                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-2303


JAMES DURHAM,

                Plaintiff-Appellee,

           v.

SHERIFF ROBERT N. JONES,

                Defendant-Appellant,

and

SOMERSET COUNTY,

                Defendant,

and

SOMERSET COUNTY, MARYLAND; HEBRON SAVINGS BANK,

                Garnishees.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−---------

THE NATIONAL FRATERNAL ORDER OF POLICE,

                Amicus Supporting Appellee.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:10-cv-02534-WMN; 1:12-cv-02757-WMN)


Argued:   October 30, 2013                 Decided:   December 10, 2013


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opinion in
which Judge Motz and Judge Gregory joined.


ARGUED:   Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland, for Appellant.          Howard
Benjamin Hoffman, Rockville, Maryland, for Appellee.   ON BRIEF:
Douglas F. Gansler, Attorney General of Maryland, John B.
Howard, Jr., Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. Steven
H. Goldblatt, Director, Nilam A. Sanghvi, Supervising Attorney,
Rita K. Lomio, Supervising Attorney, Jeffrey P. DeSousa, Student
Counsel, Robyn R. English, Student Counsel, Lindsey Oken,
Student   Counsel,  Appellate  Litigation   Program,  GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C., for Appellee. Larry H.
James, Christina L. Corl, CRABBE, BROWN & JAMES, LLP, Columbus,
Ohio, for Amicus Curiae.




                               2
DAVIS, Circuit Judge:

         This appeal arises from a $1.1 million jury award in favor

of   a    terminated      employee      on   a    claim      of   retaliation        for   the

exercise of his First Amendment rights.

         A veteran deputy sheriff used pepper spray and physical

force      to    subdue    a    motorcyclist          fleeing     from    a     fellow     law

enforcement officer. The deputy duly prepared his report of the

incident and submitted the report to his superiors, who in turn

passed     it    along     to   their    superiors.          Alarmed     that    a   damages

lawsuit against the Office of the Sheriff might result from the

deputy’s actions, officers in the upper echelon of the chain of

command authorized detectives to interrogate him aggressively,

while ordering him to revise his incident report. The deputy

opposed this order as factually and legally unwarranted. After

the deputy broadly publicized to numerous public officials, the

media, and others, what he described as corrupt and unlawful

practices occurring in the Office of the Sheriff, the Sheriff

terminated his employment.

         The    sole    issue   presented        in   this    appeal     is   whether      the

district court erred in failing to grant qualified immunity to

the Sheriff. For the reasons stated within, we hold that the

district        court    did    not   err    and      accordingly,       we     affirm     the

judgment.



                                             3
                                      I.

     To a significant extent, the cardinal facts underlying this

appeal    are   undisputed   but,    as    always   in      an   appeal    from   a

district court’s denial of a motion for judgment, we summarize

the evidence in the light most favorable to the prevailing party

in the district court. Sloas v. CSX Transpo., Inc., 616 F.3d

380, 392 (4th Cir. 2010).

     Appellee    James   “Troy”     Durham,   who     had    worked   in   public

safety and law enforcement for nearly twenty years, was employed

as one of about twenty deputy sheriffs in the Somerset County,

Maryland, Sheriff’s Office (SCSO). On August 21, 2008, while on

routine patrol, Durham used pepper spray and physical force to

detain a suspect in the course of assisting a Maryland state

trooper     arresting    a   man    fleeing    from      the     trooper    on    a

motorcycle. Shortly after the incident, as Durham was preparing

his report, 1 Captain Bill Lewis of the SCSO came into Durham’s

office to confirm that he was preparing a report. Captain Lewis

“slammed his fist down on [Durham’s] desk, and in a very loud,

rude manner, he said, ‘Good, because Mr. Pitts, the suspect, has

been transported to the hospital, claiming that he is injured.’”

J.A. 104.


     1
       Durham’s incident report consisted of a narrative account
of the incident and a separate “use of force” document.



                                      4
     Durham’s   report     included     the   following   statements

explaining his use of force on the suspect:

     Based on DFC[2] Durham’s training, knowledge, and
     experience, in self-defense, DFC Durham delivered two
     forearm blows to the ridge area under the suspect’s
     nose, in an effort to gain control of the suspect and
     to overcome the resistance that the suspect was
     putting up.

                                 ***

     DFC Durham then delivered two knee blows to the left
     side of the suspect’s body in an effort to gain
     control of the suspect and to overcome the resistance
     that the suspect was putting up.

J.A. 453. Durham provided copies of his report to his immediate

supervisors. Despite Durham’s use of the terms “self-defense”

and “resistance” in describing the need for force against the

suspect,   Durham   has   unfailingly   insisted   throughout   these

proceedings that he regarded his role in the encounter as merely

one of assisting the pursuing state trooper in detaining the

fleeing suspect. The suspect did not assault Durham and, from

Durham’s perspective, he had no basis whatsoever to charge the

suspect with a criminal offense. 3




     2
       Durham’s official title with the SCSO was as a Deputy
First Class.
     3
       After the suspect had been subdued, the state trooper
immediately assumed custody of the suspect and transported him
to the nearby barracks.



                                  5
       The next day, August 22, 2008, although Durham’s immediate

supervisors had approved his reports, Captain Lewis asked Durham

to complete another Use of Force report using a different form.

Captain     Lewis     also    asked     Durham        if     he    needed    to   go    to    the

hospital, suggesting obliquely that Durham surely must require

medical attention as a result of the incident the day before.

Durham      stated    that     he    was    not       hurt    or    in    need    of   medical

attention. Durham added a follow-up report to his initial report

explaining this exchange with Captain Lewis.

       Four days later, on August 26, 2008, Durham’s supervisors

explicitly ordered him to charge the suspect with assaulting

Durham and resisting arrest. The supervisors further told Durham

that if he failed to do so, Durham himself would be charged with

assaulting the suspect. Durham then spoke with other supervisory

officers, and based on those consultations, he decided he would

not    place    charges       against      the       suspect.      Durham     also     detailed

these exchanges in a second follow-up report.

       On    August     27,    2008,       Durham      received       a     memorandum       from

Captain Lewis, advising him that Detective Sergeants Renny Miles

and George Nelson, two specially-trained criminal investigators

with     the    SCSO,     would       supervise         Durham       in     correcting       the

“deficiencies” in his report. At this time, Durham contacted his

attorney       through    his       collective        bargaining         organization,       the

Fraternal Order of Police, giving him copies of his original

                                                 6
report and the memorandum. Again, Durham detailed the exchange

with Captain Lewis in a third follow-up report.

       Upon       reporting          for   duty    on    August      29,   2008,     Durham    was

escorted          into    an    interrogation           room   by    Detectives       Miles    and

Nelson, where they aggressively questioned him about his use of

force report. 4 Durham asked to have his attorney present. Miles

refused to permit Durham to contact his attorney, had Durham

read and sign a document containing the Miranda 5 warnings, and

continued to question him with increasing aggressiveness. Durham

then       told    Miles       and    Nelson      that    he   had     already      retained    an

attorney      and        given   his       attorney      a   copy    of    Durham’s     original

police report and the follow-up reports. Miles insisted that

Durham must revise his original police report and delete the

follow-up reports; if Durham did not, he would be charged both

internally          and        criminally         with       assault       on   the     suspect.

Specifically,            Miles       instructed         Durham      to     remove     the   facts




       4
       Durham testified that, in addition to the tenor and tone
of the overall encounter, Miles pulled his chair so close to
Durham’s chair at the initiation of the interrogation that he
was able to place his leg between Durham’s legs and press up
against them. Miles ignored Durham’s protests over this
maneuver.
       5
           Miranda v. Arizona, 384 U.S. 436 (1966).



                                                   7
concerning his use of force against the suspect. 6 Miles also

instructed Durham to delete the follow-up reports as they each

reported    how    superior       officers        had    asked      him   to    change      his

reports.

     Durham did not believe that he should revise any of his

previous     reports;        as      he     later        testified,        it       was     his

understanding       that    when     any    law     enforcement       officer        signs    a

report    “you’re    swearing       under        oath   and   swearing         to   God    that

that’s the truth, that’s the facts of the case.” J.A. 108. As

the interrogation continued, Miles threatened to take Durham’s

gun and badge if he did not change his report.

     Durham       theorized       that     the    reason      the    superior        officers

wanted him to revise his report, and charge the suspect with

assault    and    battery     and    resisting          arrest,     was   to    “cover      the

Sheriff’s     office.”        J.A.        109.     Durham      suspected            that    the

supervisors anticipated the suspect would file a complaint of

excessive force (and perhaps a lawsuit), and “wanted to have

everything lined up in case that event happened[.]” Id. 7


     6
       This included “[t]he inner forearm that [Durham] used as a
compliance move against [the suspect] in order to get him to
comply. And the knee strikes[.]” J.A. 125.
     7
       The record before us contains no indication that such a
complaint (or lawsuit) was ever filed. Nor does the record
reflect what if any charges were placed against the suspect by
the arresting state trooper.



                                             8
      Durham persisted in his refusal to revise the report, and

eventually Miles demanded Durham’s gun, ID, and badge, which he

deposited    in    an    evidence    bag.       After   this,   Durham    decided    to

revise the reports because he did not want to “lose everything.”

J.A. 112. Using a computer terminal in the interrogation room,

Durham made the revisions and deletions Miles demanded that he

make. After first refusing to return Durham’s service weapon,

ID, and badge, Miles eventually returned the items to Durham. As

Durham left the interrogation room (after more than two hours)

Miles “patted [Durham] on the back, and . . . said [Durham] was

a good boy, a good guy, and that none of this happened.” J.A.

114. SCSO supervisors gave Durham the afternoon off with pay and

he   went   home,    emotionally      and       psychologically    shaken      by   the

experience. 8

      Within      days    after     his   interrogation,         Durham    filed     an

internal    grievance      with     his   superiors,      requesting      an   outside

investigation into the matter. On the same day that Durham filed

his grievance, Appellant, Sheriff Robert N. Jones, demoted him

from DFC to Deputy. On September 10, 2008, Durham was suspended

with pay pending further investigation. The parties spar over


      8
        Durham testified that he was so disturbed by the
experience in the interrogation room that he could not pin his
badge back on his uniform shirt when Miles returned it; Miles
had to do it for him.



                                            9
the precise circumstances and sequence of events surrounding the

means       Durham      originally        chose       to       pursue    his        grievance.

Apparently, Durham first invoked Somerset County human relations

remedies,       but     soon     County       officials         seemingly       deferred       to

proceedings within the purview of the Sheriff’s Office.

       In     any    event,    after    receiving          a   letter    from      the    County

Administrator          informing        him    that        the    grievance         would      be

investigated by the very officials in the SCSO against whom the

grievance had been made in the first place, Durham decided to

take proactive measures of a highly public nature. Specifically,

he prepared a cover letter to a set of documents, which included

a memorandum summarizing the events arising from his August 21,

2008    encounter       with    the     suspect,      addressed         to   his     immediate

supervisor; his original police report; the deleted follow-up

reports;       the    “false”      police      report          Durham    created         on   the

computer       during    his     interrogation         by      Miles    and     Nelson;       the

signed Miranda form; a copy of the grievance Durham filed; and

his suspension paperwork. Durham sent this packet of materials

to: (1) the Somerset County State’s Attorney; (2) the Governor

of Maryland; (3) the Police Academy where he had been trained;

(4)     the    Maryland        Police     Training         Commission;        and    (5)      the

Maryland State Police. In addition, he sent the packet to a

number of media outlets, such as the local newspaper, The Daily



                                              10
Times of Salisbury, Maryland, and two local television stations,

WBOC TV 16 and Fox 21 News.

        In the correspondence to which the internal SCSO documents

were attached, Durham stated that he believed Sheriff Jones and

others had “broke public trust and abused their power.” J.A.

141. Durham testified that he sent these materials to the news

media “to expose and to alert the public . . . on what had taken

place    involving     falsifying      reports,        deleting        reports,    placing

false charges on an innocent person, violating county policy,

violating    my    rights,     me    being    assaulted.”          J.A.     143.    Durham

explained that he sent these materials to the Maryland State

Police because they are an “independent, unbiased, outside law

enforcement agency. And as a citizen, I was making a complaint.

I was the victim in a complaint and of a crime.” J.A. 144.

        Durham    continued     to     send       these     materials        to    various

political    officials,       including       a    Senator        in    Virginia,       until

Jones issued a “gag order” against him on September 28, 2008.

Durham testified, and Jones agreed, that in the internal SCSO

documents, Durham did not reveal any confidential interrogation

methods,     special     police      tactics,          or   the        identity    of    any

confidential        informants.         During          the        ensuing        internal

investigation, Durham told investigators that he had sent out

these    materials     “to    expose    and       to   alert      the    public     of   the

corruption that had taken place.” J.A. 157.

                                         11
     In May 2009, Durham was departmentally charged pursuant to

the Law Enforcement Officers’ Bill of Rights (“the LEOBR”), Md.

Code, Pub. Safety § 3–101, et seq. (West 2013), with assorted

misconduct, including dissemination of departmental information

and unbecoming conduct. 9 In July 2009, the LEOBR Trial Board,

consisting      of      three    law     enforcement        commanders       from     other

counties,       conducted       a    two-day        evidentiary      hearing     on    the

charges. The Trial Board acquitted Durham of all the charges

except    the     two    relating      to    the     dissemination     of    information

outside     the       agency    without        authorization.        The    Trial     Board

recommended       a     punishment      of    five     days’   suspension      for    each

charge,     totaling           ten     days’        suspension.      Jones     initially

recommended a penalty of thirty days’ suspension for each of the

charges, totaling sixty days’ suspension.

     After the Trial Board issued its decision, Jones sent a

letter to Durham, informing him that, pursuant to the LEOBR, he

(Jones) was considering a possible increase in the sanction. He

invited Durham to appear for a penalty hearing on September 16,

2009. The       day     after    Durham      and    his   attorney    appeared      before


     9
       Other charges included failure to obey a lawful order,
failure to show respect for a fellow employee, failure to be
courteous to the public, failure to carry out responsibilities
in a competent manner, failure to take appropriate action,
submission of a false report, use of excessive force, and
failure to conform to law.



                                               12
Jones for the penalty consideration, Durham received notice of

his termination.

                                              II.

       Durham       sued    Jones     in   his      individual    capacity          under     42

U.S.C. § 1983, alleging that he was terminated in retaliation

for     exercising          his     free     speech     rights        under      the     First

Amendment. 10 Jones moved to dismiss Durham’s case under Federal

Rule    of     Civil       Procedure       12(b)(6)     on    grounds       of    qualified

immunity. The district court denied the motion and the case went

to trial.

       Durham and Jones both testified at length. Durham testified

to the incidents leading up to his termination, including his

interactions         with     Jones    and     Miles.    Jones    explained          that     he

terminated         Durham’s       employment     because     Durham     had      “undermined

the Sheriff’s office . . . . [Durham’s public disclosures were]

full of all kinds of comments about people in my office, me, and

everybody else. We were a joke. It was an embarrassment. We

spent       time    tracking       down    witnesses     .    .   .    it     was      just   a

nuisance[.]” J.A. 304-05. Jones also testified that if Durham

had not disseminated the information he did, he “probably” would

not have been terminated. J.A. 314. Jones testified that he felt


       10
        Additional claims Durham asserted against Jones                                     and
against other defendants are not before us in this appeal.



                                               13
that Durham had “stabbed [him] in the back,” and that Durham’s

allegations amounted to calling him a “crook.” J.A. 348.

     After Durham presented his case, Jones moved for judgment

as a matter of law under Federal Rule of Civil Procedure 50(a),

again   on    grounds    of   qualified      immunity.    The   district   court

denied the motion. Jones did not present an affirmative case,

and the matter was submitted to the jury. The jury found in

favor of Durham, awarding him $1,112,200 in combined economic

and non-economic damages.

     Jones timely renewed his motion for judgment pursuant to

Federal Rule of Civil Procedure 50(b), once again presenting

arguments on qualified immunity. The district court denied the

motion. This appeal followed. We have jurisdiction pursuant to

28 U.S.C. § 1291.

                                       III.

     We review a district court’s denial of a Rule 50(b) motion

de novo. Sloas, 616 F.3d at 380. As to qualified immunity, as

with any claim or defense, we view the evidence adduced at trial

“in the light most favorable to the prevailing party,” id., and,

in circumstances such as those here, we reverse only if “the

evidence favoring the [plaintiff] is [not] legally sufficient to

overcome the defense.” Ortiz v. Jordan, 131 S. Ct. 884, 889

(2011).      In   our   de   novo   review    of   the   denial   of   qualified



                                        14
immunity       on   the   record   here,   we   are   mindful      of   the   Supreme

Court’s recent admonishment:

        Once the case proceeds to trial, the full record
        developed in court supersedes the record existing at
        the time of the summary judgment motion. A qualified
        immunity defense, of course, does not vanish when a
        district court declines to rule on the plea summarily.
        The plea remains available to the defending officials
        at trial; but at that stage, the defense must be
        evaluated in light of the character and quality of the
        evidence received in court.

Id.

                                             IV.

      Jones contends that he is 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) (citing

Saucier v. Katz, 533 U.S. 194, 206 (2001)). “The burden of proof

and persuasion with respect to a defense of qualified immunity

rests     on    the    official    asserting       that   defense.”      Meyers   v.

Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013). “To

prevail under qualified immunity, [Jones] has to show either

that there was no constitutional violation or that the right

violated was not clearly established.” Gregg v. Ham, 678 F.3d

333, 341 n.7 (4th Cir. 2012) (citing Henry, 652 F.3d at 531).

Jones argues first that there was no violation of Durham’s First

Amendment rights, and second, even if there was a violation, the

                                           15
right was not clearly established. We consider each issue in

turn.

                                       A.

     Jones   contends     that   it    was   not    a   violation      of    Durham’s

First Amendment rights to terminate him for his publication of

documents from Durham’s internal grievance proceedings. If he is

correct, then he is entitled to qualified immunity. Chavez v.

Martinez,    538   U.S.   760,   766    (2003)     (plurality    opinion)        (“In

deciding whether an officer is entitled to qualified immunity,

we must first determine whether the officer’s alleged conduct

violated a constitutional right . . . . If not, the officer is

entitled to qualified immunity.”) (internal citations omitted).

     We   evaluate    the   exercise     of    First       Amendment    rights     by

public    employees   differently       from       their    exercise        by   other

citizens; we must balance the interests of an employee who, as a

citizen, comments upon matters of public concern, on the one

hand, and the interests of a governmental employer, which must

maintain an effective workplace, on the other. Connick v. Myers,

461 U.S. 138, 142 (1983) (citing Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968)). To determine if a public employee has a

cognizable First Amendment claim for retaliatory discharge, we

apply a three-part test:

     First, we consider 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.

                                       16
     Second, even if the employee spoke upon a matter of
     public   concern,  we   must   determine  whether   the
     employee's interest in speaking upon the matter of
     public concern outweighed the government’s interest in
     managing the working environment. And finally, if the
     employee’s   claim  satisfies   both  of  these   legal
     criteria, the court turns to the factual question of
     whether the employee’s speech was a substantial factor
     in the employee’s termination decision.

Brooks v. Arthur, 685 F.3d 367, 371 (4th Cir. 2012) (internal

citations and quotation marks omitted).

     Jones    does    not     dispute     that       Durham’s    speech      was    a

substantial   factor     in    his      decision      to    terminate       Durham’s

employment. Thus, we are concerned solely with the first two

prongs of Durham’s retaliation claim.

     Matter of Public Concern

     Jones first argues that Durham’s speech was not on a matter

of public concern, as he was simply publicizing his internal

grievances.    The    trial     record        does    not    bear     out     Jones’

contention.

     The   Supreme    Court   has    instructed       courts    to   look    to    the

“content, form, and context of a given statement” to determine

whether it addresses a matter of public concern. Connick, 461

U.S. at 147-48. “Speech involves a matter of public concern when

it involves an issue of social, political, or other interest to

a community.” Kirby v. City of Elizabeth City, 388 F.3d 440, 446

(4th Cir. 2004). This does not include “personal complaints and

grievances    about     conditions       of      employment.”        Campbell      v.

                                        17
Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (citing Stroman v.

Colleton Cnty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992)).

While Jones is correct that personal grievances are not matters

of   public   concern,     he     mischaracterizes       Durham’s     actions     and

misapprehends     the   focus     of    Durham’s    communications      to    public

officials and the media.

      As   the   district       court    correctly      ruled,     Durham    is   not

claiming First Amendment protection for the materials he filed

in the internal grievance proceedings (including the attachments

to his letters), or for his filing of an internal grievance.

Rather, Durham is claiming First Amendment protection for his

publicizing      of     those     materials        in    connection     with      his

overarching allegations of serious and pervasive law enforcement

misconduct in the SCSO. To be sure, it cannot be denied on this

record that the misconduct alleged came to light mainly because,

or perhaps only because, Durham himself became a victim of the

misconduct. Nevertheless, that circumstance does not undermine

the conclusion that his allegations rose to the level of speech

on a matter of public concern. We have no hesitation in holding

that the trial evidence amply supported the district court’s

determination     that      the     content    of       Durham’s     communication

strongly militated in favor of finding it was on a matter of

public concern.



                                         18
      Unlike in Connick, Durham did in fact “seek to inform the

public,” 461 U.S. at 148, of how his superiors were instructing

him   to   revise    his       reports   in    a    way    that    he,   as   the   only

percipient witness to the events, knew and believed to be false.

Durham     sought        “to    bring    to        light    actual       or   potential

wrongdoing,” id., on the part of his superiors, calling for an

external investigation and media coverage. In his explanatory

letter included with the other materials, Durham outlined the

circumstances       of    his   superiors      asking      him    to   falsify   police

reports and submit unwarranted charges against the suspect in

the August 21, 2008 incident, on the unmistakable pretextual

basis that doing so would pretermit a citizen complaint or a

damages lawsuit. As we held in Maciariello v. Sumner, 973 F.2d

295, 300 (4th Cir. 1992), “an allegation of evidence tampering

by a high-ranking police officer is a matter in which the public

should be interested.” Durham was disturbed by the misconduct he

saw in the SCSO, and which he experienced first-hand, and he

felt that it needed public attention in order to be remedied. 11


      11
       At oral argument before us, Jones argued strenuously that
Durham was simply mistaken in his belief that he lacked probable
cause to place charges against the suspect, and that his
supervisors were entitled to take corrective action. We need not
and do not venture into that thicket. If the supervisory
officials in the SCSO genuinely believed that, despite his many
years of law enforcement experience, Durham required additional
or remedial training, then clearly that avenue was open to them.
What was not shielded from public scrutiny, however, were
(Continued)

                                          19
      In addition to the content of his statements, the form and

context   of   their    dissemination        confirm   that    they    were      on   a

matter    of   public   concern.   Durham       did    not    keep    the   written

materials internal, but instead sent them to a broad audience:

state and law enforcement offices including the Somerset County

State’s Attorney, the Governor of Maryland, the Police Academy,

the   Maryland   Police      Training    Commission,     the     Maryland        State

Police, as well as a number of media outlets, such as The Daily

Times of Salisbury, Maryland, WBOC TV 16, and Fox 21 News. As an

insider   in   the   SCSO,    Durham    was   uniquely       positioned     to    have

knowledge of its practices. Moreover, Jones testified that if

the SCSO engaged in a cover-up, the public would be “concerned”

and “upset,” J.A. 290, and noted that he had given at least one

interview to the news media about Durham’s termination. The fact

that the issue was one which interested the media indicates that

it was of public interest, as we noted in Robinson v. Balog, 160

F.3d 183 (4th Cir. 1998). There, we found that statements made

at a public meeting were protected speech, and a factor in our

consideration was that the meeting led to local press coverage.

Id. at 188-89.




aggressive and corrupt attempts to ward off lawsuits through the
falsification of law enforcement records.



                                        20
     In sum, the district court correctly concluded, as a matter

of   law,       see   Connick,   461   U.S.   at   148   n.7,   that   Durham’s

communications were on a matter of public concern, given their

content, form, and context.

     Balancing Speech Rights Against Effective Work Environment

     Jones argues that even if Durham was addressing a matter of

public concern, the SCSO’s interest in maintaining an efficient

and effective law enforcement agency outweighed Durham’s rights

under     the    First   Amendment. 12   Again,    however,     we   discern   no

substantial evidence in the trial record supporting this claim.


     12
        Durham argues, unpersuasively, that Jones is generally
estopped from arguing the reasonableness of his decision to
terminate Durham, as the Maryland Court of Special Appeals has
ruled   that  the   termination  decision  was   “arbitrary  and
capricious.” Durham v. Jones, No. 1382, at *16 (Md. Ct. Sp. App.
Aug. 1, 2012) (unreported). This argument badly misses the mark.
Durham sought judicial review of Sheriff Jones’ administrative
decision in the Circuit Court for Somerset County pursuant to
the provisions of the LEOBR. Although the lower court sustained
the Sheriff’s decision to terminate Durham, finding that he had
not deviated from the discretion granted to him by statute, the
Court of Special Appeals reversed, holding that the Sheriff’s
decision to increase Durham’s penalty from a ten-day suspension
to termination was “so extreme and egregious that it constituted
an arbitrary and capricious action.” Id. at *16. The court’s
decision did not, however, examine whether the Sheriff had
violated Durham’s First Amendment rights; in fact, the court
expressly declined to review the termination on those grounds,
finding that Durham had failed to properly preserve the issue in
the trial court. Id.

     Durham argues that this decision collaterally estops Jones
from “relitigating” whether the decision to terminate Durham was
reasonable. Durham mistakes the issue in this appeal. The
question before this panel is not whether Jones had sufficient
(Continued)

                                         21
      “The   efficient   functioning      of   government   offices   is   a

paramount public interest.” Balog, 160 F.3d at 189. Police are

the most restrictive in this regard as they are “paramilitary –

discipline   is   demanded,   and    freedom    must   be   correspondingly

denied.” Maciariello, 973 F.2d at 300 (internal quotation marks

and   citations   omitted).   We    consider   a   number   of   factors   in

determining “the extent to which [the protected speech] disrupts

the operation and mission of the agency.” McVey v. Stacy, 157

F.3d 271, 278 (4th Cir. 1998).

      Factors relevant to this inquiry include whether a
      public employee’s speech (1) impaired the maintenance
      of discipline by supervisors; (2) impaired harmony
      among   coworkers;    (3)   damaged    close   personal
      relationships; (4) impeded the performance of the
      public employee's duties; (5) interfered with the
      operation of the institution; (6) undermined the
      mission of the institution; (7) was communicated to
      the public or to coworkers in private; (8) conflicted
      with the responsibilities of the employee within the
      institution; and (9) abused the authority and public
      accountability that the employee’s role entailed.




evidence to justify his termination of Durham in the exercise of
his discretion under the LEOBR, as the Court of Special Appeals
considered. Rather, the question before this panel is whether,
even assuming some sanction could be imposed upon Durham for his
dissemination   of  internal   SCSO  documents,  Jones  violated
Durham’s First Amendment rights by retaliating against him for
speaking on a matter of public concern, under circumstances in
which Durham’s interest outweighed the Sheriff’s interest in an
efficient and orderly law enforcement agency. There has been no
“relitigation” of that issue, which the Court of Special Appeals
specifically declined to review.



                                     22
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317

(4th Cir. 2006) (citing McVey, 157 F.3d at 278).

       Tellingly,      Jones    presented        no   evidence       at    trial    of    any

actual     disruption      in        the    SCSO       resulting          from     Durham’s

communications, other than vague references to Durham’s actions

“undermining the public trust.” J.A. 316. While Jones is correct

that     “concrete     evidence”       of     an      actual     disruption        is     not

required, there must still be a reasonable apprehension of such

a disruption. Maciariello, 973 F.2d at 300. At trial, Jones paid

lip service to ostensible damage to office morale, relationships

between colleagues, and the function of the office generally,

but he was unable to articulate any way in which the office

would    have   been    different      or     was     actually       different      due    to

Durham’s    statements.        Had    Jones      imposed       the   relatively         brief

(ten-day) suspension recommended by the LEOBR Trial Board, there

is evidence in the record that deputies and supervisors in the

SCSO were still amenable to working with Durham, including Jones

himself, who had actually rehired Durham when he had earlier

left the SCSO for what he thought might be a better opportunity,

only to return to the SCSO.

       It is useful to compare this situation with the one in

Stroman, 981 F.2d at 152. In Stroman, a teacher wrote letters to

his colleagues regarding wage grievances and proposed a “sick-

out” during exam week to send a message to administrators. Id.

                                            23
at 158-59. The potential for disruption in such a situation is

obvious:     the     school        could    not       be   functional       without     its

teachers,     who       are   essential      in       providing     its     services.   In

contrast,     when       Jones      was     asked       whether     Durham’s       actions

“hamper[ed] the ability of the Somerset County Sheriff’s Office

to protect the public,” Jones responded he “[didn’t] know, but

[he] wouldn’t think so.” J.A. 318.

     This is not to say that there was no impact felt in the

SCSO whatsoever. Jones testified that officers had to spend time

on the investigation, and there was office conversation about

Durham and the entire incident. But it is not enough that there

is some disruption; the amount of disruption has to outweigh the

importance of the speech and its concern to the public. See

Connick,    461     U.S.      at   152;    see    also     McVey,     157   F.3d   at   279

(Murnaghan,       J.,    concurring)        (“A       stronger    showing     of   public

interest in the speech requires a concomitantly stronger showing

of government-employer interest to overcome it.”).

     Whatever artful affidavits might have suggested at summary

judgment, we examine here the trial record, not a hypothetical

rumination    on    what      could   have       or    might   have    transpired.      See

Ortiz, 131 S. Ct. at 889. Serious, to say nothing of corrupt,

law enforcement misconduct is a substantial concern that must be

met with a similarly substantial disruption in the calibration

of the controlling balancing test. Given Jones’ inability to

                                            24
show at trial how Durham’s actions had an adverse impact on the

proper    functioning    of    the       SCSO   in    some    serious          manner,    the

balance between Durham’s rights as a private citizen under the

First Amendment and Jones’ interest in ensuring an efficient and

effective work environment tilts heavily in favor of Durham and

his entitlement to enjoy protected speech. Accordingly, we find

that the district court was right to conclude, on the present

record, that Durham’s interests outweighed those on the other

side;    Durham   proved,     as    the    jury      found,      that     he    suffered    a

constitutional injury.

                                           B.

      Having found that Jones violated Durham’s First Amendment

rights, we must now look to whether, at the time of Durham’s

termination,      Durham’s    rights       were      “clearly      established”          such

that a “reasonable person would have known” the termination of

his   employment     would     be    violative        of     the    First       Amendment.

Ridpath, 447 F.3d at 313. “[A] constitutional right is clearly

established when ‘its contours [are] sufficiently clear that a

reasonable    official      would    understand           that     what    he    is   doing

violates that right.’” Id. (quoting Hope v. Pelzer, 536 U.S.

730, 739 (2002)).

      Jones   argues    that       the    right      in    question       here    was     not

clearly established because there was not a bright line rule to

address Durham’s situation, and there is “scant guidance on the

                                           25
boundaries         of       public    employee         speech        rights”      in    the    Fourth

Circuit. App. Br. 32. Jones is incorrect. We have been clear

that    where          public    employees         are     speaking         out   on     government

misconduct, their speech warrants protection. Balog, 160 F.3d at

189.    Of    course,         not     every       situation          involving      a    government

employee speaking about some workplace dispute qualifies – as we

pointed out in Balog. Id. at 189-90. But just as in Balog, the

situation here is “no ordinary workplace dispute.” Id. at 190.

Nor    is    this       a    situation       in    which       Durham’s      accusations           were

buried       in    a    “rambling”         letter       full     of    other      incidents        and

accusations. See Campbell, 483 F.3d at 271 (granting qualified

immunity          as    no    reasonable          person    would       have      known       that    a

“rambling thirteen-page memo . . . which focused overwhelmingly

on personal grievances and vague gripes about fellow officers

not    being       very      nice     to   her,     touched       on    a    matter      of    public

concern[.]”).

       The    incidents          at    issue      here     rise      far    above       an   ordinary

workplace          dispute.         Durham     accused          several      high-ranking            law

enforcement            officials,      in     positions         of     authority        within       the

SCSO, of falsifying law enforcement reports and with authorizing

aggressive threats against a member of their own agency if he

persisted         in    his     opposition        to     such    a    practice.         As    we   have

indicated         above,        Durham’s      honest       belief,         even    if    it    was     a

mistaken belief, that his use of force was both justified to

                                                   26
assist in the apprehension of the suspect, but (at the same

time) did not arise out of any contemporaneous criminal act by

the suspect, might call for retraining or some other response

from   his    supervisors.         That    is    their     call.      But    the     use    of

coercion and threats against him as shown in this record and

accepted      as    accurate       by     the    jury      goes    far      beyond        such

permissible bounds. Durham was being coerced to lie under oath

insofar as they demanded that he revise his reports in a way

contrary to his honestly-held beliefs; he testified that, as

when any law enforcement officer signs a police report, “you’re

swearing under oath and swearing to God that that’s the truth,

that’s the facts of the case.” J.A. 108. This is especially

important to the function of law enforcement, as such reports

“become a piece of evidence that could later on be used in court

to prosecute somebody, to possible even send them to jail, so it

has to be truthful and accurate of the facts.” Id.

       In short, 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, see Andrew v.

Clark, 561 F.3d 261, 269 (4th Cir. 2009), is protected. The mere

fact that Jones may have had an independent basis to impose some

lesser     disciplinary        sanction         on    Durham      short     of     outright

termination,       such   as   a   short    suspension         from    duty,       does    not

                                            27
muddle the clarity of that legal principle. Jones’ arguments to

the contrary are unavailing.

                               V.

     For the reasons set forth, the judgment of the district

court is

                                                      AFFIRMED.




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