                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1671


BOBBY BLAND; DANIEL RAY CARTER, JR.; DAVID W. DIXON; ROBERT
W. MCCOY; JOHN C. SANDHOFER; DEBRA H. WOODWARD,

                Plaintiffs - Appellants,

           v.

B. J. ROBERTS, individually and in his official capacity as
Sheriff of the City of Hampton, Virginia,

                Defendant - Appellee.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−--

AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES
UNION OF VIRGINIA FOUNDATION; FACEBOOK, INC.; NATIONAL
ASSOCIATION OF POLICE ORGANIZATIONS,

                Amici Supporting Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Raymond A. Jackson,
District Judge. (4:11-cv-00045-RAJ-TEM)


Argued:   May 16, 2013              Decided:   September 18, 2013


Before TRAXLER, Chief Judge, THACKER, Circuit Judge, and Ellen
Lipton HOLLANDER, United States District Judge for the District
of Maryland, sitting by designation.


Affirmed in part, reversed in part, and remanded by published
opinion. Chief Judge Traxler wrote the opinion, in which Judge
Thacker joined.     Judge Hollander wrote    a   separate   opinion
concurring in part and dissenting in part.


ARGUED: James Harrell Shoemaker, Jr., PATTEN, WORNOM, HATTEN &
DIAMONSTEIN, LC, Newport News, Virginia, for Appellants.   Aaron
M. Panner, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL,
P.L.L.C., Washington, D.C., for Amicus Facebook, Inc.    Jeff W.
Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for
Appellee. ON BRIEF: Lisa Ehrich, PENDER & COWARD, PC, Virginia
Beach, Virginia, for Appellee.    Andrew E. Goldsmith, KELLOGG,
HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C.,
for Amicus Facebook, Inc.     Aden J. Fine, Kathryn A. Wood,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York;
Rebecca K. Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA
FOUNDATION, INC., Richmond, Virginia, for Amici American Civil
Liberties Union and ACLU of Virginia.    J. Michael McGuinness,
THE MCGUINNESS LAW FIRM, Elizabethtown, North Carolina; William
J. Johnson, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS,
Alexandria, Virginia, for Amicus National Association of Police
Organizations.




                               2
TRAXLER, Chief Judge:

      Six    plaintiffs      appeal       a     district         court      order    granting

summary     judgment      against     them         in    their     action     against      B.J.

Roberts in his individual capacity and in his official capacity

as the Sheriff of the City of Hampton, Virginia.                                    The suit

alleges     that      Roberts      retaliated           against       the   plaintiffs       in

violation of their First Amendment rights by choosing not to

reappoint      them      because     of     their        support       of   his     electoral

opponent.      We affirm in part, reverse in part, and remand for

trial.

                                              I.

      Viewing      the    facts      in   the      light       most    favorable      to   the

plaintiffs, as we must in reviewing an order granting summary

judgment against them, the record reveals the following.                                Bobby

Bland, Daniel Ray Carter, Jr., David W. Dixon, Robert W. McCoy,

John C. Sandhofer, and Debra H. Woodward (“the Plaintiffs”) are

all   former    employees       of    the     Hampton          Sheriff’s      Office    (“the

Sheriff’s Office”).

      Roberts was up for re-election in November 2009, having

served as sheriff for the prior 17 years.                             Jim Adams announced

in early 2009 that he would run against Sheriff Roberts.                                Adams

had worked in the Sheriff’s Office for 16 years and had become

the   third     most     senior      officer,           with   a   rank      of   lieutenant

colonel, when he resigned in January 2009 to run.

                                              3
     The      Hampton        City         Police        Department           has    primary

responsibility for law enforcement in Hampton.                               However, the

Sheriff’s    Office      maintains        all    city     correctional         facilities,

secures     the    city’s    courts,        and        serves     civil      and   criminal

warrants.         In    December    2009,        the    Sheriff’s       Office     had   190

appointees, including 128 full-time sworn deputy sheriffs, 31

full-time civilians, 3 unassigned active duty military, and 28

part-time employees.          Carter, McCoy, Dixon, and Sandhofer were

sworn, uniformed sheriff’s deputies who worked as jailers in the

Sheriff’s Office Corrections Division. 1                      They had not taken the

Virginia    Department       of    Criminal       Justice       Services’      “Basic    Law

Enforcement”       course,        completion       of     which        was    required   in

Virginia    for    an    officer     to    patrol       and     have   immediate     arrest

powers. 2    However, they did take the “Basic Jailer and Court

Services” course, which has about half as long a curriculum as

the Basic Law Enforcement course.                      Although they did not have

general powers of immediate arrest, the deputies did have the




     1
       Sandhofer worked as a jailer for most of his short time in
the Sheriff’s Office, although he worked as a civil process
server in the Sheriff’s Office Civil Process Division for the
final three months of his tenure.
     2
       The Virginia Department of Criminal Justice Services,
Division   of  Law   Enforcement, has  the  responsibility  of
overseeing and managing training standards and regulations for
the criminal justice community.


                                             4
authority     to     make     “incidental           arrest[s]          in    [the]        range    of

[their] work.”        J.A. 297.

      Bland and Woodward were not deputies, but rather worked in

non-sworn     administrative          positions.            Woodward          was     a    training

coordinator        and     Bland    was     a       finance          and    accounts        payable

officer.

      Notwithstanding laws and regulations prohibiting the use of

state equipment or resources for political activities, see Hatch

Act, 5 U.S.C. § 1501, et. seq.; 22 Va. Admin. Code § 40-675-210

(2012), Sheriff Roberts used his office and the resources that

he controlled, including his employees’ manpower, to further his

own   re-election         efforts.          His     senior       staff        often       recruited

Sheriff’s     Office       employees      to      assist        in    these     efforts.           For

example,     he      used     his     employees            to        work     at    his         annual

barbeque/golf            tournament       political              fundraiser,              and      his

subordinates pressured employees to sell and buy tickets to his

fundraising events.

      The    Sheriff         won    reelection             in        November       2009.           He

subsequently        reappointed       147      of    his    159       full-time       employees.

Those not reappointed included the six Plaintiffs as well as

five other deputies and one other civilian.

      On    March    4,     2011,   the     Plaintiffs           filed       suit     in    federal

district court against Sheriff Roberts in his individual and

official capacities under 42 U.S.C. § 1983.                                All six Plaintiffs

                                                5
alleged that the Sheriff violated their First Amendment right to

free    association    when   he    refused    to    reappoint    them   based   on

their lack of political allegiance to him in the 2009 election.

Additionally, Carter, McCoy, Dixon, and Woodward alleged that

the Sheriff violated their First Amendment right to free speech

when he refused to reappoint them because of various instances

of speech they made in support of Adams’s campaign.                      Among the

remedies Plaintiffs requested were compensation for lost back

pay    and   compensation     for    lost    front    pay   or,   alternatively,

reinstatement.        The Sheriff answered Plaintiffs’ complaint and

asserted several affirmative defenses.

       Roberts subsequently moved for summary judgment, and the

district court granted it.            See Bland v. Roberts, 857 F. Supp.

2d 599 (E.D. Va. 2012).             Regarding the free-speech claims, the

district court concluded that Carter, McCoy, and Woodward had

all failed to allege that they engaged in expressive speech and

that Dixon had not shown that his alleged speech was on a matter

of     public   concern.       See     id.    at     603-06.      Regarding      the

association claims, the court concluded that Plaintiffs failed

to establish any causal relationship between their support of

Adams’s campaign and their non-reappointment.                    See id. at 606-

07.     Finally, assuming arguendo that the Sheriff did violate

Plaintiffs’ First Amendment rights, the district court concluded

he was entitled to qualified immunity on the individual-capacity

                                         6
claims and Eleventh Amendment immunity on the official-capacity

claims.      See id. at 608-10.

                                             II.

      On appeal, the Plaintiffs maintain that the district court

erred in granting summary judgment against them.

      This     court     reviews       de    novo       a    district      court’s     order

granting summary judgment, applying the same standards as the

district      court.          See    Providence      Square        Assocs.,       L.L.C.   v.

G.D.F.,    Inc.,    211       F.3d    846,    850    (4th      Cir.      2000).      Summary

judgment is appropriate “if the movant shows that there is no

genuine    dispute       as    to    any    material        fact     and   the    movant   is

entitled to judgment as a matter of law.”                                Fed. R. Civ. P.

56(a).

      The Plaintiffs allege that they were retaliated against for

exercising       their    First      Amendment       rights        to    free    speech    and

association.        The First Amendment, in relevant part, provides

that “Congress shall make no law . . . abridging the freedom of

speech.”      U.S. Const. amend. I.                The Fourteenth Amendment makes

this prohibition applicable to the states.                           See Fisher v. King,

232 F.3d 391, 396 (4th Cir. 2000).                          Not only does the First

Amendment protect freedom of speech, it also protects “the right

to   be   free    from        retaliation     by    a       public      official    for    the

exercise of that right.”                   Suarez Corp. Indus. v. McGraw, 202

F.3d 676, 685 (4th Cir. 2000).                Although government employees do

                                              7
not    forfeit    their    constitutional      rights   at    work,   it    is   well

established “that the government may impose certain restraints

on its employees’ speech and take action against them that would

be unconstitutional if applied to the general public.”                      Adams v.

Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th

Cir. 2011) (internal quotation marks omitted).

       The Supreme Court in Connick v. Myers, 461 U.S. 138 (1983),

and Pickering v. Board of Education, 391 U.S. 563 (1968), has

explained how the rights of public employees to speak as private

citizens must be balanced against the interest of the government

in     ensuring   its     efficient      operation.      In    light       of    these

competing interests, we have held that in order for a public

employee to prove that an adverse employment action violated his

First Amendment rights to freedom of speech, he must establish

(1) that he “was speaking as a citizen upon a matter of public

concern or as an employee about a matter of personal interest”;

(2) that “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) that

“the     employee’s       speech   was     a   substantial      factor      in    the

employee’s termination decision.”              McVey v. Stacy, 157 F.3d 271,




                                          8
277-78 (4th Cir. 1998). 3   In conducting the balancing test in the

second prong, we must consider the context in which the speech

was made, including the employee’s role and the extent to which

the speech impairs the efficiency of the workplace.     See Rankin

v. McPherson, 483 U.S. 378, 388-91 (1987).

     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 [agency]; (6) undermined the mission
     of the [agency]; (7) was communicated to the public or
     to coworkers in private; (8) conflicted with the
     responsibilities of the employee within the [agency];
     and (9) abused the authority and public accountability
     that the employee’s role entailed.

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

(4th Cir. 2006).     Accordingly, “a public employee who has a

confidential, policymaking, or public contact role and speaks

out in a manner that interferes with or undermines the operation

of the agency, its mission, or its public confidence, enjoys

substantially less First Amendment protection than does a lower

level employee.”   McVey, 157 F.3d at 278.




     3
       The Sheriff appropriately does not contend that the fact
that the Plaintiffs were simply not reappointed – as opposed to
being otherwise discharged – affects the constitutionality of
his actions.   The critical fact for our purposes is that the
termination of the Plaintiffs’ employment with the Sheriff’s
Office was not the Plaintiffs’ decision. See Branti v. Finkel,
445 U.S. 507, 512 n.6 (1980).


                                  9
       “This        principle       tends     to     merge       with        the     established

jurisprudence            governing      the     discharge            of     public     employees

because of their political beliefs and affiliation.”                                  Id.     Such

claims      must     be    analyzed     under       the    principles         established        by

Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445

U.S. 507 (1980).                See Fields v. Prater, 566 F.3d 381, 385-86

(4th       Cir.    2009).         These     cases        make   clear        that     the     First

Amendment generally bars the firing of public employees “solely

for the reason that they were not affiliated with a particular

political party or candidate,” Knight v. Vernon, 214 F.3d 544,

548 (4th Cir. 2000) (internal quotation marks omitted), as such

firings       can       impose     restraints       “on     freedoms          of     belief    and

association,” Elrod, 427 U.S. at 355 (plurality opinion); see

Smith v. Frye, 488 F.3d 263, 268 (4th Cir. 2007). 4                                   Still, the

Supreme      Court        in    Elrod   created      a    narrow          exception    “to    give

effect       to     the        democratic     process”          by        allowing     patronage

dismissals         of     those    public      employees        occupying          policymaking

positions.          Jenkins v. Medford, 119 F.3d 1156, 1161 (4th Cir.

1997)       (en     banc).          This      exception         served        “the     important

government goal of assuring ‘the implementation of policies of


       4
       “The ‘right of free association [is] a right closely
allied to freedom of speech and a right which, like free speech,
lies at the foundation of a free society.’” Cromer v. Brown, 88
F.3d 1315, 1331 (4th Cir. 1996) (quoting Shelton v. Tucker, 364
U.S. 479, 486 (1960)).


                                               10
[a] new administration, policies presumably sanctioned by the

electorate.’”            Id. (quoting Elrod, 427 U.S. at 367).                                In Branti,

the    Supreme        Court         modified       the     Elrod              test       somewhat          to

“recognize[] that the labels used in Elrod ignored the practical

realities of job duty and structure.”                              Id.        Under the test as

modified,         “the     ultimate        inquiry       is        not     whether            the    label

‘policymaker’         or       ‘confidential’         fits         a     particular            position;

rather,       the     question       is     whether       the          hiring        authority            can

demonstrate that party affiliation [or political allegiance] is

an appropriate requirement for the effective performance of the

public office involved.”                   Branti, 445 U.S. at 518.

       In     Stott      v.    Haworth,     916    F.2d       134        (4th      Cir.       1990),       we

adopted       a    two-part      test     for     conducting             this      analysis.              See

Fields,       566    F.3d      at   386.        First,        we       consider         whether       “the

[plaintiff’s] position involve[s] government decisionmaking on

issues where there is room for political disagreement on goals

or    their       implementation.”           Stott,      916           F.2d     at      141    (internal

quotation marks omitted).                    If it does, we then “examine the

particular responsibilities of the position to determine whether

it resembles a policymaker, a privy to confidential information,

a communicator, or some other office holder whose function is

such    that       party      affiliation       [or   political               allegiance]            is    an

equally       appropriate           requirement.”                  Id.        at     142       (internal

quotation         marks       omitted).         The    first           step        of    the        inquiry

                                                11
requires us to examine the issues dealt with by the employee “at

a    very   high    level      of    generality,”        while      “[t]he       second   step

requires a much more concrete analysis of the specific position

at   issue.”        Fields,        566    F.3d    at   386.        At    the   second     step,

“courts     focus       on   the    powers       inherent     in   a     given    office,    as

opposed to the functions performed by a particular occupant of

that office.”           Stott, 916 F.2d at 142.               In this regard, we focus

on the job description for the position in question and “only

look past the job description where the plaintiff demonstrates

some systematic unreliability, such as where the description has

been manipulated in some manner by officials looking to expand

their political power.”                  Nader v. Blair, 549 F.3d 953, 961 (4th

Cir. 2008) (internal quotation marks omitted). 5

       Our causation analysis for the association claims is the

same as for the speech claims.                    The plaintiff bears the initial

burden      of   proving      that       his   exercise     of     his    First    Amendment

rights      “was    a    ‘substantial’           or    ‘motivating’        factor    in     the

employer’s decision to terminate him.”                           Wagner v. Wheeler, 13


       5
       We note that in cases in which the Elrod-Branti exception
applies, and an employer thus can terminate his employees for
political disloyalty, he may also terminate them for speech that
constitutes such disloyalty.   See Jenkins v. Medford, 119 F.3d
1156, 1164 (4th Cir. 1997) (en banc) (holding that because
pleadings established that Elrod-Branti exception applied,
deputies failed to state a First Amendment speech retaliation
claim that deputies were dismissed for campaigning against the
sheriff).


                                                 12
F.3d 86, 90 (4th Cir. 1993); Sales v. Grant, 158 F.3d 768, 775-

76 (4th Cir. 1998).          And if the plaintiff satisfies that burden,

the defendant will avoid liability if he can demonstrate, by a

preponderance of the evidence, that he would have made the same

employment decision absent the protected expression.                   See Sales,

158 F.3d at 776 (citing O’Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712, 725 (1996)).

      Plaintiffs       challenge     the    district    court’s    rulings    with

regard to the merits of both their association and their speech

claims     as   well    as    with   regard     to    qualified    and    Eleventh

Amendment Immunity.          We begin our analysis with the merits of

Plaintiffs’ association claims and will then address the merits

of the speech claims before turning to Eleventh Amendment and

qualified immunity.

A.    Merits of Association Claims

      We conclude that Carter, McCoy, and Dixon at least created

genuine factual disputes regarding whether the Sheriff violated

their    association     rights,     but    that     Sandhofer,   Woodward,    and

Bland did not.

      1.    Elrod-Branti

      With regard to these claims, we start by asking whether the

Sheriff had the right to choose not to reappoint the Plaintiffs

for     political      reasons.        Certainly        there     is     legitimate

disagreement over the goals and implementation of the goals of a

                                           13
sheriff’s office; accordingly, the outcome of the Stott test

will turn on the outcome in Stott’s second step.                          See, e.g.,

Knight, 214 F.3d at 548-51.               Thus, it is that part of the test

on which we focus our attention.

       Carter, McCoy, and Dixon all occupied the same position in

the Sheriff’s Office. 6            They were uniformed jailers and they held

the title of sheriff’s deputy.                  Because they held that title,

much       of    the      debate    between     the   parties     concerning      the

application of the Elrod-Branti test to these three men relates

to our decision in Jenkins.                In Jenkins we analyzed the First

Amendment claims of several North Carolina sheriff’s deputies

who alleged that the sheriff fired them for failing to support

his election bid and for supporting other candidates.                          In so

doing,      we    considered       the   political    role   of   a   sheriff,    the

specific         duties     performed     by    sheriff’s     deputies,     and   the

relationship between a sheriff and his deputies as it affects

the execution of the sheriff’s policies.                    See Jenkins, 119 F.3d

at   1162-64.          We    generally    concluded    that     deputies    “play   a

special role in implementing the sheriff’s policies and goals,”

that “[t]he sheriff is likely to include at least some deputies


       6
       We do not address whether Sandhofer, Woodward, or Bland
could be terminated for lack of political allegiance because, as
we will discuss, they have not created genuine factual disputes
regarding whether lack of political allegiance was a substantial
basis for their non-reappointment.


                                           14
in   his    core     group     of   advisors,”     that       deputies      “exercis[e]

significant discretion in performing their jobs” when they are

on patrol, that “[t]he sheriff relies on his deputies to foster

public confidence in law enforcement,” that he expects them to

provide him with the “truthful and accurate information” the

sheriff     needs,       and   that       sometimes      deputies     serve     as    the

sheriff’s general agents whose acts can expose the sheriff to

civil liability.           See id. at 1162-63.               We therefore concluded

“that in North Carolina, the office of deputy sheriff is that of

a policymaker, and that deputy sheriffs are the alter ego of the

sheriff generally, for whose conduct he is liable.”                                Id. at

1164.      On that basis, we determined “that such North Carolina

deputy sheriffs may be lawfully terminated for political reasons

under      the     Elrod-Branti       exception         to    prohibited      political

terminations.”           Id.; see also id. (“We hold that newly elected

or reelected sheriffs may dismiss deputies either because of

party affiliation or campaign activity.”).                        We reasoned that

“[b]ecause they campaigned for [the sheriff’s] opponents, the

deputies     in    the    instant   case     had   no    constitutional       right    to

continued employment after the election, and so have failed to

state a claim under 42 U.S.C. § 1983.”                  Id.

     Had Jenkins’s analysis ended there, our Elrod-Branti review

of   Carter’s,       McCoy’s,       and     Dixon’s      claims     would     be     quite

straight-forward.            But Jenkins’s analysis did not end there.

                                            15
Several judges dissented from the majority’s decision, and the

resulting opinions included an exchange of particular relevance

here.    The dissent maintained that “the majority broadly holds

that all deputy sheriffs in North Carolina – regardless of their

actual duties – are policymaking officials.”          Id. at 1166 (Motz,

J., dissenting).    The dissent contended that had a proper Elrod-

Branti   review   been   conducted,   focusing   on   “analysis   of   the

particular duties of each deputy,” the result of the case would

have been different.     Id.

     For its part, the majority flatly rejected the dissent’s

claim that the decision was not based on the duties of the

deputies before the court.     The majority stated:

        We limit dismissals based on today’s holding to
     those deputies actually sworn to engage in law
     enforcement activities on behalf of the sheriff.    We
     issue this limitation to caution sheriffs that courts
     examine the job duties of the position, and not merely
     the title, of those dismissed.[FN66]      Because the
     deputies in the instant case were law enforcement
     officers,    they   are   not   protected    by   this
     limitation.[FN67]

            FN66. See Stott, 916 F.2d at 142; Zorzi v.
            County of Putnam, 30 F.3d 885, 892 (7th
            Cir. 1994) (dispatchers not involved in
            law enforcement activities or policy, so
            political affiliation inappropriate job
            requirement).

                The      dissent    manifests     a
              misunderstanding of our holding.   It
              applies only to those who meet the
              requirements of the rule as we state
              it, and does not extend to all 13,600



                                  16
                  officers in North               Carolina,    as     the
                  dissent suggests.

                FN67. Amended Complaint, ¶ 19.

Id. at 1165 (majority opinion).                    Responding to the conclusion

that the deputies’ law enforcement duties made their political

loyalty   to      the    sheriff     an    appropriate        requirement         for    the

effective       performance     of     the        deputies’    jobs,        the     dissent

emphasized that the only relevant allegations in the plaintiffs’

complaint were that the deputies’ “job requirements consisted of

performing       ministerial        law      enforcement        duties        for       which

political       affiliation    is    not     an    appropriate       requirement”         and

that    none     of     the   plaintiffs          “occupied     a    policymaking         or

confidential       position.”        Id.     at    1166     (Motz,    J.,    dissenting)

(internal quotation marks omitted).

       That brings us to the question of how to read Jenkins.

Despite     a    significant        amount        of    language     in     the     opinion

seemingly indicating that all North Carolina deputies could be

terminated       for    political    reasons           regardless    of     the   specific

duties of the particular deputy in question, and despite the

dissent’s       allegation    that    the     majority       indeed       held    that   all

North Carolina deputies may be fired for political reasons, the

majority explicitly stated that it analyzed the duties of the

plaintiffs and not merely those of deputies generally.                              See id.

at 1165 (majority opinion).               In the end, the majority explained



                                            17
that it was the deputies’ role as sworn law enforcement officers

that was dispositive and suggests that the result might have

been different had the deputies’ duties consisted of working as

dispatchers.          See id. at 1165 & nn. 66-67.                    Accordingly, to be

true     to    Jenkins,           we   too      must    consider      whether            requiring

political        loyalty         was     an     appropriate        requirement            for     the

effective performance of the public employment of the deputies

before us in light of the duties of their particular positions.

       According to their formal job description, the deputies’

duties     and      responsibilities            were    to   “[p]rovide           protection       of

jail    personnel          and     the      public,”     “[p]rovide       safekeeping             and

welfare       of     prisoners,”              “[p]rotect[]      .    .        .        society     by

preventi[ng]         .    .   .        escapes,”       “[c]onduct        security         rounds,”

“[s]upervise inmate activities,” “[p]rovide cleaning supplies to

inmates to clean their cells,” “[p]ass out razors on appropriate

days,”     “[e]scort          inmates         throughout     the    jail          as    required,”

“[m]aintain         floor     log      of     daily    inmate   activities,”             “[e]nsure

inmates       are        [fed],”       “[r]un     recreation        and       visitation           as

scheduled or authorized,” “[a]nswer inmate correspondences and

grievances,” and “[s]upervise laundry detail.”                             J.A. 602.             None

of   the      men    had      leadership         responsibilities,            nor       were     they

confidants of the Sheriff.

       These       duties     are      essentially       identical       to       those    of     the

plaintiff in Knight v. Vernon.                          In that case, we considered

                                                 18
whether the district court erred in granting summary judgment

against   a   sheriff’s    office    employee   on   her   First    Amendment

political firing claim on the basis that the employee could be

lawfully terminated for political reasons.           See Knight, 214 F.3d

at 548.       Unlike Carter, McCoy, and Dixon, Knight did not have

the title of sheriff’s deputy, but Knight worked for a North

Carolina sheriff’s department as a low-level jailer.               See id. at

549, 550.     Noting that “[t]he central message of Jenkins is that

the specific duties of the public employee’s position govern

whether political allegiance to her employer is an appropriate

job requirement,” see id. at 549, we closely examined the duties

of Knight’s job in applying the Elrod-Branti analysis at the

summary judgment stage:

          As a jailer Ms. Knight was responsible for the
     processing, supervision and care, and transportation
     of inmates.   Ms. Knight’s processing duties included
     fingerprinting new inmates, obtaining their personal
     data (addresses, next of kin, etc.), marking and
     storing their personal belongings, routing them for
     physical examinations, and arranging for their initial
     baths and changes into clean clothing.     Ms. Knight’s
     daily supervision and care duties involved monitoring
     inmates every half hour, distributing and logging
     their medications and supplies, serving them food, and
     managing their visitors.     Occasionally, Ms. Knight
     filled in as a cook when help was short in the jail’s
     kitchen. Finally, Ms. Knight assisted in transporting
     inmates to prisons and medical facilities.

Id. at 546.      In holding that Jenkins did not allow the sheriff

to   terminate    Knight    for     political   reasons,    we     contrasted

Knight’s duties with those of the deputy sheriffs in Jenkins.

                                      19
We noted that “a deputy is a sworn law enforcement officer [and

thus] has the general power of arrest, a power that may be

exercised     in    North       Carolina       only    by    an    officer          who    receives

extensive training in the enforcement of criminal law.”                                      Id. at

550.      We also noted that “[a] sworn deputy is the sheriff’s

alter ego:         he has powers conterminous with his principal, the

elected sheriff.”           Id. (internal quotation marks omitted).                                In

contrast, we explained that the jailer’s authority “is much more

circumscribed” and “[h]er training, which is much more limited

than that of a deputy, is concentrated on matters of custodial

care and supervision.”             Id.     We noted that “exercising the power

of arrest is not one of the job duties of a jailer,” and Knight

“was    not   out     in     the       county        engaging          in     law    enforcement

activities     on    behalf       of     the    sheriff,”          and       she     was    not    “a

confidant of the sheriff.”                     Id.      We further noted that she

neither “advise[d] him on policy matters” nor was “involved in

communicating        the     sheriff’s          policies          or     positions          to    the

public.”      Id.     Although we recognized that the job of jailer

involves the exercise of some discretion, we concluded that “a

jailer does not exercise the ‘significant discretion’” that the

North     Carolina        deputies       generally          exercise.              Id.     at     551.

Rather,    because        she     “worked       mostly       at    the        jail       performing

ministerial        duties,”        she     was        “not     entrusted             with        broad

discretion,”        and    “[t]he        sheriff       did     not          rely    on     her     for

                                               20
assistance in implementing his law enforcement platform.”                                    Id.

at    550.       We    therefore       determined         that    the    sheriff      had    not

established as a matter of law that political loyalty was an

appropriate requirement for Knight’s performance of her job as a

jailer.

       We conclude that the near identity between the duties of

the deputy plaintiffs in this case and Knight’s duties warrants

the    same    result        here.         Although       Sheriff     Roberts       points    to

various differences between Knight and the plaintiffs here that

he claims make this case more like Jenkins and less like Knight,

we conclude that none of them is sufficiently significant to

justify a different outcome.

       First,     although       the       Sheriff        correctly      points     out     that

Carter, McCoy, and Dixon were all sworn deputies, the oath that

they    took     was     simply       to     support       the    federal     and     Virginia

constitutions          and   faithfully        and     impartially         discharge       their

duties to the best of their ability.                        See Va. Code Ann. § 49-1;

Thore v. Chesterfield Cnty. Bd. of Supervisors, 391 S.E.2d 882,

883 (Va. Ct. App. 1990).                No one contends that these men took a

law enforcement officer’s oath, as the Jenkins plaintiffs did.

See    N.C.    Gen.     Stat.     § 11-11.           In    any    event,      in    Knight    we

specifically rejected the argument that the result in Knight

would     have        been    different        even       had     Knight      taken    a     law

enforcement       officer’s          oath,    noting       that     it   is   the     specific

                                               21
duties of the public employees that must be the focus of the

Elrod-Branti inquiry.            See Knight, 214 F.3d at 551.                    Because

Knight’s duties were “essentially custodial” and she, unlike the

deputies    in   Jenkins,    was     not   empowered         to    stand   in    for    the

sheriff on a broad front, we held that she could not be required

to be politically loyal to the sheriff.                    Id.

     Sheriff     Roberts     notes    that      the    deputies      in    the   present

case, like those in Jenkins, were entitled to stand in for their

sheriff in one way that Knight could not, namely, by making an

arrest.     It is true that in Virginia sheriff’s deputies are,

like sheriffs, statutorily authorized to make arrests under a

wide range of circumstances.              See Va. Code Ann. § 19.2-81(A)(2).

That all deputies have been granted general arrest powers by

statute, however, does not mean that exercising those powers was

an appreciable part of the duties of their particular positions.

In fact, Carter, McCoy, and Dixon were trained as jailers, and

it   is    undisputed     that     they    did    not       take    the    “Basic       Law

Enforcement”     course     that   the     Virginia        Department      of    Criminal

Justice    Services     requires     officers         to    take    before      they    may

exercise the statutorily granted general arrest power.                                 And,

while the evidence in the record was that the deputies were

authorized to make arrests for offenses occurring before them in

the course of their “everyday responsibilities,” J.A. 297, the

Plaintiffs offered evidence that their technical authorization

                                           22
to make arrests had no appreciable effect whatsoever on the job

duties     of   their   position.    According      to    the   declarations    of

Carter, McCoy, and Dixon, not only had none of them ever made an

arrest, but they were not even aware they had the authority to

do so.     In fact, Adams stated in his declaration that in his 16

years at the Hampton Sheriff’s Office, during which he rose to

the level of third most senior officer, he could not recall a

sheriff’s deputy making a single arrest.                  Thus, at this stage

of   the   litigation,     the   Sheriff   has    not    established   that    the

jailers’ arrest duties were sufficiently significant that they

would affect whether their political allegiance to the Sheriff

was an appropriate requirement for the effective performance of

their jobs.

      The Sheriff also notes that Carter, McCoy, and Dixon each

sought and received approval to perform “‘Extra Duty Employment’

comprising security work outside of the Sheriff’s Office during

which they were in uniform and armed.”              J.A. 84.      It is hard to

see how this fact could significantly impact our Elrod-Branti

analysis at this stage, however, considering that the record is

silent     concerning     what    duties    the    plaintiff      deputies     had

concerning this “extra” work.              Moreover, the Sheriff did not

make any showing that such apparently optional work “outside of

the Sheriff’s Office,” J.A. 84, was part of “the specific duties

of the public employee[s’] position.”             Knight, 214 F.3d at 549.

                                      23
     In sum, we hold that at this stage of the litigation, the

Sheriff has not demonstrated that the duties of Carter, McCoy,

and Dixon differed from Knight’s duties in any significant way,

and we conclude that Sheriff Roberts has not shown that their

duties    resembled      those          of    “a    policymaker,         a    privy    to

confidential information, a communicator, or some other office

holder    whose    function        is    such      that   party     affiliation       [or

political   allegiance]       is    an       equally   appropriate       requirement.”

Stott,    916     F.2d   at   142.            Accordingly,     he    also      has    not

demonstrated      that    political           allegiance     was    an       appropriate

requirement for the jailers’ performance of their jobs.                          Accord

Diruzza v. County of Tehama, 206 F.3d 1304, 1310-11 (9th Cir.

2000) (holding that sheriff did not establish application of

Elrod-Branti exception as a matter of law in the case of a

California deputy sheriff who worked as a jailer).                             Thus, we

hold that the Sheriff was not entitled to summary judgment on

the basis that he could terminate Carter, McCoy, and Dixon for

their lack of political allegiance to him.

     2.     Causation

     We now turn to the issue of whether the Plaintiffs’ lack of

political allegiance to the Sheriff was a substantial basis for

the Sheriff’s decision not to reappoint them.                        See Wagner, 13

F.3d at 90.       For reasons that we will explain, we conclude that

Carter, McCoy, and Dixon have all at least created a genuine

                                             24
factual dispute regarding whether lack of political allegiance

was a substantial basis for their non-reappointment, but that

Sandhofer, Woodward, and Bland have not.

                                       Carter and McCoy

         In    the       late     summer    of   2009,   Carter    and       McCoy   visited

Adams’s campaign Facebook page and made statements on the page

indicating their support for his campaign.                        Specifically, Carter

“liked”            the     page     and     “wrote     and    posted     a     message     of

encouragement” that he signed.                    J.A. 570.     McCoy also “posted an

entry         on    the     page    indicating        [his]   support    for     [Adams’s]

campaign.”               J.A. 586. 7       Carter’s and McCoy’s Facebook actions

became well-known in the Sheriff’s Office as many were shocked

because “they appeared not to be supporting the sheriff.”                                J.A.

681. 8       Colonel Bowden, who was the second most senior officer in

the Sheriff’s Office, learned of Carter’s and McCoy’s presence

on Adams’s Facebook Page and informed Sheriff Roberts.




         7
       Both men also verbally expressed their support for Adams
to several people, and although both had volunteered and worked
vigorously for Roberts’s past campaigns, they did not volunteer
at all for Roberts in the 2009 election.
         8
       McCoy testified that he “was approached by ten or 15
people” who asked him why he would risk his job with the posting
when he was only 18 months away from becoming eligible for
retirement.    J.A. 162.    Indeed, McCoy eventually took his
posting down.



                                                 25
     In the late summer of 2009, Carter and Ramona Jones 9 – also

a Hampton sheriff’s deputy – co-hosted a cookout (“the August

cookout”) attended by many Sheriff’s Office employees, including

Adams.     The    next    day    at    work,      Jones    was    approached    by     her

supervisor, Lieutenant Crystal Cooke, who told Jones that she

had heard that Adams had attended her cookout.                        Jones truthfully

told Cooke that Carter had invited Adams.                        Shortly thereafter,

then-Captain Kenneth Richardson approached Jones and asked her

who had attended.         She told him that Adams had been there, and

Richardson    “state[d]     that       the    event   had    the      appearance     of   a

campaign    event   and    said       specifically        that    ‘it   does   not    look

good.’”      J.A. 702.          Jones told Richardson, as she had told

Cooke, that it was Carter who had invited Adams, and Richardson

responded that Jones “needed to explain that to the Sheriff.”

J.A. 702.        Indeed, the Sheriff learned about the cookout and

that Adams had attended.               Pictures showing Sandhofer and McCoy

at the event were posted on Facebook by early October.

     In     early    September,          Sheriff          Roberts       addressed     his

employees’    support     for    Adams       in   speeches       he   gave   during    the

various shift changes.            He expressed his disapproval with the

decision of some to support Adams’s candidacy on Facebook.                                He

stated that he would be sheriff for as long as he wanted and


     9
         Jones was named Ramona Larkins at the time.


                                             26
thus that his train was the “long train.”                        J.A. 572 (internal

quotation marks omitted).                He indicated that Adams’s train was

the   “short      train”    and    that   those        who   openly    supported   Adams

would      lose   their    jobs.      J.A.       572    (internal      quotation   marks

omitted).         Additionally, after the conclusion of the meeting

that occurred before Carter’s shift change, the Sheriff angrily

approached Carter and “ma[de] several intimidating statements.”

J.A. 572.         He then added, “You made your bed, and now you’re

going to lie in it – after the election, you’re gone.”                          J.A. 572

(internal quotation marks omitted).

      The     Sheriff      represented       that      his    heated    exchange    with

Carter after one of Roberts’s “long train” speeches pertained to

Carter’s      objections     about       disciplinary        proceedings    concerning

Carter’s      wife   rather       than    to     Carter’s      support     of   Adams. 10

Indeed, the Sheriff testified that that conversation was the

reason that he chose not to reappoint Carter.                            Carter flatly

denied that Roberts made any reference to Carter’s wife during

that conversation, however. 11


      10
           Carter’s wife was also a Sheriff’s Office employee.
      11
        According to Carter’s declaration, Carter worked for the
Sheriff’s Office for more than 11 years, performed his job “in
an   exemplary   manner,”   and    always    received   performance
evaluations of “above average.”     J.A. 568.   Neither his first-
nor his second-level supervisor indicated at any time prior to
his termination that they had any concerns regarding his
performance.     Carter   conceded    that  he   had  had   several
(Continued)
                                            27
       If    a   jury   credited    Carter’s       account    of   their   heated

exchange, however, it could reasonably conclude that Roberts was

not telling the truth in an attempt to cover up his illegal

retaliation.      See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S.     133,    147    (2000)    (explaining      that     “[p]roof    that    the

defendant’s explanation is unworthy of credence is . . . one

form of circumstantial evidence that is probative of intentional

discrimination, and it may be quite persuasive”).                  The Sheriff,

after all, had specifically warned his employees not to support

Adams through Facebook and had told Carter that his support for

Adams would cost him his job.               For these reasons, we conclude

that     a   reasonable    jury    could    find     that    Carter’s    lack    of

political allegiance to the Sheriff was a substantial motivation

for the Sheriff’s decision not to reappoint him.

       Based on the evidence of Roberts’s strong animus toward

those of his employees who supported Adams, a reasonable jury

could also conclude that Roberts’s knowledge of McCoy’s support

for Adams would have strongly motivated Roberts not to reappoint

McCoy.       Roberts claimed his primary reason for not reappointing




disciplinary actions taken against him for mistakes he made in
allowing prisoners to be released prematurely.     However, the
only formal discipline in his record was more than five years
old at the time he was not reappointed, and the Sheriff did not
testify that those past disciplinary actions played any part in
his decision not to reappoint Carter.


                                       28
McCoy was that McCoy had had “heated arguments with deputies

when he was in civil” and that Roberts “switched him up and

brought him back to corrections.”             J.A. 102.      McCoy, however,

stated that he had worked in the Sheriff’s Office for more than

21 years and always received “above average” or “outstanding”

evaluations, and that at no time prior to his non-reappointment

did his immediate supervisor or second-level supervisor indicate

that they had any problems with his performance.                  In light of

the Sheriff’s threat that supporters of Adams would lose their

jobs   and   his   specific    statement     of    disapproval   of   employees

being on Adams’s Facebook page, we conclude that a reasonable

jury could conclude that McCoy’s lack of political allegiance to

Roberts was a substantial motivation for the Sheriff’s decision

not to reappoint him.

                                     Dixon

       Plaintiffs presented evidence that Dixon performed his job

“in an exemplary manner” during his more than 13 years with the

Sheriff’s Office, always earning performance evaluations of at

least “above average” and earning a rating of “outstanding” in

his last evaluation.      At no time did his first- or second-level

supervisor express concerns with his performance.

       Dixon voiced his opposition to Sheriff Roberts’s candidacy

on Election Day to Frances Pope, who was working the polls for

Roberts’s    campaign.        On   Dixon’s   way    out,   referring    to   the

                                      29
Sheriff’s campaign material, he told Pope that she should “just

throw that stuff away” (“the polling-place comment”).                         J.A. 581

(internal quotation marks omitted).                 Dixon spoke in a friendly,

nonconfrontational tone and did not use any expletives.                             Dixon

also had an Adams bumper sticker on his car that he was “pretty

sure people saw.”        J.A. 148.

      The Sheriff denies that Dixon was not reappointed because

of   his   lack   of   political       allegiance.          Rather,     the    Sheriff

represents    that     Dixon    in     fact   was    let    go   because      he    used

profanity    in   making    the      polling-place      comment,       although      the

Sheriff does not indicate the source of his belief and admits

that he never sought Dixon’s side of the story before replacing

him. 12    See Appellee’s brief at 10; J.A. 99 (stating that “[I]t

was [the Sheriff’s] understanding” that Dixon said, “You can

take this f---ing s---, stuff, and throw it in the trash can.”).

For his part, Dixon denies using any profanity in making the

polling-place     comment.        We    conclude     that   if   a    jury    credited

Dixon’s     testimony,     it   could     also      reasonably       find    that    the

Sheriff knew Dixon had not used profanity and that his support

for Adams, as revealed by the polling-place comment and bumper


      12
        The Sheriff testified that he also considered the fact
that Dixon transferred multiple times between working in the
jail and in civil process after requesting to be a training
officer but later deciding that he could not handle the
pressures of that position.


                                         30
sticker,    substantially         motivated      him     not    to   reappoint      Dixon.

See Reeves, 530 U.S. at 147.

                                     Sandhofer

      In contrast, we conclude that Plaintiffs have failed to

create a genuine factual dispute regarding whether Sandhofer’s

political disloyalty to Sheriff Roberts was a substantial basis

for his non-reappointment.           The Sheriff had used Sandhofer – who

had experience working for a downtown marketing organization −

for significant marketing efforts and fundraising in 2008.                           As a

result,    Colonel      Bowden     asked      Sandhofer         in   2009    to     obtain

prominent sign locations among downtown Hampton businesses in

conjunction with the 2009 election.                    Sandhofer agreed to help

the Sheriff in this way, even though he actually never followed

through.        Sandhofer    also     was    ordered       by    Lieutenant       Miranda

Harding to work the polls on Election Day, but he declined on

the   basis      that      his    “family        comes     first.”           J.A.     169.

Additionally, he verbally expressed his support for Adams to

several people, as discreetly as possible, and he attended the

August    cookout    and    was    depicted       in   pictures       of    the   cookout

posted     on   Facebook.           Plaintiffs         further       point    out    that

Sandhofer’s girlfriend drove him to work and to campaign debates

in her car, which had an Adams bumper sticker affixed to it.

Sergeant John Meyers “mentioned” the sticker to Sandhofer on at

least one occasion.         J.A. 591.

                                            31
     We conclude that this evidence is simply too thin to create

a genuine factual dispute regarding whether Sandhofer’s lack of

political allegiance to the Sheriff was a substantial basis for

his non-reappointment.             Sandhofer admitted attending a reception

for the Sheriff’s campaign at the mayor’s house at the Sheriff’s

request.      And, he admitted agreeing to help the Sheriff locate

signs for the 2009 election, although he never actually located

any of the signs.              Furthermore, while he refused to work the

polls on Election Day, the reason he gave had nothing to do with

supporting Adams.            Without more, there simply is not sufficient

evidence    that       the    Sheriff     identified        Sandhofer        as     an    Adams

supporter,       even        assuming       that    the     Sheriff          believed       his

girlfriend was supporting Adams.                    And there was no reasonable

basis   for      a    jury    to   conclude        that    the   Sheriff          would    have

declined    to       reappoint     Sandhofer       based    simply      on    his    lack    of

affirmative          assistance      to   the     Sheriff’s      2009    campaign.           We

therefore     conclude        that    the    district       court    properly         granted

summary judgment to the Sheriff on Sandhofer’s claim.

                                          Woodward

     We also conclude that Woodward did not create a genuine

factual     dispute       concerning         whether       her    lack       of     political

allegiance to the Sheriff was a substantial basis for her non-

reappointment.



                                             32
       During her more than 11 years with the Sheriff’s Office,

Woodward’s      performance        evaluations     had     always      been     “above

average” or “outstanding.”               J.A. 601 (internal quotation marks

omitted).       According    to     Woodward,    “[i]t   was    very    well     known

within the office that [she] was close to Jim Adams.”                     J.A. 600.

In early 2009, Woodward’s former supervisor and mentor, Deborah

Davis, became the treasurer of Adams’s campaign.                      Woodward also

informed several of her coworkers that she supported Adams’s

candidacy,      although    she    generally     tried   to    keep    her     support

quiet to protect her job.

       During    Roberts’s       prior    campaigns,     Woodward       had     worked

“tireless[ly]” handing out flyers, working the polls, placing

yard    signs,     attending        campaign     events,      and     selling      and

purchasing tickets.          J.A. 599.         In light of her support for

Adams, however, she did none of those things in 2009, except for

purchasing golf tournament tickets (because she felt coerced).

       In the summer of 2009, Woodward noticed that her colleague,

Lieutenant George Perkins, was circulating a petition to place

the    Sheriff’s    name    on    the    ballot.     Woodward       complained      to

Sergeant    Sharon   Mays,        Sergeant     Meyers,   Perkins      himself,     and

others, on the basis that Perkins was not a Hampton resident and

only Hampton residents could circulate such petitions.                        She also

learned that another non-resident was circulating petitions and

she had various conversations with Mays about that as well.

                                          33
      In the end, however, we conclude that it would be mere

speculation for a jury to conclude that Woodward was let go

because of lack of political allegiance to Roberts.                       Outside of

her petition complaints, there is no significant evidence that

would support an inference that the Sheriff believed Woodward

was supporting Adams.             Woodward conceded that she shared her

preference for Adams only with people she thought would keep her

feelings   secret.        And    Woodward     maintained     that    the    petition

complaints   were    not    based   on     the     fact   that   Roberts     was    the

subject of the petitions but on the principle that they should

not be circulated in the workplace by a non-Hampton resident.

There is no evidence that the Sheriff or others did not take her

complaints at face value or otherwise assumed that her true goal

was to work against Roberts’s campaign.

      The Sheriff testified that the reason he did not reappoint

Woodward   and    Bland    was   that    he    expected    that     the    number    of

deputies he would be allocated by the Compensation Board would

be reduced, based on the declining population of the Hampton

City Jail.      See Va. Code Ann. § 15.2-1609.1.             Woodward and Bland

counted against that allotment and the Sheriff maintains that he

decided he needed to have deputies in Woodward’s and Bland’s

positions.       Although Woodward’s and the Sheriff’s accounts are

in   conflict    concerning      whether      he   ever   offered    Woodward       the

opportunity to become a deputy, we conclude that that conflict

                                         34
is simply not a sufficient basis for a reasonable inference that

her lack of political allegiance to Roberts was a substantial

motivation for her non-reappointment.

                                         Bland

     Finally, we determine that Plaintiffs failed to create a

genuine factual issue concerning whether a lack of political

allegiance was a substantial basis for the Sheriff’s decision

not to reappoint Bland.            Bland had a financial position in the

Sheriff’s Office Administration Division.                     He had worked with

the Sheriff’s Department for more than nine years, performed “in

an exemplary manner,” and received performance evaluations of

“above    average.”      Bland     had    declined      to   provide   significant

volunteer assistance to the Sheriff’s 2009 campaign after having

provided many types of support for the Sheriff’s past campaigns.

He was also known to be very close to Deborah Davis, who had

left the Sheriff’s Office in 2008 to become Adams’s campaign

treasurer in early 2009.

     However, Bland admitted purchasing raffle tickets for the

Sheriff’s    fundraising      golf    tournament,       and    he   also    admitted

helping     to    set   up   electronic         equipment     the   night    of   the

election.        He further admitted that he did not actively support

Adams’s   campaign      in   any   way    and    that   Woodward    was     the   only




                                          35
person     he   even     told   of   his        intention      to   vote    for    Adams. 13

Something       more    would   be        necessary       in   order      to   warrant     a

reasonable inference that Bland’s lack of political allegiance

to Sheriff Roberts was a substantial basis for the Sheriff’s

decision not to reappoint him.

B.    Merits of Free-Speech Claims

      The Plaintiffs next argue that the district court erred in

granting summary judgment against them on their speech claims.

We   conclude     that    Carter,     McCoy,        and    Dixon    at     least   created

genuine factual disputes regarding whether the Sheriff violated

their free-speech rights, but that Woodward did not.

                                           Carter

      The   first      question      to    be     addressed     with     regard    to    the

speech claims is whether the conduct that the employee maintains

precipitated      his    non-reappointment           constituted         speech    at   all.

Carter’s conduct consisted of his “liking” Adams’s campaign page

on Facebook.       The district court concluded that “merely ‘liking’

a Facebook page is insufficient speech to merit constitutional

protection” and that the record did not sufficiently describe

what statement McCoy made.                Bland, 857 F. Supp. 2d at 603.                  To

consider whether this conduct amounted to speech, we first must



      13
           Indeed, even Bland’s wife did not know that he favored
Adams.


                                             36
understand,   as    a    factual    matter,        what    it    means    to     “like”   a

Facebook page.

      “Facebook is an online social network where members develop

personalized web profiles to interact and share information with

other members.”         Lane v. Facebook, Inc., 696 F.3d 811, 816 (9th

Cir. 2012).       Members can share various types of information,

including     “news      headlines,        photographs,           videos,        personal

stories,    and   activity    updates.”            Id.      Daily    more       than   500

million    Facebook      members    use    the     site     and    more     than    three

billion “likes” and comments are posted.                   See Brief of Facebook,

Inc. as Amicus Curiae, at 3.

      Every   Facebook      user     has       a   profile,        which       “typically

includes, among other things, the User’s name; photos the User

has placed on the website (including one photo that serves as

the User’s profile photo); a brief biographical sketch; a list

of   individual    Facebook    Users       with     whom    the    User    [interacts,

known as ‘friends’]; and . . . a list of Facebook ‘Pages’ the

User has Liked.”         Id. at 4 (footnote omitted).                    “[B]usinesses,

organizations      and   brands,”    can       also   use       “Pages”    for    similar

purposes.           What      is      a        Facebook          Page?,         Facebook,

http://www.facebook.com/help/281592001947683 (last visited Sept.

17, 2013).

      When a user logs on to Facebook, his home page is the first

thing that he typically sees.             Included on a home page is a news

                                          37
feed, “which, for most Users, is the primary place where they

see and interact with news and stories from and about their

Friends and Pages they have connected with on Facebook.”                       Brief

of Facebook, Inc. as Amicus Curiae, at 5; see What is News Feed,

Facebook,        http://www.facebook.com/help/327131014036297                  (last

visited Sept. 17, 2013).            It “is a constantly updating list of

stories    from    people    and    Pages       that   [the     User]   follow[s]   on

Facebook.”                What        is          News        Feed?,       Facebook,

http://www.facebook.com/help/327131014036297 (last visited Sept.

17, 2013).

       “Liking” on Facebook is a way for Facebook users to share

information       with   each     other.        The    “like”    button,   which    is

represented by a thumbs-up icon, and the word “like” appear next

to different types of Facebook content.                       Liking something on

Facebook “is an easy way to let someone know that you enjoy it.”

What      does     it    mean       to      “Like”         something?,     Facebook,

http://www.facebook.com/help/452446998120360 (last visited Sept.

17, 2013).       Liking a Facebook Page “means you are connecting to

that Page.       When you connect to a Page, it will appear in your

timeline and you will appear on the Page as a person who likes

that Page.       The Page will also be able to post content into your

News Feed.”        What’s the difference between liking an item a

friend       posts          and      liking            a      Page?,       Facebook,



                                           38
http://www.facebook.com/help/452446998120360 (last visited Sept.

17, 2013).

     Here, Carter visited the Jim Adams’s campaign Facebook page

(the “Campaign Page”), which was named “Jim Adams for Hampton

Sheriff,” and he clicked the “like” button on the Campaign Page.

When he did so, the Campaign Page’s name and a photo of Adams –

which     an   Adams   campaign    representative       had   selected   as    the

Page’s icon – were added to Carter’s profile, which all Facebook

users could view.        On Carter’s profile, the Campaign Page name

served as a link to the Campaign Page.             Carter’s clicking on the

“like” button also caused an announcement that Carter liked the

Campaign Page to appear in the news feeds of Carter’s friends.

And it caused Carter’s name and his profile photo to be added to

the Campaign Page’s “People [Who] Like This” list.

     Once      one   understands   the    nature   of    what   Carter   did    by

liking the Campaign Page, it becomes apparent that his conduct

qualifies as speech. 14      On the most basic level, clicking on the

“like” button literally causes to be published the statement

that the User “likes” something, which is itself a substantive

statement.       In the context of a political campaign’s Facebook


     14
        The Supreme Court has rejected the notion that online
speech is somehow not worthy of the same level of protection as
other speech.   See Reno v. ACLU, 521 U.S. 844, 870 (1997); see
also Ashcroft v. ACLU, 542 U.S. 656 (2004).



                                         39
page, the meaning that the user approves of the candidacy whose

page is being liked is unmistakable.                            That a user may use a

single mouse click to produce that message that he likes the

page instead of typing the same message with several individual

key strokes is of no constitutional significance.

     Aside        from     the     fact    that          liking    the     Campaign        Page

constituted pure speech, it also was symbolic expression.                                  The

distribution of the universally understood “thumbs up” symbol in

association with Adams’s campaign page, like the actual text

that liking the page produced, conveyed that Carter supported

Adams’s candidacy.          See Spence v. Washington, 418 U.S. 405, 410-

11   (1974)       (per     curiam)        (holding        that     person       engaged      in

expressive    conduct       when      there     was       “[a]n   intent       to   convey    a

particularized           message      .    .        .,    and     in     the    surrounding

circumstances the likelihood was great that the message would be

understood by those who viewed it”); see also Tobey v. Jones,

706 F.3d 379, 388 n.3 (4th Cir. 2013).

     In    sum,     liking        a   political          candidate’s       campaign        page

communicates the user’s approval of the candidate and supports

the campaign by associating the user with it.                             In this way, it

is the Internet equivalent of displaying a political sign in

one’s     front     yard,        which    the        Supreme      Court     has     held     is

substantive speech.              See City of Ladue v. Gilleo, 512 U.S. 43,

54-56 (1994).        Just as Carter’s placing an “Adams for Sheriff”

                                               40
sign in his front yard would have conveyed to those passing his

home that he supported Adams’s campaign, Carter’s liking Adams’s

Campaign Page conveyed that message to those viewing his profile

or the Campaign Page. 15          In fact, it is hardly surprising that

the record reflects that this is exactly how Carter’s action was

understood.       See J.A. 160 (McCoy’s testimony that in light of

Carter’s    liking    Adams’s     Campaign    Page,    “everybody   was   saying

that . . . Carter is out of there because he supported Adams

openly”); see also J.A. 793 (Sheriff’s Office employee stating

that    Roberts    had    said    that   “certain     employees   were    on   the

Facebook    page     of   his    opponent,    Jim   Adams,   indicating    their

support of Adams for Sheriff”).




       15
        Indeed, in holding that an ordinance banning signs at
residences except for those signs fitting within particular
exceptions violated the plaintiff-resident’s free-speech rights,
the Gilleo Court highlighted several aspects of displaying
political signs at one’s residence that apply as well to liking
a Facebook campaign page:

            Displaying a sign from one’s own residence often
       carries a message quite distinct from placing the same
       sign someplace else, or conveying the same text or
       picture by other means.    Precisely because of their
       location, such signs provide information about the
       identity of the “speaker.” . . .

            Residential signs are an unusually cheap and
       convenient form of communication.       Especially for
       persons of modest means or limited mobility, a yard or
       window sign may have no practical substitute.

City of Ladue v. Gilleo, 512 U.S. 43, 56-57 (1994).


                                         41
    The second part of McVey’s first prong, concerning whether

Carter was speaking as a private citizen on a matter of public

concern, need not detain us long.                 The Sheriff does not dispute

that Carter’s speech, if it was speech, was made in his capacity

as a private citizen.              Cf. Garcetti v. Ceballos, 547 U.S. 410,

421 (2006) (holding that employee does not speak as a private

citizen when his speech is “pursuant to [his] official duties”).

And, it is well established that an employee can speak as a

private citizen in his workplace, even if the content of the

speech is “related to the speaker’s job.”                      Id.; see Pickering,

391 U.S. at 564-65 (holding that letter to local newspaper from

teacher concerning school board policies was protected speech).

Further,     the    idea        expressed   in    Carter’s     speech    −   that    he

supported Adams in the 2009 election – clearly related to a

matter of public concern.             See Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 329 (2010) (describing political speech as

“central to the meaning and purpose of the First Amendment”);

McIntyre     v.    Ohio    Elections    Comm’n,      514   U.S.   334,   346   (1995)

(“Discussion of public issues and debate on the qualifications

of candidates are integral to the operation of the system of

government established by our Constitution.                    The First Amendment

affords the broadest protection to such political expression in

order   to   assure       the    unfettered      interchange    of   ideas   for    the



                                            42
bringing about of political and social changes desired by the

people.” (internal quotation marks omitted)).

     Next,       on    the    record        before    us,     Carter’s      interest      in

expressing       support     for     his    favored     candidate         outweighed     the

Sheriff’s interest in providing effective and efficient services

to the public.          Carter’s speech was political speech, which is

entitled    to    the      highest    level     of   protection.           See   Meyer    v.

Grant, 486 U.S. 414, 422, 425 (1988) (describing constitutional

protection of “core political speech” as being “at its zenith”

(internal quotation marks omitted)); see also Connick, 461 U.S.

at 152 (“We caution that a stronger showing [of disruption] may

be   necessary        if     the     employee’s      speech        more    substantially

involved matters of public concern.”).                            Indeed, the public’s

interest in Carter’s opinions regarding the election may have

had particular value to the public in light of his status as a

Sheriff’s Office employee.                 See, e.g., Waters v. Churchill, 511

U.S. 661, 674 (1994) (plurality opinion) (“Government employees

are often in the best position to know what ails the agencies

for which they work; public debate may gain much from their

informed     opinions.”).             In     contrast,       despite      the    Sheriff’s

reference    to       the    need     for     harmony       and    discipline     in     the

Sheriff’s Office, nothing in the record in this case indicates

that Carter’s Facebook support of Adams’s campaign did anything

in particular to disrupt the office or would have made it more

                                              43
difficult for Carter, the Sheriff, or others to perform their

work efficiently.            See Goldstein v. Chestnut Ridge Volunteer

Fire   Co.,     218   F.3d    337,    356    (4th      Cir.    2000)   (holding     that

“generalized      and     unsubstantiated          interests”      “in   maintaining

morale    and    efficiency”     within          the    fire   department     did    not

outweigh plaintiff’s speech interest).                     The Sheriff’s case in

this regard is especially weak considering that he has failed to

show that the jailers occupied any “confidential, policymaking,

or public contact role” in the Sheriff’s Office.                            McVey, 157

F.3d at 278.

       Finally, for the same reasons that we hold that Carter has

created    a    genuine      factual       issue       regarding   whether     he    was

terminated because of his lack of political allegiance to the

Sheriff, we conclude that Carter has created a genuine factual

issue concerning whether his Facebook support for Adams was also

a   substantial       factor.        The    Sheriff      warned    Carter    that    his

support of Adams would cost him his job, and a jury reasonably

could take the Sheriff at his word.

                                           McCoy

       Our application of the McVey test to McCoy’s speech claim

is very similar to our application of it to Carter’s.                               McCoy

presented evidence that he engaged in First Amendment speech

when he “went on Jim Adams’ campaign Facebook page and posted an

entry on the page indicating [his] support for his campaign.”

                                            44
J.A. 586; see also J.A. 156 (stating that he “went on [Adams’s]

Facebook page” and “posted [his] picture . . . as a supporter”).

Indeed, the evidence indicated that many in the Sheriff’s Office

were “shocked” by the posting because it indicated that McCoy

was “not . . . supporting the sheriff.”                  J.A. 681.     The district

court concluded that McCoy did not sufficiently allege that he

engaged    in   speech     because      the     record     did   not   sufficiently

describe what statement McCoy made.                 See Bland, 857 F. Supp. 2d

at 604.

      Certainly     a    posting        on     a    campaign’s     Facebook         Page

indicating support for the candidate constitutes speech within

the meaning of the First Amendment. 16                For the same reasons as

applied    to   Carter’s      speech,    McCoy’s      speech     was   made    in    his

capacity as a private citizen on a matter of public concern,

namely, whether Adams should be elected Hampton Sheriff.                            That

the   record    does    not   reflect        the   exact   words   McCoy      used    to

express his support for Adams’s campaign is immaterial as there

is no dispute in the record that that was the message that McCoy

      16
        At oral argument, the Sheriff argued for the first time
that McCoy did not actually intend his statement of support to
be posted on the Campaign Page, and thus that the message did
not constitute speech.      That McCoy may have intended his
expression of support to be kept private rather than made
public, however, does not deprive it of its status as speech.
See, e.g., Rankin v. McPherson, 483 U.S. 378, 387 (1987)
(holding that constable’s office employee engaged in protected
speech when she made a private political remark that was
overheard by a third person she did not realize was in earshot).


                                         45
conveyed.       Additionally, although many were shocked that McCoy

would so openly support Sheriff Roberts’s opponent, nothing in

the    record     indicates         that      his    speech     created      any    sort     of

disruption or explains how the Sheriff’s interest in operating

the Sheriff’s Office efficiently could outweigh McCoy’s interest

in    supporting       the   Sheriff’s         opponent    in    the    election.          See

Goldstein, 218 F.3d at 356.

       Further,    for       the    same      reasons    that    we    conclude       that    a

reasonable jury could find that McCoy’s political disloyalty was

a    substantial       motivation        for    the     Sheriff’s      decision      not     to

reappoint       him,    such       a    jury     could    also       find    that    McCoy’s

(politically disloyal) speech was also a substantial motivation

for his non-reappointment.                   With the Sheriff having specifically

warned his employees not to support Adams through Facebook and

having     threatened          that          Adams    supporters        would       not      be

reappointed,       a    jury       could     reasonably       find    that    the    Sheriff

simply   followed       through         with    his   threat     by    not    reappointing

McCoy.

                                              Dixon

       Dixon alleges he was not reappointed because he displayed

an Adams bumper sticker on his car and because he made the

polling-place comment.                 The district court concluded that there

was no evidence that Roberts or other senior Sheriff’s Office

employees    had       knowledge        of    his    bumper    sticker       and    that   the

                                               46
polling-place     comment     was    merely         a    personal       grievance        rather

than a statement touching on a matter of public concern.                                     See

Bland, 857 F. Supp. 2d at 605.

     Although     the   evidence         that       the       Sheriff    or     his      senior

officers knew of Dixon’s bumper sticker was thin, to say the

least, the Sheriff admits that he terminated Dixon because of

the polling-place comment.           And, the statement that Pope should

“just   throw    [her   Roberts      campaign            materials]       away”         clearly

constituted speech on a matter of public concern – the merits of

Roberts’s    campaign    −    made   in       Dixon’s         capacity     as      a    private

citizen.        See   McIntyre,      514        U.S.      at     346;     cf.      Cohen      v.

California, 403 U.S. 15, 18 (1971) (concluding that California

“lack[ed] power to punish” the wearing of a jacket bearing the

plainly    visible    words    “F    -    -     k       the    Draft”    based         on    “the

underlying . . . evident position on the inutility or immorality

of the draft”).       Dixon represented that he made the statement in

a nonconfrontational, friendly manner, and no specific evidence

in the record indicated how his support for Adams might have

created a lack of harmony in the Hampton Sheriff’s Office.

     As for causation, the Sheriff does not deny the fact that

Dixon’s     polling-place      comment         was       the     reason       he       was   not

reappointed.      The Sheriff simply maintained that he believed

Dixon used profanity in making the comment – although he does

not explain the source of his belief.                          Were a jury to credit

                                          47
Dixon’s denial of that charge, it could reasonably conclude that

what actually motivated the Sheriff not to reappoint Dixon was

the   fact    that      Dixon     voiced    his    disapproval     of   the    Sheriff’s

candidacy.

                                          Woodward

      Woodward’s         alleged     protected       speech      occurred      when    she

complained about Lieutenant George Perkins’s circulation of a

petition in support of Sheriff Roberts on the basis that Perkins

was   not    a   Hampton        resident.      As    we   have   already      explained,

however, we conclude that it would be speculative for a jury to

conclude that Woodward’s complaint regarding the petition was

based on anything other than the reasons she voiced at the time,

which were unrelated to the question of whether she supported

Adams or Roberts in the election.                   We therefore conclude she has

not   created      a    genuine     factual       dispute   regarding      whether     her

complaint        was      a      substantial        motivation       for      her      non-

reappointment.

C.    Eleventh Amendment Immunity

      Plaintiffs         next    argue     that    the    district   court     erred    in

ruling      that       Eleventh     Amendment       immunity     would      bar     claims

advanced against the Sheriff in his official capacity.                            We agree

to    the    extent       that      the     Plaintiffs      seek     the      remedy    of

reinstatement.



                                             48
     The Eleventh Amendment to the United States Constitution

provides:    “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or

prosecuted      against   one   of   the    United   States   by   Citizens   of

another State, or by Citizens or Subjects of any Foreign State.”

Eleventh Amendment immunity protects unwilling states from suit

in federal court.         See Will v. Michigan Dep’t of State Police,

491 U.S. 58, 70-71 (1989); Edelman v. Jordan, 415 U.S. 651, 662-

63 (1974). 17    This immunity also protects “state agents and state

instrumentalities,” Regents of the Univ. of Cal. v. Doe, 519

U.S. 425, 429 (1997), meaning that it protects “arm[s] of the

State” and State officials, Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 280 (1977).                     When a judgment

against a governmental entity would have to be paid from the

State’s treasury, the governmental entity is an arm of the State

for Eleventh Amendment purposes.              See Cash v. Granville Cnty.

Bd. of Educ., 242 F.3d 219, 223 (4th Cir. 2001).                   The Supreme

Court, however, delineated an exception to the application of

the Eleventh Amendment in Ex parte Young, 209 U.S. 123 (1908).

That exception “permits a federal court to issue prospective,


     17
        Although the language of the Eleventh Amendment does not
explicitly apply to suits brought against a state by one of its
own citizens, the Amendment has been construed to bar such
suits.   See Equity in Athletics, Inc. v. Department of Educ.,
639 F.3d 91, 107 n.12 (4th Cir. 2011).


                                       49
injunctive relief against a state officer to prevent ongoing

violations of federal law, on the rationale that such a suit is

not   a     suit   against   the   state     for   purposes   of   the   Eleventh

Amendment.”        McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.

2010). 18     The operation of the Eleventh Amendment in this case

thus depends on whether Sheriff Roberts is an arm of the State

and, if so, whether the Ex Parte Young exception applies.

      The district court determined that Virginia sheriffs are

constitutional officers, see Va. Const. Art. VII § 4; Va. Code

Ann. § 15.2-1609; Jenkins v. Weatherholtz, 909 F.2d 105, 107

(4th Cir. 1990), and that sheriffs are arms of the State, see

Blankenship v. Warren Cnty., 918 F. Supp. 970, 973-74 (W.D. Va.

1996).      The district court also determined that “the State would

be liable to pay adverse judgments won against the Sheriff in

his official capacity.”            Bland, 857 F. Supp. 2d at 610.          Thus,

the court concluded, “a suit against the Sheriff in his official

capacity is in fact a suit against the State.”                 Id.   Finding no

      18
        “[A] State’s sovereign immunity is a personal privilege
which it may waive at pleasure.”    College Sav. Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999) (internal quotation marks omitted). However, there is no
indication of any waiver in this case.    Nor has there been any
Congressional abrogation of the Commonwealth’s immunity.      See
Lee-Thomas v. Prince George’s Cnty. Pub. Sch., 666 F.3d 244, 249
(4th Cir. 2012) (“‘Congress may abrogate the States’ Eleventh
Amendment immunity when it both unequivocally intends to do so
and   acts  pursuant   to  a   valid   grant  of   constitutional
authority.’” (quoting Board of Trustees of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001)).


                                        50
evidence     of     abrogation            or     waiver      of      immunity      by     the

Commonwealth, the district court reasoned that “the Sheriff is

immune from suit for claims against him in that capacity.”                              Id.

      Plaintiffs do not dispute that the Commonwealth would be

liable to pay any money judgment against the Sheriff.                             However,

citing    Edelman,      415     U.S.      at   664-65,      Plaintiffs        contend    that

Eleventh Amendment immunity does not apply to the claims against

the   Sheriff      in     his       official        capacity        because    Plaintiffs’

requests for reinstatement and lost pay are equitable claims to

which the immunity does not apply.

      Because reinstatement is a form of prospective relief, the

refusal    to     provide       that      relief      when     it     is   requested      can

constitute an ongoing violation of federal law such that the Ex

Parte Young exception applies.                   See Coakley v. Welch, 877 F.2d

304, 307 (4th Cir. 1989); State Emps. Bargaining Agent Coal. v.

Rowland,    494    F.3d       71,    96    (2d      Cir.    2007).         Plaintiffs     are

therefore correct that the Sheriff is not entitled to Eleventh

Amendment immunity to the extent that they seek reinstatement.

See   Coakley,     877    F.2d      at    307;      State    Emps.     Bargaining       Agent

Coal., 494 F.3d at 96.               As we have explained, however, to the

extent that the claims seek monetary relief, they are claims

against an arm of the State.                   See Cash, 242 F.3d at 223.               Thus,

to the extent that the claims seek monetary relief against the

Sheriff in his official capacity, the district court correctly

                                               51
ruled     that      the    Sheriff    is     entitled       to     Eleventh          Amendment

immunity.

D.     Qualified Immunity

       The    Sheriff      argues    that    even    if     some      of   the     Plaintiffs

created genuine factual disputes concerning whether he violated

their     association       or   free-speech        rights       by     not      reappointing

them, he is nevertheless entitled to qualified immunity to the

extent       that    the    claims    are     asserted        against          him    in    his

individual capacity.

      A      government     official        who    is     sued     in      his     individual

capacity may invoke qualified immunity.                       See Ridpath, 447 F.3d

at 306.       “Qualified immunity protects government officials from

civil damages in a § 1983 action insofar as their conduct does

not    violate      clearly      established        statutory         or    constitutional

rights of which a reasonable person would have known.”                                 Edwards

v.    City    of    Goldsboro,       178    F.3d     231,    250        (4th     Cir.      1999)

(internal quotation marks omitted).                       In determining whether a

defendant is entitled to qualified immunity, a court must decide

(1) whether the defendant has violated a constitutional right of

the plaintiff and (2) whether that right was clearly established

at the time of the alleged misconduct.                           See Walker v. Prince

George’s Cnty., 575 F.3d 426, 429 (4th Cir. 2009).                                    However,

“judges of the district courts and the courts of appeals [are]

permitted to exercise their sound discretion in deciding which

                                             52
of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular

case at hand.”         Pearson v. Callahan, 555 U.S. 223, 236 (2009).

      In    analyzing         whether          the     defendant          has     violated       a

constitutional right of the plaintiff, the court should identify

the right “at a high level of particularity.”                             Edwards, 178 F.3d

at   251.        For    a   plaintiff       to       defeat     a   claim       of    qualified

immunity,    the       contours      of    the       constitutional         right      “must    be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.”                          Hope v. Pelzer, 536

U.S. 730, 739 (2002) (internal quotation marks omitted).

      We    conclude        that    the    Sheriff       is     entitled         to   qualified

immunity     concerning         Carter’s,            McCoy’s,       and     Dixon’s       claims

because     in    December         2009    a     reasonable         sheriff       could     have

believed he had the right to choose not to reappoint his sworn

deputies for political reasons, including speech indicating the

deputies’ support for the Sheriff’s political opponent.

      Simply put, Jenkins sent very mixed signals.                                Although we

conclude today for the reasons discussed earlier that Jenkins is

best read as analyzing the duties of the particular deputies

before     the   court,      much     of   the       opinion’s       language         seemed    to

indicate     that      a    North    Carolina         sheriff       could       terminate      his

deputies for political reasons regardless of the duties of their

particular positions.               Truthfully, the Jenkins majority opinion

                                               53
reads almost like two separate opinions that are in tension with

one another.      All of the majority’s analysis up to the opinion’s

final     page    concerns       deputies        generally      or   North     Carolina

deputies, and references particular duties of deputies without

indicating that the plaintiffs had those duties, see, e.g., 119

F.3d at 1162 (“The sheriff is likely to include at least some

deputies in his core group of advisors.                   Deputies on patrol work

autonomously,         exercising   significant          discretion     in     performing

their jobs.” (footnote omitted)).                 This analysis leads up to the

broad conclusion that “North Carolina deputy sheriffs may be

lawfully terminated for political reasons under the Elrod-Branti

exception to prohibited political terminations.”                        Id. at 1164.

The majority rejected our earlier decision in Jones v. Dodson,

727 F.2d 1329 (4th Cir. 1984), where we concluded that no deputy

could   ever     be    a   policymaker    and     held    instead      that    “district

courts are to engage in a Stott-type analysis, examining the

specific    position        at   issue,     as    we    have    done    here       today.”

Jenkins, 119 F.3d at 1164.           The majority later announced an even

broader     “h[o]ld[ing]”        possibly        not     even    limited      to    North

Carolina sheriffs when it declared that “newly elected or re-

elected sheriffs may dismiss deputies either because of party

affiliation or campaign activity.”                Id.

     As if this language were not already strong support for a

broader reading of Jenkins, as we have pointed out, the dissent

                                          54
in Jenkins read it that way as well, accusing the majority of

“hold[ing]     that       all     deputy        sheriffs        in    North        Carolina     –

regardless of their actual duties – are policymaking officials.”

Id. at 1166 (Motz, J., dissenting); see also id. (“This all-

encompassing holding is made without any inquiry into the actual

job duties of the deputies before us.”); id. (“The majority . .

.   engages    in    no    analysis       of    the     particular       duties       of    each

deputy.”);     id.     (“[T]he      majority        .   .   .   finds       that    all     North

Carolina      deputy      sheriffs        are       policymakers        –     without       ever

considering the positions held by each of the deputies at issue

or their specific job duties.”).

      Additionally,            Knight   v.     Vernon,      while      important       to     our

decision regarding the merits of Carter’s, McCoy’s, and Dixon’s

constitutional       claims,        did      not     clearly         establish       that     the

broader    reading        of    Jenkins      was     incorrect.          Although         Knight

worked in a sheriff’s office, she was not a deputy.                                See Knight,

214 F.3d at 546.               It is true that the Knight majority opined

that Knight’s sheriff would not have had the right to fire her

for political reasons even if she had taken the oath of a law

enforcement officer (like the plaintiffs in Jenkins took and

like the Knight dissent concluded Knight took).                             See id. at 551;

id. at 555 (Widener, J., concurring and dissenting).                                  But the

Knight majority’s explanation for why it was immaterial whether

Knight had taken the law enforcement officer oath could itself

                                               55
be reasonably taken as support for the broad reading of Jenkins.

The Knight majority stated:

      As we emphasized in Jenkins, we “examine the job
      duties of the position,” 119 F.3d at 1165, and Ms.
      Knight’s   duties   as   a jailer  were   essentially
      custodial. She simply lacked the special status of a
      deputy sheriff, who is empowered to stand in for the
      sheriff on a broad front.

Id.   at    551   (emphasis      added).        A     sheriff    reasonably         reading

Jenkins as painting all deputies with a broad brush could well

have viewed Knight as doing the same, or, at the very least, not

weighing     in    on    the    issue.          See    also     id.     at    550     (“The

responsibilities of a jailer, such as Ms. Knight, are routine

and limited in comparison to those of a deputy sheriff, who may

be fired for his political affiliation.”); id. (“A jailer is not

the sheriff’s ‘second self’ in the sense that a deputy is.”).

      The    broader     reading    of   Jenkins        is   also     in   line     with    a

statement from another of our opinions, which was issued after

Knight.      In Pike v. Osborne, 301 F.3d 182 (4th Cir. 2002), we

held that, on a claim that a sheriff terminated a dispatcher for

political     affiliation       reasons,        the    sheriff      was      entitled      to

qualified immunity because in December 1999 it was not clearly

established       that   a     sheriff   in      Virginia       could      not    lawfully

terminate, for political affiliation reasons, a dispatcher who

was privy to confidential information.                       See Pike, 301 F.3d at

186 (Hamilton, J., concurring in the judgment); id. (Broadwater,


                                           56
J.,    concurring        in    the       judgment)         (adopting      Judge       Hamilton’s

reasoning).     Judge Hamilton began his analysis in that case with

the statement, “The law of this circuit is clear that sheriffs

in Virginia have the right to lawfully terminate their deputies

for political affiliation reasons.”                          Id. (citing Jenkins).               He

then proceeded to explain why the law was nevertheless not clear

regarding     whether         a    dispatcher            with    access       to    confidential

information,       who    was      not        a    deputy,      could    be    terminated        for

political affiliation reasons.                      See id. 19

       For the reasons we explained in reviewing the merits of the

Elrod-Branti       issue,          we     believe         that    this        language,     while

consistent     with       the        Jenkins         dissent’s      characterization             of

Jenkins’s reasoning, is an overstatement in light of the Jenkins

majority’s specific rejection of the dissent’s characterization

of    its   analysis.             Nevertheless,           considering         the    conflicting

signals     that    Jenkins             and       Pike    sent,    we     conclude        that    a

reasonable sheriff in December 2009 could have believed that he




       19
        Other courts have, at times, also described Jenkins’s
holding broadly. See, e.g., Hall v. Tollett, 128 F.3d 418, 428
(6th Cir. 1997) (stating that Jenkins “held that political
affiliation is an appropriate requirement for deputy sheriffs”);
Fields v. County of Beaufort, 699 F. Supp. 2d 756, 764 (D.S.C.
2010) (“The Fourth Circuit determined that the office of deputy
is that of a policymaker, and therefore, the deputies were
lawfully terminated for political reasons.”).



                                                   57
was authorized to terminate any of his deputies for political

reasons. 20

      If   we    were    deciding    what     the     law    was    in   December      2009

regarding       the   legality      of   a        sheriff    firing      a   deputy        for

political reasons, we would agree with our colleague in dissent

that the law was that a sheriff could not fire for political

reasons a deputy sheriff with the limited duties of a jailer.

Where we believe we differ in our assessment of this case is in

whether that law was clearly established and would have been so

recognized      not     by   a   judge   trained        in    the     law,    but     by     a

reasonable sheriff.

      For the reasons stated previously, we believe we have sent

mixed signals as to when a sheriff could fire a deputy for

political reasons and we have been unclear as to when he could

and when he could not.            Some parts of our en banc decision in

Jenkins indicate he could do so and other parts would prohibit

it.    The dissent in Jenkins expressed its own confusion as to

what the holding of Jenkins was and language in our cases since,

as well as those from other courts, have interpreted the holding


      20
        We emphasize that even a sheriff who read the specific
holding of Jenkins as limited to North Carolina deputies
involved in law enforcement could still have reasonably
concluded that, if we were squarely presented with the issue, we
would hold that a sheriff could terminate any of his deputies
for political reasons regardless of their particular duties.



                                             58
in Jenkins broadly and consistent with the Sheriff’s.                                 In short,

we understand why a sheriff would not find the law in this

situation clear, particularly given that he is a lay person.

       We do not expect sheriffs to be judges and to have the

training to sort through every intricacy of case law that is

hardly     a    model      of    clarity.          See    Lawyer   v.     City    of     Council

Bluffs,        361   F.3d       1099,       1108   (8th    Cir.    2004)       (holding       that

defendants were entitled to qualified immunity because “[p]olice

officers are not expected to parse code language as though they

were   participating             in     a    law    school   seminar”);          Lassiter      v.

Alabama A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1152 n.8 (11th

Cir. 1994) (“Even if some legal expert would have then concluded

that   a   hearing         was    required,         defendants     would       still     be   due

qualified immunity if reasonable university officials would not

have known about it.”), overruled on other grounds by Hope v.

Pelzer, 536 U.S. 730 (2002).                        Rather, in considering whether

constitutional          rights        were    clearly     established      for        qualified-

immunity        purposes,         we    view       the    issue    from        “the    layman’s

perspective,” Ross v. Reed, 719 F.2d 689, 696 n.8 (4th Cir.

1983),     recognizing           that       “[p]articularly       with    regard       to   legal

conclusions,         lay        officers       obviously     cannot       be     expected       to

perform at the level achievable by those trained in the law,”

Kroll v. United States Capitol Police, 847 F.2d 899, 906 (D.C.



                                                   59
Cir. 1988) (Robinson, J., concurring in the judgment) (footnote

omitted).

     We note that in cases in which the Elrod-Branti exception

applies,    and     an   employer       therefore     does    not   violate     his

employee’s association rights by terminating him for political

disloyalty, the employer also does not violate his employee’s

free speech rights by terminating him for speech displaying that

political disloyalty. 21      See Jenkins, 119 F.3d at 1164             (holding

that because pleadings established that Elrod-Branti exception

applied,    deputies     failed    to    state    a   First   Amendment      speech

retaliation claim that deputies were dismissed for campaigning

against the sheriff).         Thus, a reasonable sheriff in December

2009 who believed that the Elrod-Branti exception applied to his

deputies    could    have   also    reasonably        believed   that   he    could

choose not to reappoint them for their speech indicating their

political disloyalty to him.             And Carter’s and McCoy’s Facebook

activity and Dixon’s bumper sticker and polling-place comment

certainly fall into that category.               For this reason, we conclude



     21
        “[O]nly infrequently will it be ‘clearly established’
that a public employee’s speech on a matter of public concern is
constitutionally   protected,   because   the  relevant  inquiry
requires a particularized balancing that is subtle, difficult to
apply, and not yet well-defined.”    DiMeglio v. Haines, 45 F.3d
790, 806 (4th Cir. 1995) (internal quotation marks omitted); see
also McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998).



                                         60
that the Sheriff was entitled to qualified immunity concerning

the claims of Carter, McCoy, and Dixon. 22

E.     Conclusion

       In sum, as to the claims of Sandhofer, Woodward, and Bland,

we conclude the district court properly analyzed the merits of

the    claims,      and    we    therefore        affirm     the     grant    of     summary

judgment in favor of the Sheriff.                    As to the claims of Carter,

McCoy, and Dixon, the district court erred by concluding that

the Plaintiffs failed to create a genuine dispute of material

fact        regarding     whether      the    Sheriff        violated        their    First

Amendment       rights.         Nevertheless,       the     district    court      properly

ruled that the Sheriff was entitled to qualified immunity on

Carter’s,       McCoy’s,    and     Dixon’s        claims    seeking     money       damages

against the Sheriff in his individual capacity, and that the

Sheriff       was   entitled      to   Eleventh      Amendment        immunity       against

those claims to the extent they seek monetary relief against him

in    his     official    capacity.          The    Sheriff     is    not    entitled    to

Eleventh Amendment immunity, however, on Carter’s, McCoy’s, and

Dixon’s claims to the extent the remedy sought is reinstatement.

       22
        Plaintiffs maintain that the Sheriff is not entitled to
qualified immunity because the Sheriff’s testimony demonstrated
that he actually realizes that he cannot fire his employees on
the basis of their political opposition to him.        However,
qualified immunity depends not on what the actual sheriff knew
at the time of his deposition but on what a hypothetical,
objectively reasonable sheriff would have known in December
2009.


                                             61
                                   III.

     Accordingly,     for   the   foregoing    reasons,    we   reverse   the

grant of summary judgment to the Sheriff regarding Carter’s,

McCoy’s, and Dixon’s reinstatement claims, and we remand these

claims   to   the   district   court   for    further   proceedings.       We

otherwise affirm the grant of summary judgment to the Sheriff.



                                                          AFFIRMED IN PART,
                                                          REVERSED IN PART,
                                                               AND REMANDED




                                    62
ELLEN LIPTON HOLLANDER, District Judge, concurring in part and
dissenting in part:

         I concur in Chief Judge Traxler’s excellent opinion, with

one exception.           The majority concludes that, at the relevant

time, “a reasonable sheriff could have believed he had the right

to   choose     not    to     reappoint        his     sworn    deputies      for    political

reasons,” Maj. Op. at 53, and, on this basis, it determines that

Sheriff Roberts is protected by qualified immunity with respect

to his discharge of Carter, Dixon, and McCoy.                            In my view, when

these deputies were discharged in December 2009, the law was

clearly established that a sheriff’s deputy with the job duties

of   a    jailer      could    not    be       fired    on     the    basis    of   political

affiliation.           Therefore,          I     respectfully         disagree      with   the

majority’s ruling as to qualified immunity.

         In   general,      “the     practice          of     patronage       dismissals   is

unconstitutional         under       the       First    and    Fourteenth       Amendments.”

Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality); see Branti

v. Finkel, 445 U.S. 507, 516-17 (1980) (recognizing, generally,

that “the First Amendment prohibits the dismissal of a public

employee      solely     because       of      his     private       political      beliefs”).

Based on what is known as the Elrod-Branti doctrine, “public

employees      who     allege    that       they       were    discharged      . . .    solely

because        of      their         partisan           political        affiliation       or

nonaffiliation state a claim for deprivation of constitutional


                                                 63
rights secured by the First and Fourteenth Amendments.”                                Elrod,

427 U.S. at 349.               This case concerns the scope of “a narrow

exception” to that baseline rule, Maj. Op. at 10, which frames

the qualified immunity analysis.

       Pursuant     to       the    exception       to   the    Elrod-Branti      doctrine,

dismissal       based    on        political    affiliation        is   lawful     if    “the

hiring authority can demonstrate that party affiliation is an

appropriate      requirement          for   the      effective     performance      of    the

public office involved.”                Branti, 445 U.S. at 518.                The Supreme

Court’s formulation of the doctrine clearly puts the onus on the

employer to establish that a particular employee comes within

the exception to the rule barring discharge of a public employee

based      on    political          affiliation.            The    majority       correctly

concludes that, in the light most favorable to plaintiffs, they

were    dismissed       in    violation        of   their      rights   under    the    First

Amendment. 1      This, in turn, requires consideration of Sheriff

Roberts’ defense of qualified immunity.



       1
       As the majority observes, both the free expression and
political affiliation claims of Carter, McCoy, and Dixon stand
or fall on the question of whether those plaintiffs come within
the exception to the Elrod-Branti rule because, “in cases in
which the Elrod-Branti exception applies, and an employer thus
can terminate his employees for political disloyalty, he may
also   terminate   them   for  speech   that   constitutes such
disloyalty.” Maj. Op. at 12 n.5. Accordingly, the qualified
immunity analysis applies equally to the free expression and
political affiliation claims of these three deputies.


                                               64
    “Qualified immunity balances two important interests -- the

need to hold public officials accountable when they exercise

power    irresponsibly       and    the       need     to    shield     officials       from

harassment, distraction, and liability when they perform their

duties    reasonably.”          Pearson       v.    Callahan,     555    U.S.    223,    231

(2009).     The qualified immunity analysis involves two inquiries:

first, whether the facts alleged, “[t]aken in the light most

favorable    to    the    party    asserting         the    injury,     . . .    show    the

officer’s    conduct       violated       a        constitutional       [or     statutory]

right,” Saucier v. Katz, 533 U.S. 194, 201 (2001); and second,

whether    the    right    at   issue     “‘was       clearly    established       in    the

specific context of the case -- that is, [whether] it was clear

to a reasonable officer that the conduct in which he allegedly

engaged was unlawful in the situation he confronted.’” Merchant

v. Bauer, 677 F.3d 656, 662 (4th Cir.) (citation omitted), cert.

denied,    ___     U.S.    ___,    133    S.        Ct.    789   (2012).        The     “two

inquiries . . . may be assessed in either sequence.”                               Id. at

661-62.

    “To be clearly established, a right must be sufficiently

clear ‘that every reasonable official would [have understood]

that what he is doing violates that right.’                             In other words,

‘existing        precedent      must      have        placed     the      statutory       or

constitutional question beyond debate.’”                         Reichle v. Howards,

___ U.S. ___, 132 S. Ct. 2088, 2093 (2012) (quoting Ashcroft v.

                                              65
al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2078, 2083 (2011)) (some

internal quotation marks and citations omitted).                              The issue is

“assessed     in   light      of    the     legal       rules     that     were   ‘clearly

established’       at      the      time”        of        the     disputed        conduct.

Messerschmidt v. Millender, ___ U.S. ___, 132 S. Ct. 1235, 1245

(2012)    (citation     and    some    internal         quotation        marks    omitted).

Accordingly, we must consider the state of the law in December

2009, when Sheriff Roberts discharged Carter, Dixon, and McCoy.

      As to the first prong of the inquiry, which evaluates the

merits of the claim of constitutional violation, the majority

determines    that,     in    the     light      most      favorable     to    plaintiffs,

Sheriff    Roberts      improperly         dismissed       them.    In     reaching      that

conclusion,     the     majority       engages        in    a    careful      analysis    of

Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc),

cert. denied, 522 U.S. 1090 (1998), and Knight v. Vernon, 214

F.3d 544 (4th Cir. 2000).                  In my view, these same cases are

dispositive as to the second prong of the qualified immunity

inquiry.     Jenkins and Knight clearly established that the Elrod-

Branti doctrine requires consideration of a deputy’s actual job

responsibilities, rather than the title of the position.

      The Supreme Court’s formulation of the doctrine, of course,

is   paramount.       In     Elrod,    a    newly     elected      Democratic      sheriff

discharged several Republican employees of the Sheriff’s Office

“solely because they did not support and were not members of the

                                            66
Democratic    Party . . . .”         427    U.S.    at     350-51.      One      of   the

discharged employees was “Chief Deputy of the Process Division

and supervised all departments of the Sheriff’s Office” at a

certain location; another employee was a courthouse “bailiff and

security guard”; a third employee was a process server in the

office.     Id.   On First Amendment grounds, the employees sued in

federal court to enjoin their termination.                      Three justices of

the Supreme Court, joined by two concurring justices, held that

the district court should have granted the injunction. See id.

at 373. The three-justice plurality opined that “the practice of

patronage     dismissals        is     unconstitutional”               because        “any

contribution of patronage dismissals to the democratic process

does not suffice to override their severe encroachment on First

Amendment freedoms.” Id. at 373.

     The    two   concurring    justices        articulated       an    exception       to

that general principle, viewing the case as presenting only a

“single     substantive     question”:          “whether    a     nonpolicymaking,

nonconfidential      government       employee       can     be    discharged          or

threatened with discharge from a job that he is satisfactorily

performing upon the sole ground of his political beliefs.”                            Id.

at   375    (Stewart,     J.,   concurring)        (emphasis       added). 2           The



     2
       Because the concurring justices’ votes were necessary to
the judgment, their more narrow view stated the holding of the
(Continued)
                                           67
concurring justices “agree[d] with the plurality” that such an

employee     could      not       be   dismissed     on    the     basis   of     political

affiliation.       Id.

      Four      years    later,         in    Branti,     supra,    445    U.S.        507,    a

majority of the Court reaffirmed Elrod’s holding, in the context

of   the     imminent        firing      of    two   Republican      assistant         public

defenders by a Democratic public defender.                         See id. at 508-09.

In   so      doing,      the       Branti       Court      reformulated          the    Elrod

concurrence’s exception to the prohibition of dismissals on the

basis      of     political            affiliation         for     “policymaking”             or

“confidential”          employees.            The    Branti      Court     said:       “[T]he

ultimate     inquiry         is   not    whether     the    label    ‘policymaker’            or

‘confidential’ fits a particular position; rather, the question

is   whether     the     hiring        authority     can    demonstrate      that       party

affiliation      is     an    appropriate        requirement        for    the    effective

performance of the public office involved.”                          Id. at 518.              It

concluded that the assistant public defenders did not fall into

the exception to the general rule barring termination on the

basis of political affiliation, even though, in some respects,




Court under the “narrowest grounds” doctrine of Marks v. United
States, 430 U.S. 188 (1977).


                                               68
they       were    involved       in    policymaking        or     privy    to    confidential

information.            Id. at 519-20. 3

       Consistent with Elrod and Branti, this circuit’s case law

has        long        required        courts     to       “‘examine        the       particular

responsibilities of the position’” to determine whether a given

public employee comes within the exception to the rule against

patronage dismissals.                  Maj. Op. at 11 (quoting Stott v. Haworth,

916    F.2d       134,     142    (4th     Cir.      1990)).       In    Stott,       the   court

articulated a two-part test to guide the analysis.                                    The first

part requires examination of “‘whether the position at issue, no

matter how policy-influencing or confidential it may be, relates

to partisan political interests . . . [or] concerns.’” Stott,

916 F.2d at 141 (citations and some internal quotation marks

omitted). If the position does “‘involve government decision-

making on issues where there is room for political disagreement

on    goals       or    their    implementation,’”           the    second       “‘step     is   to

examine       the       particular       responsibilities           of     the    position       to

determine         whether        it     resembles      a    policymaker,          a   privy      to

       3
       In two subsequent cases, the Supreme Court extended the
Elrod-Branti doctrine in ways that are not germane to this case.
See Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)
(holding that Elrod-Branti doctrine also applies to “promotion,
transfer, recall, and hiring decisions”); O’Hare Truck Service,
Inc. v. City of Northlake, 518 U.S. 712 (1996) (holding that
Elrod-Branti doctrine applies “where government retaliates
against a[n] [independent] contractor, or a regular provider of
services, for the exercise of rights of political association or
the expression of political allegiance”).


                                                69
confidential information, a communicator, or some other office

holder     whose    function            is   such       that    party      affiliation    is     an

equally      appropriate           requirement.’”              Id.    at    141-42     (citation

omitted).         The     court     recognized            political        affiliation    as     an

appropriate        job       requirement            “‛when       there       is    a    rational

connection between shared ideology and job performance.’”                                       Id.

at 142 (citation omitted).

      This    circuit’s           Elrod-Branti            case       law   has    continued      to

adhere to Stott’s focus on the job responsibilities of a given

position.         See, e.g., Fields v. Prater, 566 F.3d 381, 386-87

(4th Cir. 2009) (applying Stott analysis); Nader v. Blair, 549

F.3d 953, 959-62 (4th Cir. 2008) (same).                             Commenting on the test

endorsed by Stott, the court said in Jenkins, 119 F.3d at 1162:

“Our cases have moved . . . to position-specific analyses.”

      The majority’s conclusion that, at the relevant time, the

law as to deputy sheriffs was not clearly established is based

largely on its belief that Jenkins sent “very mixed signals” as

to   the   status       of    a    sheriff’s            deputy   under      the   Elrod-Branti

doctrine.          Maj.      Op.    at       53.         Jenkins,       which     involved      the

termination of ten North Carolina sheriff’s deputies, contains

instances in which the court used broad language that, according

to the majority here, arguably suggested that a Sheriff could

terminate     a    deputy         for    political         reasons,        without     regard    to

actual duties.            Id.       But, the Jenkins majority took pains to

                                                   70
define the scope of its holding and to resolve any “tension”

created by its language.         Id. at 54.

     The Jenkins majority stated that, “in North Carolina, the

office of deputy sheriff is that of a policymaker, and . . .

deputy sheriffs are the alter ego of the sheriff generally, for

whose conduct he is liable,” and concluded from this “that such

North Carolina deputy sheriffs may be lawfully terminated for

political reasons under the Elrod-Branti exception to prohibited

political      terminations.”      Jenkins,    119    F.3d    at     1164.     The

Jenkins   majority     also   said:   “We    hold    that    newly   elected    or

reelected sheriffs may dismiss deputies either because of party

affiliation or campaign activity.”           Id.

     These statements cannot be read in isolation, however. The

Jenkins majority was engaged in overruling the court’s earlier

decision in Jones v. Dodson, 727 F.2d 1329 (4th Cir. 1984),

which had held that deputy sheriffs could not be fired on the

basis of political affiliation, “no matter what the size of the

office,   or    the   specific    position    of    power   involved,    or    the

customary intimacy of the associations within the office, or the

undoubted need for mutual trust and confidence within any law

enforcement agency.” Id. at 1338. The Jenkins Court announced,

119 F.3d at 1164: “We disagree with Dodson to the extent it

suggests that no deputy sheriff can ever be a policymaker.”



                                      71
       The    dissent        in     Jenkins      maintained        that     the    majority

“refus[ed]        to         engage         in       the      proper         Elrod-Branti

analysis . . . .”            Id. at 1171 (Motz, J., dissenting).                   Pointing

to    the    broad,    categorical         language        employed    by    the    Jenkins

majority, the dissent reasoned that the majority had found that

“all (more than 4,600 in 1988) North Carolina deputy sheriffs

are policymakers,” thereby “call[ing] into question whether the

numerous North Carolina state troopers (more than 1,100 in 1988)

and    police    officers         (more       than    7,900       in   1988)      are    also

‘policymakers’         who    can     be    dismissed        at    will     by    each    new

political regime.”           Id. (emphasis in original).

       In response, the Jenkins majority expressly rejected the

dissent’s      construction          of    its     holding,       explaining      that   its

holding was “limit[ed]” to “those deputies actually sworn to

engage in law enforcement activities on behalf of the sheriff.”

Id. at 1165 (emphasis added).                      Further, the Jenkins majority

insisted that its holding “applies only to those who meet the

requirements of the rule as we state it,” id. at 1165 n.66, and

did “not extend to all 13,600 officers in North Carolina, as the

dissent suggests.”            Id.     It reasoned that the “deputies in the

instant case” fell within the Elrod-Branti exception “[b]ecause”

they were “law enforcement officers.”                         Id. at 1165 (emphasis

added).



                                              72
       Of import here, the Jenkins majority directed that “the

district       courts      are     to     engage       in     a     Stott-type       analysis,

examining the specific position at issue . . . .”                                 Id. at 1164

(emphasis      added).           Moreover,       the    Jenkins        majority       directly

admonished      sheriffs         within    the     Fourth         Circuit,     stating:       “We

issue this limitation to caution sheriffs that courts examine

the job duties of the position, and not merely the title, of

those dismissed.”          Id. at 1165 (emphasis added).                      This directive

is     particularly      salient,         given     that          qualified       immunity     is

predicated on the notion that “a reasonably competent public

official should know the law governing his conduct.”                                 Harlow v.

Fitzgerald,      457    U.S.       800,    818-19       (1982);       accord        Trulock    v.

Freeh, 275 F.3d 391, 400 (4th Cir. 2001), cert. denied, 537 U.S.

1045 (2002).

       Notably,      the      majority       here       acknowledges          “the     Jenkins

majority’s specific rejection of the dissent’s characterization

of its analysis.”             Maj. Op. at 57.                 But, even assuming that

Jenkins left the state of circuit precedent unclear as to the

application of the Elrod-Branti doctrine to deputy sheriffs, the

court’s subsequent decision in Knight v. Vernon, supra, 214 F.3d

544,    laid    to   rest        any    ambiguity       with       respect     to    sheriff’s

deputies serving as jailers.

       In   Knight,     the      district    court          had    relied    on     Jenkins    in

granting summary judgment to a sheriff who fired a jailer, based

                                             73
on the district court’s conclusion that the role of a jailer is

similar to the role of a deputy.               See Knight v. Vernon, 23 F.

Supp. 2d 634, 646 (M.D.N.C. 1998), rev’d in part, aff’d in part

on other grounds, 214 F.3d 544 (4th Cir. 2000).                          This court

disagreed, thereby clarifying any possible confusion as to the

proper construction of Jenkins.

     The court expressly held that “a sheriff cannot insist on

political    loyalty       as    a     job    requirement         for        a     county

jailer . . . .”      214 F.3d at 548.          It reasoned that “political

allegiance to [the sheriff] was not an appropriate requirement

for the performance of [the] job [of] jailer,” id. at 550, and

this would be so even if the jailer had taken the oath of a

deputy sheriff.       Id. at 551. 4          In its analysis, the majority

reiterated   that    the   “central     message     of    Jenkins       is       that   the

specific duties of the public employee’s position govern whether

political    allegiance     to   her    employer     is    an     appropriate           job

requirement.” Id. at 549 (emphasis added).

     Focusing   on   the    particular       job   duties    of    a    jailer,         the

Knight majority emphasized the “circumscribed,” “routine,” and


     4
       According to the Knight majority, the record was clear
that Knight never took a law enforcement officer’s oath.
Knight, 214 F.3d at 546. The dissent disagreed. See id. at 555
(Widener, J., dissenting).     But, of significance here, the
majority determined, in the alternative, that “even if Ms.
Knight did take such an oath, it would not change our decision.”
Id. at 551 (majority).


                                        74
“limited” responsibilities of the position, in contrast to those

of a sheriff’s deputy with “the general power of arrest.”                          Id.

at 550.     It noted that “exercising the power of arrest is not

one of the job duties of a jailer.                Her duties are simply to

supervise and care for inmates in the county jail.”                       Id.      The

Knight majority also observed: “Ms. Knight was not out in the

county engaging in law enforcement activities on behalf of the

sheriff.    She was not a confidant of the sheriff, and she did

not advise him on policy matters.                 Nor was she involved in

communicating       the    sheriff’s      policies     or     positions      to    the

public.”    Id.

      In   its      analysis    of     the     merits,      the    majority       here

acknowledges that the job duties of Carter, McCoy, and Dixon

were “essentially identical to those of the plaintiff in Knight

v. Vernon.” Maj. Op. at 18.             It goes on to say, in the context

of their termination, that “the near identity between the duties

of   the   deputy       plaintiffs   in   this   case       and   Knight’s    duties

warrants the same result here.”            Id. at 21.        I    readily         agree

with the majority that there is no cognizable distinction for

purposes   of     the    Elrod-Branti     doctrine    between      the   jailer     in

Knight and the jailers in this case.                 As I see it, that should

end the qualified immunity inquiry.

      To be sure, the jailers here were sworn deputy sheriffs.

But, they did not exercise law enforcement responsibilities (or,

                                          75
at least, have raised a genuine factual dispute as to whether

they   did).         The   district       court   asserted    that,       because    the

“officers in this case were sworn, uniformed deputies,” they had

“the power of arrest.”             Bland v. Roberts, 857 F. Supp. 2d 599,

609 (E.D. Va. 2012).             But, as the majority observes, see Maj.

Op. at 22-23, the deputies here could not lawfully exercise the

arrest      power,    except   in    extraordinary        circumstances,      because

they had been trained as jailers rather than as law enforcement

officers, and the arrest power was not an appreciable aspect of

their duties.        Indeed, the undisputed record evidence is that no

deputy in the Sheriff’s Department had made an arrest in the

preceding sixteen years.

       Moreover, as the majority points out, the record is clear

that, although the jailers in this case took an oath, they did

not take a law enforcement officer’s oath.                   See Maj. Op. at 21.

This renders the finding of qualified immunity weaker still,

because the Knight Court concluded that even a jailer who does

take a law enforcement officer’s oath cannot be discharged on

the basis of political affiliation.                    See Knight, 214 F.3d at

551.

       In   contrasting      the    role    of    a   “jailer”     with    that     of   a

“deputy      sheriff,      who      may     be    fired      for    his     political

affiliation,” id. at 550, the Knight Court was referring to the

type of deputy discussed “in Jenkins”: a deputy who “is a sworn

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law    enforcement         officer”        and     who    “has    the      general       power     of

arrest, a power that may be exercised in North Carolina [and

Virginia] only by an officer who receives extensive training in

the enforcement of criminal law.”                          Id.        A reasonable sheriff

reading      Knight        would     realize       that    such       a    description        of    a

“deputy” did not encompass Carter, McCoy, and Dixon, who served

as jailers, and would have heeded the court’s warning in both

Knight and Jenkins that “‘courts examine the job duties of the

position,         and     not     merely     the       title,    of       those    dismissed.’”

Knight, 214 F.3d at 549 (quoting Jenkins, 119 F.3d at 1165)

(emphasis in Knight).

       In    support       of     its     view    that    the    pertinent         law    was    not

clearly established when plaintiffs were discharged in December

2009,       the    majority         places       unwarranted      emphasis         on    Pike      v.

Osborne, 301 F.3d 182 (4th Cir. 2002).                           In that case, the court

held    that       a    sheriff      was     entitled      to    qualified          immunity       in

connection with the termination in 1999 (i.e., before Knight was

decided)          of     two      dispatchers,           based     on       their        political

affiliation.              In    a    concurrence,         one     member      of     the    panel

concluded that the law was not clearly established “on the point

of    whether          sheriffs     in    Virginia       can     lawfully         terminate      for

political         affiliation            reasons       dispatchers         with     privity        to

confidential information.”                   Pike, 301 F.3d at 186 (Hamilton, J.,



                                                  77
concurring)        (emphasis    added). 5        The    concurrence      prefaced   its

discussion of the sheriff’s entitlement to qualified immunity

with a statement upon which the majority here relies: the “law

in this circuit is clear that sheriffs in Virginia have the

right       to   lawfully      terminate     their       deputies     for    political

affiliation reasons.”           Id. at 186 (citing Jenkins).

        But, this assertion was clearly dicta, because Pike did not

involve      sheriff’s      deputies. 6          And,   privity     to   confidential

information, upon which Pike’s holding turned, is not at issue

here.        The   majority     acknowledges        that    the   Pike      concurrence

overstated the holding of Jenkins.                      Maj. Op. at 57.          As of

December 2009, Jenkins, as well as Stott and Knight, were part

of the clearly established law of this circuit.                      In my view, it

sets a troubling precedent if this circuit’s clearly established

law can be undone by dicta.

        Stott emphasized the importance of analyzing job duties in

cases such as this one.             Speaking en banc, the Jenkins Court

expressly        admonished     sheriffs     that       “courts   examine     the   job


        5
       The opinion, although labeled a concurrence, was joined by
one of the other two judges on the panel.
        6
       “Dictum is ‘statement in a judicial opinion that could
have been deleted without seriously impairing the analytical
foundations of the holding -- that, being peripheral, may not
have received the full and careful consideration of the court
that uttered it.’” Pittston Co. v. United States, 199 F.3d 694,
703 (4th Cir. 1999) (citation omitted); accord New Cingular
Wireless PCS, LLC v. Finley, 674 F.3d 176, 241 (4th Cir. 2012).


                                            78
duties    of    the    position,     and   not   merely     the     title,   of   those

dismissed.”         Jenkins, 119 F.3d at 1165 (emphasis added).                    And,

Knight reinforced that point, characterizing it as the “central

message of Jenkins.”          Knight, 214 F.3d at 549.              Knight also made

clear that a sheriff may not terminate a jailer for political

reasons, even if the jailer took an oath as a law enforcement

officer.       See Knight, 214 F.3d at 551.            Pike did not alter any

of this.

     The salient facts of this case are so close to the facts in

Knight that any reasonable sheriff would have predicted that

both cases would yield the same result.                       To the extent that

there    is    any     distinction    between      Knight     and    this    case,   it

concerns only the title of the positions held by the employees.

Yet, it was clearly established that the title itself is of no

legal    significance.            Therefore,     Sheriff    Roberts     should     have

known that he could not discharge his jailers on the basis of

their political affiliation.

     The majority is correct in stating that, in considering

whether       the     law   was    clearly      established       for   purposes     of

qualified immunity, we look to the perspective of a layperson,

not a lawyer.         See Maj. Op. at 58-60.         And, as the Supreme Court

recognized in Hope v. Pelzer, 536 U.S. 730, 739 (2002), the

“contours” of the constitutional right “‘must be sufficiently

clear [so] that a reasonable official would understand that what

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he is doing violates that right.’” (Citation omitted).                          Yet, the

Supreme     Court       also    underscored      that     the    “very       action    in

question” need not have “‘previously been held unlawful’” if,

“in   the    light       of     pre-existing      law    the     unlawfulness         [is]

apparent.” Id. (citations omitted).                 See also Wilson v. Kittoe,

337 F.3d 392, 403 (4th Cir. 2003) (qualified immunity may be

denied even in the absence of “‛a case holding the defendant’s

identical conduct to be unlawful . . . .’”) (citation omitted).

      “Qualified         immunity    extends      to     protect       officials      ‘who

commit constitutional violations but who, in light of clearly

established       law,    could    reasonably     believe       that    their    actions

were lawful.’”          Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir.

2013) (quoting Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.)

(en banc), cert. denied, ___ U.S. ___, 132 S. Ct. 781 (2011));

accord Durham v. Horner, 690 F.3d 183, 188 (4th Cir. 2012).                            It

is intended to “protect[ ] public officials from ‘bad guesses in

gray areas.’”           Durham, 690 F.3d at 190 (quoting Maciariello v.

Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied, 506

U.S. 1080 (1993)).            There were no gray areas here.

       In    1997,       this    court   delivered       an    unequivocally       clear

message     to    lay    sheriffs.       Directly       addressing      sheriffs,      the

Jenkins Court announced: “We . . . caution sheriffs that courts

examine     the   job     duties    of   the    position,      and     not   merely    the

title, of those dismissed.”               Jenkins, 119 F.3d at 1165.                   Any

                                           80
person   capable    of   serving    as    a   sheriff   surely   would     have

understood that directive, which was subsequently reiterated in

Knight, and would have grasped what all the members of this

panel agree was “the law . . . in December 2009 regarding the

legality of a sheriff firing a deputy for political reasons.”

Maj. Op. at 58. 7

     In sum, Sheriff Roberts’ dismissal of Carter, McCoy, and

Dixon on the basis of their political allegiance, if ultimately

proven, cannot be excused on the basis of qualified immunity.

Therefore,   I     respectfully    dissent     from   the   portion   of    the

majority opinion that upholds the finding of qualified immunity

for Sheriff Roberts with respect to the First Amendment claims

lodged by Carter, McCoy, and Dixon.




     7
       The majority has correctly disregarded Sheriff Roberts’
subjective understanding of the law in applying the objective
analysis called for by the qualified immunity doctrine.      See
Maj. Op. at 61 n.22. It is worth noting, however, that there is
no indication that Sheriff Roberts was laboring under a
misapprehension of the law.    At his deposition, Roberts stated
that he did not believe he was entitled to fire the plaintiffs
“for political reasons.”     JA 96.    Instead, Roberts disputed
plaintiffs’ claim that he fired them for political reasons. As
the court unanimously concludes, see Maj. Op. at 25-31, there
are genuine disputes of material fact as to the basis for
Roberts’ termination of Carter, McCoy, and Dixon.


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