# Mills v. Cole Do Not File in this Case - Case Consolidated, file in Case No. 18-CV-03241-SRB .

> District Court, W.D. Missouri · November 30, 2018

URL: https://www.frixlaw.com/law-library/cases/10240887

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** November 30, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10240887

## How later opinions describe it (automated extraction)

- holding that courts may skip prong one of the qualified immunity analysis and proceed straight to prong two

## Opinion text

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

KEITH MILLS, )
)
Plaintiff, )
) Case No. 6:18-cv-03245-SRB
v. )
)
BRAD COLE, et al., )
)
Defendants. )

ORDER
Before the Court is Defendants’ Motion to Dismiss. (Doc. #7). For reasons discussed
below, the motion is denied.
I. Background
Plaintiff Keith Mills is a former deputy sheriff of Christian County, Missouri. In 2015,
Defendant Brad Cole (“Cole”) ran for Christian County Sheriff. Plaintiff, at that time a captain
in the Christian County, Missouri, Sheriff’s Department, ran against Cole in the election for
Christian County Sheriff. Cole was elected on August 4, 2015. On or about August 7, 2015,
Cole assumed the duties of sheriff. That same day, Cole terminated Plaintiff’s employment.
Plaintiff brings this lawsuit against Ray Weter, Hosea Bilyeu, and Ralph Phillips in their official
capacities as Commissioners for Christian County, Missouri; against Cole in his individual
capacity and official capacity as Christian County Sheriff; and against Christian County itself.
(Doc. #1, ⁋⁋ 2–3). In his action pursuant to 42 U.S.C. § 1983, Plaintiff alleges that Defendants
violated his First Amendment rights by dismissing him because he publicly campaigned for the
office of Sheriff, which Cole knew. (Doc. #1, ¶¶ 22–35). Plaintiff seeks compensatory damages,
punitive damages, reinstatement, “other equitable relief,” and attorney’s fees. (Doc. #1, ¶ 35).
Defendants bring the present motion under Federal Rule of Civil Procedure 12(b)(6), asserting
that this Court should dismiss Plaintiff’s complaint because Defendant Cole is entitled to
qualified immunity.1
II. Legal Standards
A. Fed. R. Civ. P. 12(b)(6)

A complaint that fails the pleading requirements of Rule 8(a)(2) is subject to dismissal
under Rule 12(b)(6). See In re Pre-Filled Propane Tank Antitrust Litigation, 860 F.3d 1059,
1062 (8th Cir. 2017) (en banc). “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (en banc) (per curiam)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Defendants seeking a Rule 12(b)(6)
dismissal on the basis of qualified immunity “must show that they are entitled to qualified
immunity on the face of the complaint.” Kulkay v. Roy, 847 F.3d 637, 642 (8th Cir. 2017)
(quoting Carter v. Huterson, 831 F.3d 1104, 1107 (8th Cir. 2016)).

B. Qualified Immunity
Under the doctrine of qualified immunity a government officer sued in his individual
capacity is “shielded from liability for civil damages” when performing discretionary functions
unless his conduct “violate[s] clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

1 In a footnote, Defendants acknowledge that “[t]he thrust of this motion is that [Defendant] Cole has qualified
immunity from suit” but argue that, even if Defendant Cole is not entitled to qualified immunity, Plaintiff’s
complaint fails to state a claim because it does not satisfy the required “but for” causation standard. (Doc. #6, p. 1
n.1) (citing Hartman v. Moore, 547 U.S. 250, 260 (2006)). Plaintiff’s complaint states, among other allegations, that
“Defendant Cole’s termination of Plaintiff’s employment was motivated in whole and/or in part by Plaintiff’s efforts
to campaign for Christian County Sheriff.” (Doc. #1, ⁋ 29) (emphasis added). Assuming, without deciding, that
Defendants’ characterization of Hartman is the proper causation standard for Plaintiff’s claim, Plaintiff’s complaint
plausibly alleges that Plaintiff’s political affiliation was the “but for” cause of Defendant Cole’s adverse
employment decision.
Thompson v. Shock, 852 F.3d 786, 790 (8th Cir. 2017). Because qualified immunity “is an
immunity from suit,” the issue “should be resolved ‘at the earliest possible stage in litigation’ to
ensure that insubstantial damage claims against government officials are resolved ‘prior to
discovery.’” Johnson v. Moody, 903 F.3d 766, 773 (2018) (quoting Pearson v. Callahan, 555
U.S. 223, 231–32 (2009)).

When determining whether a government official is entitled to qualified immunity, courts
apply a two-step inquiry: “(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.” Thompson, 852 F.3d at 790 (quoting Anzaldua v. Ne. Ambulance & Fire
Prot. Dist., 793 F.3d 822, 832 (8th Cir. 2015)). Regarding step two of the qualified immunity
analysis, “[f]or a constitutional right to be clearly established, its contours ‘must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.’” Nord
v. Walsh Cty., 757 F.3d 734, 739 (8th Cir. 2014) (quoting Hope v. Pelzer, 536 U.S. 730, 739
(2002)). To show that a right was clearly established at the time of the challenged conduct, “it is

unnecessary to have ‘a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.’” Vester v. Hallock, 864 F.3d 884, 887 (8th
Cir. 2017) (quoting Parker v. Chard, 777 F.3d 977, 980 (8th Cir. 2015)).
At the dismissal stage of litigation, courts “must consider ‘whether the plaintiff has stated
a plausible claim for violation of a constitutional or statutory right and whether the right was
clearly established at the time of the alleged infraction.’” Dadd v. Anoka Cty., 827 F.3d 749,
754–55 (8th Cir. 2016) (quoting Hager v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir.
2013)). “Unless both of these questions are answered affirmatively, an [official] is entitled to
qualified immunity.” Nord, 757 F.3d at 738. District courts have “discretion in deciding which
of the two prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
i. Adverse Employment Decisions and the First Amendment
In general, the government “may not condition public employment on an employee’s
exercise of his or her First Amendment rights.” Thompson, 852 F.3d at 791 (quoting O’Hare

Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996)). “With 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, 1418 (2016). Recognizing the need “to balance the First Amendment rights of
government employees with the need of government employers to operate efficiently,” the
Supreme Court has developed an exception that may apply in cases where a government
employee is dismissed “because of his or her political affiliations or support for certain
candidates,” commonly referred to as “patronage dismissal[s].” Thompson, 852 F.3d at 791
(citing Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980); DePriest v.

Milligan, 823 F.3d 1179, 1184 (8th Cir. 2016)). When the adverse employment decision is, as in
this case, allegedly due to the employee’s “affiliation with the ‘wrong’ candidate,” federal courts
apply this Elrod-Branti “narrow-justification test.” 2 Thompson, 852 F.3d at 793 (citing Rutan v.
Republican Party of Ill., 497 U.S. 62, 69 (1990)).

2 A related exception, the Pickering-Connick balancing test, addresses cases involving “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.” Thompson, 852 F.3d at 791 (citing Pickering v. Bd. of Educ., 391 U.S. 563
(1968); Connick v. Myers, 461 U.S. 138 (1983)). The parties discuss both tests and argue that Elrod-Branti, not
Pickering-Connick, is the applicable analysis in this case. (Doc. # 13, p. 9; Doc. #18, p. 3). This Court agrees. See
Thompson, 852 F.3d at 792 (“[I]f an employee is discharged because of his or her expressive conduct, we apply the
Pickering-Connick test . . . If an employee is discharged because of his or her political affiliation, we apply the
Elrod-Branti test.”).
ii. The Elrod-Branti Test
Under Elrod-Branti, a patronage dismissal violates the First Amendment “unless political
affiliation is a reasonably appropriate requirement for the job in question.” O’Hare, 518 U.S. at
714 (citing Elrod, 427 U.S. 347; Branti, 445 U.S. 507). This test permits government employers
to “take adverse employment actions against employees for protected First Amendment activities

if they hold confidential or policymaking positions for which political loyalty is necessary to an
effective job performance.” Shockency v. Ramsey Cty., 493 F.3d 941, 950 (8th Cir. 2007)
(emphasis added). However, “the ultimate inquiry is not whether the label ‘policymaker’ or
‘confidential’ fits a particular position; rather the question is whether the hiring authority can
demonstrate that party affiliation is an appropriate requirement for the effective performance of
the public office involved.” O’Hare, 518 U.S. at 719 (quoting Branti, 445 U.S. at 518)
(emphasis added).
The Elrod-Branti test “is a functional one, focusing on the actual duties an employee
performs” and “require[ing] that a distinction be drawn between political loyalty and other

kinds.” Horton v. Taylor, 767 F.2d 471, 476–77 (8th Cir. 1985). The Branti Court itself refused
to “accept the proposition that there cannot be ‘mutual confidence and trust’ between” the
employer and employee at issue in that case “unless they are both of the same political party.”
Id. at 477 (quoting Branti, 445 U.S. at 520 n.14) (noting that “[t]here is, obviously, a point at
which [political loyalty and other types of loyalty] mingle or area merged—a point at which . . .
party affiliation bears on [an employee’s] job performance”). “Branti, however, makes clear that
the loyalty required for raw political patronage . . . alone will not justify a patronage dismissal.”
Id. (internal citation and quotations omitted).
III. Discussion
This Court now addresses the question of whether, in light of Elrod-Branti, Plaintiff’s
allegations in his complaint show “a plausible claim for violation” of his First Amendment rights
that were “clearly established at the time of the alleged infraction.”3 See Dadd, 827 F.3d at 754–
55 (quoting Hager, 735 F.3d at 1013). Defendants argue that in August 2015, “a reasonable

official in [Defendant Cole’s] position would believe he could terminate [Plaintiff] for
supporting Mills” because under Elrod-Branti “a public employer may terminate or demote an
employee for supporting an opposing candidate if political affiliation is a reasonable requirement
of the employee’s position” and “[p]olitical affiliation/association may be a reasonable
requirement when the position requires loyalty.” (Doc. #6, p. 5–6) (citing Nord, 757 F.3d at
744)). According to Defendants, under Elrod-Branti political loyalty is an appropriate
employment requirement for Missouri deputy sheriffs because “the relationship between a sheriff
and his deputies require the sheriff’s absolute authority over a deputy’s appointment and
retention.” (Doc. #18, p. 3).

Plaintiff argues that at the time of his termination Missouri statute and Eighth Circuit and
Supreme Court case law “clearly established the unconstitutionality of a patronage dismissal—

3 Some circuit courts appear to take differing views about how the two-step qualified immunity analysis fits together
with the Elrod-Branti or Pickering-Connick tests, compare Jenkins v. Medford, 119 F.3d 1156, 1165 (4th Cir. 1997)
(noting that federal courts have produced “conflicting and confusing opinions” on the issue of patronage dismissals,
and holding that because Elrod-Branti exception applied, plaintiffs “failed to state a claim”; thus it was unnecessary
“to consider whether [the county sheriff was] entitled to qualified immunity), and Zorzi v. Cty. of Putnam, 30 F.3d
885, 892 (7th Cir. 1994) (because county sheriff could not show that Elrod-Branti exception applied, court began
qualified immunity analysis, including further discussion of Elrod-Branti), with Shockency, 493 F.3d at 951
(because [county sheriff] could not have reasonably relied on Elrod-Branti exception and “the law on these issues
was clearly established,” district court “did not err in concluding that [county sheriff] was not entitled to qualified
immunity”), and Nord, 757 F.3d at 744 (because government’s interests outweighed the deputy sheriff’s under
Pickering-Connick, county sheriff’s “actions did not violate a clearly established constitutional right”), which could
be due to the Supreme Court’s 2009 decision in Pearson, 555 U.S. at 236 (holding that courts may skip prong one of
the qualified immunity analysis and proceed straight to prong two). Shockency, a pre-Pearson decision, is the most
recent Eighth Circuit opinion applying Elrod-Branti. Because Shockency is controlling precedent, this Court will
follow Shockency’s handling of the interplay between qualified immunity and Elrod-Branti.
particularly of a deputy protected by state law against such dismissals.” (Doc. #13, p. 3).
According to Plaintiff, Defendant Cole’s conduct was clearly established as unconstitutional
under Elrod-Branti “because party affiliation is not a requirement for the effective performance
of the job of Missouri deputy sheriff.” (Doc. #13, p. 9) (noting that Defendants “make no real
attempt to establish that party affiliation is a requirement for the effective performance of the

duties of Christian County deputies or that a deputy’s private political beliefs would somehow
interfere with the discharge of his public duties). Plaintiff argues that Defendants have
“implicitly conceded” this in their briefings in related cases, because by “trumpet[ing] the
alleged ‘fact’ that he knowingly retained deputies who supported his opponent,” Defendants
effectively acknowledge that “the lack of such support did not render these deputies incapable of
effectively performing their jobs.” (Doc. #13, p. 9) (citing Klossing v. Cole, No. 17-03064-CV-
S-SRB, 2018 WL 5504246 (W.D. Mo. Oct. 29, 2018), Defendants’ Suggestions in Support of
Motion for Summary Judgment, Doc. #171, p. 36).
Here, because Defendants have not “demonstrate[d] that party affiliation is an appropriate

requirement for the effective performance of” Christian County, Missouri, deputy sheriffs, see
O’Hare, 518 U.S. at 719 (quoting Branti, 445 U.S. at 518), Defendant Cole’s terminating
Plaintiff for political patronage reasons violated Plaintiff’s First Amendment rights under law
that was clearly established at the time of Cole’s conduct. See Shockency, 493 F.3d at 951.
Defendants’ reasoning is not persuasive. First, Defendants mistakenly conflate political
affiliation with loyalty in general. See Horton, 767 F.2d at 476 (“As to loyalty, Branti requires
that a distinction be drawn between political loyalty and other kinds.”). Defendants have not
shown that political loyalty in particular, as opposed to the general loyalty typically expected of
an employee towards the employer, has any impact on the job performance of a Christian
County, Missouri, deputy sheriff, a position which Plaintiff defines in his complaint as “a POST-
certified law enforcement officer.” (Doc. #1, ⁋ 6). Second, Defendants ignore the rule that,
while “[g]overnment officials may indeed terminate at-will relationships unmodified by any
legal constraints, without cause[,] . . . it does not follow that this discretion can be exercised to
impose conditions on expressing, or not expressing, specific political views. O’Hare, 518 U.S.

at 725–26 (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)). The fact that an employment
relationship is “at-will” does not itself authorize demotions or firings that would otherwise
violate the First Amendment. Third, Defendants conclude—without citation to controlling
authority or reference to the particular job duties of a Christian County deputy sheriff—that
“[t]he relationship between deputies and the sheriff are nearly identical in North Carolina and
Missouri” and that “based on the holding in Jenkins [119 F.3d 1156], those facts are sufficient to
determine political loyalty is an appropriate requirement.” (Doc. #18, p. 4). This conclusion
does not sufficiently demonstrate why the particular job duties of a Christian County deputy
sheriff mirror those of the North Carolina sheriffs in Jenkins or, more importantly, why political

loyalty is necessary for a Christian County deputy sheriff’s job performance. Finally, while
Defendants argue at length about why Mo. Rev. Stat. § 67.145 does not apply to Defendant
Cole’s conduct,4 Defendants do not discuss the core issue under Elrod-Branti that is their burden
to demonstrate: why political loyalty is an appropriate requirement for the effective performance
of a deputy sheriff in Christian County, Missouri. Because Defendants have not carried their
burden so that the exception is triggered, Plaintiff has alleged a plausible claim that Defendants
violated his First Amendment rights as clearly established under Elrod-Branti.

4 As of August 2015, this Missouri statute stated that “No political subdivision of this state shall prohibit any first
responder . . . from engaging in any political activity while off duty and not in uniform . . . ,” where “first responder”
was defined as “any person trained and authorized by law to render emergency medical assistance or treatment”
such as “deputy sheriffs.” Mo. Rev. Stat. §§ 67.145, 192.800 (2013).
Defendants’ reliance on Nord does not change the outcome. The Nord court applied the
Pickering-Connick balancing test and ruled that a county sheriff in North Dakota was entitled to
qualified immunity from a deputy sheriff’s First Amendment retaliation claim. 757 F.3d at 743.
The plaintiff in that case ran against the incumbent sheriff, lost the election, and was fired by the
re-elected sheriff the next day. Id. at 737–38. Here, Nord does not control because that court

applied only the Pickering-Connick test, 757 F.3d at 740, 744, which—as the parties agree—
does not apply in this case. Moreover, the Nord court’s discussion of the Fourth Circuit’s
Jenkins case, which Defendants’ argue this Court should follow, does not change the analysis
because that decision is not binding on this Court and is based on law of states other than
Missouri. See Shockency, 493 F.3d at 950–51.
Shockency, on which Plaintiff relies, is more on point here because the court in that case
applied Elrod-Branti to reach its decision. In Shockency, the court found that political loyalty
was not an appropriate requirement for the effective performance of Minnesota deputy sheriffs.
493 F.3d at 951. Defendants seek to distinguish Shockency from the present case, arguing that

“[f]or the same reason Shockency did not rely on Jenkins, so too should this Court not rely on
Shockency—because the differences in Minnesota law and Missouri law are too significant to
ignore.” (Doc. #6, p. 12). But the distinctions Defendants identify between the Minnesota
deputy sheriffs in Shockency and Missouri deputy sheriffs do not change the outcome in this
case. None of the distinctions pointed to by Defendants have to do with the “actual duties” a
Missouri deputy sheriff performs compared to the duties of a Minnesota deputy sheriff. See
Horton, 767 F.2d at 477. For instance, according to Defendants one “critical” distinction is that
in Shockency the plaintiffs were “‘classified’ employees who could only be terminated for
cause,” whereas “Missouri deputies are like the deputies in Jenkins . . . meaning they are at-will
employees serving at the pleasure of the sheriff and subject to patronage dismissal.” (Doc. #18,
p. 6) (citing Mo. Rev. Stat. § 57.275.2).5 As stated before, however, it was clearly established at
the time of the alleged misconduct that at-will employment status alone does not authorize the
employer to demote or fire employees in violation of their constitutional rights. See O’Hare, 518
U.S. at 725–26. The Elrod-Branti exception does not hinge on whether the employer can show

that the employment relationship was “at-will.” Instead, the core question is whether the
employer can show that political affiliation “is an appropriate requirement for the effective
performance of the public office involved.” O’Hare, 518 U.S. at 719 (quoting Branti, 445 U.S.
at 518). Defendants have not made such a showing.6
In sum, it is beyond debate—and thus clearly established—that patronage dismissals
violate the First Amendment, Elrod, 427 U.S. at 373, unless “party affiliation is necessary to do
[the job at issue] effectively.” Shockency, 493 F.3d at 950; Horton, 767 F.2d at 472. Here,
Defendants have not demonstrated that “political loyalty is necessary to an effective job
performance” of a deputy sheriff in Christian County, Missouri. See Shockency, 493 F.3d at 950.

As a result, Plaintiff’s complaint states a plausible claim that Defendants violated his First
Amendment rights under law that was clearly established at the time of Defendant Cole’s
conduct. Defendants therefore cannot show that Defendant Cole is entitled to qualified
immunity on the face of Plaintiff’s complaint. Moreover, because the Court denies Defendants’
motion to dismiss, the Court does not need to and will not address whether a grant of qualified

5 Mo. Rev. Stat. § 57.275 expressly states that deputies serve at the pleasure of the sheriff, but does not state that
deputies are “subject to patronage dismissal.” See id.
6 Defendants point out that “Plaintiff also argues Defendants have not discussed Plaintiff’s specific job duties” and
respond by asserting that “Plaintiff’s pleading is devoid of any specific facts about his job duties other than that he
was a POST certified law enforcement officer.” (Doc. #18, p. 4). Under Elrod-Branti, however, it is Defendants’
burden, not Plaintiff’s, to “demonstrate that party affiliation is an appropriate requirement for the effective
performance of the public office involved.” Branti, 445 U.S. at 518.
immunity would have resulted in Plaintiff not having a plausible claim against Defendant
Christian County.
IV. Conclusion
Accordingly, Defendants’ Motion to Dismiss (Doc. #7) is denied.
IT IS SO ORDERED.

/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE

Dated: November 30, 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10240887. Public record. Not legal advice.