                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-1910


RANDALL E. BRICKEY,

                 Plaintiff - Appellee,

           v.

ROBB HALL,

                 Defendant – Appellant,

           and

DICKIE DYE; T. MICHAEL TAYLOR; ERIK C. PUCKETT;            NEIL
JOHNSON; C. TODD YOUNG; TOM HOLLY; VINCENT MAIDEN,

                 Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      Glen E. Conrad, Chief
District Judge. (1:13−cv−00073−GEC−PMS)


Argued:   December 10, 2015                  Decided:   July 8, 2016


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Reversed and remanded by published opinion.     Judge Diaz wrote
the opinion, in which Judge Duncan and Judge Keenan joined.


ARGUED: Jeremy E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke,   Virginia,  for   Appellant.     Edward   Kyle  McNew,
MICHIEHAMLETT PLLC, Charlottesville, Virginia, for Appellee. ON
BRIEF: Andrea Kay Hopkins, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant.   Hilary K. Johnson, Abingdon,
Virginia, for Appellee.




                               2
DIAZ, Circuit Judge:

       Police officer Randall Brickey was fired for comments he

made as a candidate for town council that were critical of his

employer, the Saltville Police Department, and its Police Chief,

Rob    Hall.      Brickey       filed     suit      under    42   U.S.C.   § 1983     for

retaliatory discharge in violation of the First Amendment.                           The

district       court     denied      Hall     qualified       immunity,      and    this

interlocutory appeal followed.                Because it was debatable at the

time   of   Brickey’s         dismissal      that    his    speech     interests    as    a

citizen outweighed Hall’s interests as a public employer, we

conclude    that       Hall    is   entitled        to    qualified    immunity.         We

therefore reverse.



                                             I.

                                             A.

       Brickey was an officer with the Saltville Police Department

from December 1, 2006, to May 21, 2012, the day his employment

was terminated.          Hall became Police Chief in July 2011, taking

over a department struggling with well-publicized problems of

financial mismanagement, officer misconduct, and a general lack

of professionalism.             In an effort to improve the department’s

operations      and    public       image,    Hall       instituted    several     policy

changes,    including         increased      foot     patrols,     a   stricter    dress

code, and new payroll procedures.

                                             3
      In early 2012, Brickey decided to run for Saltville Town

Council.     He discussed the plan with Hall, who indicated that

the   campaign   would    not   cause   employment    problems   so   long    as

Brickey did not campaign in uniform or disparage the department

in contravention of departmental policy.

      During the campaign, two local newspapers posed questions

to    the   candidates,    inviting     them   to    submit   responses      for

publication.     One paper provided this prompt: “Motivation for

seeking office/why should the voters choose you?”                 J.A. 337.

After identifying himself as a member of the Saltville Police

Department with twenty-three years of experience as a police

officer, Brickey responded in relevant part as follows:

      I teach the D.A.R.E. [i.e., Drug Abuse Resistance
      Education]     Program   at    Saltville     Elementary
      School. . . . I went in to talk to Chief (Rob) Hall
      about   ordering   the  supplies   for   the   D.A.R.E.
      graduation.   I was told there was no money to place
      the order.   After checking with the accounts payable
      clerk to see where the $500 in the police department
      budget had been spent, I was shown several invoices
      that were charged to the D.A.R.E. account. The items
      on the invoices had nothing to do with the D.A.R.E.
      program. I also found, from looking at a copy of the
      budget that I obtained from the town, that the town
      receives $225,000 in highway maintenance funds from
      the state. Only $3,000 is approved in the budget for
      paving.   Seeing this, along with the other misuse of
      taxpayers’ money, shows me that we have a very poor
      management at the council level and there needs to be
      a change.

Id.




                                        4
     Next, in response to a question about the town’s “greatest

needs,” Brickey noted road paving, improved management of the

town pool, and the following changes to the Saltville Police

Department:     “The    town      police       department       needs   to     be    more

professional.     Officers need to do more foot patrols during the

day shift and become more familiar with business owners.                              The

police    department        needs      to        be     more      [aggressive]          on

investigations and focus more on drug trafficking.”                     Id.

     Finally, Brickey responded to a question as to how to meet

those needs.      He first noted that he had “been told by some

business owners in town during [his] campaign for town council

that they would like to see more foot patrols from the police

department,     and    would   like   to       see    the     chief   during    daytime

hours.”   Id.    He went on to propose the addition of a full-time

investigator, stating that the town had a serious drug problem

and that he knew of “cases that need to be investigated by the

police department.”         Id.     Brickey’s statements were printed in

late April 2012.

     About a week later, Hall informed Brickey that he believed

Brickey’s statements violated departmental policy.                       The alleged

violations of the Police Department Policy Manual included (1) a

failure   to    “display       respect         for    [his]     superior     officers,

subordinates,         and      associates”;            (2) “speak[ing]              rumors

detrimental to the department or another employee”; (3) “us[ing]

                                           5
or   attempt[ing]         to    use      [his]      official     position,      badge    or

credentials       for     personal       or      financial      gain    or    advantage”;

(4) “communicat[ing] . . . information                       concerning       operations,

activities       or     matters     of      police     business,       the    release    of

which . . . may have an adverse impact on the department image,

operations,       or     administration”;             and     (5) “criticiz[ing]          or

ridicul[ing] the Department, its policies, or other employees by

speech . . .          [that]      undermines         the     effectiveness          of   the

Department, interferes with the maintenance of discipline, or is

made with reckless disregard for truth or falsity.”                             J.A. 352-

55, 357-70.

     Hall    hired       Gary     Reynolds—an        out-of-state,         former    police

chief—to investigate the allegations and to determine whether

Brickey     in    fact     violated         departmental        policies.         Reynolds

interviewed      Hall,     Brickey,       Assistant         Chief   Erik     Puckett,    the

Saltville    town       auditor,      and     the    other     five    officers     in   the

police department.             In speaking with Reynolds, Brickey withdrew

or attempted to clarify some of his statements.                         Asked about his

comments on the professionalism of the department, Brickey said,

“It’s not that I meant they are unprofessional, we just need to

be on patrol more.”            J.A. 373.         Regarding the D.A.R.E. comments,

Brickey admitted that the $500 was in fact accounted for in a

different line item of the budget.                    J.A. 384.        He also conceded

that he “should have said mismanagement of funds versus misuse

                                              6
of funds.”        J.A. 387.    Brickey insisted that his “statements

regarding the DARE account were not about Chief Hall, they were

about the [town] council members.”           J.A. 383.

       According to Reynolds’s investigation, Brickey’s statements

caused     concern   within    the   Saltville      government      and    police

department.       A town auditor interpreted Brickey’s statements as

alleging that Chief Hall was misusing funds.                 J.A. 381.         This

“upset” the auditor, who, after looking into the matter, “found

no misuse of taxpayer money by Chief Hall.”               Id.       Some police

officers    believed   that    the   comments    reflected    poorly      on   the

department, though at least two officers told Reynolds that they

had not read Brickey’s comments.           J.A. 381-83, 386.

       In Reynolds’s final estimation, Brickey’s statements to the

newspapers violated departmental policies.            J.A. 387.       According

to    Reynolds,    Brickey’s   statements     regarding   the    “misuse”         of

D.A.R.E. funds “clearly ‘bad mouthed’ the Police Department and

especially the Police Chief, and thus were harmful to the public

trust of Chief Hall as well as his integrity.”                Id.     Moreover,

Reynolds faulted Brickey for failing to investigate properly or

verify his allegations that police funds were being misused.

J.A. 388.     Specifically, Reynolds found that Brickey overlooked

the fact that the D.A.R.E. budget line item also included funds

for    “Community    Relations,”     and     that   the   invoices        Brickey

observed were for legitimate community-relations expenses.                  Id.

                                       7
       After    notifying        Brickey      of      the     results     of    the

investigation, Hall held a meeting with Brickey, Reynolds, and

Puckett in which Brickey was given an opportunity to respond to

the allegations and the findings of the report.                         On May 21,

2012, Hall terminated Brickey’s employment.                 Brickey pursued the

department’s grievance procedures to no avail.

                                       B.

       Brickey filed suit under § 1983, naming as defendants Hall

and a number of other individuals who played a role in his

dismissal.      In    addition    to   his    First    Amendment    retaliatory-

discharge      claim,      Brickey     also        asserted     procedural      and

substantive     due-process      claims.      The     due-process    claims     were

dismissed on a 12(b)(6) motion, as was a request for punitive

damages.       The   retaliatory-discharge          claim     survived,   and   the

defendants later moved for summary judgment, attacking the claim

on    the   merits   and   also    asserting       qualified    immunity.       The

district court granted the motion in part and denied it in part.

Brickey v. Hall, No. 1:13-CV-00073, 2014 WL 4351602, at *9 (W.D.

Va. Sept. 2, 2014).           Summary judgment was granted as to all

defendants except Chief Hall—none of the other officials, the

court held, had “caused” Brickey’s injury, as Hall was the lone

decisionmaker.       Id. at *8.

       As to Hall, the district court denied qualified immunity.

Id.    The district court first held that, taking the record in

                                        8
the light most favorable to Brickey, Hall violated Brickey’s

First Amendment rights.       Id. at *4–7.      Having found a violation,

the district court determined that Brickey’s right not to be

fired for his speech was clearly established at the time of his

termination.     Id. at *7–8.     Relying on Citizens United v. FEC,

558 U.S. 310 (2010), the court stated that political speech was

clearly entitled to strong protection.              Id. at *8.   And relying

on Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), the court

stated    that   public   employees’       speech   regarding    governmental

misconduct warrants protection.        Id.

     This interlocutory appeal followed. 1



                                   II.

     We review de novo the denial of qualified immunity.                Altman

v. City of High Point, 330 F.3d 194, 200 (4th Cir. 2003).

     Qualified     immunity     shields      government     officials    from

personal liability when “their conduct does not violate clearly

established . . . rights of which a reasonable person would have

known.”    Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014)



     1 Although “interlocutory appeals are generally disallowed,
‘a district court’s denial of a claim of qualified immunity, to
the extent that it turns on an issue of law, is [immediately
appealable] notwithstanding the absence of a final judgment,’
under the collateral-order doctrine.”   Iko v. Shreve, 535 F.3d
225, 234 (4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S.
511, 530 (1982)).


                                       9
(quoting Stanton v. Sims, 134 S. Ct. 3, 4 (2013) (per curiam)).

That is, qualified immunity protects government officials when

they act in legal “gray areas.”                      Id. (quoting Occupy Columbia v.

Haley, 738 F.3d 107, 118 (4th Cir. 2013)).                                   An official is

entitled       to    qualified        immunity         unless    “(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.”         Id.     at    308    (quoting

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

(4th    Cir.    2006)).           While    a    case     directly       on    point    is     not

required    for      a    court     to    conclude       that    the     law    was    clearly

established,        “existing         precedent        must     have    placed       the . . .

constitutional question beyond debate.”                          Id. (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011)).                               The burden of proof

rests with the official asserting the defense.                           Durham, 737 F.3d

at 299.

       Brickey alleges retaliatory discharge in violation of the

First    Amendment.            On     appeal,        Hall     does     not    challenge       the

district court’s holding that Brickey has properly alleged a

constitutional           violation—the          first       qualified-immunity          prong.

Instead, Hall contends that the right Brickey asserts was not

clearly established in 2012 when Brickey was terminated.                                      Our

review, therefore, is confined to the question of what law was

                                                10
clearly    established—we      do   not    reach     the   merits     of   Brickey’s

constitutional claim.

      A First Amendment retaliation claim poses three questions:

      (1) whether the public employee was speaking as a
      citizen upon a matter of public concern or as an
      employee   about  a   matter   of  personal   interest;
      (2) whether the employee’s interest in speaking upon
      the   matter   of   public   concern   outweighed   the
      government’s interest in providing effective and
      efficient services to the public; and (3) whether the
      employee’s speech was a substantial factor in the
      employee’s termination decision.

McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998).                      The third

question is not in dispute; Hall concedes that he terminated

Brickey because of his speech.                 But Hall contends that the law

was not clearly established on the first two questions.

      Because we hold that the law was not clearly established as

to   the   second       question—the     balancing    of   the    employee’s      and

employer’s       interests—Hall     is    entitled    to   qualified       immunity.

Consequently, we need not reach the question of whether it was

clearly established that Brickey spoke as a citizen on a matter

of public concern.

                                          A.

      Under the Supreme Court’s decision in Pickering v. Board of

Education, a court’s charge in a First Amendment retaliation

case is “to arrive at a balance between the interests of the

[employee], as a citizen, in commenting upon matters of public

concern    and    the    interest   of    the     State,   as    an   employer,   in

                                          11
promoting   the   efficiency   of   the   public   services   it   performs

through its employees.”    391 U.S. 563, 568 (1968).          The public’s

interest in hearing the employee’s speech also weighs in the

balance: “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). 2

     “The Pickering balance requires full consideration of the

government’s interest in the effective and efficient fulfillment

of its responsibilities to the public.”            Connick v. Myers, 461

U.S. 138, 150 (1983).     Prior to Brickey’s termination, the test

for striking the appropriate balance was clear:

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




     2 At this point in his concurrence, Judge Murnaghan speaks
for a majority of the McVey panel. See 157 F.3d at 282 (Michael,
J., concurring in the lead opinion “except to the extent it is
qualified by Judge Murnaghan’s separate opinion”).


                                    12
Ridpath, 447 F.3d at 317 (citation omitted) (quoting McVey, 157

F.3d at 278).              The employer need not prove actual disruption,

“but       only     that    an        adverse       effect     was     ‘reasonably       to     be

apprehended.’”             Maciarello v. Sumner, 973 F.2d 295, 300 (4th

Cir. 1992) (quoting Jurgensen v. Fairfax Cty., 745 F.2d 868, 879

(4th Cir. 1984)).

       It was clearly established in 2012 that police officials

are entitled to impose more restrictions on speech than other

public      employers        because         a    police     force    is    “‘paramilitary’—

discipline        is   demanded,           and     freedom     must    be    correspondingly

denied.”          Id. (quoting Jurgensen, 745 F.2d at 880) (granting

qualified         immunity       to    a     police     official      who    terminated        two

officers       for     conducting            an     unauthorized       investigation          into

alleged evidence tampering in the police force).                                   Because of

this       heightened       need       for       discipline,    police       officials        have

“greater      latitude . . .               in     dealing    with     dissension    in    their

ranks.”       Id.

       The key comments in this case involve the allegedly missing

D.A.R.E. funds. 3           As an initial matter, despite Brickey’s claim


       3
       We agree with the district court that it was clearly
established that Brickey’s other comments were entitled to First
Amendment protection.   Statements that the department “needs to
be more professional,” “needs to be more [aggressive] on
investigations,” or ought to hire an investigator do not raise a
reasonable apprehension of disruption.   J.A. 337.   Not only do
these statements offer modest criticism of the department and
(Continued)
                                                   13
that    he    did    not    intend    to    impugn    his      chief,    Hall      could

reasonably have read the comments—as some others in Saltville

did—to accuse him of incompetence or even malfeasance.                            A town

auditor, for example, read the comments to allege misuse on the

Chief’s      part,   and    (according     to    declarations     given      by    Hall,

Assistant Chief Puckett, and the town manager) some members of

the police force and the public expressed concerns of police

misconduct in the wake of the articles.                        See J.A. 93 (Hall:

“Some residents also construed Brickey’s comments as accusing me

and the department of corruption and misusing funds.”); J.A. 312

(Puckett: “I was asked questions about the articles from members

of the public who expressed concern that officers were engaging

in misconduct.”); J.A. 316 (Town Manager: “Officers expressed

their     belief     that    Brickey       had     accused     them     of   improper

behavior . . . .”); id. (“Many people who commented about the

articles expressed concern that someone was stealing money from

the Town.”).

       The clearly established principles outlined above did not

put the outcome of the Pickering balancing in this case “beyond

debate.”       The    context   and    the       extent   of   disruption       of   the

D.A.R.E. comments weighed on both sides of the scale.                             First,




its chief, but they also touch on weaknesses of the department
that were already well known in Saltville.


                                           14
Brickey spoke as a political candidate in a public forum.                            In

general terms, speaking as a political candidate weighs in favor

of speech.       At the same time, however, the public nature of

Brickey’s     comments    increased     their      capacity       for    disruption.

Second, Brickey’s speech criticized a superior officer.                          As our

cases reflect, discipline and respect for superior officers are

critical in a police force.            Because speech accusing a superior

officer of incompetence or malfeasance goes to the heart of the

superior’s authority, Hall could reasonably have believed that

Brickey’s comments would undermine his authority in the eyes of

the public and within the police department.                    See J.A. 316 (Town

Manager stating that “[b]ased on my observations of officers in

the Police Department, Brickey’s comments hampered morale and

discipline in the department”).              Such a concern is amplified in

the   close   working     conditions    of    a   small    police       force,    where

“mutual confidence and co-operation are essential.”                        Cooper v.

Johnson, 590 F.2d 559, 562 (4th Cir. 1979).                     Furthermore, Hall

was   working    to   restore      credibility     to     the    department.         He

reasonably could have believed that Brickey’s comments would set

back his efforts and increase public distrust in him and the

department      as    a   whole.       Finally,      Reynolds       conducted        an

independent investigation of Brickey’s statements and concluded

that they “were harmful to the public trust of Chief Hall as



                                        15
well as his integrity.”             J.A. 387.          Such a finding supports the

conclusion that Hall reasonably apprehended disruption.

        In sum, the parties have not directed us to any case that

would have clearly warned Hall that terminating Brickey for his

comments    about        the    D.A.R.E.     funds       would     violate       his    First

Amendment rights.              On the contrary, our case law had stressed

the broad discretion granted police officials to limit speech

when discipline is at stake.               As a result, we cannot say that it

was beyond debate that Brickey’s interests outweighed Hall’s.

                                            B.

      Brickey’s        counter-arguments         are    unpersuasive.            He    relies

principally       on   Citizens     United       v.    FEC,    558       U.S.   310    (2010),

which    held     that    the     government          may   not    prohibit        corporate

expenditures to support or criticize political candidates.                                 In

Brickey’s       view,     “[n]othing       could        have       been     more      clearly

established in May 2012 than the sanctity of political speech.”

Appellee’s Br. at 28.               However, such a broadly framed right

could not have answered the question facing Hall: when does a

police chief’s need to maintain discipline and harmony permit

him to infringe on an officer’s right to make public statements

as a political candidate insinuating wrongdoing by a superior

officer?     See al-Kidd, 563 U.S. at 742 (stating that courts may

not     “define    clearly        established         law     at     a    high     level   of

generality”).

                                            16
      While a case directly on point is not required to clearly

establish the answer to this question, Citizens United addresses

only one side of the Pickering scale, and it does so on very

different facts.             Cases more closely on point have not treated

political speech as inviolate in the public-employment context.

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

(holding     that       it    was    clearly           established     in     2009    that   “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”);        see     also        Waters   v.

Churchill, 511 U.S. 661, 672 (1994) (plurality opinion) (“Even

something    as     close       to     the    core       of    the    First    Amendment     as

participation       in        political       campaigns         may    be     prohibited     to

government employees.”).

      Brickey next contends that Hall has nothing on his side of

the Pickering scale but “rank speculation,” and he likens the

anticipated disruption here to that in Smith v. Gilchrist and

Durham v. Jones.              Appellee’s Br. at 31-32. 4                    We have already

explained        that        Hall    had      a        “reasonable      apprehension”        of

      4Both Smith and Durham were published after May 21, 2012
(the date of Brickey’s termination), but they held that certain
rights were clearly established prior to that date.    While the
cases could not have assisted Hall, we are nevertheless bound by
their holdings.



                                                  17
disruption, 5     and    we    now   explain      why    Smith      and    Durham       are

distinguishable.

       In Smith, an assistant district attorney (“ADA”) running

for    public     office      gave   a    televised     interview         in    which   he

criticized a local defensive-driving program.                       749 F.3d at 305.

Because completion of the program allowed ticketed drivers to

receive       a   “prayer      for   judgment       continued,”        the       district

attorney’s office (the “government”) benefitted from the program

by a substantially reduced caseload.                    Id.      When the district

attorney       terminated      the       ADA’s   employment         soon       after    the

interview, the ADA brought a First Amendment retaliation suit.

Id. at 306.

       In the district court, the government conceded that the ADA

“had       forecasted    evidence        sufficient     to    establish         that    his

interest in speaking outweighed the government’s.”                         Id. at 309.

Nevertheless,      the     government      argued     that    the    outcome      of    the

balancing test was not clearly established in the ADA’s favor,

as the district attorney reasonably could have apprehended that

the ADA’s criticism of the defensive-driving program would harm




       5
       Brickey also contends that Hall effectively conceded a
lack   of   disruption  by   hiring   Reynolds   to conduct   an
investigation.   We disagree.   Hiring an impartial investigator
in this circumstance, where Hall felt personally aggrieved, more
clearly reflects prudence than a lack of evidence.


                                            18
the district attorney’s office by increasing its workload.                          Id.

at 307.

     We rejected the government’s argument, relying largely on

its prior      concession     that    “[t]here       are   no   relevant    facts    to

challenge [the] finding that [the ADA’s] interest in speaking

outweighed the government’s interest in providing effective and

efficient services to the public,” but also further noting that

the government lacked “any evidence that [it] had any reason to

believe that [the ADA’s] interview would negatively affect the

efficiency or effectiveness of the DA’s office.”                     Id. at 309–10.

Here,   Hall    has    not    conceded       the     outcome    of    the   Pickering

balancing      test,   and    we     have        found   that   Hall,   unlike      the

government     in   Smith,     had    reason        to   believe     that   Brickey’s

comments would cause disruption.

     In Durham, the right at issue was of public employees to

speak out on “serious governmental misconduct,” specifically, a

police officer’s 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.”

737 F.3d at 303.         Although the employer “paid lip service to

ostensible      damage   to     office       morale,       relationships      between

colleagues, and the function of the office generally,” we found

that the employer “was unable to articulate any way in which the

                                            19
office would have been different or was actually different due

to [the employee’s] statements.”               737 F.3d at 302.           Indeed, the

employer ultimately conceded that he had no reason to think that

the employee’s speech would prevent the police department from

carrying out its mission.           Id.      We held that the employer’s weak

evidence of disruption could not outweigh the importance of the

employee’s speech.            Id. (“Serious, to say nothing of corrupt,

law enforcement misconduct is a substantial concern that must be

met with a similarly substantial disruption in the calibration

of the controlling balancing test.”).

     Durham      is     not   controlling      for    at    least   four       reasons.

First,    and    most    importantly,     Hall    has      not   merely    “paid   lip

service” to potential disruption to his police force, as we have

already explained.            Unlike the employer in Durham, Hall could

reasonably      have    apprehended     that    the   D.A.R.E.      comments      would

undermine his authority.

     Second, Brickey’s speech did not clearly allege misconduct

of the same magnitude as that alleged in Durham.                           While the

possibility that $500 of public funds had been mislaid or even

misused    may    well    have   been     significant       to   the   citizens     of

Saltville, Hall could reasonably have believed that it was not

the kind of “serious governmental misconduct” that our case law

had protected.           Durham involved clear accusations that high-

ranking    police       officials     were     forcing      officers      to    falsify

                                          20
reports of incidents involving the officers’ use of force.                        Id.

at 296.     Such a core abuse of the mission of a police department

is   reasonably    distinguishable             from     vague      allegations     of

mismanagement and even misuse of funds. 6

     Third,    Brickey    claimed       during    the   Reynolds     investigation

that he never intended to accuse Hall of any wrongdoing.                          The

employee in Durham, by contrast, made unmistakable allegations

of misconduct with the intention of exposing the wrongdoing and

alerting the public.            Knowing that Brickey did not intend to

expose    misconduct,     Hall    could    reasonably       have    believed     that

Brickey’s speech did not deserve the same protection as that of

a whistleblower.

     Fourth,    Hall     knew    from    the     Reynolds   investigation        that

Brickey’s     statements        about     the     misuse     of     funds   proved

misleading.     As Brickey admitted, the D.A.R.E. funds were not


     6 In holding that it was clearly established that the First
Amendment   protects   allegations   of   “serious  governmental
misconduct,” Durham relies on Robinson v. Balog, 160 F.3d 183
(4th Cir. 1998). In Balog, which was available to Hall, public-
works employees suffered retaliation for their allegations that
a contributor to the mayor’s reelection campaign was illegally
rewarded with a contract to repair a landfill leachate pond and
subsequently failed to make the needed repairs. Id. at 184–85.
That these allegations of blatant, large-scale corruption
endangering public health were protected, see id. at 185, did
not clearly establish protection for Brickey’s statements.
Moreover, as in Smith and Durham, we based our decision to deny
qualified immunity in large part on “the lack of evidence
supporting the [government’s] interest in disciplining [the
employees] for their speech.” Id. at 189.


                                         21
missing, and there were no improper charges to the account. 7                           The

employee        in    Durham    did   not   make       such    a   concession      to   the

employer before his termination.                    Hall could reasonably have

believed    that       the     inaccuracy   of     Brickey’s       statements      reduced

their     value      and     increased    his    own    interests     in     suppressing

future statements of the same kind.                    See Hustler Magazine, Inc.

v. Falwell, 485 U.S. 46, 52 (1988) (“False statements of fact

are   particularly           valueless;     they    interfere       with     the    truth-

seeking function of the marketplace of ideas, and they cause

damage     to    an    individual’s       reputation      that      cannot    easily     be

repaired by counterspeech, however persuasive or effective.”);

Piver v. Pender Cty. Bd. of Educ., 835 F.2d 1076, 1081 (4th Cir.

1987)     (noting      an    employer’s     need    for       “protection    from    false

      7After oral argument, Brickey submitted a letter bringing
to our attention the Supreme Court’s recent decision in
Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016). See Fed.
R. App. P. 28(j). In Heffernan, “a government official demoted
an employee because the official believed, but incorrectly
believed, that the employee had supported a particular candidate
for mayor.”    136 S. Ct. at 1416.    The Court held that even
though the employee had not supported the candidate—and
therefore had not engaged in a constitutionally protected
activity—he nevertheless was entitled to bring a First Amendment
retaliation claim because “the government’s reason for demoting
[an employee] is what counts.”     Id. at 1418.     According to
Brickey, Heffernan establishes the broad rule that “a mistake of
fact does not defeat a First Amendment retaliation claim,” even
when an employee makes factually inaccurate claims regarding his
employer. See Appellee’s 28(j) Letter. Heffernan lends Brickey
no support. Not only does the case assume without deciding the
merits of the First Amendment claim, see id. at 1419, but more
to the point, it simply does not address the issue of factually
inaccurate employee speech.


                                            22
accusations   that   may   prove   difficult   to    counter   given   the

employee’s supposed access to inside information”).



                                   III.

     We hold that it was not clearly established on the date of

Brickey’s termination that his speech interests as a citizen

outweighed Hall’s interests as an employer.            Hall is therefore

entitled to qualified immunity.           Accordingly, we reverse the

district court’s denial of summary judgment and remand for entry

of an order consistent with this opinion.

                                                    REVERSED AND REMANDED




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