Bardzik v. County of Orange

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFF BARDZIK, 

Plaintiff-Appellee,

v. No. 09-55103

COUNTY OF ORANGE; ORANGE D.C. No.

COUNTY SHERIFF’S DEPARTMENT,  8:07-cv-00141-JVS-

Defendants, RNB

and OPINION

MICHAEL CARONA,

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

April 9, 2010—Pasadena, California

Filed March 28, 2011

Before: Harry Pregerson and Robert R. Beezer,

Circuit Judges, and Suzanne B. Conlon, District Judge.*

Opinion by Judge Beezer;

Partial Concurrence and Partial Dissent by Judge Pregerson

*The Honorable Suzanne B. Conlon, United States District Judge for

the Northern District of Illinois, sitting by designation.

4111

BARDZIK v. COUNTY OF ORANGE 4115

COUNSEL

Joshua Piovia-Scott, Hadsell, Stormer, Keeny, Richardson &

Renick LLP, Pasadena, California, for the plaintiff-appellee.

Norman J. Watkins and Shannon L. Gustafson, Lynberg &

Watkins, Orange, California, for the defendants-appellants.

4116 BARDZIK v. COUNTY OF ORANGE

OPINION

BEEZER, Circuit Judge:

Plaintiff Jeffrey Bardzik was a lieutenant in the Orange

County Sheriff’s Department under the command of Defen-

dant Sheriff Michael Carona.1 Bardzik sues Carona under 42

U.S.C. § 1983, alleging that Carona violated Bardzik’s First

Amendment right to free speech by retaliating against Bardzik

for supporting Carona’s opponent in the 2006 Sheriff’s elec-

tion. Bardzik argues that Carona retaliated against him by

transferring him from the prestigious position of Reserve

Division Commander to an undesirable post at Court Opera-

tions. Bardzik also argues that Carona continued punishing

him even after he was transferred.

Before the district court, Carona moved for summary judg-

ment, arguing that he was permitted to retaliate against

Bardzik for his political activities because Bardzik was a

“policymaker” under Branti v. Finkel, 445 U.S. 507 (1980),

or, at the very least, that Carona was entitled to qualified

immunity for his actions. Carona argued that Bardzik was a

policymaker because Bardzik was Reserve Division Com-

mander in charge of over 600 reserve officers and because

Bardzik proposed and implemented large policy changes in

the Reserve Division. The district court denied Carona’s

motion, and Carona appeals the qualified immunity determi-

nation.

We hold that Carona is entitled to qualified immunity for

his actions retaliating against Bardzik while Bardzik was

Reserve Division Commander because Bardzik was a policy-

maker in that position. Carona is not entitled to qualified

immunity, however, for any further retaliatory action against

Bardzik once Bardzik was transferred to Court Operations.

1

There are multiple defendants, but because Carona’s qualified immu-

nity is the only issue on appeal, we refer only to Carona.

BARDZIK v. COUNTY OF ORANGE 4117

Under clearly established law, Bardzik was not a policymaker

at Court Operations. We affirm in part and reverse in part.

I

The events in this case unfold in Orange County, Califor-

nia, where in 1998, the voters elected Michael Carona to serve

them as Sheriff. Under Sheriff Carona, there was an Under-

sheriff, four assistant sheriffs, 15 captains, 60 lieutenants, and

numerous sergeants, and investigators. There were as many as

a few thousand deputies in the Department.

When the Sheriff was elected, Jeffrey Bardzik had been a

member of the Orange County Sheriff’s Department for some

time. He had joined the Department in 1984 and ten years

later was promoted to sergeant. Almost another decade later,

in April 2003, he was promoted to lieutenant.2 In the fall of

2003, however, Sheriff Carona asked Bardzik to assume more

responsibility in the Department and to serve as the Sheriff’s

Reserve Division Commander.

The promotion was a big step up for Bardzik because

Reserve Division Commander was an important position in

the Department. The Reserve Division Commander super-

vised two sergeants and 600 part-time volunteers or “re-

serves.” The Reserve Division consisted of both sworn and

nonsworn members. Sworn reserve deputies were given

badges, were authorized to make arrests, and were allowed to

carry firearms or concealed weapons. In most cases, reserves

were assigned to the same duties as regular deputies, such as

patrol, booking, surveillance, investigations, and undercover

work.3

2

Because we must resolve genuine issues of material fact in Bardzik’s

favor, Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009), we take the

recited facts from Bardzik’s Complaint, Deposition, and Declaration, and

Plaintiff’s Separate Statement of Additional Uncontroverted Facts.

3

See Orange County Sheriff’s Department, Reserve Bureau Overview,

http://egov.ocgov.com/ocgov/Sheriff-Coroner/Divisions/

Field%20Operations/Reserve%20Bureau (last visited Aug. 17, 2010).

4118 BARDZIK v. COUNTY OF ORANGE

Sheriff Carona personally met with Bardzik to give him

this new position. He asked Bardzik “to take command of the

Reserve Division, clean it up and bring it back to respectabili-

ty.” Carona told Bardzik to “get rid of the dead wood,” and

“run it like every other division,” because it “needed to stop

being led like a badge and gun club.”

Carona informed Bardzik that he had chosen Bardzik for

the job because Bardzik was known as “somebody with the

skills to come forward and take the Reserve Division and get

it back on track.” Carona emphasized that the Division

“needed ethical leadership,” Bardzik needed “to go in and

clean it up,” and that there were “no special favors.”

Bardzik’s exact chain of command to the Sheriff is unclear,

but at least for his first year as Reserve Division Commander,

Bardzik worked often with the Sheriff. Bardzik met with the

Sheriff “face-to-face” three or four times a month, or “de-

pending on what[ was] going on, perhaps a few times a

week.” Bardzik says that he reported to a captain or assistant

sheriff at all times during his tenure as Reserve Division

Commander and that his “chain of command was never

directly to the Sheriff.” In his deposition, however, Bardzik

testified that when he first became Reserve Division Com-

mander, his supervisor was largely absent from the Depart-

ment. According to Bardzik, “without a captain there and

without an active assistant sheriff, the reserve division com-

mander, myself, didn’t have anybody there. It was at least for

some time, for the first half; therefore, it was a chain of com-

mand directly to [the Sheriff].” He agreed that “from between

approximately November of ’03 into November of ’04, [he

was] essentially heading up the reserves and reporting to

Mike Carona with regard to [his] work there” ”with the

exception of [Captain] Tom Twellman sometimes working

with [them].” Later on Bardzik reported to Assistant Sheriff

Pete Gannon, but Bardzik still “had day-to-day management

responsibility for the reserves.”

BARDZIK v. COUNTY OF ORANGE 4119

Bardzik’s day-to-day duties as Reserve Division Com-

mander were “never typical.” Bardzik would get “calls week-

ends and nights” regarding personnel issues of the reserve

members and “would deal with those [issues] on a regular

basis.” And when emergencies arose or reserves were needed,

Bardzik would “allocat[e] resources out to whoever needed

them while making the decision what to keep in case we

need[ed] it for something else.” Bardzik would also ensure

that the reserves maintained their training. He initiated “a lot

of very proactive programs” to ensure that the Department

had reserves in specialized areas of expertise; he created a

high-tech unit and made sure there were swift-water rescue

responders in the Reserve Division.

As Reserve Division Commander, Bardzik strove to

improve the Division. After working with Captain Tom

Twellman on an audit of the Reserve Division, Bardzik rec-

ommended a decentralization program. “Carona’s January 1,

2005 ‘state of the department’ memo to [the] Orange County

Sheriff’s Department praised Bardzik’s decentralization of the

Reserves as one of the ‘highlights of the year.’ ” Bardzik also

“implemented” a new “promotional protocol . . . to replace

the system of favoritism that was in use before.”

Carona decided to make the Reserve Division Commander

a captain’s post, and he interviewed Bardzik for the new posi-

tion in Spring 2005. Reserve Division Commander was

indeed made a captain’s post later that year. According to

Bardzik, “the Reserve Division Commander was one of the

most prestigious positions in the Department that included a

unique set of challenges and responsibilities.”

Despite his apparent professional successes, Bardzik

became frustrated with the way that Carona ran the Depart-

ment and the Reserve Division. Carona allegedly appointed

political allies to assistant sheriff positions as favors, he

allowed nonsworn reserves to carry firearms and badges in

violation of California law, and Carona’s allies in the Depart-

4120 BARDZIK v. COUNTY OF ORANGE

ment attempted to coerce employees, including Bardzik, into

donating money for Carona’s campaign.

Bardzik eventually openly supported Carona’s opponent,

Lieutenant Bill Hunt, in the Sheriff’s election, and in the

spring or summer of 2005, Bardzik’s name appeared on a

published list of Hunt supporters.

When Carona discovered Bardzik’s support of his oppo-

nent, Bardzik’s rise through the Department was over. At Car-

ona’s instruction, Bardzik was told that he should “resign

from law enforcement.” Bardzik approached the Sheriff and

asked him why he had been told to resign. “Well, the Bill

Hunt thing sure didn’t help,” was the Sheriff’s reply. The

Sheriff asked Bardzik why he was supporting Lieutenant

Hunt, and said, “What were you thinking? You know where

you were going in this department.” In line with the Sheriff’s

warnings, in the fall of 2005, Bardzik was transferred to Court

Operations where he remained a lieutenant but was no longer

a division commander. His position involved less responsibil-

ity, less possibility for overtime pay, and was largely regarded

as a dead-end job where the Sheriff sent lieutenants he was

unhappy with.4 There, Bardzik was responsible for court

security, inmate movement, and weapons screening among

other tasks.

Once Bardzik was at Court Operations, the Sheriff contin-

ued to retaliate against him. Bardzik and the lieutenant who

ran against the Sheriff were the only two lieutenants denied

a discretionary pay raise, even though Bardzik’s superior offi-

cer at Court Operations recommended that Bardzik receive

the raise. Carona also took the unprecedented step of directing

that Bardzik’s rating on his 2005 evaluation be reduced from

“exceeds expectations” to “meets expectations.” Bardzik was

4

It is undisputed for purposes of this appeal that Carona transferred

Bardzik to Court Operations in retaliation for Bardzik’s political activities

against Carona.

BARDZIK v. COUNTY OF ORANGE 4121

denied the opportunity to interview for Chief of Police posi-

tions in 2006 and 2007 even though all lieutenants were

allowed to interview even if they were considered unquali-

fied. And Carona’s supporters initiated two internal investiga-

tions against Bardzik, which were ultimately dismissed as

unfounded.

Bardzik filed this suit against Carona under 42 U.S.C.

§ 1983 for these acts of retaliation, which Bardzik claimed

violated his rights under the First Amendment. On Carona’s

motion for summary judgment, the district court found that

there were “material facts in dispute as to Bardzik’s duties

and whether his duties made him a policymaker subject to

partisan dismissal.” Bardzik v. County of Orange, 605 F.

Supp. 2d 1076, 1083 (C.D. Cal. 2009). The district court

denied Carona’s motion for summary judgment and qualified

immunity. Carona appeals the qualified immunity determina-

tion here.

II

To review the district court’s conclusion that Bardzik was

not a policymaker, we must first determine our standard of

review, about which the parties strongly disagree. The district

court held that “for purposes of the qualified immunity analy-

sis, this Court must presume that Bardzik was not a policy-

maker and that the Orange County Defendants were aware of

this.” Id. at 1088. In line with this reasoning, Bardzik argues

that we may not review the district court’s conclusion that, for

purposes of summary judgment, Bardzik was not a policy-

maker. This is not a correct statement of law.

[1] We do not have jurisdiction to review the district

court’s determination that genuine issues of material fact exist

as to Bardzik’s duties and responsibilities, and to the extent

that disputed facts exist, we assume that Bardzik’s version is

correct. See Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir.

2009); Walker v. City of Lakewood, 272 F.3d 1114, 1132 (9th

4122 BARDZIK v. COUNTY OF ORANGE

Cir. 2001); see also Johnson v. Jones, 515 U.S. 304, 313,

319-20 (1995) (holding this in a § 1983 excessive force case).

But whether the particular duties of Bardzik’s position as

Reserve Division Commander made him a policymaker is a

question of law for the district court—not the jury—and it is

a determination that we review de novo. Hobler v. Brueher,

325 F.3d 1145, 1151 (9th Cir. 2003); Walker, 272 F.3d at

1132; see Eng, 552 F.3d at 1067. Resolving all factual dis-

putes in Bardzik’s favor, we determine whether Carona is

entitled to qualified immunity as a matter of law. Eng, 552

F.3d at 1067.

III

[2] The First Amendment5 protects the rights of citizens to

criticize a government official, to support a candidate oppos-

ing an elected official, or to run against an elected official.

See Branti, 445 U.S. at 513-17. A citizen does not check these

rights at the door when he accepts a government job. See id.

Ordinarily, an elected official cannot fire or retaliate against

an employee for his political opinions, memberships, or activ-

ities. See id.

[3] Nonetheless, this general rule has some limitations. In

Elrod and Branti, the Supreme Court created the “policy-

maker exception,” recognizing that an elected official must be

able to appoint some high-level, personally and politically

loyal officials who will help him implement the policies that

the public voted for. See Branti, 445 U.S. at 517-20; Elrod v.

Burns, 427 U.S. 347, 367 (1976) (plurality op.); Hall v. Ford,

856 F.2d 255, 263 (D.C. Cir. 1988) (“In order for the new

administration to be given an opportunity to fulfill expecta-

5

“ ‘It is important to note that while it is the Fourteenth Amendment

which bears directly upon the State it is the more specific limiting princi-

ples of the First Amendment that finally govern this case.’ ” Elrod v.

Burns, 427 U.S. 347, 357 n.10 (plurality op.) (quoting Bd. of Educ. v. Bar-

nette, 319 U.S. 624, 639 (1943)).

BARDZIK v. COUNTY OF ORANGE 4123

tions, it must have available . . . significant facilitators of pol-

icy, people who have the personal and partisan loyalty,

initiative, and enthusiasm that can make the difference

between the acclaimed success of a government agency or

program and its failure or, more typically, its lackluster per-

formance.” (emphasis added) (quoting Jimenez Fuentes v.

Torres Gaztambide, 807 F.2d 236, 241 (1st Cir. 1986))). An

elected official may dismiss these same policymaking

employees if they are no longer loyal, if they oppose his re-

election, or simply if the official would prefer to work with

someone else. “If [an official is] a policymaker, then under

Branti his government employment could be terminated for

purely political reasons without offending the First Amend-

ment.” Fazio v. City of S.F., 125 F.3d 1328, 1332 (9th Cir.

1997). We have recognized specifically that the rationale

allowing for the patronage dismissal of a policymaker also

justifies his dismissal for opposing the employer in an elec-

tion. Id. at 1331-32. If Bardzik occupied a policymaking posi-

tion, Carona is entitled to qualified immunity for demoting

Bardzik in retaliation for supporting Carona’s opponent in the

2006 Sheriff’s election.

IV

Under our de novo standard of review and resolving dis-

putes of material fact in Bardzik’s favor, Bardzik was a poli-

cymaker as Reserve Division Commander. Thus, under

Saucier v. Katz, 533 U.S. 194, 201 (2001), and Pearson v.

Callahan, 129 S. Ct. 808, 815-16, 818 (2009), there was no

constitutional violation and Carona is entitled to qualified

immunity for his allegedly retaliatory demotion of Bardzik.6

6

We have the option to address only the clearly-established step of the

qualified immunity analysis. Pearson, 129 S. Ct. at 818. However, we

elect to address whether there was a constitutional violation because the

policymaker analysis is fact intensive and unsettled. See Upton v. Thomp-

son, 930 F.2d 1209, 1213 (7th Cir. 1991) (“[B]etween the strictly menial

government worker (who, under Elrod and Branti, is clearly and com-

4124 BARDZIK v. COUNTY OF ORANGE

[4] We have rejected the argument that all sheriff’s depu-

ties, regardless of rank, are per se policymakers. DiRuzza v.

County of Tehama, 206 F.3d 1304, 1309 (9th Cir. 2000). Not

even a sheriff’s lieutenant is automatically a policymaker.

Thomas v. Carpenter, 881 F.2d 828, 832 (9th Cir. 1989)

(reversing a Rule 12(b)(6) dismissal of lieutenant’s First

Amendment retaliation claim).

[5] As Bardzik was not a per se policymaker, we must ana-

lyze Bardzik’s duties as Reserve Division Commander to

determine if they fit the description of a policymaker. Biggs

v. Best, Best & Krieger, 189 F.3d 989, 995 (9th Cir. 1999).

We have listed “some” factors to identify a policymaking

position: “vague or broad responsibilities, relative pay, techni-

cal competence, power to control others, authority to speak in

the name of policymakers, public perception, influence on

programs, contact with elected officials, and responsiveness

to partisan politics and political leaders.” Fazio, 125 F.3d at

1334 n.5; see DiRuzza, 206 F.3d at 1310.7

pletely protected from patronage firing) and the policymaker/confidential

assistant (whose protection from patronage firing is non-existent), there is

a range of government positions for which the propriety of patronage fir-

ing has depended largely on the courts’ juggling of competing constitu-

tional and political values.”); see also Hall v. Tollett, 128 F.3d 418, 429-

30 (6th Cir. 1997) (lamenting that in an earlier case, “[u]nfortunately, we

granted a sheriff qualified immunity, without first determining whether

there had actually been a constitutional violation. Therefore, [the case]

effectively established only that . . . the state of the law regarding patron-

age dismissals of sheriffs’ deputies was not clearly established” (internal

citations omitted)). In these circumstances, it is proper to address Sauci-

er’s first step first. See Pearson, 129 S. Ct. at 818 (“[T]he Saucier Court

was certainly correct in noting that the two-step procedure promotes the

development of constitutional precedent and is especially valuable with

respect to questions that do not frequently arise in cases in which a quali-

fied immunity defense is unavailable.”).

7

Applying similar factors, the Fourth and Eleventh Circuits have held

that under Branti, deputy sheriffs are policymakers. See Jenkins v. Med-

ford, 119 F.3d 1156, 1163-64 (4th Cir. 1997) (holding that because of

BARDZIK v. COUNTY OF ORANGE 4125

[6] Viewing the evidence in Bardzik’s favor, Bardzik was

a policymaker when he was Reserve Division Commander. It

is a close question because four of the factors favor Bardzik.

However, five factors favor Carona, including the “most criti-

cal factor”—influence over programs. See Walker, 272 F.3d

at 1133 (noting that influence over programs is the “most crit-

ical factor” and then discussing broad responsibilities, techni-

cal competence, and public perception as important factors).

Bardzik had broad responsibility, influence on programs, fre-

quent contact with elected officials, technical competence,

power to control others, and actually did impede the Sheriff’s

agenda.

[7] Four of the Fazio factors favor Bardzik: Carona intro-

duced no evidence to show that Bardzik had a relatively high

salary compared to other employees in the Department.

Bardzik was only paid $116,000 a year, whereas an assistant

sheriff could earn as much as $260,000.

[8] Bardzik also did not have authority to speak in the

name of policymakers on the current record. Bardzik could

not directly send a memorandum to all Department divisions

with respect to his Reserve Division decentralization initia-

North Carolina-specific laws deputy sheriffs in North Carolina are policy-

makers); Terry v. Cook, 866 F.2d 373, 377 (11th Cir. 1989) (“Under the

Elrod-Branti standard, loyalty to the individual sheriff and the goals and

policies he seeks to implement through his office is an appropriate require-

ment for the effective performance of a deputy sheriff. . . . [A sheriff has]

absolute authority of appointment and [the authority] to decline to rein-

state those who did not support him.”). The Fifth Circuit has recognized

that deputy sheriffs are policymakers under certain circumstances. Com-

pare Barrett v. Thomas, 649 F.2d 1193, 1200-01 (5th Cir. Unit A July

1981) (holding that deputy sheriffs that performed work ranging from

“clerical work to law enforcement” were not policymakers), with McBee

v. Jim Hogg County, Tex., 703 F.2d 834, 842 (5th Cir. 1983) (holding that

plaintiff sheriff’s deputies were policymakers in a small office where the

deputies were responsible for implementing policy and were representa-

tives of the sheriffs).

4126 BARDZIK v. COUNTY OF ORANGE

tive; rather, Bardzik had to ask the Sheriff to send the memo-

randum. And superiors upbraided Bardzik for attempting to

send the reserves a memorandum on campaign solicitation

laws. Relatedly, the public-perception factor weighs in Bardz-

ik’s favor because there is no evidence the public knew about

Bardzik.

[9] Also “responsiveness to partisan politics and political

leaders” is somewhat inconclusive. Initially, Bardzik appeared

to be more of a civil servant than a political appointee.

Bardzik joined the Department well before Carona was

elected, and he was not promoted when Carona came to

power. Indeed, Bardzik was made a lieutenant five years after

Carona was elected. However, as Bardzik rose through the

ranks, his promotions and demotions coincided with changes

in Department politics. Carona personally appointed Bardzik

to be Reserve Division Commander. And although Bardzik

was demoted when he supported the Sheriff’s opponent in the

election, he was elevated to a new post when a new adminis-

tration replaced Carona’s in 2008. Because this factor is

inconclusive, Carona did not carry his burden on this factor.

[10] Although four factors favor Bardzik, Bardzik’s impor-

tance in the Department and his status as a policymaker

become clear when we examine the remaining five factors.

[11] First, Bardzik had vague and broad responsibilities.

Carona personally met with Bardzik to give Bardzik his posi-

tion as Reserve Division Commander and told Bardzik his

priorities for the Division. He told Bardzik to “get rid of the

dead wood,” and to run the Reserves “like every other divi-

sion,” instead of a “badge and gun club.” Carona told Bardzik

to ensure “that people are up to speed for the assignment that

they have” and to improve “the image of the Reserve Divi-

sion.” The district court recognized that these assignments

were “somewhat vague and broadly worded,” Bardzik, 605 F.

Supp. 2d at 1081, and acknowledged Bardzik’s admission that

BARDZIK v. COUNTY OF ORANGE 4127

“he was ‘in effect running the Reserves,’ ” id. (quoting

Bardzik Dep.).8 This factor weighs in Carona’s favor.

[12] Second, Bardzik had influence on Department pro-

grams in his effort to carry out the Sheriff’s sweeping man-

date. To clean up the Reserves, Bardzik and Captain

Twellman conducted an audit of the Division and “recom-

mended numerous changes” to ensure that the Reserve Divi-

sion was in compliance with California’s Commission on

Peace Officer Standards and Training. Bardzik initiated pro-

grams to ensure that the Department had reserves trained in

various areas such as swift water rescue and high-tech areas.

He also initiated a Reserve Division decentralization program,

which created a separate Reserve Liaison position with every

division, contract city, and court to help coordinate reserve

requests. Sheriff Carona’s “state of the department” memo

“praised Bardzik’s decentralization of the Reserves as one of

the ‘highlights of the year.’ ” Bardzik likewise re-instituted

the Reserve Newsletter and implemented a new promotion

system to replace the “system of favoritism” that was in place

previously. And he attempted the controversial task of taking

firearms and badges away from reserves who were not in

compliance with the law or Department requirements.

Although Bardzik could not approve expenditures over

$300, or unilaterally create policy, the ability to “unilaterally”

create and implement programs without any input from the

Sheriff is not required by our case law or by logic. See Biggs,

189 F.3d at 996 (holding that the plaintiff-law firm associate

who represented the government was a policymaker even

though her work was subject to review by partners). The

8

The district court then countered that “this says nothing about what

running or managing the Reserves entailed.” Bardzik, 605 F. Supp. 2d at

1082. However, Carona amply demonstrates with Bardzik’s own testi-

mony what running the Reserves actually entailed. We analyze Bardzik’s

duties in “running the Reserves” under the second factor, influence on

Department programs.

4128 BARDZIK v. COUNTY OF ORANGE

weight of the evidence shows that Bardzik influenced many

Reserve Division programs.

[13] Third, Bardzik had frequent and meaningful contact

with the elected official, the Sheriff. Even the district court

recognized that the “contact with elected officials” factor

“weighs somewhat in favor of the Orange County Defen-

dants’ argument.” Bardzik, 605 F. Supp. 2d at 1082. In his

Declaration, Bardzik states, “My chain of command was

never directly to the Sheriff as I always reported to a Captain

or Assistant Sheriff.” This statement directly contradicts

Bardzik’s deposition where he testified that his chain of com-

mand did go directly to the Sheriff for awhile. Because con-

tradictory testimony raises a genuine issue of material fact, we

must assume that Bardzik’s chain of command never went

directly to the Sheriff. See Kennedy v. Allied Mut. Ins. Co.,

952 F.2d 262, 267 (9th Cir. 1991). Even then, however,

Bardzik met with the Sheriff in the first year three or four

times a month and even a few times a week “depending on

what[ was] going on.” He also testified that during his first

year as Reserve Division Commander, there was in effect no

assistant sheriff or captain supervising him at the Reserves.

Thus, this factor weighs in Carona’s favor.

[14] Fourth, Bardzik had particular technical competence

to serve as Reserve Division Commander. Carona hired

Bardzik because he recognized that Bardzik was “somebody

with the skills to come forward and take the Reserve Division

and get it back on track.” Carona told Bardzik that the

Reserves “needed ethical leadership.”

Bardzik demonstrated that he was in fact skilled for the

leadership role. Bardzik testified that by the time he was

transferred to Court Operations, “I had a wealth of knowledge

and had fine-tuned [Reserve operations] . . . . [I]t was at the

most efficient point it ever was[,] not only in the time that I

was there, but, as I was told by my superiors, any time in the

Reserve Division.” This factor favors Carona.

BARDZIK v. COUNTY OF ORANGE 4129

[15] Fifth, with respect to the “power to control others”

factor, Bardzik supervised two sergeants, four clerical staff,

and approximately 600 volunteer reserve members. He

ensured that there were sufficient reserves trained in special-

ized areas, he assigned reserves when they were needed, and

he recommended and implemented a new promotional proto-

col within the Reserve Division. Bardzik testified that:

I interacted with just about every division in the

entire department because that’s where reserves

could work. You can imagine with a force division

that large, the personnel issues with 600 members.

. . . [I]t wouldn’t be unusual to get calls weekends

and nights. So I would deal with those [issues] on a

regular basis.

....

. . . [I] allocat[ed] resources out to whoever

needed them while making the decision what to keep

in case we need[ed] it for something else and along

with that all the training that goes into these people

not only to initiate them to become skilled, but to

maintain their training as the law provides and else-

where . . . . I could waste many pages going on and

on, that type of thing.

There are some countervailing considerations on this factor:

Bardzik had to send his reviews and promotion recommenda-

tions regarding reserve members up the chain of command.

He did not supervise the reserves while they were working in

other divisions, he did not train the reserves himself, and he

referred personnel problems to the Department’s Personnel

Division. However, the fact that Bardzik did not train reserves

or deal with personnel issues himself, id., says little about

whether the Reserve Division Commander was a policymak-

ing position. See Thomas, 881 F.2d at 832 (recognizing that

whether a plaintiff evaluates his inferior officers has little

4130 BARDZIK v. COUNTY OF ORANGE

bearing on the policymaker analysis). What matters is that he

oversaw reserve training and personnel issues.9 In light of the

extensive authority that Bardzik wielded over the members of

the Reserve Division, this factor weighs in Bardzik’s favor.

[16] Finally, the Fazio factors are not exclusive, Fazio,

125 F.3d at 1334 n.5, and we find persuasive a factor not spe-

cifically enumerated in that case: Bardzik actively sought to

undermine the Sheriff’s policies. Elrod states that the excep-

tion allowing patronage dismissals of policymakers helps

ensure “that representative government not be undercut by

tactics obstructing the implementation of policies [of elected

officials], policies presumably sanctioned by the electorate.”

427 U.S. at 366. But nonpolicymaking employees cannot be

dismissed for political reasons because “[n]onpolicymaking

individuals usually have only limited responsibility and are

therefore not in a position to thwart the goals of the in-party.”

Id.

[17] Here, Bardzik was in a position to thwart the Sheriff’s

agenda. He tried to take badges away from the Sheriff’s polit-

ical allies under his interpretation of the law, and the Sheriff

told him to “leave it alone.” In October 2004, Bardzik told the

Sheriff that it was a misdemeanor under California Penal

Code § 538d to issue a badge to a nonsworn reserve that

resembles a police officer’s badge and that Bardzik “refused

to participate in any future issuing of inappropriate law

enforcement badges” to the nonsworn reserves. Carona told

Bardzik, “look me in the eye when I tell you this Lieutenant,

9

Bardzik did not personally train the reserves but ensured that the

Department had reserves trained in specialized areas. He was responsible

for “a lot of very proactive programs” to fill Department needs for

reserves with specific expertise. This distinction is logical because it is

unlikely that Bardzik would have sufficient expertise in all areas in which

reserves worked: he would not be able to teach swift-water rescue himself

and computer hacking. Rather than training the reserves, he oversaw the

training program.

BARDZIK v. COUNTY OF ORANGE 4131

I don’t give a shit about § 538d . . . . I’m going to change the

law.”

[18] Bardzik also attempted to send a memorandum to the

reserves regarding the legal propriety of campaign solicita-

tions. When the Sheriff found out, he was “furious” and

ordered Bardzik not to draft or send the memorandum to the

reserves. Likewise, Bardzik openly criticized the Sheriff’s

decisions as unethical on- and off-duty. Bardzik was working

within the Sheriff’s Department against the Sheriff’s agenda

because Bardzik believed the agenda to be illegal or against

Department protocol. Bardzik ultimately admitted that he told

Carona that the disagreement between the two men boiled

down to the fact that Carona “expected loyalty to him as a

person and his personal agenda over what [Bardzik] believed

was paramount”; in other words, “loyalty to an individual and

the man versus loyalty to the organization and the welfare of

the whole.”

[19] There is no legitimate interest in covering up corrup-

tion, and Bardzik was certainly entitled to expose the Sheriff’s

alleged wrongdoing to the public. However, often in political

contests, one side may accuse the other of acting illegally. An

elected official need not retain a high-ranking official in a

position to undermine the official’s credibility and goals when

neither the electorate nor an appropriate agency has deter-

mined that the official has violated the law. “[T]hough a pri-

vate person is perfectly free to uninhibitedly and robustly

criticize [an elected official’s policies], we have never sug-

gested that the Constitution bars the [elected official] from fir-

ing a high-ranking deputy for doing the same thing.” Moran

v. Washington, 147 F.3d 839, 842, 850 (9th Cir. 1998) (hold-

ing for defendant in part because the plaintiff-policymaker

“insubordinately opposed the development and implementa-

tion” of her superior’s program because the plaintiff believed

that the program “constituted ‘unlawful political activity’ ”);

see Fazio, 125 F.3d at 1333 (“Indeed, ‘a public agency would

be unmanageable if its head had to . . . retain his political ene-

4132 BARDZIK v. COUNTY OF ORANGE

mies . . . in positions of confidence or positions in which they

would be . . . exercising discretion in the implementation of

policy.’ ” (quoting Wilbur v. Mahan, 3 F.3d 214, 217 (7th Cir.

1993))). Because Bardzik was a “policymaker,” Carona did

not violate the Constitution by demoting Bardzik and transfer-

ring him to Court Operations, and Carona is entitled to quali-

fied immunity.10

Ninth Circuit case law lends support to our conclusion that

Bardzik was a policymaker. In DiRuzza, we concluded that

the plaintiff was not a policymaker for summary judgment

purposes because she was a rank-and-file deputy sheriff. 206

F.3d at 1314. We reasoned that “[d]eputy sheriffs appear to be

the lowest ranking peace officers in the department . . . below

other categories of employees such as sergeants and sheriff’s

detective investigators.” Id. at 1310-11.11 We relied on the fact

that DiRuzza worked in positions associated with jails and

cited other circuits’ cases that have held that positions associ-

ated with jails and courtroom security are nonpolicymaking

positions. See id. at 1311 (citing Burns v. County of Cambria,

971 F.2d 1015, 1022 (3d Cir. 1992), and Hall v. Tollett, 128

F.3d 418, 429 (6th Cir. 1997)). And although DiRuzza drafted

a new “policy manual,” for the new jail, we did not accord

this fact much weight as this manual only concerned such

menial topics as procedures for handling prisoners’ mail. See

id.

10

Because we decide that Bardzik was a policymaker as Reserve Divi-

sion Commander, we need not address the clearly-established prong of the

qualified immunity analysis. See Pearson, 129 S. Ct. at 818. However,

DiRuzza and Thomas demonstrate that Carona would be entitled to quali-

fied immunity under that prong as well.

11

DiRuzza in this respect is somewhat confusing as it states that all

peace officers in the sheriff’s department are “deputy sheriffs” and then

merely calls DiRuzza a “deputy sheriff.” However, the opinion makes

clear that DiRuzza was a rank-and-file deputy because the opinion states

that she was in a position lower than a sergeant or detective investigator.

DiRuzza, 206 F.3d at 1310-11.

BARDZIK v. COUNTY OF ORANGE 4133

Unlike DiRuzza, Bardzik was not a line deputy occupying

the lowest position in the Department, but he was a lieutenant

and Reserve Division Commander—“one of the most presti-

gious positions in the Department.” As Reserve Division

Commander, Bardzik did not do menial tasks associated with

jails or courtroom security. And with respect to chain of com-

mand, the difference between DiRuzza and Bardzik is also

clear: on her projects, DiRuzza was a deputy assisting a lieu-

tenant and a sergeant, see id., but here, Bardzik was a lieuten-

ant, assisting captains, assistant sheriffs, and the Sheriff

himself.12

V

Because we have determined that Bardzik was a policy-

maker when he was Reserve Division Commander, we

address the district court’s conclusion that even if Bardzik

was a policymaker, summary judgment for the defendants

was still inappropriate. Bardzik, 605 F. Supp. 2d at 1084-86.

The district court recognized that “[t]he underlying purpose of

the Elrod-Branti policymaker exception is to protect a legiti-

mate government interest of vital importance.” Id. at 1085

12

We do have one case concerning a lieutenant in a California Sheriff’s

Department, Thomas v. Carpenter, but it has limited significance here

because it was an appeal from a Rule 12(b)(6) dismissal. See Thomas, 881

F.2d at 832. Thomas merely held that the defendant could not show,

“based solely on the allegations of Thomas’s complaint, that Thomas’s

political loyalty [was] essential to the effective performance” of Thomas’s

position as a lieutenant. Id. (emphasis added). Unlike Thomas, which was

decided on a motion to dismiss, this case comes to us after summary judg-

ment with multiple volumes of factual record. Even then, unlike Bardzik,

Thomas was not a division commander, id. at 829, and Thomas’s only

functions that the defendant pointed to as “policymaking” were attending

informational weekly staff meetings and participating as an evaluator of

a high-risk entry team, id. at 832. We doubted that there was any discre-

tion or policymaking involved in these duties, and we recognized that

under a motion to dismiss, it was unclear what Thomas’s participation in

policy manual meetings involved. Id. If anything, Thomas supports our

conclusion that Bardzik was a policymaker at the Reserve Division.

4134 BARDZIK v. COUNTY OF ORANGE

(emphasis omitted). From this proposition, the district court

reasoned that even if Bardzik was a policymaker, Carona

would still have to show that retaliating against Bardzik

served a vital government interest. Id. at 1085-86. The court

noted that Bardzik acted as a whistleblower of sorts and

attempted to expose government corruption. Id. There was

“no legitimate government interest in the covering up and per-

petuation of corruption,” the district court concluded. Id. at

1085.

We have never held that an official cannot fire a politically

disloyal policymaker because the policymaker has accused

the official of corruption. For this reason alone the Sheriff

would be entitled to qualified immunity. But more impor-

tantly, this argument is foreclosed by our precedent, Fazio v.

City of San Francisco, 125 F.3d at 1334. Fazio holds that if

a plaintiff is a policymaker, the court will not consider the

plaintiff’s claim that under Pickering v. Board of Education,

391 U.S. 563 (1968), the plaintiff’s “interest in free speech

outweighs the [defendants’] interest in running an efficient

office.” Fazio, 125 F.3d at 1334.13 A plaintiff’s status as a

policymaker is dispositive. Walker, 272 F.3d at 1131; Biggs,

189 F.3d at 995.

An elected official should not be forced to retain his high-

ranking deputy solely because the deputy accused him of cor-

ruption. In the face of a similar argument, the Ninth Circuit

has noted, “If a public official is permitted to fire a confiden-

13

We have considered that the government “does not have a legitimate

interest in covering up mismanagement or corruption and cannot justify

retaliation against whistleblowers as a legitimate means of avoiding the

disruption that necessarily accompanies such exposure.” Johnson v. Mult-

nomah County, 48 F.3d 420, 427 (9th Cir. 1995). However, that case

involved a nonpolicymaker, and when the employee is a policymaker, the

vital interest is in allowing elected officials to choose their policymakers

based on their political loyalty and preference, not in covering up corrup-

tion. Only if a plaintiff is a nonpolicymaker do we conduct a Pickering

analysis. Walker, 272 F.3d at 1031.

BARDZIK v. COUNTY OF ORANGE 4135

tial or policymaking employee merely because the latter qui-

etly, inoffensively, undemonstratively belongs to the wrong

political party . . . the official should be permitted to fire the

same employee when the latter asks the electorate to throw

the rascal out and put himself into the rascal’s office.” Fazio,

125 F.3d at 1332 (quoting Wilbur, 3 F.3d at 218); see also

Curinga v. City of Clairton, 357 F.3d 305, 313 n.8 (3d Cir.

2004) (noting that “[t]he Ninth Circuit allows for disciplinary

action against policymakers for any type of speech under

Elrod, including speech not related to policy views or a politi-

cal agenda”).14

VI

[20] For the same reasons that Carona is entitled to quali-

fied immunity for his actions retaliating against Bardzik while

Bardzik was Reserve Division Commander, he is not entitled

to qualified immunity once Bardzik was transferred to Court

Operations. Bardzik was not a policymaker at Court Opera-

tions. While at Court Operations, Bardzik supervised three

sergeants and a civilian supervisor for inmate movement. He

did civil processing, security, weapons screening, and con-

ferred with judges and other divisions in the Department as it

pertained to court security. Viewing the facts on the current

record in Bardzik’s favor, none of the Fazio factors indicate

that Bardzik was a policymaker.

14

The district court also held that even if Bardzik was a policymaker as

a Reserve Division Commander, Carona’s “improper harassment” of

Bardzik could not “be justified under the policymaker exception.”

Bardzik, 605 F. Supp. 2d at 1084. We need not address this argument

because the additional acts of harassment—including the internal investi-

gations, refusing to allow Bardzik to interview for Chief of Police, deny-

ing Bardzik salary raises, and lowering Bardzik’s performance reviews—

took place after Bardzik was transferred to Court Operations. As discussed

in Part VI below, Carona is not entitled to qualified immunity for his retal-

iatory actions against Bardzik when Bardzik was stationed at Court Opera-

tions.

4136 BARDZIK v. COUNTY OF ORANGE

[21] It was also clearly established under Supreme Court

and Ninth Circuit precedent that Bardzik was not a policy-

maker at Court Operations. Although the policymaker analy-

sis is unsettled and difficult for many employment positions,

positions associated with jails and courtroom security are not

policymaking positions. Indeed, the Supreme Court in Branti

clarified that the employees in Elrod, including “a bailiff and

security guard at the [j]uvenile [c]ourt,” were not policy-

makers. Branti, 445 U.S. at 517; see Elrod, 427 U.S. at 350-

51. Likewise, DiRuzza relied on the fact that the plaintiff

worked in positions associated with jails to hold that she was

not a policymaker for summary judgment purposes. 206 F.3d

at 1311. Citing cases from various circuits, DiRuzza stated

that “political affiliation is not an appropriate job requirement

for deputy sheriffs whose primary tasks are service of process,

transport of prisoners, and courtroom security.” Id. (citing

Burns, 971 F.2d at 1022). DiRuzza specifically noted that the

Eleventh Circuit has distinguished “the positions of clerk,

investigator, dispatcher, jailer, and process server” from poli-

cymaking employees. See id. (citing Terry v. Cook, 866 F.2d

373, 377-78 (11th Cir. 1989)). These duties resemble Bard-

zik’s at Court Operations. It was clearly established at the

time of Carona’s retaliatory actions that Bardzik was a not a

policymaker at Court Operations, and a reasonable official

would have known that. See Anderson v. Creighton, 483 U.S.

635, 640 (1987).15

VII

[22] Carona is entitled to qualified immunity for his retal-

iatory actions against Bardzik until and including Bardzik’s

15

Because Bardzik was not a policymaker for summary judgment pur-

poses at Court Operations, we would normally proceed to an analysis of

the Pickering factors to determine if the plaintiff’s “interest in free speech

outweigh[ed] the [defendants’] interest in running an efficient office” dur-

ing the time Bardzik was at Court Operations. Fazio, 125 F.3d at 1334.

However, Carona did not appeal the district court’s decision that his

actions were not protected by the Pickering balancing test.

BARDZIK v. COUNTY OF ORANGE 4137

transfer to Court Operations because as Reserve Division

Commander, Bardzik was a policymaker. Carona, however, is

not entitled to qualified immunity after Bardzik’s transfer

because it was clearly established that Bardzik was a nonpoli-

cymaker at Court Operations.

AFFIRMED IN PART and REVERSED IN PART.16

PREGERSON, Circuit Judge, concurring in part and dissent-

ing in part:

The majority holds that Bardzik was a policymaker while

serving as Reserve Division Commander, but was not a poli-

cymaker while serving in Court Operations. I agree that

whether Bardzik was a policymaker while serving as Reserve

Division Commander is a close question. See Maj. op. at

4125. However, resolving all factual disputes in Bardzik’s

favor, I would conclude that he was not a policymaker in

either the Reserve Division or in Court Operations. Thus, I

dissent from the majority opinion in part.

To conclude that Bardzik was a policymaker while com-

manding the Reserve Division, the majority analyzes Bard-

zik’s duties under the factors stated in Fazio v. City of San

Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir. 1997) (“vague

or broad responsibilities, relative pay, technical competence,

power to control others, authority to speak in the name of

policymakers, public perception, influence on programs, con-

tact with elected officials, and responsiveness to partisan poli-

tics and political leaders”). The majority concedes that some

of the factors favor Bardzik: he did not have a relatively high

salary, he did not have authority to speak on behalf of policy-

makers, and he did not enjoy public notoriety. Maj. op. at

16

Pursuant to Federal Rule of Appellate Procedure 39(a)(4), each party

shall bear its own costs.

4138 BARDZIK v. COUNTY OF ORANGE

4152-26. The majority also holds that the factor of “respon-

siveness to partisan politics and political leaders” is inconclu-

sive. Maj. op. at 4126.

In my view, the remaining Fazio factors also fail to support

the conclusion that Bardzik was a policymaker with reference

to the Reserve Division.

1. Control of Others

The majority argues that Bardzik had the “power to control

others” as Reserve Division Commander. Maj. op. at 4129.

But in that position, Bardzik supervised only one more full-

time paid employee than he did in Court Operations, a posi-

tion the majority holds was not policymaking. Maj. op. at

4135. Thus, considering full-time, paid subordinates, his posi-

tion as Reserve Division Commander was about the same as

his job in Court Operations.

Nor does the record indicate that Bardzik had significant

control over the 600 part-time volunteer reserve members

(many of whom were not authorized to wear a badge or carry

a firearm). Bardzik explains that as manager of the Reserve

Division, his job was to see to it that the reserve members fol-

lowed already-established departmental policies. The majority

acknowledges that Bardzik could not by himself evaluate or

promote the reserve members, but was required to send evalu-

ations and recommendations for promotion up the chain of

command for approval by the Assistant Sheriff. Maj. op. at

4129-30. Bardzik did not supervise or train the reserve mem-

bers; instead, they were supervised and trained by the divi-

sions to which they were allocated. The process of allocating

reserve members to divisions that needed them was effec-

tively taken out of Bardzik’s hands by the decentralization

program; reserve liaisons in each division could request

reserve members without notifying Bardzik. Personnel issues

were referred to and handled by the personnel division, not by

Bardzik. Making every reasonable inference in Bardzik’s

BARDZIK v. COUNTY OF ORANGE 4139

favor, it would appear that Bardzik had little control over the

reserve component.

The majority tells us that whether Bardzik actually trained

or dealt with the personnel issues of his subordinates is imma-

terial, so long as he “oversaw reserve training and personnel

issues.” Maj. op. at 4130. The term “oversaw” suggests that

Bardzik delegated the training and personnel issues while

retaining supervisory authority. There is no evidence in the

record that Bardzik retained any supervisory authority over

personnel issues once he referred a reserve member to the per-

sonnel division. As for training, to the extent that Bardzik was

authorized to recommend a course of training for a reserve

member, he was still required to obtain the Assistant Sheriff’s

approval.

The majority cites Thomas v. Carpenter, 881 F.2d 828 (9th

Cir. 1989) to support the argument that Bardzik was a policy-

maker. But Thomas favors Bardzik’s position. In Thomas, we

held that, on the pleadings, a sheriff’s lieutenant was not a

policymaker despite being involved in training and evaluating

the department’s high risk entry team. Id. at 829, 832. We rea-

soned that training and evaluation of subordinates “has no sig-

nificant relationship to one’s political loyalty.” Id. at 832. So

even if Bardzik was involved in the training and supervision

of the reserve members, under Thomas that involvement

would not weigh in favor of finding that Bardzik was a poli-

cymaker. The facts of Bardzik’s case are even stronger than

those of the lieutenant in Thomas: the record shows that

Bardzik was only tangentially involved in training and super-

vision. Thus, reading the record in the manner most favorable

to Bardzik, one must conclude that he did not have any signif-

icant control of others, and therefore the control factor does

not weigh in Sheriff Carona’s favor.

2. Influence on Programs

The majority argues that Bardzik had influence on the

department’s programs, Maj. op. at 4127, and that this is the

4140 BARDZIK v. COUNTY OF ORANGE

“ ‘most critical factor’ ” in the policymaker analysis. Maj. op.

at 4125 (quoting Walker v. City of Lakewood, 272 F.3d 1114,

1133 (9th Cir. 2001)). The majority misreads Walker: influ-

ence on programs was the “most critical factor” in Walker

because the city of Lakewood “had delegated total control

over its fair housing program” to the plaintiff. Walker, 272

F.3d at 1133. There is no indication that influence on pro-

grams is per se the “most critical factor” in every case. Cer-

tainly the Sheriff’s Department had not delegated total control

over the Reserve Division to Bardzik, given that Bardzik had

to seek approval from his superiors for virtually every action

he took.

Moreover, many of the programs mentioned by the major-

ity as evidence of Bardzik’s influence do not support the

majority’s position. The majority refers to an audit of the

Reserve Division that Bardzik helped conduct. But the major-

ity itself points out that Captain Twellman headed that proj-

ect, not Bardzik. Maj. op. at 4127. Further, the goal of the

audit was to bring the reserve members into compliance with

already-established standards set by a state commission, not

to set new policy. Bardzik apparently initiated some programs

to train reserve members in swift water rescue and computers,

but as discussed earlier, under Thomas, the training of subor-

dinates is not determinative in policymaker analysis. 881 F.2d

at 832. Bardzik also initiated the decentralization program,

but this served to reduce his influence, relinquishing much of

his supervisory authority to the reserve liaisons and other offi-

cials in each of the department’s divisions. On balance, the

record clearly indicates that Bardzik did not have any signifi-

cant influence on the department’s programs.

3. Additional Factors

The majority argues that Bardzik had “particular technical

competence to serve as Reserve Division Commander.” Maj.

op. at 4128. The only evidence of this factor is Sheriff Car-

ona’s statement that Bardzik had “skills,” and Bardzik’s

BARDZIK v. COUNTY OF ORANGE 4141

assertion that the Reserve Division was running better than

ever during his tenure as commander. These vague assertions

are insufficient to draw an inference that Bardzik had “partic-

ular technical competence.”

The majority further argues that Bardzik had “vague and

broad responsibilities.” Maj. op. at 4126. Whatever generali-

ties Sheriff Carona may have said to Bardzik about his duties

as Reserve Division Commander, the record indicates that

Bardzik’s main duties involved monitoring reserve members’

compliance with departmental policies, and ensuring that

reserve resources were allocated where needed (this latter

duty was diminished by the decentralization program, which

allowed reserve members to be allocated without Bardzik’s

involvement). Contrary to the majority’s assertion, these are

not “vague and broad responsibilities.”

The majority also points out that Bardzik had “frequent and

meaningful contact” with the Sheriff, an elected official. Maj.

op. at 4128. But the record makes clear that this contact hap-

pened when Bardzik was first appointed as Reserve Division

Commander, and ended when a new Assistant Sheriff was

assigned to the division in November 2004. The record is

silent as to the extent of Bardzik’s contact with Sheriff Carona

once the new Assistant Sheriff came on board. Because every

inference must be made in Bardzik’s favor, we must assume

that after November 2004 he no longer had “frequent and

meaningful contact” with the Sheriff. Thus, in October 2005,

when Sheriff Carona decided to retaliate against Bardzik by

transferring him to Court Operations, there was no “frequent

and meaningful contact” between the two, and that factor does

not weigh in favor of Sheriff Carona.

Finally, the majority argues that Bardzik was “in a position

to thwart the Sheriff’s agenda,” an additional factor not men-

tioned in Fazio. Maj. op. at 4130 The record, in fact, indicates

that Bardzik was quite powerless to thwart the Sheriff. As the

majority acknowledges, Bardzik “tried to take badges away

4142 BARDZIK v. COUNTY OF ORANGE

from the Sheriff’s political allies,” but the Sheriff stopped him

from doing so. Maj. op. at 4130. Similarly, the Sheriff

stopped Bardzik from sending memoranda to the reserve

members regarding campaign solicitations. Maj. op. at 4131.

With limited ability to communicate with the reserves suppos-

edly under his command, and with no public presence or abil-

ity to speak on behalf of the department (see Maj. op. at

4125-26), Bardzik was hardly in a position to do much politi-

cal damage to the Sheriff. Perhaps Bardzik criticized the Sher-

iff openly, but so could any sheriff’s deputy, whether

policymaker or not. This factor does not support a finding that

Bardzik was a policymaker.

Conclusion

Because the record as currently developed does not support

the conclusion that Bardzik was a policymaker while Reserve

Division Commander, I would hold that our decision in

DiRuzza v. County of Tehama, 206 F.3d 1304 (9th Cir. 2000),

compels us to affirm the district court. In DiRuzza, a sheriff’s

deputy brought suit after being fired for supporting the Sher-

iff’s opponent in an election. Id. at 1306. As in Bardzik’s

case, the qualified immunity question came down to whether

DiRuzza was a policymaker or not. Id. at 1313-14. We

acknowledged that the record was unclear as to “whether

DiRuzza’s job actually entailed policymaking.” Id. at 1314.

But at the summary judgment stage, drawing all inferences in

DiRuzza’s favor, we concluded that she was not a policy-

maker, and her superiors would have been well aware of that

fact. Id. Thus, DiRuzza’s superiors were not entitled to quali-

fied immunity. Id.

Similarly, I would find that, construing the record in Bard-

zik’s favor, Bardzik was not a policymaker while serving as

Reserve Division Commander. Thus, under DiRuzza, I would

hold that Sheriff Carona is not entitled to qualified immunity.

I would affirm the district court across the board.