                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 17-1002
                           ___________________________

                                     Donald Morgan

                           lllllllllllllllllllllPlaintiff - Appellee

                                              v.

            Michael Robinson, Washington County Sheriff, an individual

                         lllllllllllllllllllllDefendant - Appellant

                             Washington County, Nebraska

                                lllllllllllllllllllllDefendant
                                       ____________

                       Appeal from United States District Court
                         for the District of Nebraska - Omaha
                                    ____________

                            Submitted: September 25, 2018
                               Filed: March 29, 2019
                                   ____________

Before SMITH, Chief Judge, WOLLMAN, LOKEN, COLLOTON, GRUENDER,
BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, and STRAS, Circuit
Judges, En Banc.1
                             ____________

BENTON, Circuit Judge.

     1
         Judge Kobes did not participate in the consideration or decision of this matter.
       Donald Morgan sued his boss Michael Robinson for First Amendment
retaliation under 42 U.S.C. § 1983. Robinson moved for summary judgment based
on qualified immunity. The district court denied the motion. This court reverses and
remands.

                                          I.

       Morgan is a deputy in the Washington County, Nebraska Sheriff’s Department.
Robinson is the elected sheriff. In 2014, Morgan ran against Robinson in the primary
election. During the campaign, Morgan publicly made statements about the sheriff’s
department and his plans to improve it. Robinson won. Six days later, Robinson
terminated Morgan’s employment, claiming his campaign statements violated the
department’s rules of conduct.

      Morgan sued Robinson for retaliatory discharge in violation of the First
Amendment. Robinson moved for summary judgment based on qualified immunity.
The district court denied the motion, finding “genuine issues of material fact
regarding the constitutionality of the termination, and whether Robinson should have
reasonably known the termination was unlawful.” Morgan v. Robinson, 2016 WL
10636372, at *5 (D. Neb. Dec. 8, 2016). On appeal, a panel of this court affirmed.
Morgan v. Robinson, 881 F.3d 646, 650 (8th Cir. 2018), reh’g en banc granted,
opinion vacated (Mar. 21, 2018). This court granted rehearing en banc, vacated the
panel decision, and now reverses.

                                         II.

      Summary judgment is proper when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). Ordinarily, this court lacks jurisdiction over a denial of summary judgment
“because such an order is not a final decision.” Division of Emp’t Sec. v. Board of

                                         -2-
Police Comm’rs, 864 F.3d 974, 978 (8th Cir. 2017). However, if the moving party
claims qualified immunity, “an immediate appeal is appropriate . . . because immunity
is effectively lost if a case is erroneously permitted to go to trial.” Id. This court
reviews de novo denials of summary judgment based on qualified immunity. Id. See
Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667, 670 (8th Cir. 2013) (“This court
reviews de novo a grant of summary judgment, construing all facts and making all
reasonable inferences favorable to the nonmovant.”).

        Qualified immunity shields officials from civil liability in § 1983 actions when
their conduct “‘does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S.
223, 231 (2009), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified
immunity analysis requires a two-step inquiry: (1) whether the facts shown by the
plaintiff make out a violation of a constitutional or statutory right, and (2) whether
that right was clearly established at the time of the defendant’s alleged misconduct.”
Nord v. Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014) (internal quotation marks
omitted). “Unless both of these questions are answered affirmatively, an appellant
is entitled to qualified immunity.” Id. “And, courts are ‘permitted to exercise their
sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first.’” Id. at 738-39, quoting Pearson, 555 U.S. at 236.

                                          III.

       The district court found “a genuine issue of material factors” on “the first prong
of the qualified immunity analysis.” Morgan, 2016 WL 10636372, at *5. A panel
of this court found that Morgan’s termination “violated a right secured by the First
Amendment.” Morgan, 881 F.3d at 656. This court need not decide the issue
because Robinson did not violate a “clearly established statutory or constitutional
right[] of which a reasonable person would have known.” Pearson, 555 U.S. at 231.


                                          -3-
       A clearly established right is one that is “sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and
alteration omitted). “[T]he longstanding principle” is that “‘clearly established law’
should not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548,
552 (2017), quoting Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011). Instead, “the
clearly established law must be ‘particularized’ to the facts of the case.” Id., quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987). There need not be a case “directly
on point, but existing precedent must have placed the statutory or constitutional
question beyond debate.” al-Kidd, 563 U.S. at 741. See District of Columbia v.
Wesby, 138 S. Ct. 577, 590 (2018) (requiring that the “clearly established standard”
be defined with a “high degree of specificity” (internal quotation marks omitted)).
In other words, qualified immunity “gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the plainly incompetent
or those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per
curiam) (internal quotation marks omitted). Morgan has the burden to demonstrate
that the law is clearly established. Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002).

        To determine whether the law was clearly established at the time of Morgan’s
termination, this court needs to look no further than Nord v. Walsh. Nord, 757 F.3d
734. There, a deputy sheriff in Walsh County, North Dakota, ran against his current
boss. Id. at 737. During the campaign, he made comments critical of the sheriff. Id.
at 742. The sheriff won. Id. at 738. The next day, after consulting the county
attorney and human resources consultant, he fired the deputy. Id. The deputy sued
under § 1983 for violations of the First and Fourteenth Amendments. The district
court denied the sheriff’s motion for summary judgment based on qualified immunity.
Id., citing Nord v. Walsh Cnty., 2012 WL 12848433 (D.N.D. Aug. 30, 2012), rev’d,
757 F.3d 734 (8th Cir. 2014). This court reversed, finding the sheriff entitled to
qualified immunity. Id. at 745. This court said, “considering North Dakota law and
well-established state and federal jurisprudence, and especially the advice given by

                                          -4-
the Walsh County attorney and its human resources consultant, Sheriff Wild could
have logically and rationally believed that his decision to terminate Nord was well
within the breathing room accorded him as a public official in making a reasonable,
even if mistaken, judgment under the circumstances.” Id. at 743, citing Stanton, 571
U.S. at 6.

        The facts of this case are similar to Nord. Here, as there, the Washington
County Sheriff’s Department enforces the police powers in the county. Compare
Neb. Rev. Stat. § 23-1701.02 (“It shall be the duty of every sheriff to apprehend . .
. all felons and disturbers and violators of the criminal laws of this state, to suppress
all riots, affrays, and unlawful assemblies . . . and generally to keep the peace in his
or her proper city.”), with Nord, 757 F.3d at 740 (noting that the “sheriff manages and
enforces a substantive portion of the sovereign’s policing powers”). Both
departments are relatively small. In Washington County, three deputies typically
work each shift, with two working one half of the county and the third working the
county at large. This “presumably means that there will be times when a single
deputy will present the face of the sheriff in the county, at least in the assigned
district.” Nord, 757 F.3d at 741. The deputies thus represent the sheriff in public,
executing the duties and responsibilities of the department.

       The Washington County sheriff, like the sheriff in Nord, has the power to
appoint and terminate deputies. See Neb. Rev. Stat. § 23-1704.01 (“The sheriff may
appoint such number of deputies as he or she sees fit for whose acts he or she will be
responsible.”); Neb. Rev. Stat. § 23-1734 (“Any deputy sheriff may be removed,
suspended with or without pay, or reduced in either rank or grade or both rank and
grade by the sheriff . . . .”). This power necessitates deference “in executing . . .
official duties, including the hiring and firing of employees—especially subordinate
officers.” Nord, 757 F.3d at 741. In both counties, the sheriff “has an interest in
maintaining the efficient operation” of the office. Morgan, 881 F.3d at 653-54, citing
Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

                                          -5-
       There are two distinctions between the cases, but neither warrants a different
outcome. One is the speech at issue. In Nord, the speech focused on the sheriff,
including comments that his health was poor, his wife did not want him to run, and
he planned to resign. Nord, 757 F.3d at 742. The sheriff contended these statements
were lies and not matters of public concern. Id. Here, the speech focused on the
county and the sheriff’s department. During the campaign, Morgan said: (1) the
county communications center had not been completed; (2) rural fire departments
lacked adequate radio systems; (3) the county needed more deputies on the road; (4)
the office budget did not consider the public’s needs; (5) department morale was
poor; (6) the department was not doing well; and (7) people were leaving the office
because they did not feel respected. The parties dispute whether all of Morgan’s
statements were true; but they agree some involved matters of public concern.

       Morgan argues this difference “render[s] Nord irrelevant for purposes of
determining whether the law was clearly established in this case.” Specifically, he
contends Nord is inapplicable because the speech there was untruthful, not a matter
of public concern, and undeserving of First Amendment protection. This argument
has no merit. Although the speech here arguably is entitled to greater protection—an
issue this court need not decide—the speech does not necessarily override the
sheriff’s interest in maintaining the “discipline and harmony” of the office. Id. at
743. The Nord court said that “even if” the deputy’s speech “was fully protected by
the Constitution,” the sheriff “could have reasonably believed that the speech would
be at least potentially damaging . . . and disruptive” and thus the sheriff “could have
logically and rationally believed that his decision to terminate Nord was well within
the breathing room accorded him as a public official in making a reasonable . . .
judgment under the circumstances.” Id.

      Another difference is the impact of the speech. In Nord, apparently there was
no evidence of disruption or potential disruption. The sheriff there “testified that,
during the campaign period, there were no complaints about how the office was run

                                         -6-
nor were there any communication problems between the employees.” Id. at 748
(Shepherd, J., dissenting). Here, Robinson testified he believed Morgan’s statements
were detrimental to the office, harmful to morale, and adversely impacted the public’s
trust of the office. Deputies expressed similar concerns. They said Morgan’s
statements bred “uneasiness,” made some employees feel uncomfortable, contributed
to lack of morale, and created turmoil. Five of these deputies—the entire command
staff—recommended his termination. The termination letter said Morgan had
“violated the trust” of the administration and his fellow officers and created
“disharmony in the office.”

       Morgan argues that Robinson “has not proven any disruption” and thus should
have known that firing him would violate a clearly established right. The dissent also
advances this argument, claiming that Robinson provides “no evidence” of “actual
disruption,” “actual impact,” “demonstrated impact,” or “indicators of poor morale”
created by Morgan’s speech. This argument misstates the record. The termination
letter and the deposition testimony of Robinson and the command staff about the
effect of Morgan’s statements are evidence of “actual disruption” and “demonstrated
impact.”

       Even without this evidence, however, Robinson could claim qualified
immunity. As the Supreme Court has said, there is no “necessity for an employer to
allow events to unfold to the extent that the disruption of the office and the
destruction of working relationships is manifest before taking action.” Connick v.
Myers, 461 U.S. 138, 152, 154 (1983) (holding that Myer’s First Amendment interest
did “not require that Connick tolerate action which he reasonably believed would
disrupt the office, undermine his authority, and destroy close working relationships”).
See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“A government entity has
broader discretion to restrict speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that has some potential to affect the
entity’s operations.”) (emphasis added); Waters v. Churchill, 511 U.S. 661, 673

                                          -7-
(1994) (“[W]e have consistently given greater deference to government predictions
of harm used to justify restriction of employee speech than to predictions of harm
used to justify restrictions on the speech of the public at large. Few of the examples
we have discussed involve tangible, present interference with the agency’s operation.
The danger in them is mostly speculative. . . . But we have given substantial weight
to government employers’ reasonable predictions of disruption, even when the speech
involved is on a matter of public concern.”); Hara v. Pennsylvania Dep’t of Educ.,
492 F. App’x 266, 268 (3d Cir. 2012) (citing Garcetti and noting that “[a]ctual
disruption is not necessary”).

        This is particularly true here given the “latitude the courts accord a managing
law enforcement officer in executing his official duties, including the hiring and
firing of employees—especially subordinate officers.” Nord, 757 F.3d at 741. See
Buzek v. County of Saunders, 972 F.2d 992, 995 (8th Cir. 1992) (“[L]aw
enforcement agencies, more than other public employers, have special organizational
needs that permit greater restrictions on employee speech.”); Crain v. Board of
Police Comm’rs, 920 F.2d 1402, 1411 (8th Cir. 1990) (“More so than the typical
government employer, the [Missouri Highway] Patrol has a significant government
interest in regulating the speech activities of its officers in order to promote
efficiency, foster loyalty and obedience to superior officers, maintain morale, and
instill public confidence in the law enforcement institution.”) (internal quotation
marks omitted).

       The termination letter, Robinson’s testimony, and the testimony of five other
deputies, show—even more so than in Nord—that Robinson “could have reasonably
believed” that Morgan’s speech was “at least potentially damaging to and disruptive
of the discipline and harmony of and among co-workers in the sheriff’s office and
detrimental to the close working relationships and personal loyalties necessary for an
effective and trusted local policing operation.” Nord, 757 F.3d at 743.



                                         -8-
       Nord was decided in June 2014. Robinson fired Morgan one month earlier.
Thus, he did not have the benefit of the Nord decision to support his belief that he
was not violating a clearly established right. Still, Nord supports Robinson. A
clearly established right must be one that is “sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.” Reichle,
566 U.S. at 664 (internal quotation marks and alteration omitted). “[E]xisting
precedent must . . . place[] the statutory or constitutional question beyond debate.”
al-Kidd, 563 U.S. at 741. The facts here are similar to Nord. That decision held the
law not clearly established in November 2010. Neither Morgan nor this court finds
any intervening law that clearly established the law before his termination. See
White, 137 S. Ct. at 552 (requiring that clearly established law be “particularized” to
the facts of the case); Hanson as Tr. for Layton v. Best, 915 F.3d 543, 548 (8th Cir.
2019) (holding that the plaintiff “must identify controlling authority from the
Supreme Court or our prior case law or a robust consensus of cases of persuasive
authority that places the constitutional question beyond debate” (internal quotation
marks omitted)). See also Brickey v. Hall, 828 F.3d 298, 305 (4th Cir. 2016)
(holding officer entitled to qualified immunity where the plaintiff had “not directed
us to any case that would have clearly warned [the officer] that terminating” the
plaintiff for his comments “would violate his First Amendment rights”). Thus, Nord
shows the constitutional question was not “beyond debate” in May 2014.2 al-Kidd,
563 U.S. at 741.




      2
        Morgan cites no applicable precedent that puts the constitutional question
beyond debate or shows that a reasonable person would have known the termination
was a violation of a clearly established right. Although he cites Bearden v. Lemon,
475 F.3d 926 (8th Cir. 2007), for the proposition that “a Deputy Sheriff has a clearly
established First Amendment right to make truthful statements on matters of public
concern during a campaign for Sheriff,” Bearden was decided on jurisdictional
grounds and does not clearly establish Morgan’s right here.

                                         -9-
        At the time of Morgan’s termination, the law was not “sufficiently clear” so
that Robinson would have known that terminating him violated his First Amendment
rights. See Reichle, 566 U.S. at 664. Robinson is entitled to qualified immunity. See
Nord, 757 F.3d at 743-44. See, e.g., Bland v. Roberts, 730 F.3d 368, 391 (4th Cir.
2013) (holding a sheriff entitled to qualified immunity because 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”); Randall v. Scott, 610 F.3d 701, 715-16 (11th Cir. 2010)
(affirming qualified immunity for a district attorney who fired her chief of staff for
running against her husband in a county election, holding that the staffer’s rights
“were not clearly established under broad case law” or cases with “materially similar
facts”).

                                    *******

      The judgment is reversed and the case remanded for proceedings consistent
with this opinion.

SHEPHERD, Circuit Judge, with whom KELLY and ERICKSON, Circuit Judges,
join, dissenting.

       The majority’s holding that Sheriff Robinson is entitled to qualified immunity
rests on the impermissible factual finding that Robinson terminated Deputy Morgan
because of the potentially damaging and disruptive consequences of Morgan’s
campaign speech. When viewed through the proper lens of a summary judgment
appeal, the record does not support the majority’s holding. Rather, viewing the facts
in the light most favorable to Deputy Morgan, as we must, Sheriff Robinson
terminated Morgan’s employment solely because of his personal objections to the
content of Morgan’s campaign speech without the reasonable belief that the
statements would have a disruptive effect on the operation of the Sheriff’s

                                        -10-
Department. I would therefore affirm the district court’s denial of qualified immunity
to Robinson and I respectfully dissent.

                                          I.

       Robinson is the elected Sheriff of Washington County, Nebraska, who has held
the position since 2000. He stood for reelection in 2014. Morgan, a deputy in the
Washington County Sheriff’s Department, ran against Robinson in the 2014 primary
election. During the campaign, Morgan made public statements about the operations
of the Sheriff’s Department and his proposed improvements should he be elected.
Robinson won the primary election and six days later terminated Morgan’s
employment on the grounds that Morgan’s campaign statements were untruthful. In
the Termination Notice, Robinson cited the following statements made by Morgan
during the campaign as the reasons for the termination: the communications system
was not completed after ten years of construction; the Fire and Rescue agencies could
not communicate and someone would be hurt or killed if it was not fixed; morale at
the Sheriff’s Department was bad and several deputies were actively looking for
employment; Morgan’s K-9 had been taken from him in an act of retribution; and
portable radio coverage was poor. Dist. Ct. Dkt. 93-3.

       Morgan initially filed a grievance under a labor contract that applied to his
position, which he lost. He then filed this suit in district court asserting claims of
retaliation and deprivation of due process, under 42 U.S.C. § 1983, and breach of the
labor contract. The district court compelled arbitration on the breach of the labor
contract claim. The arbitrator ruled in Morgan’s favor and reinstated his employment
with the Sheriff’s Department.

       After returning to district court, Robinson filed a motion for summary judgment
asserting qualified immunity with respect to Morgan’s retaliation claim. The district
court denied the motion, ruling that Robinson was not entitled to qualified immunity

                                        -11-
because there were genuine disputes of material fact concerning the public value of
Morgan’s statements and whether the statements caused disruption in the operation
of the Sheriff’s Department. Robinson appeals this decision.

                                           II.

       We review de novo the decision of the district court denying qualified
immunity. Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). Summary
judgment should be granted if “the movant shows that there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “In resolving questions of qualified immunity at summary judgment,
courts engage in a two-pronged inquiry. The first asks whether the facts, ‘taken in
the light most favorable to the party asserting the injury, . . . show that the officer’s
conduct violated a [federal] right[.]’” Tolan v. Cotton, 572 U.S. 650, 655-56 (2014)
(alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). “The
second prong of the qualified immunity analysis asks whether the right in question
was ‘clearly established’ at the time of the violation.” Id. at 656. “Courts have
discretion to decide the order in which to engage these two prongs. But under either
prong, courts may not resolve genuine disputes of fact in favor of the party seeking
summary judgment.” Id. (citation omitted).

With respect to the requirement that we view the facts favorably to the nonmoving
party, the Supreme Court has stated:

      This is not a rule specific to qualified immunity; it is simply an
      application of the more general rule that a “judge’s function” at
      summary judgment is “not to weigh the evidence and determine the truth
      of the matter but to determine whether there is a genuine issue for trial.”
      Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242,] 249 [(1986)].
      Summary judgment is appropriate only if “the movant shows that there
      is no genuine issue as to any material fact and the movant is entitled to
      judgment as a matter of law.” Fed. Rule Civ. Proc. 56(a). In making

                                          -12-
      that determination, a court must view the evidence “in the light most
      favorable to the opposing party.” Adickes v. S.H. Kress & Co., 398 U.S.
      144, 157 (1970); see also Anderson, [477 U.S.] at 255.

Id. at 656-57.

       Failing to remain faithful to these limits on our review of the facts and instead
summarily and improperly weighing the evidence and finding critical facts in the light
most favorable to Sheriff Robinson, the majority concludes that Sheriff Robinson
terminated Morgan because he could have reasonably believed that Morgan’s
statements during the 2014 campaign for Sheriff of Washington County would be
potentially damaging to and disruptive of the discipline and harmony of the Sheriff’s
Department. Such a conclusion can only be reached by accepting the Sheriff’s post-
hoc litigation position and improperly viewing the facts in the light most favorable
to the Sheriff.

       Contrary to the majority’s suggestion that this dissent misstates the record, I
do no more than carry out our duty to view the evidence “in the light most favorable”
to the party opposing summary judgment, here Deputy Morgan. See Adickes, 398
U.S. at 157. With this mandate in mind, the record shows the following:

      •      Sheriff Robinson has been Washington County Sheriff since
             2000. In July 2013, Morgan notified Robinson that he intended
             to oppose Robinson in the 2014 primary.

      •      Morgan has been a full-time Washington County deputy since
             2002. In his last performance evaluation prior to the 2014
             primary, Morgan was rated as performing at a level meeting or
             exceeding standards in all areas. Morgan’s sergeant described
             Morgan as a “good example of what a patrol deputy should be,
             i.e. on time, good public relations, gets along with fellow
             deputies.” Morgan’s sergeant signed off on the evaluation on
             December 30, 2013; Morgan’s captain signed off on February 24,

                                         -13-
    2014; the chief deputy signed off on February 24, 2014; and
    Sheriff Robinson signed off on March 30, 2014.

•   Robinson won the primary election which was held on May 13,
    2014.

•   On May 16, 2014, Robinson called a meeting of his command
    staff to discuss Morgan. The command staff consisted of Patrol
    Captain Kevin Willis; Chief Deputy Ben Scherer; Captain Phillip
    Brazelton of the communications center; Lieutenant Shawn
    Thalas; and Captain Robert Bellamy, the Jail Administrator.

•   The command staff recommended Morgan’s discharge. These
    officers testified that they made the recommendation to terminate
    Morgan because certain public statements made by Morgan
    during the campaign were critical of the status of the Sheriff’s
    Department, were untrue, misled the public, and revealed Morgan
    to be untrustworthy.

•   Captain Bellamy, who was also Sheriff Robinson’s campaign
    manager, testified that he (Bellamy) was “old school”; that “I
    don’t believe that you bite the hand that feeds you”; and that a
    deputy should not run against the sitting Sheriff. Dist. Ct. Dkt.
    89-2.

•   Brian Beckman, Patrol Sergeant in the Sheriff’s Department,
    testified that during the campaign Sheriff Robinson asked him
    about morale in the Sheriff’s Department, and he responded that
    he “felt morale was good and that to my knowledge, nobody was
    looking for a job.” Dist. Ct. Dkt. 89-8.

•   Robinson identified Morgan’s campaign statements to which he
    objected as Morgan’s assertions that there was a lack of deputies
    on the road; the office budget did not consider the public’s needs;
    the County communication center had not been completed; that
    morale in the Department was poor; that the entire department
    was not doing well; that rural fire departments lacked adequate


                               -14-
             radio systems; and that people had been leaving the office
             because they didn’t feel respected. Dist. Ct. Dkt. 90.

      •      During the campaign, Sheriff Robinson asked three sergeants in
             the Sheriff’s Department about morale; each stated that morale
             was fine.

      •      Morgan’s written Termination Notice, dated May 19, 2014,
             stated that under the “circumstances” Morgan violated rules of
             conduct pertaining to “obedience to laws and orders,” “false
             statements,” “slander[ing] or speak[ing] detrimentally about the
             office or another employee,” and the expectation that
             “[e]mployees shall always display absolute honesty.” The
             Termination Notice specified Morgan’s campaign statements as
             violating these rules. Dist. Ct. Dkt. 93-3.

      •      The Arbitrator determined that Morgan’s campaign statements
             were not “outright lies or falsehoods” and his statements “did not
             demonstrate moral turpitude, his statements were not falsehoods
             intent upon personal gain and he did not slander or speak
             detrimentally about the sheriff’s office or another employee.”
             Dist. Ct. Dkt. 93-7.

      •      “A significant amount of time had passed between at least some
             of Morgan’s statements and his termination . . . yet, Robinson has
             not alleged that Morgan’s statements caused any disruption in that
             time.” Dist. Ct. Dkt. 103.

      •      Neither Robinson nor any other witness has identified any
             concrete examples of poor morale or department disruption
             caused by Morgan’s statements.

                                         III.

       Having established the facts in the summary judgment record, I now turn to the
qualified immunity analysis. In deciding this appeal on the second prong of the


                                        -15-
analysis, and concluding that “at the time of Morgan’s termination, the law was not
‘sufficiently clear’ so that Robinson would have known that terminating him violated
his First Amendment rights,” Opn. 9, the majority hints that Morgan’s campaign
speech discussing and criticizing Sheriff Robinson’s administration and operation of
his department warrants First Amendment protection. I would not be so hesitant and
I find that, viewing the facts in the light most favorable to Morgan, Morgan’s
campaign speech addressed matters of public concern. Even Robinson agrees,
conceding that at least some of Morgan’s statements so qualify.

       “Speech by citizens on matters of public concern lies at the heart of the First
Amendment, . . . [and] [t]his remains true when speech concerns information related
to or learned through public employment.” Lane v. Franks, 573 U.S. 228, 235-36
(2014). Indeed, “[t]here is considerable value . . . in encouraging, rather than
inhibiting, speech by public employees [because] ‘[g]overnment employees are often
in the best position to know what ails the agencies for which they work.’” Id. (third
alteration in original) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)).
Where an employee speaks as a citizen on a matter of public concern, “the possibility
of a First Amendment claim arises.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

       I believe, on the summary judgment record, that Deputy Morgan’s statements
were made as a citizen on a matter of public concern because they “can be fairly
considered . . . a subject of legitimate news interest; that is, a subject of general
interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453
(2011) (internal quotation marks and citations omitted). Morgan made the statements
as part of his political campaign, where “the First Amendment has its fullest and most
urgent application[.]” Burson v. Freeman, 504 U.S. 191, 196 (1992) (quoting Eu v.
San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)). The
statements were critical of the manner in which Robinson performed his duties as
Sheriff, and “[s]peech that criticizes a public employer in his capacity as a public
official . . . addresses matters of public concern.” Belk v. City of Eldon, 228 F.3d


                                        -16-
872, 878 (8th Cir. 2000). In addition, the statements were made on Morgan’s
campaign website, during campaign forums, or published in the newspaper; none
were disseminated to a closed audience or reported as a part of Morgan’s official job
duties. Cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762
(1985); see also Garcetti, 547 U.S. at 421.

      The Court impermissibly makes a key factual finding that Robinson reasonably
believed that Morgan’s campaign speech was “at least potentially” damaging and
disruptive. I conclude, however, that viewing the facts in the light most favorable to
Morgan, it was not reasonable for Robinson to so conclude nor was that the reason
behind his decision to discharge Morgan.

       Undercutting Sheriff Robinson’s purported rationale for terminating Morgan
is the record evidence—which we must view in the light most favorable to
Morgan—demonstrating that Morgan’s termination was not actually tied to potential
office disruption. Morgan’s Termination Notice explained the reasons for his firing
as violating the Sheriff’s Department’s Rules of Conduct by slandering or speaking
detrimentally about the office. This charge, which an arbitrator later determined to
be unfounded based on the truthfulness of Morgan’s statements, is centered more on
the disdain that Robinson and others had for Morgan’s campaign speech than on any
potential disruption that they feared might occur due to Morgan’s candidacy. Captain
Bellamy, Robinson’s campaign manager and member of the “command staff” that
recommended Morgan’s discharge, openly admitted that he objected to Morgan’s
campaign because “you don’t bite the hand that feeds you” by running against the
sitting sheriff, while several others who were involved in the recommendation to
terminate Morgan also stated that the recommendation for dismissal was based on
Morgan’s purported violation of the Code of Conduct by speaking out against the
sitting sheriff. Dist. Ct. Dkt. 89-2.




                                        -17-
       A passing reference to “office disharmony” in a notice of termination and
generalized statements about the natural consequences of political elections, in my
view, do not overcome the significant evidence showing that Morgan was terminated
solely for the content of his campaign speech challenging Robinson’s record and
calling attention to his view of the status of Sheriff Department operations. Viewing
the evidence in the light most favorable to Morgan—which we are bound to do at this
juncture—Sheriff Robinson’s termination of Morgan was motivated solely by the
critical content of Morgan’s campaign speech and not by a concern for potential
disruption.

       Further, no evidence is before the Court of any actual disruption or indicators
of poor morale within the Department of any kind or occurring at any time, much less
issues created by Morgan’s campaign speech. The district court fairly noted that “the
evidence presented on this motion establishes that a significant amount of time has
passed between at least some of Morgan’s statements and his termination. . . . Yet,
Robinson has not alleged Morgan’s statements caused any disruption in that time.”
Dist. Ct. Dkt. 103, 8-9. Indeed, Robinson presents no evidence as to the actual
impact of Morgan’s campaign speech on the efficiency of the Sheriff’s Department.
Cf. Shockency v. Ramsey Cnty., 493 F.3d 941, 949-50 (8th Cir. 2007) (“Qualified
immunity cannot be based on a simple assertion by the employer . . . without
supporting evidence of the adverse effect of the speech on workplace efficiency.”
(alteration in original) (internal quotation marks omitted)); Dunn v. Carroll, 40 F.3d
287, 293 (8th Cir. 1994) (“[I]f the defendants have failed to produce evidence
weighing against permitting the employee’s expressive conduct, or if there is a
question of fact as to whether they reasonably believed the conduct to be disruptive,
then the defendants are not entitled to qualified immunity.” (citations omitted)).

       Robinson and the Court remind us of the Supreme Court’s admonition that
there is no “necessity for an employer to allow events to unfold to the extent that the
disruption of the office and the destruction of working relationships is manifest

                                         -18-
before taking action.” Connick v. Myers, 461 U.S. 138, 152 (1983). While
undoubtedly accurate, this proposition has no application to the facts of this case. In
Connick, an assistant district attorney who was resisting an ordered inter-
departmental transfer, was terminated on the same day that she had created a “mini-
insurrection” within the district attorney’s office by distributing a survey concerning
office policies and grievances, which she had composed, to 15 assistant district
attorneys. Id. at 141-42. Here, Robinson terminated Morgan weeks after Robinson’s
campaign speech had occurred, after the election campaign had concluded and
Morgan’s campaign speech had come to an end, and in the absence of any examples
of deteriorating morale or office disruption. Under the facts before us, Robinson did
wait, and unfolding events revealed to Robinson no “disruption of the office and the
destruction of working relationships.”

       Proceeding to the balancing of the “interests of [Morgan], as a citizen, in
commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees,” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), and viewing the
evidence in the light most favorable to Morgan, the district court correctly observed
that no facts support the conclusion that Morgan’s past campaign speech was
reasonably likely to cause disharmony or damage morale in the Sheriff’s office.
Accordingly, because a rational jury could find that Morgan was terminated solely
because Robinson was personally offended by Morgan’s campaign speech, the
Pickering balance falls sharply and overwhelmingly in favor of Morgan’s right to
comment on matters of public concern. Thus the statements are afforded First
Amendment protection and I believe Morgan has sufficiently shown a violation of a
protected constitutional right in the form of his termination for engaging in campaign
speech. Thus, I easily conclude that Deputy Morgan satisfies the first part of the
qualified immunity analysis.




                                         -19-
        I also disagree with the majority’s analysis and would conclude that it is clearly
established that Sheriff Robinson could not terminate Deputy Morgan for exercising
his First Amendment rights during the campaign. The majority, despite our directive
to view the evidence in the light most favorable to Morgan, frames this inquiry as
asking whether Sheriff Robinson could terminate Deputy Morgan for Morgan’s
campaign statements when Robinson believed the statements were potentially
damaging and disruptive. The evidence, particularly when viewed with the applicable
summary judgment standard, does not support the majority’s formulation of the
question as including Sheriff Robinson’s belief that Morgan’s statements would cause
potential disruption. I believe this incorrect framing of the question leads to the
majority’s erroneous conclusion that the right was not clearly established; I address
what I believe the proper inquiry to be: “Could [Robinson] reasonably have believed,
at the time he fired [Morgan], that a government employer could fire an employee on
account of” the employee exercising his First Amendment right to free speech during
a run for political office where that speech had no disruptive impact on office
functioning? Cf. Lane, 573 U.S. at 243. In my view, the answer to this question is
an unequivocal “no.”

         In Bearden v. Lemon—a case we ultimately decided on jurisdictional
grounds—we commented that “[t]he right not to be terminated for [exercising one’s
right to free] speech has been clearly established for some time.” 475 F.3d 926, 929
(8th Cir. 2007). In support of this statement, we cited Hartman v. Moore, 547 U.S.
250, 256 (2006) (“[T]he law is settled that as a general matter the First Amendment
prohibits government officials from subjecting an individual to retaliatory actions .
. . for speaking out . . . .”), and Rankin v. McPherson, 483 U.S. 378, 383 (1987) (“It
is clearly established that a State may not discharge an employee on a basis that
infringes that employee’s constitutionally protected interest in freedom of speech.”).

      As the Supreme Court has recently emphasized, general statements of the law
may, in some circumstances, “giv[e] fair and clear warning” to government officials

                                          -20-
where the unlawfulness of the challenged action is readily apparent in light of pre-
existing law. White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting United States v.
Lanier, 520 U.S. 259, 271 (1997)).

       No one disputes that “political speech . . . is central to the meaning and
purposes of the First Amendment,” Citizens United v. FEC, 558 U.S. 310, 329
(2010), or that “the First Amendment has its fullest and most urgent application to
speech uttered during a campaign for political office.” Burson, 504 U.S. at 196
(quoting Eu, 489 U.S. at 223). For this reason, “the [Supreme] Court has frequently
reaffirmed that speech on public issues occupies the ‘highest rung of the h[ie]rarchy
of First Amendment values,’ and is entitled to special protection.” Connick, 461 U.S.
at 145 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)).
Indeed, this is the very foundation upon which the Supreme Court decided Pickering:

      What we do have before us is a case in which a teacher has made
      erroneous public statements upon issues then currently the subject of
      public attention, which are critical of his ultimate employer but which
      are neither shown nor can be presumed to have in any way either
      impeded the teacher’s proper performance of his daily duties in the
      classroom or to have interfered with the regular operation of the schools
      generally. In these circumstances we conclude that the interest of the
      school administration in limiting teachers’ opportunities to contribute to
      public debate is not significantly greater than its interest in limiting a
      similar contribution by any member of the general public.

391 U.S. at 572-73.

      Therefore, public officials have been on notice since the Court decided
Pickering in 1968 that they may not sanction an employee for uttering protected
speech when that speech neither impacts the employee’s official duties nor detracts
from office efficiency. This is all the more true given the context in which Morgan
spoke here: a political campaign, where “the First Amendment has its fullest and most

                                        -21-
urgent application.” Burson, 504 U.S. at 196 (quoting Eu, 489 U.S. at 223). And
although I acknowledge “that in many free speech cases the outcome of the Pickering
balancing test would be unclear to a reasonable official[,]” Sexton v. Martin, 210 F.3d
905, 914 (8th Cir. 2000), I cannot conclude that this is one such case. Indeed, this is
the very point that our Court recognized in Sexton, where then-District Judge Melloy,
joined by Circuit Judges Richard Arnold and Hansen, concluded that the law could
be clearly established where the Pickering balance weighed so heavily in the
employees’ favor:

      [W]here the employees have spoken out on a matter of great public
      concern, and the evidence that the speech caused disruption in the
      workplace is minimal at best, the imprecision of the Pickering balance
      makes little difference in our determination. We conclude that at the
      time of the plaintiffs’ termination, the law was clearly established that
      the balance would have weighed heavily in favor of the plaintiffs’
      exercise of free speech.

Id.

       In my view, it is clearly established that a public employee cannot be
terminated for making protected statements during a campaign for public office where
that speech has no demonstrated impact on the efficiency of office operations. Cf.
Smith v. Gilchrist, 749 F.3d 302, 313 (4th Cir. 2014) (“In sum, a reasonable DA in
Gilchrist’s position would have known that he could not fire an ADA running for
public office for speaking publicly in his capacity as a candidate on matters of public
concern.”).

      In concluding that the right is not clearly established, the majority looks no
further than Nord v. Walsh, 757 F.3d 734 (8th Cir. 2014). But the majority
diminishes critical distinctions in Nord, namely that the nature and contents of the
statements in Nord challenged the personal fitness of the sheriff. That the sheriff’s


                                         -22-
departments in Nord and in this case function similarly does nothing to address the
fact I find dispositive: Morgan spoke out about issues related to department
operations as a whole, while the deputy in Nord attacked the sheriff’s personal
attributes and fitness for office. Further distinguishing Nord is that the sheriff relied
on advice of human resources and legal counsel, which factored into the
reasonableness of his belief that he could terminate the deputy for speech during the
political campaign. Finally, to bolster its view that it is not clearly established that
Robinson could not terminate Morgan for his political speech during the campaign,
the majority offers several cases discussing the permissibility of limiting the speech
of department employees for the purposes of managing the department. But those
cases do not involve the context of political elections, where “the First Amendment
has its fullest and most urgent application.” Burson, 504 U.S. at 196 (quoting Eu,
489 U.S. at 223).

       The Supreme Court has repeatedly expressed the importance of protecting First
Amendment activity, especially in the context of elections. The majority’s
conclusion, which relies on a factually distinguishable case, sidesteps this precedent.
I would conclude that it is clearly established that Sheriff Robinson could not
terminate Deputy Morgan for speech made during a political campaign that related
to the department operations and caused no disruption or other negative impact on the
department.

                                          IV.

       In closing, I note the reality of small-county politics that the majority is so
willing to cast aside. Although I dissent because I believe Deputy Morgan has shown
a violation of a clearly established constitutional right, I believe discussion of the
practical implications of today’s majority opinion is warranted. Washington County
is a rural Nebraska county with a population of approximately 20,000 people and a
Sheriff’s Department of 13 road deputies. Washington County is not a major

                                          -23-
metropolitan area or population center; it is small and rural. And small-county
politics differ from politics in major metropolitan areas like Kansas City, St. Louis,
or Minneapolis. The population and workforce in less-populated areas do not provide
the same pool of candidates with vast differences in background and experience.
Office holders are often entrenched incumbents; indeed, Sheriff Robinson has held
the position of Washington County Sheriff since 2000. Typically, the deepest pool
for political challengers comes from within a department or organization itself. This
necessarily involves department- or organization-born challengers to incumbents.
After today’s majority opinion, in-office challengers to incumbents must appreciate
the risk that comes with critical campaign speech: the incumbent can terminate them
for the critical speech without the reasonable belief that the speech would be
potentially damaging or disruptive to the office. Viewing the record under our
summary judgment standard, Sheriff Robinson terminated Deputy Morgan because
he did not like the critical content of Deputy Morgan’s speech; Sheriff Robinson had
no reasonable basis to believe that the speech would be potentially damaging or
disruptive to the functions of the Sheriff’s Department. Because I cannot sanction
shielding Robinson from suit for such an act, I dissent. I would affirm the judgment
of the district court.
                          ______________________________




                                        -24-
