James Lane v. John Anderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2153

JAMES LANE,

Plaintiff - Appellant,

v.

SHERIFF JOHN W. ANDERSON; MAYOR & CITY COUNCIL OF BALTIMORE,

Defendants – Appellees,

and

COL. MARCUS L. BROWN,

Defendant.

-------------------------

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND;

PUBLIC JUSTICE CENTER, INC.,

Amici Supporting Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Richard D. Bennett, District Judge.

(1:14-cv-03739-RDB)

Argued: May 12, 2016 Decided: August 17, 2016

Before KING, DIAZ, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished

per curiam opinion.

ARGUED: Howard Benjamin Hoffman, Rockville, Maryland, for

Appellant. Jason L. Levine, OFFICE OF THE ATTORNEY GENERAL OF

MARYLAND, Annapolis, Maryland; Jason Robert Foltin, BALTIMORE

CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON

BRIEF: Steven H. Goldblatt, Director, Shon Hopwood, Appellate

Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER,

Washington, D.C., for Appellant. Brian E. Frosh, Attorney

General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland, for Appellee Anderson. George A. Nilson, City

Solicitor, William R. Phelan, Jr., Chief Solicitor, BALTIMORE

CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellee Mayor and

City Council of Baltimore. Deborah A. Jeon, Sonia Kumar,

Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND,

Baltimore, Maryland; Debra Gardner, Tassity Johnson, PUBLIC

JUSTICE CENTER, Baltimore, Maryland, for Amici American Civil

Liberties Union Foundation of Maryland and Public Justice

Center.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:

James Lane (“Appellant”) appeals the district court’s

dismissal of his complaint against the Mayor and City Council of

Baltimore (“Baltimore City”) and the Sheriff of Baltimore City,

John W. Anderson in his official and individual capacities

(“Sheriff Anderson”) (collectively, “Appellees”). Appellant, a

deputy sheriff at the time, was shot in the face during the

execution of an arrest warrant. After the shooting incident,

Appellant voiced doubts, alleging possible friendly fire and an

official cover-up of that possibility, and thereafter, Sheriff

Anderson fired him. Appellant then sued Appellees, claiming a

violation of his First Amendment rights.

The district court dismissed Appellant’s complaint,

holding that it lacked subject matter jurisdiction, Sheriff

Anderson was entitled to qualified immunity and Eleventh

Amendment immunity, and Baltimore City was not liable for

Sheriff Anderson’s employment actions because he was not a final

policymaker for Baltimore City.

For the reasons that follow, we affirm the dismissal

of Appellant’s claim against Baltimore City. But because

subject matter jurisdiction exists and Sheriff Anderson is not

entitled to immunity, we reverse and remand in all other

respects.

3

I.

A.

Appellant became a deputy sheriff with the Baltimore

City Sheriff’s Office (“BCSO”) in 2003. On September 15, 2008,

while executing an arrest warrant with other law enforcement

officers from the Warrant Apprehension Task Force, Appellant

suffered a gunshot wound to the face. Purportedly, the subject

of the arrest warrant (the “Suspect”) shot Appellant. Another

officer then shot the Suspect, killing him. The subsequent

internal investigation of the incident concluded that it was the

Suspect who shot Appellant. But Appellant still had his doubts,

as he suspected another law enforcement officer accidentally

shot him. When Appellant expressed his concerns to his

superiors, they “told him to forget about it.” J.A. 8. 1 When

Appellant and two other deputy sheriffs continued to question

the shooting, they were all transferred out of the task force.

On December 15, 2010, Appellant expressed his

reservations about the shooting in interviews with certain media

outlets -- namely, Fox 45 News (television) and “Investigative

Voice” (web-based). The interviews revealed not only

Appellant’s doubts about the investigation, but also his

1

Citations to the “J.A.” refer to the Joint Appendix

filed by the parties in this appeal.

4

suspicion about a potential cover-up. Appellant also expressed

his belief that the other officer he suspected had accidentally

shot him lied about the incident because that officer had failed

a polygraph examination.

Three months later, in March 2011, the BCSO

administratively charged Appellant with six counts of prohibited

conduct stemming from his interviews with the media.

Ultimately, in December 2011, a hearing board found Appellant

guilty of five of the six charges, including two counts for

engaging in conduct that reflected unfavorably upon the BCSO,

two counts for representing the BCSO without permission, and one

count for publicly criticizing the BCSO. He was found not

guilty of making a false statement. The hearing board made a

non-binding recommendation of a five-day suspension without pay

to Sheriff Anderson.

Sheriff Anderson declined to follow the recommendation

and instead terminated Appellant. In explaining this decision,

Sheriff Anderson said that he could “no longer trust

[Appellant’s] reliability and [Appellant’s] credibility”;

Appellant’s violations brought the BCSO “into disrepute”;

Appellant’s appearances on television and the internet displayed

“sullenness and anger” towards the BCSO; Appellant’s criticisms

and accusations of another officer lying were “divisive[] [and]

disloyal to the mission of the [BCSO] and intended to undermine

5

the effective operation of the [BCSO]”; and Appellant had

“become a polarizing force within the [BCSO].” J.A. 177-78.

B.

Appellant appealed his termination to the Maryland

Circuit Court for Baltimore City, asserting that he was found

guilty despite insufficient evidence, and that he was terminated

for conduct that was both not charged and outside the record.

The Maryland Circuit Court reversed the termination and ordered

reinstatement, but on appeal, the Court of Special Appeals of

Maryland, which considered “only . . . the ultimate sanction

imposed,” J.A. 72, upheld Appellant’s termination.

Thereafter, on December 1, 2014, Appellant filed a

complaint in the United States District Court for the District

of Maryland against Sheriff Anderson, in his official and

individual capacities, and Baltimore City. 2 Pursuant to 42

U.S.C. § 1983, Appellant claimed retaliatory discharge in

violation of his First Amendment right to freedom of speech.

Additionally, he claimed violations of the Maryland Declaration

of Rights. Appellant sought injunctive relief to permit his

2

Appellant also alleged that Colonel Marcus Brown, in his

official capacity as the chair of the Maryland Police Training

Commission, violated his First Amendment rights and his due

process rights. The district court granted Appellant’s motion

to voluntarily dismiss the claims against Colonel Brown on

August 13, 2015. Accordingly, these respective allegations are

no longer part of the complaint on appeal.

6

reinstatement as a deputy sheriff, declaratory relief, and money

damages.

Appellees moved to dismiss the complaint, and the

district court granted the motions. See Lane v. Anderson, No.

1:14-cv-3739, 2015 WL 5136035 (D. Md. Sept. 1, 2015). The

district court, reasoning that Appellant was seeking federal

review of a state-court decision, held that it lacked subject

matter jurisdiction over Appellant’s injunctive relief claims

pursuant to the Rooker-Feldman 3 doctrine. See id. at *8.

The district court further concluded that Sheriff

Anderson, in his individual capacity, was entitled to qualified

immunity because, at the time he terminated Appellant, the law

was not clearly established that doing so was a violation of

Appellant’s First Amendment rights. See Lane, 2015 WL 5136035,

at *6-7. Finally, the district court determined Sheriff

Anderson enjoyed Eleventh Amendment immunity from the claim for

monetary damages brought against him in his official capacity

because, pursuant to Maryland law, he was an arm of the state.

See id. at *4-6.

As for Baltimore City’s involvement, the district

court reasoned that Baltimore City could not be liable for

3 See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).

7

Sheriff Anderson’s actions because Sheriff Anderson was a

Maryland official, not an official acting on behalf of Baltimore

City. 4 See Lane, 2015 WL 5136035, at *8.

Appellant timely appealed.

II.

Subject Matter Jurisdiction

A.

As an initial matter, Appellant challenges the

district court’s determination that it lacked subject matter

jurisdiction. Because the jurisdictional question is a

“threshold issue,” we address it before proceeding to the merits

of the appeal. Elyazidi v. SunTrust Bank, 780 F.3d 227, 232

(4th Cir. 2015). We review challenges to subject matter

jurisdiction de novo. See Flame S.A. v. Freight Bulk Pte. Ltd.,

807 F.3d 572, 580 (4th Cir. 2015).

4As for the state law claim pursuant to the Maryland

Declaration of Rights against Baltimore City, the district court

concluded that because Sheriff Anderson was not a Baltimore City

employee, Baltimore City could not be liable. See Lane v.

Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *9 (D. Md. Sept.

1, 2015). Appellant does not challenge on appeal the dismissal

of Baltimore City’s liability premised on the Maryland

Declaration of Rights. Accordingly, that argument is waived.

See United States v. Avila, 770 F.3d 1100, 1104 n.1 (4th Cir.

2014) (failing to raise an argument in the opening briefs

constitutes an abandonment of that issue).

8

B.

Appellant argues that the Rooker-Feldman doctrine,

which would deprive us of jurisdiction if applicable, does not

apply here because he is not challenging the state court’s

decision. See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718

(4th Cir. 2006). Rather, he seeks relief for the termination

that Sheriff Anderson imposed upon him. We agree.

Pursuant to the Rooker-Feldman doctrine, district

courts are generally barred from reviewing state-court

decisions. See D.C. Court of Appeals v. Feldman, 460 U.S. 462,

483 n.16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,

415-16 (1923). Notwithstanding that premise, federal courts may

still entertain claims the state court examined, so long as

those claims do not challenge the state-court decision itself.

See Elyazidi, 780 F.3d at 233 (claims not challenging the state-

court judgment do not present a jurisdictional bar). Instead,

“[t]he Rooker–Feldman doctrine . . . is confined to cases

. . . brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review

and rejection of those judgments.” Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. 280, 284 (2005) (emphasis

supplied). So, “[i]f [the state-court loser] is not challenging

9

the state-court decision, the Rooker-Feldman doctrine does not

apply.” Davani, 434 F.3d at 718.

Here, Appellant is not challenging the Maryland

court’s decision or judgment, but rather the injury that Sheriff

Anderson imposed, that is, Appellant’s termination. See Exxon,

544 U.S. at 284. In Davani, a state employee challenged his

termination for discrimination and retaliation, and the

administrative agency upheld the termination. See Davani, 434

F.3d at 715. The state court dismissed his appeal, and the

employee filed a complaint in federal court alleging retaliation

and discrimination, which thereafter was dismissed for lack of

subject matter jurisdiction pursuant to the Rooker-Feldman

doctrine. See id. We reversed, concluding that the employee

was not “seek[ing] redress for an injury caused by the

state-court decision itself,” id. at 718, but rather for the

injury that the employer caused when it terminated the employee,

see id. at 719.

Like in Davani, the state-court judgment here did not

cause Appellant’s injury when it upheld Sheriff Anderson’s

decision to terminate Appellant. Appellant’s complaint does not

allege that the state court caused the injury, and instead, he

alleges that Sheriff Anderson caused his termination, an event

that happened prior to the state-court decision. Accordingly,

we hold that Appellant’s claims are not barred by

10

Rooker-Feldman, and therefore, federal subject matter

jurisdiction remains intact.

III.

Qualified Immunity

A.

On a motion to dismiss pursuant to qualified immunity,

we review the district court’s conclusion de novo. See Occupy

Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013). The

official asserting qualified immunity carries the burden of

establishing his right to it. See Durham v. Jones, 737 F.3d

291, 299 (4th Cir. 2013).

B.

In assessing whether Sheriff Anderson was entitled to

qualified immunity, the district court assumed that terminating

Appellant in retaliation for speaking to the media violated a

right protected by the First Amendment, but held that the right

was not clearly established when the violation occurred. See

Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *7 (D.

Md. Sept. 1, 2015). Therefore, the district court held Sheriff

Anderson was entitled to qualified immunity. See id. This

holding is contrary to our precedent.

C.

When a government official is sued in his individual

capacity, he may be entitled to a qualified immunity defense.

11

See Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013).

However, qualified immunity is not bestowed when “(1) the

allegations underlying the claim, if true, substantiate [a]

violation of a federal statutory or constitutional right; and

(2) this violation was of a clearly established right of which a

reasonable person would have known.” Smith v. Gilchrist, 749

F.3d 302, 308 (4th Cir. 2014) (alteration in original) (quoting

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306

(4th Cir. 2006)); see also Saucier v. Katz, 533 U.S. 194 (2001).

A clearly established right exists when “existing precedent

. . . place[s] the . . . constitutional question beyond debate.”

Gilchrist, 749 F.3d at 308 (quoting Ashcroft v. al-Kidd, 131 S.

Ct. 2074, 2083 (2011)). When the official acts in legal “gray

areas,” he is entitled to qualified immunity. Id. at 307.

With these principles in mind, we address the

qualified immunity inquiry, considering first the constitutional

right at issue, and second, whether this right was clearly

established when the alleged violation occurred.

1.

First Amendment Right

The First Amendment protects “the right to be free

from retaliation by a public official for the exercise of

[freedom of speech].” Gilchrist, 749 F.3d at 308 (internal

quotation marks omitted). However, this right is not limitless,

12

particularly for public employees. See id. (citing McVey v.

Stacy, 157 F.3d 271, 277 (4th Cir. 1998)). “[T]he government,

as an employer, ‘is entitled to maintain discipline and ensure

harmony as necessary to the operation and mission of its

agencies,’” and therefore has “an interest in regulating the

speech of its employees.” Id. (quoting McVey, 157 F.3d at 277).

As the Supreme Court explained in Pickering v. Board of

Education, 391 U.S. 563 (1968),

The problem in any case is to arrive at a

balance between the interests of the [public

employee], as a citizen, in commenting upon

matters of public concern and the interest

of the State, as an employer, in promoting

the efficiency of the public services it

performs through its employees.

391 U.S. at 568. Finally, when an employee asserts a § 1983

retaliation claim based on his exercise of free speech, we

analyze the claim using the following three queries:

(1) [W]hether the public employee was

speaking as a citizen upon a matter of

public concern or as an employee about a

matter of personal interest;

(2)[W]hether the employee’s interest in

speaking upon the matter of public concern

outweighed the government’s interest in

providing effective and efficient services

to the public; and

(3) [W]hether the employee’s speech was a

substantial factor in the employee’s

termination decision.

McVey, 157 F.3d at 277-78. The first two prongs present

questions of law to be resolved by the court, and the third

13

prong is a question of fact best resolved on “summary judgment

only in those instances when there are no causal facts in

dispute.” Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir.

2004).

a.

With respect to the first McVey prong, we cannot agree

with Sheriff Anderson that Appellant stated his concerns merely

as a self-serving complaint. Rather, Appellant, as a private

citizen, spoke on a matter of public concern when he questioned

a police shooting, which resulted in a fatality, and the

subsequent investigation.

When Appellant communicated with the media, he was

acting outside the scope of his duties as a deputy sheriff.

Although Appellant’s “expressions related to [his] job,” the

First Amendment affords him protection when he conveys these

views as a private citizen. Garcetti v. Ceballos, 547 U.S. 410,

421 (2006). It is “antithetical to our jurisprudence to

conclude . . . speech by public employees regarding information

learned through their employment [] may never form the basis for

a First Amendment retaliation claim”. Hunter v. Town of

Mocksville, 789 F.3d 389, 396-97 (4th Cir. 2015).

Appellant’s speech was not just an airing of a

personal grievance. It was a matter of public concern.

14

Speech involves matters of public concern when it can

be fairly considered as relating to any matter of

political, social, or other concern to the community,

or when it is a subject of legitimate news interest;

that is, a subject of general interest and of value

and concern to the public.

Lane v. Franks, 134 S. Ct. 2369, 2380 (2014) (internal quotation

marks omitted). We consider the character of speech in this

regard by taking into account “the content, form, and context of

a given statement.” Durham, 737 F.3d at 299 (quoting Connick v.

Myers, 461 U.S. 138, 147-48 (1983)). “Matters relating to

public safety are quintessential matters of public concern.”

Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337,

353 (4th Cir. 2000). By contrast, comments properly

characterized as personal grievances “about conditions of

employment” are not matters of public concern. Durham, 737 F.3d

at 300 (internal quotation marks omitted).

The content of Appellant’s speech here was undeniably

a matter of public concern. He questioned a shooting in which a

suspect was killed (and Appellant himself injured). He

questioned an allegedly botched investigation, which he

suspected was cloaked in a police cover-up. And he ultimately

questioned whether friendly fire occurred, as opposed to the

Suspect having allegedly shot him, which resulted in the

Suspect’s death.

15

The form and context of Appellant’s speech further

strengthens the conclusion that Appellant spoke on a matter of

public concern. Appellant spoke to a broad audience, through

both television and internet. Clearly, Appellant’s story

interested the local press, and in two different mediums, no

less. See Durham, 737 F.3d at 301 (explaining “interest[]

[from] the media indicates that [the issue] was of public

interest”); Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998)

(public dissemination through press shows matter of public

concern).

For these reasons, we hold that Appellant’s speech

satisfied the first McVey prong as protected speech.

b.

With respect to the second prong, we must assess

whether Appellant’s interest in speaking about the September

2008 shooting and the subsequent internal investigation

outweighs the government’s legitimate interest in providing

efficient public services. See Gilchrist, 749 F.3d at 308. It

is the government’s burden to justify the termination on

legitimate grounds. See id. at 309. As we explained in

Ridpath, we evaluate the government’s interests utilizing the

following factors:

[W]hether a public employee’s speech

(1) impaired the maintenance of discipline

by supervisors; (2) impaired harmony among

16

coworkers; (3) damaged close personal

relationships; (4) impeded the performance

of the public employee’s duties;

(5) interfered with the operation of the

institution; (6) undermined the mission of

the institution; (7) was communicated to the

public or to coworkers in private;

(8) conflicted with the responsibilities of

the employee within the institution; and

(9) abused the authority and public

accountability that the employee’s role

entailed.

447 F.3d at 317. In this context, law enforcement agencies are

afforded some leeway to restrict their employees’ speech because

“they are paramilitary -- discipline is demanded, and freedom

must be correspondingly denied.” Durham, 737 F.3d at 301

(internal quotation marks omitted). And, “[a] stronger showing

of public interest in the speech requires a concomitantly

stronger showing of government-employer interest to overcome

it.” McVey, 157 F.3d at 279 (Murnaghan, J., concurring).

Moreover, the government need not “prove that the

employee’s speech actually disrupted efficiency”; rather, its

burden is to show “an adverse effect was reasonably to be

apprehended.” Gilchrist, 749 F.3d at 309 (internal quotation

marks omitted); see also Durham, 737 F.3d at 302 (stating that

more than “vague references” and “lip service to ostensible

damage” to morale, relationships, and general office

functionality is necessary).

17

Here, as previously discussed, Appellant’s speech

dealt with a matter of public concern: he suspected friendly

fire ultimately resulted in a person being killed, and yet, when

he voiced that suspicion, he was told not to worry about

uncovering the truth. Akin to our holding in Durham, the facts

here do not tip the balance in favor of Appellees. See 737 F.3d

at 302-03. To the contrary.

As for the Government, Sheriff Anderson has spoken of

Appellant’s alleged effect on the office in mere generalities.

He has offered no concrete examples to back up his claim that

Appellant brought “disrepute” to the agency, and was divisive,

disloyal, and a “polarizing force.” J.A. 73. Sheriff Anderson

has asserted nothing more than “lip service” and “vague

references” in this regard. Durham, 737 F.3d at 302 (explaining

that a showing of an actual disruption is not needed, and, at

the same time, indicating an articulation of “a reasonable

apprehension of such a disruption” is required).

Ultimately, at the motion to dismiss stage, based upon

these generalized statements, we cannot conclude that Sheriff

Anderson has met his burden of justifying the Appellant’s

termination on legitimate grounds, particularly considering the

significant public interests raised by Appellant. See

Gilchrist, 749 F.3d at 309.

18

c.

The third McVey prong, which presents an issue of fact

as to whether Appellant’s speech was “a substantial factor” in

his termination, can be swiftly dispensed. McVey, 157 F.3d at

277-78. When reviewing a Rule 12(b)(6) motion to dismiss, we

view the facts in the light most favorable to Appellant. When

dealing with a First Amendment retaliation claim in this

posture, we generally infer causation based on the facts alleged

in the complaint because, at the motion to dismiss stage, “we

are unable and unwilling to speculate as to the outcome.” Tobey

v. Jones, 706 F.3d 379, 391 (4th Cir. 2013).

Here, as in Tobey, Appellant has adequately set forth

a plausible claim that his First Amendment rights were violated

when his comments directly precipitated his firing. As a direct

result of his media interviews, Appellant faced internal

charges, and ultimately termination. Sheriff Anderson’s stated

basis for terminating Appellant included the fact that Appellant

had commented publicly about the internal investigation. In

fact, Sheriff Anderson said, “I find that . . . . [Appellant’s]

appearance on television, [and] on the website, [were]

disrespectful, accusatory, and . . . displayed an attitude of

sullenness and anger towards the [BCSO]. . . . Nothing short of

termination will permit the division and discord caused by

[Appellant’s] conduct to heal.” J.A. 177-78. Thus, we readily

19

conclude that Appellant’s speech was “a substantial factor” that

led to his firing. McVey, 157 F.3d at 277-78.

2.

Clearly Established Right

Having concluded that Appellant’s speech should be

accorded First Amendment protection, we now turn to the second

prong of the qualified immunity analysis: whether every

reasonable official would have known that terminating Appellant

for speaking out would be in violation of his First Amendment

rights. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per

curiam). Appellees maintain that Maryland state law,

specifically the Law Enforcement Officers’ Bill of Rights,

expressly provides that the law enforcement agency’s

chief -- here, Sheriff Anderson -- is permitted to punish

Appellant for “divulg[ing] information” that is contrary to the

department’s policy. Appellees’ Br. 28. If Sheriff Anderson

complied with this express statutory right, Appellees’ argument

goes, “he had no reason to doubt the constitutionality of the

policies.” Id. at 29. But, the position urged by Appellees,

and adopted by the district court, that the Sheriff was acting

within his legal authority because he was acting pursuant to

Maryland law, ignores clearly established precedent. See Lane,

2015 WL 5136035, at *7.

20

Sheriff Anderson’s adherence to state law is not

helpful here. An independent basis for sanctions does not

provide a shield from liability when the speech is

constitutionally protected. See Durham, 737 F.3d at 304; Am.

Civ. Liberties Union of Md., Inc. v. Wicomico Cty., 999 F.2d

780, 785 (4th Cir. 1993) (per curiam) (recognizing

“[r]etaliation by a public official for the exercise of a

constitutional right is actionable under 42 U.S.C. § 1983, even

if the act, when taken for different reasons, would have been

proper”).

More significantly, years before Sheriff Anderson

terminated Appellant, there was ample authority reinforcing the

notion that Appellant’s speech was of the type that was afforded

protection. See Durham, 737 F.3d 291; Andrew v. Clark, 561 F.3d

261 (4th Cir. 2009); see also Hunter, 789 F.3d at 402 (holding

that the law was clearly established in December 2011 that

speech about serious misconduct was protected).

In Andrew -- decided two years before the incident at

issue -- we held that a police commander in the Baltimore Police

Department stated a First Amendment claim when he alleged that

he was terminated for leaking information to the media about a

police-involved shooting and its investigation. See Andrew, 561

F.3d at 263. In Durham, the right at issue was of a deputy

sheriff to speak out on “serious governmental misconduct,”

21

specifically, his right to accuse “high-ranking law enforcement

officials . . . of falsifying law enforcement reports and

. . . authorizing aggressive threats against a member of their

own agency if he persisted in his opposition to such a

practice.” Durham, 737 F.3d at 303. There, we held, “[w]e have

been clear that where public employees are speaking out on

government misconduct, their speech warrants protection.” Id.

at 303 (citing Balog, 160 F.3d at 189).

Thus, when Sheriff Anderson terminated Appellant in

2012, the law was not in any “gray area[].” Gilchrist, 749 F.3d

at 307. Rather, the law was clearly established. After our

decisions in Andrew and Durham, no reasonable official could

have believed that a law enforcement officer’s statements to

media outlets regarding misconduct and corruption surrounding a

police-involved shooting lacked First Amendment protection.

Therefore, we hold that Sheriff Anderson is not entitled to

qualified immunity, and Appellant can continue to press the

damages claim brought against Sheriff Anderson in his individual

capacity. 5

5

We note that this case is unlike Brickey v. Hall, where we

held that a police chief was entitled to qualified immunity

after he had been sued under § 1983 for terminating a

subordinate in violation of the First Amendment. No. 14-1910,

2016 WL 3648462, at *1 (4th Cir. July 8, 2016) (published

opinion). In Brickey, a police officer who was running for a

town council seat made statements in two newspapers that

(Continued)

22

IV.

Eleventh Amendment Immunity

A.

“Whether an action is barred by the Eleventh Amendment

is a question of law that we review de novo.” Hutto v. S.

Carolina Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014).

B.

We next address the Eleventh Amendment immunity

defense raised by Sheriff Anderson in his official capacity.

The Eleventh Amendment protects a state entity from

suit in federal court. See U.S. Const., amend. XI. This

protection is also accorded to “state agents and state

instrumentalities,” or in other words, arms of the state.

suggested that the police chief misused -- either through

negligence or malfeasance -- $500 in the Drug Abuse Resistance

Education (“D.A.R.E.”) budget. Id. at *1, *5. After

commissioning an independent investigation into the officer’s

statements, the police chief terminated him. Id. at *2–3.

There are at least four key differences between Brickey and

the instant case. First and most notably, the misconduct

Appellant alleges is far more serious than the misconduct

alleged in Brickey. Second, unlike Sheriff Anderson, the police

chief in Brickey did more than merely “‘pa[y] lip service’ to

potential disruption to his police force.” Id. at *7. Third,

the allegations in Brickey were shown to be false. Id. at *8.

Finally, unlike Appellant, the officer in Brickey did not intend

to accuse the police chief of wrongdoing. Id. Based on these

differences -- which also distinguished Brickey from Durham, id.

at *7–8 -- Brickey does not control our decision here.

23

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997);

see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 280 (1977). Yet, not every entity exercising a “slice of

state power” is entitled to protection, Lake Country Estates,

Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 400-01

(1979), and immunity “does not extend to counties and similar

municipal corporations,” Mt. Healthy, 429 U.S. at 280.

“Whether an entity is an arm of the state is

ultimately a question of federal law, ‘[b]ut that federal

question can be answered only after considering the provisions

of state law that define the agency’s character.’” United

States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745

F.3d 131, 138 (4th Cir. 2014) (quoting Doe, 519 U.S. at 429

n.5).

The district court held that Sheriff Anderson enjoyed

Eleventh Amendment immunity because he was a state officer.

However, the district court came to this conclusion without

analyzing the test we have outlined for such a determination.

See Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *6

(D. Md. Sept. 1, 2015); Ram Ditta v. Md. Nat’l Capital Park &

Planning Comm’n, 822 F.2d 456, 457–58 (4th Cir. 1987).

In assessing whether an entity is state or local in

character, we have employed the four-factor test described in

Ram Ditta, 822 F.2d at 457–58. The first factor to be

24

considered is “whether the state treasury will be responsible

for paying any judgment that might be awarded.” Id. at 457; see

Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir.

2001). We have concluded that a judgment’s effect on the state

treasury, though still “of considerable importance, does not

deserve dispositive preeminence.” Oberg, 745 F.3d at 137 n.4

(internal quotation marks and citations omitted); cf. Cash, 242

F.3d at 223; Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,

48 (1994) (stating treasury factor is “the most salient factor

in Eleventh Amendment determinations”). The other three Ram

Ditta factors are: “[W]hether the entity exercises a significant

degree of autonomy from the state, whether [the entity] is

involved with local versus statewide concerns, and how [the

entity] is treated as a matter of state law.” Ram Ditta, 822

F.2d at 457-58 (internal footnotes omitted).

Upon consideration of all of these factors, we must

“determine whether the governmental entity is so connected to

the State that the legal action against the entity would

. . . amount to ‘the indignity of subjecting a State to the

coercive process of judicial tribunals at the instance of

private parties.’” Cash, 242 F.3d at 224 (quoting Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)).

Here, the district court admittedly did not engage in

the Ram Ditta analysis at all: “[T]his Court need not apply the

25

Ram Ditta test to the subject action. Maryland Code and case

law make clear that sheriffs are state officers, with authority

derived from state law.” Lane, 2015 WL 5136035, at *6. The

district court based its reasoning on the fact that sheriffs are

elected state officials, see Md. Const. art. IV, § 44; are

defined as “state personnel” for the purposes of the Maryland

Tort Claims Act, see Md. Code Ann., State Gov’t § 12-101(a)(6),

Rucker v. Harford Cty., 558 A.2d 399, 412 (Md. 1989); are

granted authority by state law to hire deputy sheriffs, see Md.

Code Ann., Cts. & Jud. Proc. § 2-309(d)(1)(ii); and are state

officials, not local government officials, see Lane, 2015 WL

5136035, at *5 (citing cases).

Yet, this is only part of the analysis, and the

district court’s failure to apply the proper legal framework was

erroneous. See Gray v. Laws, 51 F.3d 426, 434–35 (4th Cir.

1995) (remanding when the district court did not “undertake the

appropriate Eleventh Amendment analysis”). As a result, we

reverse and remand the district court’s holding in this regard

so that it can fully consider the issue pursuant to the proper

Ram Ditta test.

26

V.

Baltimore City’s Liability

A.

We review the district court’s grant of a motion to

dismiss de novo, accepting as true all well-pled facts in the

complaint and construing them in the light most favorable to the

plaintiff. See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d

412, 422 (4th Cir. 2015).

B.

Appellant asserts that the district court erred in

dismissing his claim against Baltimore City on the theory that

Sheriff Anderson was acting as the Baltimore City policymaker in

making BCSO employment decisions. Therefore, Appellant

contends, Baltimore City can also be held liable for his

termination. We disagree.

In Monell v. Department of Social Services of New

York, the Supreme Court held that a municipality (a local

government entity) may be liable for a constitutional violation

pursuant to § 1983 if a plaintiff can show “a policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers” resulted in a

constitutional violation. 436 U.S. 658, 690 (1978) (stating

that municipalities are “persons” subject to suit pursuant to

§ 1983). This “‘official policy’ requirement was intended to

27

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.” Riddick v. Sch. Bd. of Portsmouth, 238

F.3d 518, 523 (4th Cir. 2000) (quoting Pembaur v. City of

Cincinnati, 475 U.S. 469, 479 (1986)). Municipal liability

results when the acts have been “officially sanctioned or

ordered” by the municipality. Love-Lane v. Martin, 355 F.3d

766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at 480).

Under appropriate circumstances, a single decision by

a policymaker can result in municipal liability. See Pembaur,

475 U.S. at 480. “Municipal liability attaches only where the

decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered.” Id. at 481; see

also McMillian v. Monroe Cty., 520 U.S. 781, 784-85 (1997) (“A

court’s task is to identify those officials or governmental

bodies who speak with final policymaking authority for the local

governmental actor concerning the action alleged to have caused

the particular constitutional or statutory violation at issue.”

(internal quotation marks omitted)); Love-Lane, 355 F.3d at 782.

“To qualify as a ‘final policymaking official,’ a

municipal official must have the responsibility and authority to

implement final municipal policy with respect to a particular

course of action.” Riddick, 238 F.3d at 523 (quoting Pembaur,

28

475 U.S. at 483); see also Spell v. McDaniel, 824 F.2d 1380,

1386 (4th Cir. 1987) (“‘[P]olicymaking authority’ implies

authority to set and implement general goals and programs of

municipal government, as opposed to discretionary authority in

purely operational aspects of government.”).

Here, Baltimore City “does not dispute that Sheriff

Anderson has final policymaking authority” for employment

matters relating to those decisions within the BCSO. Appellees’

Br. 7; see also Pembaur, 475 U.S. at 483. However, the issue

lies in whether Sheriff Anderson made the unfavorable employment

decision for Baltimore City.

C.

In determining whether Sheriff Anderson acted as the

final policymaker for Baltimore City, our analysis “is guided by

two principles.” McMillian, 520 U.S. at 785. First, “the

question is not whether [a sheriff] acts for [the state] or [a

county] in some categorical, ‘all or nothing’ manner.” Id.

Rather, the question is whether the sheriff was a final

policymaker “for the local government in a particular area, or

on a particular issue.” Id.

Second, we resolve this issue based upon state law,

“[r]eviewing the relevant legal materials, including state and

local positive law, as well as custom or usage having the force

of law.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737

29

(1989) (internal quotation marks omitted). “[S]imply labeling

as a state official an official who clearly makes county policy”

cannot answer the question. McMillian, 520 U.S. at 786; see

Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) (“[T]he

Sheriff is not always a state employee or always a county

employee. He may, on occasion, be both, or sometimes one and

sometimes the other. It all depends on the particular function

the Sheriff is performing.”); Rucker v. Harford Cty., 558 A.2d

399, 406 (Md. 1989) (“This conclusion does not mean that, for

some purposes and in some contexts, a sheriff may not be treated

as a local government employee.”).

Here, we conclude that, as a matter of Maryland law,

Sheriff Anderson is not a final policymaker for Baltimore City.

State law, rather than the local government, provides Sheriff

Anderson with his power. See Md. Const. art. IV, § 44 (stating

that the sheriff “in each county and in Baltimore City” shall

“exercise such powers and perform such duties as now are or may

hereafter be fixed by law”); Prince George’s County v. Aluisi,

731 A.2d 888, 894 (Md. 1999) (explaining that, pursuant to the

Maryland Constitution, “the duties of the sheriffs are those

prescribed by the common law, the enactments of the General

Assembly, and the rules of the Court of Appeals”). Moreover,

the Court of Appeals of Maryland has explained that the duties

of sheriffs “are determined by state law, not locally enacted

30

ordinances.” Aluisi, 731 A.2d at 895. And here, the Charter of

Baltimore City does not include the sheriff’s department as a

principal agency of Baltimore City, or more generally, even

reference the sheriff’s position or the sheriff’s department

within its provisions. See generally Charter of Balt. City art.

I to IX.

With respect to a sheriff’s personnel decision-making

authority, state law establishes the authority for hiring and

discipline, including termination processes. See Md. Code Ann.,

Cts. & Jud. Proc. § 2-309(d)(1)(viii) (requiring the sheriff to

“select[] [his deputy sheriffs] according to the provisions of

the State Personnel and Pensions Article”); Md. Code Ann., Pub.

Safety § 3-102(c) (providing the Law Enforcement Officers’ Bill

of Rights “does not limit the authority of the [sheriff] to

regulate the competent and efficient operation and management of

a law enforcement agency by any reasonable means including

transfer and reassignment if . . . the [sheriff] determines that

action to be in the best interests of the internal management of

the law enforcement agency”); Md. Code Ann., Pub. Safety

§ 3-108(d) (granting chief of law enforcement agency authority

to make final decision regarding discipline of subordinate

officers subject to certain procedural requirements mandated by

Sections 3-101 to -109 of the Code of Maryland); Md. Code Ann.,

St. Pers. & Pens. § 11-104 (granting the sheriff power to take

31

disciplinary actions, including demotion and termination,

against any employee).

Further, although state law does not conclusively

establish the state’s liability for a judgment against Sheriff

Anderson in a § 1983 claim, it indicates that, in a tort claim

brought pursuant to state law, the state, as opposed to

Baltimore City, would cover a judgment against the sheriff based

on his personnel decisions. See generally Md. Code Ann., State

Fin. & Proc. § 9-108 (providing that, pursuant to the Maryland

Tort Claims Act, the state of Maryland, and not Baltimore City,

is liable for tort claims against a sheriff for those claims

relating to “personnel and other administrative activities”);

Rucker, 558 A.2d at 401 (though not deciding whether sheriffs

were state or local employees for federal purposes, which was

not before the court, holding sheriffs are state personnel

pursuant to the Maryland Tort Claims Act -- and thus the state

bore responsibility for judgments). This suggests that

personnel decisions do not create local municipal liability and

are not paid by the local government entity. See State v. Card,

656 A.2d 400, 402–03 (Md. Ct. Spec. App. 1995) (explaining that

in the early 1990s, the Maryland legislature amended the

Maryland code “to sort out the various functions performed by

sheriffs and their deputies throughout the State . . . and to

provide an umbrella of State protection, with the cost of that

32

protection to be assessed to the State or the county, depending

on the function involved”).

In sum, we hold that Sheriff Anderson did not act as a

Baltimore City policymaker when making employment and personnel

decisions. Accordingly, Appellant’s Monell claim was properly

dismissed. 6

VI.

For the reasons set forth herein, we affirm the

judgment of district court to the extent it dismisses

Appellant’s claim against Baltimore City. In all other

respects, we reverse the judgment of the district court and

remand for further proceedings consistent with this opinion.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED

6 We note that our resolution of the Monell liability issue

does not resolve the Eleventh Amendment immunity question that

the district court will consider on remand. See Gray, 51 F.3d

at 435 (explaining that the district court erred by “appl[ying]

in the Eleventh Amendment context principles applicable only

under section 1983”).

33