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Termination for reports of serious police misconduct are not protected by qualified immunity.

Durham v. Jones
2013 WL 6439714, Fourth Circuit, __F.3d__ (2013)

by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiff Durham was a former Sheriff with the Somerset County Sheriff’s Office (SCSO). On August 21, 2008, Plaintiff Durham assisted a Maryland State Trooper in the arrest of a fleeing motorcyclist and used pepper spray and physical force to help overcome the motorcyclist’s resistance. Thereafter, Durham prepared a report that candidly represented his involvement. When Durham’s supervisors, including Defendant Sheriff Jones, became aware of the report, they requested that Durham change the report to indicate he was assaulted, and suggested he may need medical attention, which Durham refused. Durham was approached on numerous occasions by his superiors suggesting he change his reports, and after each discussion Durham prepared a supplemental report detailing the conversation and sent copies to his personal attorney. On August 29, 2008, Plaintiff was taken to an interrogation room and told that if he did not change his report and delete the follow up reports, he would be charged both internally and criminally. Plaintiff initially refused, but after being forced to hand over his badge and gun, he acquiesced. Plaintiff filed a formal grievance requesting an outside investigation of the events. On the same day that Plaintiff filed his grievance, Defendant Jones demoted him. The investigation request was deferred to the SCSO, which meant that the same individuals who Plaintiff accused of misconduct would conduct the investigation. Plaintiff then began to send copies of the reports with a detailed chronology to numerous politicians, law enforcement agencies, and media outlets. In 2009, Plaintiff was charged with violation of the Law Enforcement Officers’ Bill of Rights (LEOBR) for his actions, including the distribution of the police records without authorization. After an administrative hearing, all charges, but two (2) unauthorized distribution of materials, were dropped. Plaintiff was sentenced to ten (10) days of suspension without pay. Immediately thereafter, Jones held a short hearing permitted under the LEOBR, and terminated Plaintiff Durham.

Plaintiff filed an action under 42 U.S.C. § 1983 in the District Court for the Federal Court of Maryland against Jones in his individual capacity, alleging that he was terminated in retaliation for exercising his free speech rights under the First Amendment of the U.S. Constitution, when he sent the materials to the media outlets. Jones moved to dismiss the case on the basis of his qualified immunity, which was denied by the trial court. The trial court denied two subsequent motions for judgment as a matter of law on the same qualified immunity defense, and a jury awarded Plaintiff Durham $1,112,200 in combined economic and non-economic damages. Defendant Jones timely filed an appeal.

The Fourth Circuit Court of Appeals reviewed the denial of the motion for a judgment de novo, pursuant to FED. R. CIV. PROC. 50(b). The Court observed that the qualified immunity was appropriate for government officials “who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” The Court held that Jones needed to show that either there was no constitutional rights violation, or, if there was one, it was not clearly established. In analyzing the First Amendment right of a public official, the Court recited the balancing test to be used:

First, we consider 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. Second, even if the employee spoke upon a matter of public concern, we must determine whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in managing the working environment. And finally, if the employee’s claim satisfies both of these legal criteria, the court turns to the factual question of whether the employee’s speech was a substantial factor in the employee’s termination decision.

There was no dispute that the speech was a substantial factor in Plaintiff Durham’s termination. Jones contested that the content of the speech was not a matter of public interest, and that the effects on the interests of the administration of the Sheriff’s office outweighed the benefits of the speech. The Court reviewed the public interest of the speech, and held that “an allegation of evidence tampering by a high-ranking police officer is a matter in which the public should be interested.” Further, “the fact that the issue was one which interested the media indicates that it was of public interest[.]” The Court further observed that the record was devoid of all but “lip service” as to the disruption caused to the SCSO due to the disclosures, but further held that “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.” The Court held there was insufficient evidence of disruption to outweigh the significant public interest, and that the Plaintiff’s First Amendment rights were clearly established in this situation, thus qualified immunity did not apply. The Fourth Circuit affirmed the trial court’s ruling denying the motion for a judgment as a matter of law.


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