-fact         memo     to     the    town        attorney,      Cook     expressly

mentioned Plaintiffs’ telephone call to the Governor and SBI,

claiming Plaintiffs “conspire[d]” to discredit him, Bralley, and

others in calls to “SBI and Governor with false information”—

information Cook claimed “[t]he SBI and DA have determined . . .

to be slanderous and false.”                  J.A. 543.           And around the time

Cook fired Plaintiffs, Cook called the local district attorney

and    told    him    that    “you    can’t       have    people    in-house      that      are

continually undercutting you and causing trouble.”                          J.A. 2009.

       In     April    2012,     Plaintiffs         brought       suit     against     Cook,

Bralley,       and    the    Town    of    Mocksville,       alleging,       among     other

things, that their First Amendment rights were violated when

they were fired for speaking out about corruption and misconduct

at     the    Mocksville      PD.         Defendants       answered,       and    discovery

ensued.         Defendants      then      moved     for    summary       judgment,     which

Plaintiffs opposed.             Initially, in October 2013, the district

court granted summary judgment to all Defendants on the Section

1983 claims but denied summary judgment as to the state law

                                              9
wrongful discharge and constitutional claims.                           In January 2014,

however, the district court granted a motion for reconsideration

and reversed course as to Cook and Bralley, holding that neither

was entitled to qualified immunity.

     The    parties      challenge       aspects       of    both       orders       in   this

appeal.     We    review    these       summary    judgment            rulings     de     novo,

viewing the evidence in the light most favorable to the non-

moving     party—here,          Plaintiffs—and         drawing          all      reasonable

inferences in their favor.               Miller v. Leathers, 913 F.2d 1085,

1087 (4th Cir. 1990) (en banc).



                                          II.

     Defendants         argue    that    they     are       entitled        to     qualified

immunity,     which      shields        government       officials            “who      commit

constitutional        violations        but     who,        in     light      of     clearly

established      law,    could    reasonably      believe          that     their     actions

were lawful.”       Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).         To successfully avail themselves of qualified

immunity,   Defendants          must   show     either      that       no   constitutional

violation occurred or that the right violated was not clearly

established at the time it was violated.                         Id.    Defendants argue

primarily that no violation occurred.

                                           A.



                                           10
      With    their   first    argument,      Defendants    contend     that      the

district court erred in ruling that Plaintiffs spoke as citizens

and not as employees when they reached out to the Governor’s

Office.      Accordingly, per Defendants, the First Amendment does

not protect Plaintiffs from retaliation.             We disagree.

                                        1.

      “Speech by citizens on matters of public concern lies at

the heart of the First Amendment, which ‘was fashioned to assure

unfettered     interchange     of     ideas   for   the    bringing     about     of

political and social changes desired by the people.’”                   Lane, 134

S. Ct. at 2377 (quoting Roth v. United States, 354 U.S. 476, 484

(1957)).      This remains true when speech concerns information

related to public employment.            “After all, public employees do

not renounce their citizenship when they accept employment, and

this Court has cautioned time and again that public employers

may   not     condition       employment      on    the    relinquishment          of

constitutional rights.”         Id. (citing, inter alia, Pickering v.

Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391

U.S. 563, 568 (1968)).

      In its most recent statement on public employee speech, a

unanimous Supreme Court underscored the “considerable value” of

“encouraging,     rather       than     inhibiting,       speech      by     public

employees.      For   government       employees    are    often   in      the   best

position to know what ails the agencies for which they work.”

                                        11
Lane,    134   S.     Ct.    at    2377    (quotation          marks,    alterations,          and

citation omitted).            Were public employees not able to speak on

matters of public concern, “the community would be deprived of

informed opinions on important public issues.”                               San Diego v.

Roe,    543    U.S.    77,    82     (2004)      (per        curiam).      Indeed,          “[t]he

interest at stake is as much the public’s interest in receiving

informed       opinion       as     it     is    the     employee’s        own     right        to

disseminate it.”            Id.     The Supreme Court thus underscored last

year in Lane that “[i]t bears emphasis that our precedents . . .

have    recognized         that    speech       by    public      employees       on    subject

matter related to their employment holds special value precisely

because    those      employees          gain   knowledge         of    matters    of       public

concern through their employment.”                     134 S. Ct. at 2379.

       Further,       as    the     Supreme          Court     has     recognized,          “[t]he

importance of public employee speech is especially evident in

the context of . . . a public corruption scandal.”                            Id. at 2380.

Indeed    “[i]t       would    be    antithetical            to   our    jurisprudence          to

conclude that the very kind of speech necessary to prosecute

corruption       by    public        officials—speech             by     public    employees

regarding information learned through their employment—may never

form the basis for a First Amendment retaliation claim.”                                Id.

       That being said, precedent makes clear that courts must

also     consider      “the       government’s          countervailing        interest          in

controlling      the       operation      of    its    workplaces.”          Id.       at    2377.

                                                12
“Government          employers,       like         private         employers,         need     a

significant degree of control over their employees’ words and

actions;      without       it,    there     would      be    little      chance      for    the

efficient provision of public services.”                           Garcetti v. Ceballos,

547 U.S. 410, 418 (2006).

          Accordingly, courts must “balance between the interests of

the [public employee], 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, 391 U.S. at 568.                        As the

Supreme Court explained in Garcetti, this balancing test boils

down to a two-step inquiry:                 The first question is “whether the

employee spoke as a citizen on a matter of public concern.                                    If

the       answer   is    no,”       First        Amendment      protections          are     not

implicated.        547 U.S. at 418.              If, however, the answer is yes,

then we must ask whether the employee’s interest in speaking out

about the matter of public concern outweighed the government’s

interest in providing effective service to the public.                              Id.

          In determining whether the employee spoke as an employee or

as    a    citizen—the      question        at    the      heart    of    this      appeal—the

Supreme      Court    has    instructed          us   to     engage      in   a    “practical”

inquiry into the employee’s “daily professional activities” to

discern      whether    the       speech    at     issue      occurred        in   the    normal

course of those ordinary duties.                        Garcetti, 547 U.S. at 422,

                                             13
424.     The Supreme Court expressly rejected a focus on “formal

job descriptions,” eschewing “the suggestion that employers can

restrict         employees’       rights     by    creating      excessively     broad    job

descriptions.”           Id. at 424.              And just last year in Lane, the

Supreme Court unanimously admonished lower courts for “read[ing]

Garcetti”         and      its     employee        speech     implications       “far    too

broadly.”         134 S. Ct. at 2379.              The Court emphasized that “[t]he

critical question . . . is whether the speech at issue is itself

ordinarily within the scope of an employee’s duties, not whether

it merely concerns those duties.”                      Id.

        In Garcetti, the speech at issue was an internal memorandum

a   deputy       district        attorney     had      prepared    for   his    supervisors

recommending a particular disposition in a specific case.                                547

U.S. at 410.            The Supreme Court noted that the deputy “did not

act    as    a    citizen        when   he    went      about     conducting     his    daily

professional            activities,          such       as    supervising        attorneys,

investigating charges, and preparing filings.                            In the same way

he did not speak as a citizen by writing a memo that addressed

the proper disposition of a pending criminal case.”                             Id. at 422.

Accordingly,         the    internal         memorandum,        which    fell   within    the

scope       of    the   deputy’s        ordinary        duties,    did    not    constitute

protected speech.            Id. at 421-22.

        By contrast, in Lane, the Supreme Court held that a public

employee’s         sworn         testimony        in   a     judicial     proceeding     was

                                                  14
“quintessential” citizen speech—“even when the testimony relates

to   .    .   .    public   employment      or    concerns     information       learned

during that employment.”               134 S. Ct. at 2378-79.                  The Court

recognized that a testifying public employee “may bear separate

obligations to his employer—for example, an obligation not to

show up to court dressed in an unprofessional manner.”                            Id. at

2379.      But any such obligation is distinct from “the obligation,

as a citizen, to speak the truth.”                   Id.     Further, the Supreme

Court left no doubt that the subject matter of the speech at

issue in      Lane—“corruption         in   a    public    program      and    misuse    of

state funds—obviously involves a matter of significant public

concern.”         Id. at 2380.        And the defendants in Lane had failed

to demonstrate a governmental interest that could nevertheless

tip the balance in their favor.                 Id. at 2381.

         Similarly, in Pickering, a teacher was fired after he wrote

a letter to the editor of a local newspaper critical of how the

superintendent of schools had handled proposals to raise school

revenue.          Pickering, 391 U.S. at 564.              The Supreme Court held

that the letter, which neither “impeded the teacher’s proper

performance         of     his     daily    duties    in     the     classroom”         nor

“interfered         with     the     regular      operation        of    the     schools

generally,” constituted protected speech.                    Id. at 572-73.             The

Supreme Court underscored that “whether a school system requires

additional funds is a matter of legitimate public concern.”                             Id.

                                            15
at 571.       On such matters, “free and open debate is vital,” and

teachers are “most likely to have informed and definite opinions

as to how funds allotted to the operation of the schools should

be spent.       Accordingly, it is essential that they be able to

speak out freely on such questions without fear of retaliatory

dismissal.”      Id. at 571-72.

       Even in our own Circuit, we have made clear that the “core

First Amendment concern” is “the actual workings—not just the

speeches and reports and handouts—of our public bodies.”               Andrew

v. Clark, 561 F.3d 261, 273 (4th Cir. 2009) (Wilkinson, J.,

concurring).      Therefore, in Andrew, we reversed the dismissal of

a   Section    1983   complaint   in   which   a   former   police   commander

alleged retaliation for disclosing to the news media an internal

report he had authored questioning both a police shooting and

the police investigation into the shooting.             It would have been

“inimical to First Amendment principles to treat too summarily

those who bring, often at some personal risk, [the government’s]

operations into public view.”          Id.

       Likewise, in Durham v. Jones, we upheld a jury verdict for

a   plaintiff     police   officer      terminated    in    retaliation   for

speaking out about law enforcement misconduct.                 737 F.3d 291

(4th Cir. 2013).         In Durham, the plaintiff prepared a report

about an incident that had involved the use of force.                  Id. at

294.     Other officers and detectives aggressively interrogated

                                       16
the plaintiff and ordered him to revise his incident report. He

refused.     Id.      Ultimately, the plaintiff decided to “bring to

light     actual    or     potential      wrongdoing       on    the    part     of      his

superiors,       calling     for    an    external       investigation        and     media

coverage.”       Id. at 300 (quotation marks and citation omitted).

He sent a letter and written materials to, among others, the

State’s Attorney and the Governor of Maryland.                      Id.       We made it

clear that this situation was “no ordinary workplace dispute,”

and that “where public employees are speaking out on government

misconduct,      their     speech    warrants      protection.”           Id.       at   303

(quotation marks and citation omitted).

                                            2.

      Turning to the facts of this case, Defendants contend that

“Plaintiffs’       speech    was    not     protected     because      they     spoke     as

employees, not as citizens.”              Appellants’ Br. at 23.              Defendants

argue     that     Plaintiffs’      “calling       the    Governor’s      Office         was

pursuant to their official duties . . . . When a police officer

reports a crime, he is literally just doing his job.”                               Id. at

30.     With this characterization of Plaintiffs’ speech, we cannot

agree.

      Nothing       before     us     suggests       that       Plaintiffs’         “daily

professional activities,” Garcetti, 547 U.S. at 422, included

calling    the     Governor’s      Office    for   any     purpose,     much     less    to

express concerns about the Mocksville PD.                   Nothing suggests that

                                            17
Plaintiffs’       request       that    the        Governor’s     Office       look      into

suspected corruption and misconduct at the Mocksville PD was

“ordinarily within the scope of [Plaintiffs’] duties.”                                   Lane,

134    S.   Ct.    at     2379.        Indeed,       a    “practical”      inquiry       into

Plaintiffs’       day-to-day        duties,        Garcetti,     547     U.S.       at    424,

manifestly does not lead to the conclusion that those included

reaching out to the Governor’s Office about anything at all.

        Instead, the evidence viewed in the light most favorable

to    Plaintiffs        illustrates     that        Plaintiffs     acted       as    private

citizens.     It is undisputed that Plaintiffs first met, in their

free time and away from their Mocksville PD offices, with a non-

governmental      organization—the            NAACP—about       perceived       misconduct

and   corruption        at   the     Mocksville          PD.    The    NAACP     suggested

reaching out to a state agency.                      Accordingly, using a private

disposable phone away from the Mocksville PD, Plaintiffs first

contacted     the       North     Carolina     Attorney        General’s       Office     and

ultimately    the       North     Carolina     Governor’s       Office.         Initially,

Plaintiffs identified neither themselves nor the Mocksville PD.

Only after a Governor’s Office representative offered to request

an SBI investigation did Plaintiffs name the Mocksville PD as

the subject of their concerns.

      Defendants counter that Plaintiffs acted pursuant to their

official duties because all sworn police officers have a duty to

enforce     criminal         laws,      and        Plaintiffs,        police     officers,

                                              18
suspected       criminal    conduct.        While      some    of    the   suspected

corruption and misconduct at issue here, such as misusing public

funds    for    personal     gain,    might    qualify        as    criminal,     other

misconduct, such as racial discrimination within the Mocksville

PD, might not.        Moreover, and more importantly, a general duty

to enforce criminal laws in the community does not morph calling

the Governor’s Office because the chief of police himself is

engaging in misconduct into part of an officer’s daily duties.

     Defendants further argue that the Mocksville Police Manual

broadly obligated Plaintiffs to, among other things: “cooperate

with all Law Enforcement agencies, other City Departments, and

Public service organizations and . . . give aid and information

as such organizations may be entitled to receive,” J.A. 3306;

report   in     writing     other    “employees       violating      laws”      (though

Defendants      conveniently    omit    from        their    brief    to   whom   such

written reports of employee malfeasance are to be submitted: “to

the Chief of Police”), J.A. 3318; and generally “enforce all

Federal,    State,    and    City    laws     and    ordinances       coming    within

departmental jurisdiction,” J.A. 3305.                      But the Supreme Court

has expressly rejected focusing on “formal job descriptions,” as

well as any “suggestion that employers can restrict employees’

rights     by     creating     excessively          broad     job     descriptions.”

Garcetti, 547 U.S. at 424.



                                        19
     In sum, privately reaching out to the Governor’s Office

about suspected corruption and misconduct at the Mocksville PD,

at the hands of the chief of police, cannot fairly or accurately

be portrayed as simply part of Plaintiffs’ “daily professional

activities.”       Garcetti, 547 U.S. at 422.          In reaching out to the

Governor’s Office, Plaintiffs were not “just doing [their] job.”

Appellants’ Br. at 30.           Rather, Plaintiffs spoke as citizens, on

a matter of undisputedly public concern, 2 and no countervailing

government interest has even been suggested.                 Accordingly, the

district court rightly rejected Defendants’ motion for summary

judgment on this basis.

                                       B.

     With     their       next    argument,     Defendants      contend       that

Plaintiffs’ speech was not a motivating factor in their being

fired.      Defendants     contend    that    Plaintiffs    therefore     cannot

succeed with their First Amendment retaliatory discharge claims.

See, e.g., Wagner v. Wheeler, 13 F.3d 86, 90 (4th Cir. 1993)

(holding    that    a    plaintiff   claiming   retaliatory      discharge     in

violation   of     his   First    Amendment   rights    “must   show   that    his

protected expression was a ‘substantial’ or ‘motivating’ factor



     2
       Defendants do not even attempt to argue on appeal that
public corruption does not constitute a matter of public
concern.



                                       20
in   the     employer’s        decision     to    terminate       him”     (citation

omitted)).    This issue is, however, not properly before us.

     The     Supreme    Court     has     made    clear    that    “a    defendant,

entitled to invoke a qualified immunity defense, may not appeal

a district court’s summary judgment order insofar as that order

determines    whether     or    not   the      pretrial   record    sets    forth   a

‘genuine’ issue of fact for trial.”                Johnson v. Jones, 515 U.S.

304, 319-20 (1995). 3      Stated differently, “[i]f summary judgment

was denied as to a particular claim solely because there is a

genuine issue of material fact, that claim is not immediately

appealable and we lack jurisdiction to consider it.”                         Iko v.

Shreve, 535 F.3d 225, 235 (4th Cir. 2008).




     3
       By contrast, the Supreme Court has left no doubt that “a
district court’s order denying a defendant’s motion for summary
judgment [is] an immediately appealable ‘collateral order’
(i.e., a ‘final decision’) . . . where (1) the defendant was a
public official asserting a defense of ‘qualified immunity,’ and
(2) the issue appealed concerned, not which facts the parties
might be able to prove, but, rather, whether or not certain
given facts showed a violation of ‘clearly established’ law.”
Johnson, 515 U.S. at 311 (citations omitted). Indeed, this kind
of summary judgment is otherwise “‘effectively unreviewable,’
for review after trial would come too late to vindicate one
important purpose of ‘qualified immunity’—namely, protecting
public officials, not simply from liability, but also from
standing trial.” Id. at 312 (citation omitted).




                                          21
     Fatally for Defendants’ argument here, the district court

denied   summary     judgment    because       a    material    dispute       of   fact

existed on the causation issue:

          The plaintiffs have offered sufficient evidence
     to support a jury finding that the Town fired them for
     reporting to the Governor’s office that the Mocksville
     Police Department was experiencing corruption and
     other issues.    While the Town has offered evidence
     that the plaintiffs were fired for performance issues,
     that evidence does not entitle them to summary
     judgment.   It merely creates a disputed question of
     material fact which a jury must decide.            The
     defendants are not entitled to summary judgment on
     this basis.

Hunter v. Town of Mocksville, N.C., No. 1:12-CV-333, 2013 WL

5726316, at *4 (M.D.N.C. Oct. 21, 2013), vacated in part, 2014

WL 881136 (M.D.N.C. Jan. 22, 2014).                 Because the district court

rejected    Defendants’      causation    argument       due    to   a   dispute     of

material fact, we must refrain from considering it.                           See Iko,

535 F.3d at 234-35.

                                         C.

     With   their    final    argument        on   appeal,     Defendants      contend

that even if Plaintiffs’ First Amendment rights were violated,

those rights were not clearly established at the time, i.e., in

December 2011.       Accordingly, Cook and Bralley argue that they

are entitled to qualified immunity protecting them from suit.

     Qualified immunity shields government officials “who commit

constitutional      violations     but        who,     in    light       of    clearly

established   law,    could     reasonably         believe   that    their     actions

                                         22
were lawful.”           Henry, 652 F.3d at 531.                 Regarding whether a

right      was    clearly    established,         “[t]he      relevant,     dispositive

inquiry . . . is whether it would be clear to a reasonable

officer     that    his     conduct    was      unlawful      in   the    situation      he

confronted.”        Id. at 534 (quoting Saucier v. Katz, 533 U.S. 194,

202   (2001),      overruled      in   part      on   other    grounds,     Pearson      v.

Callahan, 555 U.S. 223 (2009)).

      To    ring    the     “clearly    established”          bell,   there      need   not

exist a case on all fours with the facts at hand.                                In other

words,     “the    nonexistence        of   a    case   holding       the   defendant’s

identical conduct to be unlawful does not prevent the denial of

qualified immunity.”             Edwards v. City of Goldsboro, 178 F.3d

231, 251 (4th Cir. 1999) (holding that First Amendment rights of

an off-duty officer communicating about concealed weapons were

sufficiently        established        by       precedent       regarding        off-duty

officer’s         entertainment           performances).                 “Rather,       the

unlawfulness must be apparent in light of pre-existing law.”

Trulock v. Freeh, 275 F.3d 391, 400 (4th Cir. 2001).

      Turning to the right at issue here—namely First Amendment

expressive       rights     of   public     employees—we       have      expressly      held

that “it was clearly established in the law of this Circuit in

September        2009     that    an      employee’s       speech        about    serious

governmental misconduct, and certainly not least of all serious

misconduct in a law enforcement agency, is protected.”                            Durham,

                                            23
737 F.3d at 303–04 (citation omitted).                       As discussed in greater

detail    above,     in    Durham,     a    police       officer        claimed     he    was

terminated in retaliation for speaking out about law enforcement

misconduct.        The    plaintiff        officer      wrote      a   report     about   an

incident    involving      the   use       of    force      and    refused    to    bow   to

pressure to revise the report.                  After the plaintiff officer sent

written materials including the report to, among others, the

Governor of Maryland, he was fired.                      We called this situation

“no   ordinary     workplace      dispute”        and       made    clear    that    “where

public    employees       are   speaking        out    on    government       misconduct,

their speech warrants protection.”                    Id. at 303 (quotation marks

and citation omitted).

      In holding that “it was clearly established in the law of

this Circuit” in 2009 that “an employee’s speech about serious

governmental misconduct,” and especially “serious misconduct in

a law enforcement agency, is protected,” Durham, 737 F.3d at

303–04, we relied on Andrew, 561 F.3d at 266–68.                            In Andrew, we

concluded that an officer had stated a claim under the First

Amendment    where    he    alleged        retaliation        for      releasing    to    the

media an internal report he had authored questioning a police

shooting and the investigation into the shooting.                            Id. at 261-

62.      As Judge Wilkinson noted in his concurring opinion, it

would be “inimical to First Amendment principles to treat too

summarily those who bring, often at some personal risk, [the

                                            24
government’s]       operations       into        public      view.”         Id.    at   273

(Wilkinson,       J.,   concurring).             In     Judge    Wilkinson’s       lyrical

words, “[i]t is vital to the health of our polity that the

functioning of the ever more complex and powerful machinery of

government not become democracy’s dark lagoon.”                       Id.

       Andrew and Durham clearly established that, long before the

December     2011    speech    and    retaliation           at   issue   here,      “speech

about serious governmental misconduct, and certainly not least

of    all   serious     misconduct     in    a        law   enforcement      agency,    is

protected.”         Durham,    737    F.3d       at    303–04    (citation        omitted).

Defendants attempt to make much of the fact that, in both Andrew

and Durham, the plaintiffs had reached out to the news media

(though in Durham, the plaintiff also reached out to others,

including the Governor’s Office).                     That may be.       But nothing in

this    Court’s     reasoning    or    broadly-worded            holdings     in    either

Andrew      or    Durham      suggests       that        that     fact      was    somehow

dispositive.        Nothing in either Andrew or Durham stands for the

proposition that only speech to a media organization can qualify

for    First     Amendment    protection.             And   we   agree      with    Justice

Stevens that it would be “perverse to fashion a new rule that

provides employees with an incentive to voice their concerns

publicly,” Garcetti, 547 U.S. at 427 (Stevens, J., dissenting)—

which is precisely what we would be doing, were we to adopt

Defendants’ position that exposing serious government misconduct

                                            25
to    the    news   media     is   protected,          but       exposing       that      same

misconduct     to   the     Governor’s     Office,          as     in    this     case,     by

definition is not.

      In sum, “it was clearly established in the law of this

Circuit” in December 2011 that speech about “serious misconduct

in a law enforcement agency[] is protected.”                            Durham, 737 F.3d

at 303–04.      The district court therefore did not err in denying

qualified immunity to Cook and Bralley on this basis.



                                         III.

      In their lone argument on appeal, Plaintiffs contend that

“Bralley     was    the   final     decisionmaker            with       respect    to     the

employment     of   the     plaintiffs,        and    that       Cook    was    the     final

policymaker of the MPD.”            Appellees’ Br. at 47.                   Accordingly,

per Plaintiffs, the Town of Mocksville is liable for Cook’s and

Bralley’s unconstitutional retaliatory actions, and the district

court erred in holding otherwise and dismissing their claims

against the town.         This issue is, however, not properly before

us.

      “With a few exceptions not relevant here, this court has

jurisdiction of appeal from ‘final decisions’ only.”                               Cram v.

Sun   Ins.    Office,     Ltd.,    375   F.2d        670,    673    (4th    Cir.       1967).

Generally, “a district court order is not ‘final’ until it has

resolved all claims as to all parties.”                      Am. Petroleum Inst. v.

                                          26
Cooper, 718 F.3d 347, 353-54 n.7 (4th Cir. 2013) (quoting Fox v.

Baltimore City Police Dep’t, 201 F.3d 526, 530 (4th Cir. 2000)).

     The district court’s disposal only of Plaintiffs’ claims

against    the    Town      of   Mocksville       does     not    constitute      a     final

judgment.        It   is,    therefore,       not    generally      reviewable.          See

Cram, 375 F.2d at 673 (noting that “a summary judgment as to one

of the parties is no exception to the rule” of finality and an

appeal thereof “must therefore be dismissed”).

     A potential avenue for appealability nevertheless exists:

Civil   Procedure        Rule     54(b)      “provides      a    vehicle    by    which    a

district court can certify for immediate appeal a judgment that

disposes    of    fewer      than      all   of     the    claims    or    resolves      the

controversy as to fewer than all of the parties.”                          Fox, 201 F.3d

at 530.     Under Rule 54, the district court “may direct entry of

a final judgment as to one or more, but fewer than all, claims

or parties”—but “only if the court expressly determines that

there is no just reason for delay.”                  Fed. R. Civ. P. 54(b).

     Here,       however,        the   record       does    not     reflect      that     the

district court entered judgment for the Town of Mocksville under

Rule 54.     On the contrary, the district court made plain in its

January 2014 order that “final judgment has not been entered as

to any party . . . pursuant to Rule 54.”                              Hunter, 2014 WL




                                             27
881136, at *2.      Accordingly, we must refrain from considering

this issue. 4



                                   IV.

     For   the   reasons   explained     above,   the   judgments    of    the

district   court,   to   the   extent    they   are   reviewable    at    this

juncture, are

                                                                   AFFIRMED.




     4
       Had the district court come down the other way on the
issue, moreover, it still would have been unreviewable.     See
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 43 (1995) (holding
that a county commission’s assertion that the sheriff was not
the county policymaker was a defense to liability, not an
immunity from suit, and that denial of summary judgment for the
county commission was thus not immediately appealable).



                                   28
NIEMEYER, Circuit Judge, dissenting:

       I would grant qualified immunity to Police Chief Robert

Cook   and     Town   Manager       Christine          Bralley      because       it   was     not

clearly      established      at    the        time    that     Chief    Cook      fired      the

plaintiff-officers that the officers had complained to the North

Carolina       Governor’s       Office          as     citizens,        rather         than     as

employees.       If the officers had complained as employees, “the

Constitution         does     not       insulate        their       communications            from

employer discipline.”              Garcetti v. Ceballos, 547 U.S. 410, 421

(2006).

       In    December       2011,       Police        Officers      Kenneth       L.    Hunter,

Rick A. Donathan, and Jerry D. Medlin of the Mocksville Police

Department      in    Mocksville,         North       Carolina,       used    a    disposable

telephone to call the Governor’s Office to anonymously report

perceived       corruption          and        misconduct           within    the        Police

Department, including corruption by Chief Cook, and to request

that   an    investigation         be    initiated.           Two    weeks    later,      after

Chief Cook allegedly learned of the call and consulted with Town

Manager Bralley, he terminated the three officers’ employment.

       The officers commenced this action under 42 U.S.C. § 1983

against      Chief    Cook,    Town       Manager       Bralley,        and   the      Town    of

Mocksville, alleging that the defendants violated their First

Amendment rights by terminating their employment in retaliation

for    their    exercise       of       free     speech       rights     in   calling          the

                                               29
Governor’s          Office.          They    sought       compensatory     and     punitive

damages,       reinstatement,          and    injunctive       relief    against       future

violations of their rights.

        On     the     defendants’          motion     for   summary      judgment,       the

district       court        denied   Chief     Cook    and   Town     Manager     Bralley’s

claim of qualified immunity and granted judgment to the Town of

Mocksville, concluding that the officers failed to state a claim

for municipal liability.                    Chief Cook and Town Manager Bralley

filed        this     interlocutory          appeal,      challenging      the     district

court’s denial of their qualified immunity, and the officers

cross-appealed the dismissal of their municipal liability claim.

       The      majority        affirms       the      qualified      immunity         ruling,

concluding that the officers’ complaint to the Governor’s Office

about        departmental        misconduct         was    protected     by      the    First

Amendment because it was clearly established that the officers

were     not         simply     carrying        on     their    “daily         professional

activities” but rather were speaking as citizens on a matter of

public concern.              But in reaching this conclusion, the majority

fails    to     identify       any    controlling         precedent     that    would    have

informed       Chief    Cook     and    Town       Manager   Bralley     that    they    were

acting unlawfully in firing the officers for going over their

heads to the Governor’s Office to complain about departmental

misconduct.           The question of whether police officers speak as

employees       or     as    citizens       when    complaining     to   the     Governor’s

                                               30
Office     about        departmental       corruption     and     misconduct     was

undecided in this circuit -- and has remained so before today --

and the proper application of relevant principles is murky at

best.       Therefore,       the    relevant       case   law    was   not   clearly

established at the time of the defendants’ conduct.                          In such

circumstances, Chief Cook and Town Manager Bralley are entitled

to qualified immunity, which shields government officials from

suits for damages when acting in their personal capacity unless

(1) they violate a statutory or constitutional right (2) that

was “clearly established at the time of the challenged conduct.”

Lane v. Franks, 134 S. Ct. 2369, 2381 (2014) (quoting Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)) (internal quotation

marks omitted).          Accordingly, I would reverse and remand with

instructions       to    grant     Chief    Cook    and   Town    Manager    Bralley

qualified immunity. ∗

        In considering whether a right was clearly established at

the time of the challenged conduct, courts are guided by three

principles.        First, “as long as [an official’s] actions could

reasonably have been thought consistent with the rights [he is]


     ∗
       I agree with the majority that we do not have subject
matter jurisdiction to address the officers’ cross-appeal of the
dismissal of their municipal liability claim for failure to
demonstrate that either Chief Cook or Town Manager Bralley was
the final policymaker for the Town.




                                           31
alleged to have violated,” he is entitled to qualified immunity.

Anderson v. Creighton, 483 U.S. 635, 638 (1987).                   Second, while

an official may be denied qualified immunity without “the very

action in question ha[ving] previously been held unlawful,” id.

at 640, “existing precedent must have placed the statutory or

constitutional     question    beyond       debate,”    al-Kidd,     131    S.   Ct.

at 2083 (emphasis added).          Third, existing precedent is limited

to “the decisions of the Supreme Court, this court of appeals,

and the highest court of the state in which the case arose.”

Edwards v. City of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999)

(quoting Jean v. Collins, 155 F.3d 701, 709 (4th Cir. 1998) (en

banc)).

     The test for evaluating a First Amendment retaliation claim

is well-established and inquires:

     (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).       In

Garcetti, the Supreme Court refined the test, making clear that

“when     public   employees    make      statements      pursuant     to     their

official duties, the employees are not speaking as citizens for

First Amendment purposes, and the Constitution does not insulate

                                       32
their communications from employer discipline.”            547 U.S. at 421

(emphasis added).       Thus, in the wake of Garcetti, the inquiry

whether   an   employee    was   speaking   as   a   citizen   is   logically

independent from the inquiry whether the employee was speaking

on a matter of public concern.         See Lane, 134 S. Ct. at 2378–81

(determining first that the employee’s speech was “speech as a

citizen,” id. at 2378, before turning to whether his speech was

“speech on a matter of public concern,” id. at 2380).

      Chief Cook and Town Manager Bralley concede that the law

was clearly established by December 2011 that the officers, when

complaining about criminal misconduct in their department, were

speaking on a matter of public concern and that their interest

in so speaking outweighed the Police Department’s interest in

providing effective and efficient services to the public.                  They

contend, however, that the officers’ “duties and obligations as

law     enforcement       officers   included        the   reporting        and

investigation of misconduct,” and therefore that the officers

“were   speaking   as   employees    rather   than    citizens”     when   they

complained to the Governor’s Office about such misconduct in the

Police Department.        Recognizing the officers’ argument to the

contrary, Chief Cook and Town Manager Bralley maintain that,

“[a]t a minimum,” the state of the law in this circuit was

unsettled as to whether officers, complaining as these officers

did, speak as employees or as citizens.

                                     33
     I agree with the defendants that, as of December 2011, the

law was not clearly established -- nor, indeed, has it been at

any time before now -- that a police officer complaining to the

Governor’s      Office        of     departmental          corruption     involving        his

police chief speaks as a citizen.                         Given the lack of relevant

authority, it was entirely reasonable for Chief Cook and Town

Manager      Bralley     to        have       concluded     that   the    officers     were

complaining as employees in the course of their official duties

when making their complaints.

     In deciding otherwise, the majority relies on two decisions

-- Andrew v. Clark, 561 F.3d 261 (4th Cir. 2009), and Durham v.

Jones, 737 F.3d 291 (4th Cir. 2013).                       But those cases only go so

far as to conclude unremarkably that exposing corruption within

a   police     department          is     a     matter    of    public    concern     --     a

proposition     with     which          Chief     Cook    and    Town    Manager     Bralley

agree.       Neither     case        addresses        the      independent     inquiry      of

whether the officers were speaking as citizens when reporting

departmental corruption for investigation.

     In      Andrew,     a     police          officer      alleged     that   his    First

Amendment rights were violated when he was fired for leaking to

the press an internal memorandum that he had written regarding

whether the police department properly handled an investigation

of an officer-involved shooting.                      Andrew, 561 F.3d at 263.             In

an apparent effort to insulate his claim from the argument that

                                                 34
he   spoke    as   an    employee,   Andrew       alleged      in    his     complaint

(1) that he “was not under a duty to write the memorandum as

part of his official responsibilities”; (2) that “[h]e had not

previously     written     similar      memoranda        after      other     officer-

involved shootings”; (3) that he “would not have been derelict

in his duties . . . , nor would he have suffered any employment

consequences, had he not written the memorandum”; (4) that the

police       commissioner        characterized           the        memorandum      as

“unauthorized”      and    ignored        it;    and     (5) that      he    was   not

responsible for investigating officer-involved shootings and did

not work with or have control over the units that bore that

responsibility.          Id.    at 264.         The    defendants     replied      that

because Andrew was the district commander, he was required to

write    reports   for    all    shootings       within    his      district.       Id.

at 266-67 & n.1.          In reversing the district court’s grant of

qualified immunity, we concluded that “the question whether the

Andrew Memorandum was written as part of his official duties was

a disputed issue of material fact that [could not] be decided on

a motion to dismiss pursuant to Rule 12(b)(6).”                         Id. at 267

(emphasis     added);     see    also      id.    (“At     this      stage    of    the

proceedings in this matter, we must conclude that there is ‘room

for serious debate’ regarding whether Andrew had an official

responsibility to submit a memorandum . . .”).                        Thus, in the

context of that factual dispute, Andrew provides no guidance

                                          35
regarding when a police officer speaks as a citizen rather than

as an employee.

      Durham is no different.                 There, we affirmed the district

court’s denial of qualified immunity to a sheriff who fired his

deputy for sending a packet of materials describing corruption

within     the   sheriff’s      office       to   the    media       and    various     state

officials.       Durham, 737 F.3d at 294.               In doing so, we focused on

whether the deputy sheriff spoke on a matter of public concern

and   on    whether       his    interest         in    speaking           outweighed      his

employer’s        interest       in      maintaining            an     effective         work

environment.        Id. at 298-304.          We said nothing about whether the

deputy sheriff had been speaking as a citizen, an issue that the

sheriff     never      raised   in    his    brief.        See       Br.    of   Appellant,

Durham,    737    F.3d    291   (No.     12-2303),       2013    WL    551533      (arguing

exclusively that the materials did not pertain to a matter of

public concern and that the interest of the sheriff’s office in

maintaining an efficient and effective law enforcement agency

outweighed       any    interest      that    the      deputy    sheriff         claimed   in

disseminating the materials).

      Not only did Andrew and Durham not address whether police

officers speak as citizens when reporting corruption to a state

agency, but the facts of those cases also render them decidedly

distinguishable from the case before us.                    Whereas the terminated

officers in those cases had leaked information to members of the

                                             36
media,      either     exclusively          (Andrew)             or     in     tandem      with    a

distribution to a broad spectrum of public officials (Durham),

the terminated officers in this case reported the corruption

exclusively to a single governmental agency that could have been

thought to have supervisory or investigatory responsibility over

the Police Chief and the Town Manager.                           In light of this factual

distinction,      it    can       hardly    be        said       that       existing    precedent

“placed     the . . . constitutional                  question          beyond     debate,”       al-

Kidd, 131 S. Ct. at 2083 (emphasis added).

       The majority maintains that it would be “perverse” to hold

that employee speech regarding serious governmental misconduct

is    protected      when     made    publicly          but       not       when   made    to     the

Governor’s     Office.            Ante,    at    25    (quoting          Garcetti,        547    U.S.

at 427      (Stevens,       J.,     dissenting))            (internal         quotation         marks

omitted).       Maybe       so,     but    that        is    not       the    proper      inquiry.

Rather, the question is whether Durham and Andrew made it such

that    a    reasonable       official          would       have       understood       that      the

individual     defendants’          conduct      violated             the    plaintiffs’        First

Amendment rights.             See Owens v. Balt. City State’s Attorney’s

Office, 767 F.3d 379, 398 (4th Cir. 2014), cert. denied, No. 14-

887, 2015 WL 275612 (U.S. Apr. 27, 2015).                                   To the extent that

our    prior   case     law    suggested         that        a    law-enforcement          officer

speaks as a citizen when reporting corruption and misconduct to

the media for publication, it would not necessarily have been

                                                37
apparent to a reasonable official that such an officer speaks as

a citizen when making such a report to a governmental agency for

investigation.

     “Officials are not liable for bad guesses in gray areas;

they are liable for transgressing bright lines.”           Maciariello v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992).            Here, not only was

there no authority in this circuit holding that the defendants’

conduct was unlawful, but also there was no precedent regarding

when a police officer speaks as a citizen rather than as an

employee.      Thus, Chief Cook and Town Manager Bralley were left

to speculate about and guess whether terminating the employment

of Officers Hunter, Donathan, and Medlin would violate their

First Amendment rights.       Because those public officials are not

liable   for    incorrect   guesses,   I   would   grant   them   qualified

immunity and reverse the district court’s ruling denying that

immunity.




                                   38
