                   United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1643
                         ___________________________

          Gary Thompson; Dalton Elliott; Gary Scott Manning; Alicia Hardy

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

Andy Shock, Individually and in his Official Capacity as Faulkner County Sheriff

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Little Rock
                                   ____________

                           Submitted: December 15, 2016
                              Filed: March 28, 2017
                                  ____________

Before WOLLMAN and SMITH,1 Circuit Judges, and WRIGHT,2 District Judge.
                          ____________

SMITH, Circuit Judge.




      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
      2
       The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota, sitting by designation.
       Gary Thompson, a former transport deputy in Faulkner County, Arkansas, sued
Sheriff Andy Shock, in his individual and official capacities, for unlawful
employment termination under state and federal law. He brought his federal claim
pursuant to 42 U.S.C. § 1983 for the deprivation of his First Amendment right of free
association. The district court dismissed the federal claim, granting Sheriff Shock
qualified immunity in his individual capacity and holding that Sheriff Shock in his
official capacity was not a policymaker for purposes of Faulkner County’s liability.
The district court then declined supplemental jurisdiction over the remaining state-
law claims. Thompson appeals, seeking reinstatement of his claims against Sheriff
Shock. Upon review, we affirm the district court’s dismissal of Thompson’s claim
against Sheriff Shock in his official capacity, but we vacate the finding of qualified
immunity for Sheriff Shock in his individual capacity and remand that issue for
analysis under a different line of precedent.

                                    I. Background
        In 2012, while employed as a deputy in the Faulkner County Sheriff’s Office,
Andy Shock ran for Sheriff. One of Shock’s coworkers in the office, Gary Thompson,
did not support his candidacy. Thompson publicly endorsed Shock’s main rival,
Tommy Earnhart. While off-duty, Thompson campaigned for Earnhart by attending
fundraisers, placing campaign signs in his yard, and wearing a campaign T-shirt. This
campaigning did not interfere with Thompson’s work activities, nor does the record
reflect that Thompson made any public statements regarding the Sheriff’s Office or
other issues of public concern. After Shock discovered that Thompson supported his
rival, the two met privately; Thompson assured Shock that he supported Earnhart as
a personal friend and that he would be willing to work for Shock if he won the
election. Thompson alleges that Shock told others that, as Sheriff, Shock would
terminate current office employees that did not support his candidacy.

     In November 2012, after Shock won the election, Thompson received a letter
from newly elected Sheriff Shock notifying him of his “non-selection” for

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employment in January 2013. The letter outlined a grievance procedure providing
Thompson a predeprivation hearing to contest his termination. Thompson requested
the hearing, and during the proceedings, Sheriff Shock testified that he chose not to
select Thompson because of his “lack of good work ethic.” The record reflects no
discipline procedures or negative performance evaluations regarding Thompson
before he received this letter of non-selection.

       Thompson and three other non-selected employees brought this suit in 2013,
alleging violations of their rights under the Arkansas Political Freedom Act, the
Arkansas Constitution, and the First Amendment of the United States Constitution.
The district court granted summary judgment for Shock in his individual and official
capacities. The district court analyzed the First Amendment claim under the formula
set out in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v.
Myers, 461 U.S. 138 (1983). The district court determined that Thompson’s claimed
First Amendment right was not clearly established under the Pickering–Connick test,
granted qualified immunity to Sheriff Shock in his individual capacity, and dismissed
without prejudice the related state-law claims. The district court also dismissed
Thompson’s claims against Shock in his official capacity because Thompson failed
to prove that Sheriff Shock was deliberately indifferent to his constitutional rights.
Thompson moved to alter or amend the judgment, but the district court denied the
motion. The court did, however, revise its reasoning on the official-capacity claim.
The court shifted the basis for its decision to Sheriff Shock’s lack of final
policymaking authority in employment matters. Thompson appeals.

                                    II. Discussion
      “We review grants of summary judgment de novo.” Atkinson v. City of
Mountain View, Mo., 709 F.3d 1201, 1207 (8th Cir. 2013). In a § 1983 action, we will
reverse an award of summary judgment in favor of a public official in his individual
capacity only if a reasonable jury could find his actions under the color of state law
“violated ‘a right secured by the Constitution and laws of the United States.’” Id.

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(quoting Cook v. City of Bella Villa, 582 F.3d 840, 848 (8th Cir. 2009)). We will
reverse an award of summary judgment in favor of a public official acting in his
official capacity only if a reasonable jury could find that the constitutional violation
was committed “pursuant to official municipal policy of some nature.” Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Thompson appeals the grant of
summary judgment to Sheriff Shock in both capacities.

                                A. Qualified Immunity
       Qualified immunity shields a government official acting in his individual
capacity from liability “unless his conduct violates ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” New v.
Denver, 787 F.3d 895, 899 (8th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “Qualified immunity balances two important interests—the need
to hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Federal
courts conduct a two-step inquiry into the application of qualified immunity:
“(1) whether the facts alleged demonstrate a violation of the employee’s
constitutional right and (2) whether that right was clearly established at the time of
the employee’s firing.” Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822,
832 (8th Cir. 2015). Qualified immunity protects the reasonable decisions of
government actors except in cases of plain incompetence or knowing violation of the
law. New, 787 F.3d at 900.

       “[A] public employee does not relinquish First Amendment rights to comment
on matters of public interest by virtue of government employment.” Connick, 461
U.S. at 140. Nevertheless, “the State’s interests as an employer in regulating the
speech of its employees ‘differ significantly from those it possesses in connection
with regulation of the speech of the citizenry in general.’” Id. (quoting Pickering, 391
U.S. at 568). “A State may not condition public employment on an employee’s

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exercise of his or her First Amendment rights.” O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712, 717 (1996). “Absent some reasonably appropriate
requirement, government may not make public employment subject to the express
condition of political beliefs or prescribed expression.” Id. “With a few exceptions,
the Constitution prohibits a government employer from discharging or demoting an
employee because the employee supports a particular political candidate.” Heffernan
v. City of Paterson, 136 S. Ct. 1412, 1417 (2016).

       The Supreme Court has developed two lines of cases that assess how to balance
the First Amendment rights of government employees with the need of government
employers to operate efficiently. See Hinshaw v. Smith, 436 F.3d 997, 1005–06 (8th
Cir. 2006). For “overt expressive conduct,” federal courts apply the balancing test as
found in the line of cases following Pickering and Connick. Id. at 1005. The typical
Pickering–Connick case involves a government employee causing workplace
disruption by speaking as a citizen on a matter of public concern, followed by
government action adversely affecting the employee’s job. See Anzaldua, 793 F.3d
at 835–36 (analyzing under Pickering–Connick the termination of a Fire District
employee after the employee emailed a local reporter about department conditions).
This test includes various interrelated factors:

      (1) the need for harmony in the work place; (2) whether the
      government’s responsibilities require a close working relationship; (3)
      the time, manner, and place of the speech; (4) the context in which the
      dispute arose; (5) the degree of public interest in the speech; and (6)
      whether the speech impeded the employee’s ability to perform his or her
      duties.

Id. at 835. The Pickering–Connick test provides flexible weighing of the case-specific
facts to balance the interests of the government with those of the employee.




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        For “pure patronage dismissals,” federal courts apply the narrow-justification
test outlined in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S.
507 (1980). Hinshaw, 436 F.3d at 1005. The typical Elrod–Branti case involves the
dismissal of an employee because of his or her political affiliations or support for
certain candidates. See DePriest v. Milligan, 823 F.3d 1179, 1184 (8th Cir. 2016)
(analyzing under Elrod–Branti the dismissal of the Chief Deputy after the election of
the new Circuit Clerk). “[A] dismissal solely on account of an employee’s political
affiliation violates the First Amendment unless the hiring authority can demonstrate
that party affiliation is an appropriate requirement for the effective performance of
the public office involved.” Id. (internal quotation marks omitted) (quoting Langley
v. Hot Spring Cty., 393 F.3d 814, 817 (8th Cir. 2005)). Under Elrod–Branti, the court
cabins its inquiry to the political-affiliation requirement itself, without the need to do
the Pickering–Connick balancing analysis. O’Hare Truck Serv., Inc., 518 U.S. at 719;
Hinshaw, 436 F.3d at 1005 (“We have recognized that in cases like Elrod and Branti
involving pure patronage dismissals, the individual and government interests are
essentially fixed, so that there is no need to perform a Pickering balance.”).

       In addition, many cases present an “intermixed” scenario in which a
policymaking employee receives an adverse employment action based on “specific
instances of the employee’s speech or expression.” O’Hare Truck Serv., Inc., 518
U.S. at 719. In Hinshaw, we applied the Pickering–Connick test to the case of an
executive director of a state agency who alleged termination in violation of her First
Amendment rights. 436 F.3d at 1006–07. Hinshaw, a policymaking employee, spoke
out against the policies promulgated by the agency’s Board of Trustees, and she was
later disciplined. Id. at 1007. We stated that despite Hinshaw’s First Amendment
rights as a private citizen, her position as a policymaking employee “did not give her
carte blanche to ignore her employer’s directives and miscommunicate the Board’s
views.” Id. We determined that the factors in the Board’s favor “outweigh[ed]
whatever interest Hinshaw may have had in communicating her own personal views,”
noting that the Board had a “legitimate expectation that its executive director [would]

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not undermine the Board’s efforts.” Id. Thus, “where speech is intermixed with a
political affiliation requirement, Pickering balancing is appropriate.” Id. at 1006.

      To summarize, if an employee is discharged because of his or her expressive
conduct, we apply the Pickering–Connick test. Id. at 1005. If an employee is
discharged because of his or her political affiliation, we apply the Elrod–Branti test.
Id. And when a political-affiliation employee gets discharged for his or her expressive
conduct, we apply Pickering–Connick. Id. at 1006.

         In granting qualified immunity to Sheriff Shock, the district court relied on
Nord v. Walsh County, 757 F.3d 734 (8th Cir. 2014). Nord, a deputy sheriff in Walsh
County who ran for sheriff, was terminated the day after he lost the election. Id. at
738. As a candidate, Nord made multiple public statements regarding the current
sheriff’s health, his wife, and his future political aspirations. Id. at 742. He sued the
re-elected sheriff alleging that “he was fired in retaliation for the statements he made
along the campaign trail.” Id. at 738. Because this presented an “intermixed case”
including both public statements and political affiliation, we declined to apply
Elrod–Branti and instead applied Pickering–Connick to determine whether the
employer was justified in terminating Nord. Id. at 744. Thompson’s case presents a
different scenario. Unlike Nord, Thompson made no public statements regarding the
Sheriff’s Office; he simply supported an opposing candidate. “In such cases, the
hiring authority must demonstrate that party affiliation is an appropriate and
reasonable requirement for the effective performance of the public office
involved. . . . This circuit has held that ‘[i]f discharge solely because of party
affiliation is found, this will involve applying the narrow [Elrod–Branti] justification
test . . . .’” Id. (first alteration in original) (quoting Hinshaw, 436 F.3d at 1005).

       For Thompson’s case, we choose to follow Heffernan v. City of Paterson—a
recent Supreme Court decision published after the district court filed its judgment—to
determine the best analytical framework. 136 S. Ct. 1412. Heffernan, a city police

                                          -7-
officer, retrieved a campaign sign on behalf of his mother, and the police department
fired him for “overt involvement” in the campaign. Id. at 1416. Using the
Elrod–Branti analysis, the Supreme Court determined that a government employer
could violate an employee’s First Amendment rights even if acting under the
mistaken belief that the employee is affiliated with a certain candidate.3 Id. at 1419.
Thompson, like Heffernan, suffered an adverse employment decision not because of
his overt expressive conduct but because of his affiliation with the “wrong”
candidate. When the constitutional right at issue involves “joining, working for or
contributing to the political party and candidates of [the employee’s] choice,” we
apply the Elrod–Branti test. Rutan v. Republican Party of Ill., 497 U.S. 62, 69 (1990).
Accordingly, because the district court applied a different test, we remand the
question of qualified immunity to the district court for analysis under Elrod–Branti.
See Fink v. Union Cent. Life Ins. Co., 65 F.3d 722, 724 (8th Cir. 1995) (remanding
the issue of excusable neglect to the district court after Supreme Court precedent
altered the analytical framework).

                            B. Municipality Liability
     Under § 1983, a municipality cannot be held liable for the tortious conduct of
an employee, unless the employee acts pursuant to a municipality’s “official policy.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).

      The “official policy” requirement was intended to 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. . . .

      3
        The Supreme Court declined to express views on the possibility that the
plaintiff’s employers terminated him because of a neutral police policy that prohibited
overt campaign involvement. Heffernan, 136 S. Ct. at 1419. This is not at issue in this
case because Arkansas law prohibits the deprivation of a government employee’s
right “to express his or her opinion as a citizen on political subjects.” Ark. Code Ann.
§ 21-1-207.

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      [A] municipality may be liable under § 1983 for a single decision by its
      properly constituted legislative body—whether or not that body had
      taken similar action in the past or intended to do so in the
      future—because even a single decision by such a body unquestionably
      constitutes an act of official government policy.

Id. at 479–80. To analyze whether a single decision of a government official
constitutes an official policy, we look to state law to determine whether the
government official possesses “final policymaking authority in the area in which the
challenged conduct occurred.” Williams v. Butler, 863 F.2d 1398, 1401 (8th Cir.
1988). “[T]he County Sheriff may have discretion to hire and fire employees without
also being the county official responsible for establishing county employment
policy.” Pembaur, 475 U.S. at 483 n.12. If a county’s employment policy is set by a
different municipal body, “only that body’s decisions would provide a basis for
county liability.” Id. To determine whether a government official serves as the final
policymaker, we consult two sources: “(1) ‘state and local positive law’ and (2) state
and local ‘“custom or usage” having the force of law.’” Atkinson, 709 F.3d at 1215
(quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Because
Thompson complains only of a single action and not the customs of Faulkner County,
we will analyze only the policymaking authority granted under positive law.

       Thompson argues that as a matter of positive Arkansas law, Sheriff Shock
possessed the final policymaking authority in matters of employment for the Sheriff’s
Office. He relies on the Arkansas Constitution and the Arkansas Code, which
generically give the county judge power to hire employees “except those persons
employed by other elected officials of the county.” Ark. Const. amend. 55, § 3; Ark.
Code. Ann. § 14-14-1101(a)(6). This exception, Thompson argues, places final
employment policymaking authority in elected officials for their respective offices.
See Ark. Code Ann. § 14-14-1102(b)(5)(B)(ii)(b) (“The jurisdiction to purchase the
labor of an individual for salary or wages employed by other elected officials of the

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county shall be vested in each respective elected official.”). Thompson’s argument,
however, ignores the statutory power of the quorum court to review employment
decisions of county employers:

      [A] quorum court may exercise any legislative authority with regard to
      employee policy and practices of a general nature, including, but not
      limited to, establishment of general vacation and sick leave policies,
      general office hour policies, general policies with reference to nepotism,
      or general policies to be applicable in the hiring of county employees.
      Legislation promulgated by a quorum court dealing with matters of
      employee policy and practices shall be applicable only to employees of
      the county and shall not apply to the elected county officers of the
      county. Legislation applying to employee policy practices shall be only
      of a general nature and shall be uniform in application to all employees
      of the county.

Ark. Code Ann. § 14-14-805(2). By Arkansas statute, the quorum court may be
invested with the ability to exercise final authority regarding “general policies to be
applicable in the hiring of county employees.” Id. As the district court noted and as
the facts show, Faulkner County provided a grievance procedure through the quorum
court to address unconstitutional employment decisions made by the County Sheriff.
In fact, Thompson used this procedure to have his employment decision reviewed.
Faulkner County’s retention of “the right of review” through its grievance procedure
is inconsistent with “an absolute delegation of authority” by the County to its Sheriff.
See Williams, 863 F.2d at 1402. An incomplete delegation of authority “will not result
in municipal liability.” Id.

       Thompson also asserts that Sheriff Shock’s position as a final policymaker has
been settled by the Arkansas Supreme Court. He relies on Crawford County v. Jones,
which states: “[I]t is patently unreasonable to hold that a county official, such as the
assessor, when acting in her capacity as an elected official, could not create liability
for the county by her actions.” 232 S.W.3d 433, 440 (Ark. 2006). Crawford County,

                                         -10-
however, does not support Thompson’s assertion. First, the Crawford County opinion
addresses a state-law breach-of-contract action rather than a federal § 1983 action. Id.
Second, the facts of Crawford County actually support the absence of final
policymaking authority for the County Sheriff. The Crawford County Quorum Court,
sitting as a grievance committee, ordered the plaintiff to be reinstated after a wrongful
discharge, but the county assessor refused to do so. Id. at 435–37. In reviewing a jury
verdict in favor of the plaintiff, the Arkansas Supreme Court found substantial
evidence to support a violation of “the policy adopted by the County.” Id. at 439. The
court then imputed the violation of the assessor to the county, not because the
assessor acted as a final policymaker, but because the assessor acted as an agent of
the county’s final policymaker. Id. at 439–40. The Arkansas Supreme Court did not
find that the county assessor was the final policymaker for employment purposes, id.
at 440, and similarly, we do not hold Sheriff Shock to be the final policymaker in this
case.

      Our review of Arkansas law and the policies promulgated by Faulkner County
reveal that Sheriff Shock did not act as a final policymaker in the employment
decisions of the Faulkner County Sheriff’s Office because employment decisions
made by Sheriff Shock were subject to review by the quorum court. We therefore
affirm the district court’s grant of summary judgment to Sheriff Shock in his official
capacity.

                                   III. Conclusion
       We vacate the district court’s grant of summary judgment in favor of Sheriff
Shock in his individual capacity and remand the issue of qualified immunity to be
addressed applying the analysis in the Elrod–Branti line of cases. We affirm the
district court’s grant of summary judgment in favor of Sheriff Shock in his official
capacity.
                        ______________________________



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