                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-2153


JAMES LANE,

                 Plaintiff - Appellant,

           v.

SHERIFF JOHN W. ANDERSON; MAYOR & CITY COUNCIL OF BALTIMORE,

                 Defendants – Appellees,

           and

COL. MARCUS L. BROWN,

                 Defendant.

-------------------------

AMERICAN CIVIL LIBERTIES UNION        FOUNDATION    OF    MARYLAND;
PUBLIC JUSTICE CENTER, INC.,

                 Amici Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:14-cv-03739-RDB)


Argued:   May 12, 2016                      Decided:     August 17, 2016


Before KING, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


ARGUED: Howard Benjamin Hoffman, Rockville, Maryland, for
Appellant.  Jason L. Levine, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Annapolis, Maryland; Jason Robert Foltin, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees.      ON
BRIEF: Steven H. Goldblatt, Director, Shon Hopwood, Appellate
Litigation   Program,   GEORGETOWN    UNIVERSITY   LAW   CENTER,
Washington, D.C., for Appellant.      Brian E. Frosh, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellee Anderson.       George A. Nilson, City
Solicitor, William R. Phelan, Jr., Chief Solicitor, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellee Mayor and
City Council of Baltimore.      Deborah A. Jeon, Sonia Kumar,
Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND,
Baltimore, Maryland; Debra Gardner, Tassity Johnson, PUBLIC
JUSTICE CENTER, Baltimore, Maryland, for Amici American Civil
Liberties Union Foundation of Maryland and Public Justice
Center.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

              James Lane (“Appellant”) appeals the district court’s

dismissal of his complaint against the Mayor and City Council of

Baltimore (“Baltimore City”) and the Sheriff of Baltimore City,

John    W.   Anderson      in     his       official   and    individual      capacities

(“Sheriff Anderson”) (collectively, “Appellees”).                          Appellant, a

deputy sheriff at the time, was shot in the face during the

execution of an arrest warrant.                    After the shooting incident,

Appellant voiced doubts, alleging possible friendly fire and an

official cover-up of that possibility, and thereafter, Sheriff

Anderson fired him.              Appellant then sued Appellees, claiming a

violation of his First Amendment rights.

              The   district       court       dismissed      Appellant’s     complaint,

holding      that   it    lacked        subject    matter     jurisdiction,         Sheriff

Anderson      was    entitled          to    qualified       immunity   and      Eleventh

Amendment      immunity,         and     Baltimore     City    was   not     liable    for

Sheriff Anderson’s employment actions because he was not a final

policymaker for Baltimore City.

              For the reasons that follow, we affirm the dismissal

of     Appellant’s       claim     against      Baltimore      City.       But    because

subject matter jurisdiction exists and Sheriff Anderson is not

entitled      to    immunity,          we   reverse    and    remand    in    all     other

respects.



                                               3
                                             I.

                                             A.

                Appellant became a deputy sheriff with the Baltimore

City Sheriff’s Office (“BCSO”) in 2003.                       On September 15, 2008,

while executing an arrest warrant with other law enforcement

officers       from    the    Warrant     Apprehension        Task   Force,     Appellant

suffered a gunshot wound to the face.                     Purportedly, the subject

of the arrest warrant (the “Suspect”) shot Appellant.                            Another

officer then          shot    the   Suspect,        killing   him.     The    subsequent

internal investigation of the incident concluded that it was the

Suspect who shot Appellant.                But Appellant still had his doubts,

as   he    suspected     another       law   enforcement       officer     accidentally

shot      him.        When    Appellant      expressed        his    concerns    to   his

superiors, they “told him to forget about it.”                         J.A. 8. 1      When

Appellant and two other deputy sheriffs continued to question

the shooting, they were all transferred out of the task force.

                On    December      15,      2010,      Appellant      expressed      his

reservations about the shooting in interviews with certain media

outlets -- namely, Fox 45 News (television) and “Investigative

Voice”         (web-based).          The        interviews      revealed      not     only

Appellant’s          doubts    about      the       investigation,     but    also    his



           1
          Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.



                                                4
suspicion about a potential cover-up.                  Appellant also expressed

his belief that the other officer he suspected had accidentally

shot him lied about the incident because that officer had failed

a polygraph examination.

              Three    months    later,        in     March    2011,        the     BCSO

administratively charged Appellant with six counts of prohibited

conduct       stemming    from      his       interviews      with     the        media.

Ultimately, in December 2011, a hearing board found Appellant

guilty of five of the six charges, including two counts for

engaging in conduct that reflected unfavorably upon the BCSO,

two counts for representing the BCSO without permission, and one

count   for    publicly    criticizing        the    BCSO.     He    was    found   not

guilty of making a false statement.                   The hearing board made a

non-binding recommendation of a five-day suspension without pay

to Sheriff Anderson.

              Sheriff Anderson declined to follow the recommendation

and instead terminated Appellant.                  In explaining this decision,

Sheriff   Anderson        said    that        he     could    “no    longer       trust

[Appellant’s]         reliability     and          [Appellant’s]      credibility”;

Appellant’s      violations      brought       the     BCSO   “into        disrepute”;

Appellant’s appearances on television and the internet displayed

“sullenness and anger” towards the BCSO; Appellant’s criticisms

and accusations of another officer lying were “divisive[] [and]

disloyal to the mission of the [BCSO] and intended to undermine

                                          5
the    effective     operation    of    the    [BCSO]”;        and    Appellant      had

“become a polarizing force within the [BCSO].”                  J.A. 177-78.

                                         B.

             Appellant   appealed       his    termination       to    the   Maryland

Circuit Court for Baltimore City, asserting that he was found

guilty despite insufficient evidence, and that he was terminated

for conduct that was both not charged and outside the record.

The Maryland Circuit Court reversed the termination and ordered

reinstatement, but on appeal, the Court of Special Appeals of

Maryland,    which    considered       “only   . . . the        ultimate     sanction

imposed,” J.A. 72, upheld Appellant’s termination.

            Thereafter,    on    December      1,    2014,     Appellant     filed     a

complaint in the United States District Court for the District

of    Maryland   against    Sheriff      Anderson,      in     his     official      and

individual    capacities,    and       Baltimore     City. 2         Pursuant   to    42

U.S.C.     § 1983,    Appellant     claimed         retaliatory        discharge     in

violation of his First Amendment right to freedom of speech.

Additionally, he claimed violations of the Maryland Declaration

of Rights.       Appellant sought injunctive relief to permit his

       2
       Appellant also alleged that Colonel Marcus Brown, in his
official capacity as the chair of the Maryland Police Training
Commission, violated his First Amendment rights and his due
process rights.   The district court granted Appellant’s motion
to voluntarily dismiss the claims against Colonel Brown on
August 13, 2015.   Accordingly, these respective allegations are
no longer part of the complaint on appeal.



                                         6
reinstatement as a deputy sheriff, declaratory relief, and money

damages.

             Appellees       moved     to    dismiss       the     complaint,        and   the

district court granted the motions.                       See Lane v. Anderson, No.

1:14-cv-3739,       2015    WL   5136035       (D.       Md.    Sept.    1,     2015).     The

district     court,      reasoning      that      Appellant       was    seeking       federal

review of a state-court decision, held that it lacked subject

matter   jurisdiction        over      Appellant’s         injunctive         relief     claims

pursuant to the Rooker-Feldman 3 doctrine.                      See id. at *8.

             The    district      court       further          concluded      that     Sheriff

Anderson, in his individual capacity, was entitled to qualified

immunity because, at the time he terminated Appellant, the law

was not clearly established that doing so was a violation of

Appellant’s First Amendment rights.                      See Lane, 2015 WL 5136035,

at   *6-7.         Finally,      the    district          court    determined          Sheriff

Anderson enjoyed Eleventh Amendment immunity from the claim for

monetary damages brought against him in his official capacity

because, pursuant to Maryland law, he was an arm of the state.

See id. at *4-6.

             As    for     Baltimore        City’s       involvement,         the    district

court    reasoned     that    Baltimore           City    could    not     be    liable    for



     3 See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).



                                              7
Sheriff       Anderson’s       actions        because       Sheriff      Anderson   was      a

Maryland official, not an official acting on behalf of Baltimore

City. 4     See Lane, 2015 WL 5136035, at *8.

               Appellant timely appealed.

                                              II.

                             Subject Matter Jurisdiction

                                               A.

               As     an     initial     matter,           Appellant     challenges        the

district      court’s        determination          that   it   lacked    subject   matter

jurisdiction.              Because      the     jurisdictional           question     is     a

“threshold issue,” we address it before proceeding to the merits

of the appeal.             Elyazidi v. SunTrust Bank, 780 F.3d 227, 232

(4th       Cir.     2015).      We     review       challenges     to     subject   matter

jurisdiction de novo.            See Flame S.A. v. Freight Bulk Pte. Ltd.,

807 F.3d 572, 580 (4th Cir. 2015).




       4As for the state law claim pursuant to the Maryland
Declaration of Rights against Baltimore City, the district court
concluded that because Sheriff Anderson was not a Baltimore City
employee, Baltimore City could not be liable.       See Lane v.
Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *9 (D. Md. Sept.
1, 2015). Appellant does not challenge on appeal the dismissal
of   Baltimore  City’s   liability  premised  on   the  Maryland
Declaration of Rights.    Accordingly, that argument is waived.
See United States v. Avila, 770 F.3d 1100, 1104 n.1 (4th Cir.
2014) (failing to raise an argument in the opening briefs
constitutes an abandonment of that issue).



                                                8
                                          B.

               Appellant    argues      that       the     Rooker-Feldman          doctrine,

which would deprive us of jurisdiction if applicable, does not

apply    here    because     he    is   not       challenging       the   state       court’s

decision.       See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718

(4th Cir. 2006).           Rather, he seeks relief for the termination

that Sheriff Anderson imposed upon him.                    We agree.

               Pursuant     to    the   Rooker-Feldman             doctrine,        district

courts     are     generally        barred         from      reviewing        state-court

decisions.       See D.C. Court of Appeals v. Feldman, 460 U.S. 462,

483 n.16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,

415-16 (1923).       Notwithstanding that premise, federal courts may

still    entertain       claims   the   state       court     examined,       so    long   as

those claims do not challenge the state-court decision itself.

See Elyazidi, 780 F.3d at 233 (claims not challenging the state-

court judgment do not present a jurisdictional bar).                                Instead,

“[t]he    Rooker–Feldman          doctrine         . . . is        confined      to     cases

. . . brought       by     state-court        losers       complaining     of       injuries

caused    by    state-court       judgments        rendered    before      the      district

court proceedings commenced and inviting district court review

and rejection of those judgments.”                    Exxon Mobil Corp. v. Saudi

Basic    Indus.      Corp.,       544   U.S.        280,     284     (2005)        (emphasis

supplied).       So, “[i]f [the state-court loser] is not challenging



                                              9
the state-court decision, the Rooker-Feldman doctrine does not

apply.”       Davani, 434 F.3d at 718.

               Here,     Appellant   is     not      challenging        the     Maryland

court’s decision or judgment, but rather the injury that Sheriff

Anderson imposed, that is, Appellant’s termination.                           See Exxon,

544 U.S. at 284.           In Davani, a state employee challenged his

termination        for     discrimination       and      retaliation,          and   the

administrative agency upheld the termination.                        See Davani, 434

F.3d at 715.            The state court dismissed his appeal, and the

employee filed a complaint in federal court alleging retaliation

and discrimination, which thereafter was dismissed for lack of

subject        matter    jurisdiction     pursuant       to    the      Rooker-Feldman

doctrine.        See id.     We reversed, concluding that the employee

was     not     “seek[ing]    redress     for       an   injury      caused     by   the

state-court decision itself,” id. at 718, but rather for the

injury that the employer caused when it terminated the employee,

see id. at 719.

               Like in Davani, the state-court judgment here did not

cause     Appellant’s      injury    when      it   upheld     Sheriff        Anderson’s

decision to terminate Appellant.               Appellant’s complaint does not

allege that the state court caused the injury, and instead, he

alleges that Sheriff Anderson caused his termination, an event

that happened prior to the state-court decision.                         Accordingly,

we      hold     that     Appellant’s       claims       are      not     barred      by

                                          10
Rooker-Feldman,    and     therefore,        federal      subject    matter

jurisdiction remains intact.

                                   III.

                          Qualified Immunity

                                    A.

           On a motion to dismiss pursuant to qualified immunity,

we review the district court’s conclusion de novo.               See Occupy

Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013).                     The

official   asserting   qualified    immunity    carries    the   burden    of

establishing his right to it.            See Durham v. Jones, 737 F.3d

291, 299 (4th Cir. 2013).

                                    B.

           In assessing whether Sheriff Anderson was entitled to

qualified immunity, the district court assumed that terminating

Appellant in retaliation for speaking to the media violated a

right protected by the First Amendment, but held that the right

was not clearly established when the violation occurred.                  See

Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *7 (D.

Md. Sept. 1, 2015).      Therefore, the district court held Sheriff

Anderson was entitled to qualified immunity.               See id.     This

holding is contrary to our precedent.

                                    C.

           When a government official is sued in his individual

capacity, he may be entitled to a qualified immunity defense.

                                    11
See    Bland      v.   Roberts,      730    F.3d    368,     391       (4th    Cir.    2013).

However,       qualified       immunity     is      not    bestowed          when    “(1) the

allegations        underlying       the    claim,    if     true,       substantiate      [a]

violation of a federal statutory or constitutional right; and

(2) this violation was of a clearly established right of which a

reasonable person would have known.”                       Smith v. Gilchrist, 749

F.3d 302, 308 (4th Cir. 2014) (alteration in original) (quoting

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306

(4th Cir. 2006)); see also Saucier v. Katz, 533 U.S. 194 (2001).

A   clearly       established       right   exists        when    “existing         precedent

. . . place[s] the . . . constitutional question beyond debate.”

Gilchrist, 749 F.3d at 308 (quoting Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2083 (2011)).               When the official acts in legal “gray

areas,” he is entitled to qualified immunity.                          Id. at 307.

               With    these        principles      in     mind,        we     address    the

qualified immunity inquiry, considering first the constitutional

right   at     issue,    and    second,       whether      this        right   was    clearly

established when the alleged violation occurred.

                                             1.

                               First Amendment Right

               The First Amendment protects “the right to be free

from    retaliation       by    a    public      official        for    the    exercise    of

[freedom     of    speech].”         Gilchrist,      749    F.3d        at    308   (internal

quotation marks omitted).              However, this right is not limitless,

                                             12
particularly for public employees.                          See id. (citing McVey v.

Stacy, 157 F.3d 271, 277 (4th Cir. 1998)).                            “[T]he government,

as an employer, ‘is entitled to maintain discipline and ensure

harmony     as   necessary       to    the    operation         and     mission   of     its

agencies,’” and therefore has “an interest in regulating the

speech of its employees.”              Id. (quoting McVey, 157 F.3d at 277).

As   the    Supreme      Court    explained            in    Pickering    v.    Board     of

Education, 391 U.S. 563 (1968),

             The problem in any case is to arrive at a
             balance between the interests of the [public
             employee], as a citizen, in commenting upon
             matters of public concern and the interest
             of the State, as an employer, in promoting
             the efficiency of the public services it
             performs through its employees.

391 U.S. at 568.          Finally, when an employee asserts a § 1983

retaliation      claim    based       on   his    exercise       of    free    speech,    we

analyze the claim using the following three queries:

             (1) [W]hether   the   public employee was
             speaking as a citizen upon a matter of
             public concern or as an employee about a
             matter of personal interest;

             (2)[W]hether   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) [W]hether the employee’s speech was a
             substantial   factor  in   the   employee’s
             termination decision.

McVey,     157   F.3d    at   277-78.            The    first    two     prongs   present

questions of law to be resolved by the court, and the third
                                             13
prong is a question of fact best resolved on “summary judgment

only    in     those   instances      when    there       are       no   causal      facts    in

dispute.”        Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir.

2004).

                                             a.

               With respect to the first McVey prong, we cannot agree

with Sheriff Anderson that Appellant stated his concerns merely

as a self-serving complaint.                 Rather, Appellant, as a private

citizen, spoke on a matter of public concern when he questioned

a     police    shooting,     which    resulted        in       a    fatality,         and    the

subsequent investigation.

               When    Appellant    communicated          with       the      media,    he    was

acting outside the scope of his duties as a deputy sheriff.

Although       Appellant’s       “expressions       related         to   [his]       job,”    the

First Amendment affords him protection when he conveys these

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

421    (2006).         It   is    “antithetical        to       our      jurisprudence        to

conclude . . . speech by public employees regarding information

learned through their employment [] may never form the basis for

a   First      Amendment     retaliation          claim”.           Hunter      v.     Town   of

Mocksville, 789 F.3d 389, 396-97 (4th Cir. 2015).

               Appellant’s       speech      was    not     just         an    airing    of    a

personal grievance.          It was a matter of public concern.



                                             14
      Speech involves matters of public concern when it can
      be fairly considered as relating to any matter of
      political, social, or other concern to the community,
      or when it is a subject of legitimate news interest;
      that is, a subject of general interest and of value
      and concern to the public.

Lane v. Franks, 134 S. Ct. 2369, 2380 (2014) (internal quotation

marks omitted).             We consider the character of speech in this

regard by taking into account “the content, form, and context of

a given statement.”            Durham, 737 F.3d at 299 (quoting Connick v.

Myers,    461    U.S.      138,    147-48   (1983)).        “Matters     relating    to

public    safety      are    quintessential       matters    of    public     concern.”

Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337,

353   (4th      Cir.        2000).        By     contrast,       comments     properly

characterized         as     personal     grievances       “about     conditions     of

employment” are not matters of public concern.                      Durham, 737 F.3d

at 300 (internal quotation marks omitted).

             The content of Appellant’s speech here was undeniably

a matter of public concern.               He questioned a shooting in which a

suspect    was     killed         (and   Appellant       himself     injured).       He

questioned       an        allegedly     botched        investigation,      which    he

suspected was cloaked in a police cover-up.                        And he ultimately

questioned whether friendly fire occurred, as opposed to the

Suspect    having       allegedly        shot    him,    which     resulted    in   the

Suspect’s death.




                                            15
               The       form    and    context          of    Appellant’s         speech         further

strengthens the conclusion that Appellant spoke on a matter of

public concern.             Appellant spoke to a broad audience, through

both     television         and        internet.              Clearly,        Appellant’s          story

interested the local press, and in two different mediums, no

less.        See     Durham,      737        F.3d    at       301    (explaining            “interest[]

[from]       the    media       indicates       that          [the    issue]       was       of   public

interest”); Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998)

(public       dissemination            through       press          shows     matter         of   public

concern).

               For       these    reasons,          we    hold       that    Appellant’s          speech

satisfied the first McVey prong as protected speech.

                                                    b.

               With       respect       to    the        second      prong,       we    must      assess

whether      Appellant’s          interest          in    speaking      about          the    September

2008     shooting          and      the       subsequent             internal          investigation

outweighs          the    government’s          legitimate            interest         in     providing

efficient public services.                    See Gilchrist, 749 F.3d at 308.                         It

is     the    government’s          burden          to     justify          the    termination        on

legitimate         grounds.            See    id.    at       309.      As        we   explained      in

Ridpath, we evaluate the government’s interests utilizing the

following factors:

               [W]hether   a   public  employee’s  speech
               (1) impaired the maintenance of discipline
               by supervisors; (2) impaired harmony among

                                                    16
               coworkers;    (3) damaged     close    personal
               relationships; (4) impeded the performance
               of     the    public     employee’s     duties;
               (5) interfered with the operation of the
               institution; (6) undermined the mission of
               the institution; (7) was communicated to the
               public    or   to    coworkers   in    private;
               (8) conflicted with the responsibilities of
               the employee within the institution; and
               (9) abused    the    authority    and    public
               accountability that     the   employee’s   role
               entailed.

447 F.3d at 317.         In this context, law enforcement agencies are

afforded some leeway to restrict their employees’ speech because

“they are paramilitary -- discipline is demanded, and freedom

must   be     correspondingly        denied.”      Durham,      737   F.3d     at    301

(internal quotation marks omitted).                And, “[a] stronger showing

of   public      interest      in   the   speech    requires     a    concomitantly

stronger       showing   of    government-employer        interest     to     overcome

it.”   McVey, 157 F.3d at 279 (Murnaghan, J., concurring).

               Moreover,      the   government     need   not   “prove       that    the

employee’s      speech     actually    disrupted     efficiency”;          rather,   its

burden    is    to   show     “an   adverse     effect    was   reasonably      to    be

apprehended.”        Gilchrist, 749 F.3d at 309 (internal quotation

marks omitted); see also Durham, 737 F.3d at 302 (stating that

more   than     “vague     references”     and   “lip     service     to    ostensible

damage”        to    morale,        relationships,        and    general        office

functionality is necessary).




                                          17
               Here,     as    previously            discussed,      Appellant’s        speech

dealt with a matter of public concern: he suspected friendly

fire ultimately resulted in a person being killed, and yet, when

he    voiced    that     suspicion,        he    was     told       not   to    worry    about

uncovering the truth.               Akin to our holding in Durham, the facts

here do not tip the balance in favor of Appellees.                              See 737 F.3d

at 302-03.       To the contrary.

               As for the Government, Sheriff Anderson has spoken of

Appellant’s alleged effect on the office in mere generalities.

He has offered no concrete examples to back up his claim that

Appellant brought “disrepute” to the agency, and was divisive,

disloyal, and a “polarizing force.”                      J.A. 73.         Sheriff Anderson

has    asserted        nothing      more      than      “lip    service”         and    “vague

references” in this regard.                Durham, 737 F.3d at 302 (explaining

that a showing of an actual disruption is not needed, and, at

the   same     time,     indicating        an    articulation         of    “a    reasonable

apprehension of such a disruption” is required).

               Ultimately, at the motion to dismiss stage, based upon

these generalized statements, we cannot conclude that Sheriff

Anderson       has     met    his    burden      of     justifying        the    Appellant’s

termination on legitimate grounds, particularly considering the

significant          public     interests            raised    by     Appellant.          See

Gilchrist, 749 F.3d at 309.



                                                18
                                         c.

           The third McVey prong, which presents an issue of fact

as to whether Appellant’s speech was “a substantial factor” in

his termination, can be swiftly dispensed.                    McVey, 157 F.3d at

277-78.    When reviewing a Rule 12(b)(6) motion to dismiss, we

view the facts in the light most favorable to Appellant.                         When

dealing   with      a    First    Amendment      retaliation     claim     in    this

posture, we generally infer causation based on the facts alleged

in the complaint because, at the motion to dismiss stage, “we

are unable and unwilling to speculate as to the outcome.”                       Tobey

v. Jones, 706 F.3d 379, 391 (4th Cir. 2013).

           Here, as in Tobey, Appellant has adequately set forth

a plausible claim that his First Amendment rights were violated

when his comments directly precipitated his firing.                     As a direct

result    of   his      media     interviews,     Appellant      faced     internal

charges, and ultimately termination.               Sheriff Anderson’s stated

basis for terminating Appellant included the fact that Appellant

had commented publicly about the internal investigation.                           In

fact, Sheriff Anderson said, “I find that . . . . [Appellant’s]

appearance     on       television,      [and]    on    the     website,        [were]

disrespectful, accusatory, and . . . displayed an attitude of

sullenness and anger towards the [BCSO]. . . .                  Nothing short of

termination    will      permit    the   division      and    discord    caused    by

[Appellant’s] conduct to heal.”               J.A. 177-78.      Thus, we readily

                                         19
conclude that Appellant’s speech was “a substantial factor” that

led to his firing.         McVey, 157 F.3d at 277-78.

                                           2.

                           Clearly Established Right

               Having    concluded      that    Appellant’s       speech     should    be

accorded First Amendment protection, we now turn to the second

prong     of    the     qualified      immunity    analysis:             whether    every

reasonable official would have known that terminating Appellant

for speaking out would be in violation of his First Amendment

rights.        See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per

curiam).          Appellees        maintain       that        Maryland     state      law,

specifically       the    Law   Enforcement        Officers’       Bill     of     Rights,

expressly        provides       that      the     law         enforcement        agency’s

chief   --      here,    Sheriff    Anderson      --     is    permitted     to    punish

Appellant for “divulg[ing] information” that is contrary to the

department’s policy.            Appellees’ Br. 28.              If Sheriff Anderson

complied with this express statutory right, Appellees’ argument

goes, “he had no reason to doubt the constitutionality of the

policies.”        Id. at 29.        But, the position urged by Appellees,

and adopted by the district court, that the Sheriff was acting

within his legal authority because he was acting pursuant to

Maryland law, ignores clearly established precedent.                         See Lane,

2015 WL 5136035, at *7.



                                           20
              Sheriff        Anderson’s        adherence      to     state   law    is     not

helpful    here.         An        independent      basis    for     sanctions     does    not

provide      a        shield        from     liability        when     the      speech        is

constitutionally protected.                   See Durham, 737 F.3d at 304; Am.

Civ. Liberties Union of Md., Inc. v. Wicomico Cty., 999 F.2d

780,      785     (4th         Cir.        1993)     (per      curiam)       (recognizing

“[r]etaliation          by     a    public    official       for   the   exercise        of    a

constitutional right is actionable under 42 U.S.C. § 1983, even

if the act, when taken for different reasons, would have been

proper”).

              More      significantly,           years      before     Sheriff     Anderson

terminated Appellant, there was ample authority reinforcing the

notion that Appellant’s speech was of the type that was afforded

protection.       See Durham, 737 F.3d 291; Andrew v. Clark, 561 F.3d

261 (4th Cir. 2009); see also Hunter, 789 F.3d at 402 (holding

that   the      law    was     clearly       established      in     December    2011     that

speech about serious misconduct was protected).

              In Andrew -- decided two years before the incident at

issue -- we held that a police commander in the Baltimore Police

Department stated a First Amendment claim when he alleged that

he was terminated for leaking information to the media about a

police-involved shooting and its investigation.                          See Andrew, 561

F.3d at 263.            In Durham, the right at issue was of a deputy

sheriff      to   speak        out    on     “serious       governmental     misconduct,”

                                               21
specifically, his right to accuse “high-ranking law enforcement

officials          . . . of       falsifying           law     enforcement        reports        and

. . . authorizing aggressive threats against a member of their

own    agency       if     he     persisted       in     his        opposition       to   such     a

practice.”         Durham, 737 F.3d at 303.                   There, we held, “[w]e have

been       clear    that    where        public    employees         are    speaking      out     on

government misconduct, their speech warrants protection.”                                        Id.

at 303 (citing Balog, 160 F.3d at 189).

               Thus,       when    Sheriff    Anderson             terminated     Appellant       in

2012, the law was not in any “gray area[].”                             Gilchrist, 749 F.3d

at 307.        Rather, the law was clearly established.                               After our

decisions in Andrew and Durham, no reasonable official could

have believed that a law enforcement officer’s statements to

media outlets regarding misconduct and corruption surrounding a

police-involved            shooting        lacked       First        Amendment       protection.

Therefore,         we    hold     that    Sheriff       Anderson       is   not   entitled        to

qualified      immunity,          and     Appellant          can    continue    to    press      the

damages claim brought against Sheriff Anderson in his individual

capacity. 5


       5
       We note that this case is unlike Brickey v. Hall, where we
held that a police chief was entitled to qualified immunity
after he had been sued under § 1983 for terminating a
subordinate in violation of the First Amendment.     No. 14-1910,
2016 WL 3648462, at *1 (4th Cir. July 8, 2016) (published
opinion).   In Brickey, a police officer who was running for a
town council seat made statements in two newspapers that
(Continued)
                                                  22
                                              IV.

                         Eleventh Amendment Immunity

                                              A.

            “Whether an action is barred by the Eleventh Amendment

is a question of law that we review de novo.”                              Hutto v. S.

Carolina Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014).

                                              B.

            We    next    address         the       Eleventh     Amendment    immunity

defense raised by Sheriff Anderson in his official capacity.

            The Eleventh Amendment protects a state entity from

suit   in   federal    court.           See    U.S.    Const.,    amend.    XI.     This

protection       is   also        accorded      to    “state     agents     and   state

instrumentalities,”          or    in    other       words,    arms   of   the    state.




suggested that the police chief misused -- either through
negligence or malfeasance -- $500 in the Drug Abuse Resistance
Education (“D.A.R.E.”) budget.       Id. at *1, *5.       After
commissioning an independent investigation into the officer’s
statements, the police chief terminated him. Id. at *2–3.

     There are at least four key differences between Brickey and
the instant case.      First and most notably, the misconduct
Appellant alleges is far more serious than the misconduct
alleged in Brickey. Second, unlike Sheriff Anderson, the police
chief in Brickey did more than merely “‘pa[y] lip service’ to
potential disruption to his police force.”    Id. at *7.   Third,
the allegations in Brickey were shown to be false.     Id. at *8.
Finally, unlike Appellant, the officer in Brickey did not intend
to accuse the police chief of wrongdoing.    Id.   Based on these
differences -- which also distinguished Brickey from Durham, id.
at *7–8 -- Brickey does not control our decision here.



                                              23
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997);

see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 280 (1977).             Yet, not every entity exercising a “slice of

state power” is entitled to protection, Lake Country Estates,

Inc.    v.    Tahoe        Reg’l   Planning    Agency,         440   U.S.    391,    400-01

(1979), and immunity “does not extend to counties and similar

municipal corporations,” Mt. Healthy, 429 U.S. at 280.

              “Whether        an   entity      is   an        arm    of   the     state   is

ultimately       a     question     of    federal    law,       ‘[b]ut      that    federal

question can be answered only after considering the provisions

of    state   law      that    define    the     agency’s       character.’”         United

States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745

F.3d 131, 138 (4th Cir. 2014) (quoting Doe, 519 U.S. at 429

n.5).

              The district court held that Sheriff Anderson enjoyed

Eleventh      Amendment       immunity     because       he    was    a   state    officer.

However,      the     district     court    came    to    this       conclusion     without

analyzing the test we have outlined for such a determination.

See Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *6

(D. Md. Sept. 1, 2015); Ram Ditta v. Md. Nat’l Capital Park &

Planning Comm’n, 822 F.2d 456, 457–58 (4th Cir. 1987).

              In assessing whether an entity is state or local in

character, we have employed the four-factor test described in

Ram     Ditta,       822    F.2d   at    457–58.         The    first     factor     to   be

                                            24
considered is “whether the state treasury will be responsible

for paying any judgment that might be awarded.”                        Id. at 457; see

Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir.

2001).     We have concluded that a judgment’s effect on the state

treasury,      though     still    “of    considerable         importance,        does     not

deserve dispositive preeminence.”                       Oberg, 745 F.3d at 137 n.4

(internal quotation marks and citations omitted); cf. Cash, 242

F.3d at 223; Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,

48 (1994) (stating treasury factor is “the most salient factor

in Eleventh Amendment determinations”).                         The other three Ram

Ditta factors are: “[W]hether the entity exercises a significant

degree    of    autonomy       from     the    state,     whether     [the    entity]      is

involved    with    local       versus    statewide        concerns,        and   how     [the

entity] is treated as a matter of state law.”                              Ram Ditta, 822

F.2d at 457-58 (internal footnotes omitted).

               Upon consideration of all of these factors, we must

“determine whether the governmental entity is so connected to

the   State      that    the     legal    action         against     the    entity      would

. . . amount      to     ‘the   indignity          of   subjecting     a    State    to   the

coercive       process    of     judicial       tribunals       at    the    instance      of

private    parties.’”           Cash,    242    F.3d      at   224   (quoting       Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)).

               Here, the district court admittedly did not engage in

the Ram Ditta analysis at all: “[T]his Court need not apply the

                                              25
Ram Ditta test to the subject action.                     Maryland Code and case

law make clear that sheriffs are state officers, with authority

derived from state law.”               Lane, 2015 WL 5136035, at *6.                   The

district court based its reasoning on the fact that sheriffs are

elected   state       officials,      see   Md.    Const.     art.     IV,    § 44;    are

defined as “state personnel” for the purposes of the Maryland

Tort Claims Act, see Md. Code Ann., State Gov’t § 12-101(a)(6),

Rucker    v.    Harford      Cty.,    558   A.2d   399,     412   (Md.       1989);    are

granted authority by state law to hire deputy sheriffs, see Md.

Code Ann., Cts. & Jud. Proc. § 2-309(d)(1)(ii); and are state

officials, not local government officials, see Lane, 2015 WL

5136035, at *5 (citing cases).

               Yet,   this    is     only   part   of   the    analysis,       and     the

district court’s failure to apply the proper legal framework was

erroneous.        See Gray v. Laws, 51 F.3d 426, 434–35 (4th Cir.

1995) (remanding when the district court did not “undertake the

appropriate      Eleventh      Amendment     analysis”).          As    a    result,    we

reverse and remand the district court’s holding in this regard

so that it can fully consider the issue pursuant to the proper

Ram Ditta test.




                                            26
                                               V.

                           Baltimore City’s Liability

                                               A.

               We review the district court’s grant of a motion to

dismiss de novo, accepting as true all well-pled facts in the

complaint and construing them in the light most favorable to the

plaintiff.          See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d

412, 422 (4th Cir. 2015).

                                               B.

               Appellant      asserts     that      the   district      court     erred      in

dismissing his claim against Baltimore City on the theory that

Sheriff Anderson was acting as the Baltimore City policymaker in

making     BCSO        employment        decisions.             Therefore,        Appellant

contends,       Baltimore      City      can    also      be    held    liable     for      his

termination.         We disagree.

               In    Monell   v.   Department        of       Social   Services        of   New

York,    the    Supreme       Court    held      that     a    municipality       (a    local

government entity) may be liable for a constitutional violation

pursuant to § 1983 if a plaintiff can show “a policy statement,

ordinance,          regulation,     or     decision        officially      adopted          and

promulgated          by    that       body’s        officers”          resulted        in     a

constitutional violation.                436 U.S. 658, 690 (1978) (stating

that municipalities are “persons” subject to suit pursuant to

§ 1983).        This “‘official policy’ requirement was intended to

                                               27
distinguish acts of the municipality from acts of employees of

the    municipality,            and     thereby      make      clear   that       municipal

liability is limited to action for which the municipality is

actually responsible.”                Riddick v. Sch. Bd. of Portsmouth, 238

F.3d   518,    523    (4th       Cir.    2000)       (quoting    Pembaur     v.    City   of

Cincinnati,     475      U.S.     469,       479    (1986)).      Municipal       liability

results   when       the    acts       have    been     “officially      sanctioned       or

ordered” by the municipality.                       Love-Lane v. Martin, 355 F.3d

766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at 480).

              Under appropriate circumstances, a single decision by

a policymaker can result in municipal liability.                            See Pembaur,

475 U.S. at 480.            “Municipal liability attaches only where the

decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered.”                            Id. at 481; see

also McMillian v. Monroe Cty., 520 U.S. 781, 784-85 (1997) (“A

court’s   task      is     to    identify      those    officials      or   governmental

bodies who speak with final policymaking authority for the local

governmental actor concerning the action alleged to have caused

the particular constitutional or statutory violation at issue.”

(internal quotation marks omitted)); Love-Lane, 355 F.3d at 782.

              “To    qualify      as     a    ‘final    policymaking        official,’     a

municipal official must have the responsibility and authority to

implement final municipal policy with respect to a particular

course of action.”              Riddick, 238 F.3d at 523 (quoting Pembaur,

                                               28
475 U.S. at 483); see also Spell v. McDaniel, 824 F.2d 1380,

1386    (4th     Cir.    1987)     (“‘[P]olicymaking          authority’         implies

authority to set and implement general goals and programs of

municipal government, as opposed to discretionary authority in

purely operational aspects of government.”).

            Here, Baltimore City “does not dispute that Sheriff

Anderson       has    final     policymaking     authority”        for      employment

matters relating to those decisions within the BCSO.                        Appellees’

Br. 7; see also Pembaur, 475 U.S. at 483.                     However, the issue

lies in whether Sheriff Anderson made the unfavorable employment

decision for Baltimore City.

                                          C.

            In determining whether Sheriff Anderson acted as the

final policymaker for Baltimore City, our analysis “is guided by

two    principles.”       McMillian,      520    U.S.    at   785.       First,    “the

question is not whether [a sheriff] acts for [the state] or [a

county]    in    some   categorical,      ‘all   or     nothing’     manner.”       Id.

Rather,    the       question    is    whether    the    sheriff      was    a    final

policymaker “for the local government in a particular area, or

on a particular issue.”          Id.

            Second, we resolve this issue based upon state law,

“[r]eviewing the relevant legal materials, including state and

local positive law, as well as custom or usage having the force

of law.”        Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737

                                          29
(1989) (internal quotation marks omitted).                “[S]imply labeling

as a state official an official who clearly makes county policy”

cannot answer the question.            McMillian, 520 U.S. at 786; see

Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) (“[T]he

Sheriff   is   not    always   a    state    employee   or     always   a   county

employee.      He may, on occasion, be both, or sometimes one and

sometimes the other.        It all depends on the particular function

the Sheriff is performing.”); Rucker v. Harford Cty., 558 A.2d

399, 406 (Md. 1989) (“This conclusion does not mean that, for

some purposes and in some contexts, a sheriff may not be treated

as a local government employee.”).

            Here, we conclude that, as a matter of Maryland law,

Sheriff Anderson is not a final policymaker for Baltimore City.

State law, rather than the local government, provides Sheriff

Anderson with his power.           See Md. Const. art. IV, § 44 (stating

that the sheriff “in each county and in Baltimore City” shall

“exercise such powers and perform such duties as now are or may

hereafter be fixed by law”); Prince George’s County v. Aluisi,

731 A.2d 888, 894 (Md. 1999) (explaining that, pursuant to the

Maryland Constitution, “the duties of the sheriffs are those

prescribed     by   the   common   law,     the   enactments    of   the    General

Assembly, and the rules of the Court of Appeals”).                      Moreover,

the Court of Appeals of Maryland has explained that the duties

of sheriffs “are determined by state law, not locally enacted

                                       30
ordinances.”       Aluisi, 731 A.2d at 895.              And here, the Charter of

Baltimore City does not include the sheriff’s department as a

principal     agency    of    Baltimore      City,      or    more   generally,    even

reference    the     sheriff’s    position        or    the    sheriff’s     department

within its provisions.          See generally Charter of Balt. City art.

I to IX.

             With respect to a sheriff’s personnel decision-making

authority, state law establishes the authority for hiring and

discipline, including termination processes.                     See Md. Code Ann.,

Cts. & Jud. Proc. § 2-309(d)(1)(viii) (requiring the sheriff to

“select[] [his deputy sheriffs] according to the provisions of

the State Personnel and Pensions Article”); Md. Code Ann., Pub.

Safety § 3-102(c) (providing the Law Enforcement Officers’ Bill

of Rights “does not limit the authority of the [sheriff] to

regulate the competent and efficient operation and management of

a    law   enforcement       agency    by   any    reasonable        means   including

transfer and reassignment if . . . the [sheriff] determines that

action to be in the best interests of the internal management of

the    law   enforcement       agency”);         Md.    Code    Ann.,     Pub.   Safety

§ 3-108(d) (granting chief of law enforcement agency authority

to    make   final     decision       regarding        discipline    of    subordinate

officers subject to certain procedural requirements mandated by

Sections 3-101 to -109 of the Code of Maryland); Md. Code Ann.,

St. Pers. & Pens. § 11-104 (granting the sheriff power to take

                                            31
disciplinary         actions,      including       demotion        and     termination,

against any employee).

             Further,      although       state    law     does    not     conclusively

establish the state’s liability for a judgment against Sheriff

Anderson in a § 1983 claim, it indicates that, in a tort claim

brought      pursuant     to     state     law,    the    state,     as     opposed     to

Baltimore City, would cover a judgment against the sheriff based

on his personnel decisions.               See generally Md. Code Ann., State

Fin. & Proc. § 9-108 (providing that, pursuant to the Maryland

Tort Claims Act, the state of Maryland, and not Baltimore City,

is liable for tort claims against a sheriff for those claims

relating     to   “personnel       and    other   administrative          activities”);

Rucker, 558 A.2d at 401 (though not deciding whether sheriffs

were state or local employees for federal purposes, which was

not    before     the    court,    holding       sheriffs    are    state     personnel

pursuant to the Maryland Tort Claims Act -- and thus the state

bore     responsibility          for     judgments).         This        suggests     that

personnel decisions do not create local municipal liability and

are not paid by the local government entity.                      See State v. Card,

656 A.2d 400, 402–03 (Md. Ct. Spec. App. 1995) (explaining that

in     the   early      1990s,    the     Maryland       legislature       amended    the

Maryland code “to sort out the various functions performed by

sheriffs and their deputies throughout the State . . . and to

provide an umbrella of State protection, with the cost of that

                                            32
protection to be assessed to the State or the county, depending

on the function involved”).

            In sum, we hold that Sheriff Anderson did not act as a

Baltimore City policymaker when making employment and personnel

decisions.        Accordingly, Appellant’s Monell claim was properly

dismissed. 6

                                       VI.

            For     the   reasons    set    forth     herein,    we     affirm    the

judgment     of     district   court       to   the     extent     it     dismisses

Appellant’s       claim   against     Baltimore       City.       In    all      other

respects,    we    reverse   the    judgment    of    the   district     court     and

remand for further proceedings consistent with this opinion.



                                                                AFFIRMED IN PART,
                                                                REVERSED IN PART,
                                                                     AND REMANDED




     6 We note that our resolution of the Monell liability issue
does not resolve the Eleventh Amendment immunity question that
the district court will consider on remand.   See Gray, 51 F.3d
at 435 (explaining that the district court erred by “appl[ying]
in the Eleventh Amendment context principles applicable only
under section 1983”).



                                       33
