Mark McCaffrey v. Michael Chapman

KING, Circuit Judge, dissenting:

Two decades ago, in

Jenkins v. Medford

, our en banc majority concluded that the plaintiff North Carolina deputy sheriffs were the "alter ego" of the elected sheriff and thus could be terminated for political reasons under the

Elrod-Branti

exception.

See

119 F.3d 1156

, 1164 (4th Cir. 1997) (en banc). The

Jenkins

dissenters protested - quite rightfully, in my view - that the majority "ma[de] the

Elrod

-

Branti

exception into the rule" and thereby "eviscerate[d] the First Amendment protections those cases guaranteed to government workers like the [plaintiffs]."

Id.

at 1169

(Motz, J., dissenting). At least, however,

Jenkins

must be read as predicated on specifics of North Carolina law and limited to North Carolina deputy sheriffs engaged in law enforcement activities. Unfortunately, that has not constrained my esteemed colleagues from ruling today - purportedly in reliance on

Jenkins

but actually going much farther - that any deputy sheriff tasked with law enforcement anywhere is subject to political firing. As explained further herein, I respectfully dissent.

I.

In demonstrating that my friends have gone too far, I begin with a discussion of

the settled legal principles concerning the political firings of public employees and the considerations that undergird the

Elrod

-

Branti

exception, with emphasis on the controlling Supreme Court authority. I also outline this Court's two-prong test for conducting a proper

Elrod

-

Branti

analysis and then carefully examine our

Jenkins v. Medford

decision.

A.

The Supreme Court has underscored that, in most situations, adverse employment actions based on political considerations "impermissibly encroach on First Amendment freedoms."

See

Rutan v. Republican Party of Ill.

,

497 U.S. 62

, 74,

110 S.Ct. 2729

,

111 L.Ed.2d 52

(1990). The Constitution's prohibition against political firings is thus the default rule. Politically motivated employment terminations, however, are permissible - under the

Elrod

-

Branti

exception - if those "practices are narrowly tailored to further vital government interests."

Id.

In

Elrod v. Burns

in 1976, the Supreme Court recognized that the First Amendment protects public employees from being fired "solely for the reason that they were not affiliated with" a certain political party or candidate.

See

427 U.S. 347

, 350,

96 S.Ct. 2673

,

49 L.Ed.2d 547

(1976) (plurality opinion). According to the Court, conditioning the employment of a public servant on political loyalty "unquestionably inhibits protected belief and association," and terminations of public employees for a lack of political loyalty penalize the exercise of those protected rights.

Id.

at 359

,

96 S.Ct. 2673

. Consistent with that principle, the Court concluded that the

Elrod

plaintiffs - one of whom was a chief deputy sheriff - had successfully alleged claims for violations of their First Amendment rights by specifying that they were fired by the sheriff because of their party affiliations.

Id.

at 350, 373

,

96 S.Ct. 2673

. But the Court carved out the exception that, for certain policymaking positions, terminations based on political allegiance - and the corresponding restraint on those employees' freedoms of belief and association - are justified to safeguard our form of representative government.

Id.

at 367-68

,

96 S.Ct. 2673

.

Just four years later, in

Branti v. Finkel

, the Court refined

Elrod

's policymaker exception and clarified that political terminations are only permissible where "the hiring authority can demonstrate that [political loyalty] is an appropriate requirement for the effective performance of the public office involved."

See

445 U.S. 507

, 518,

100 S.Ct. 1287

,

63 L.Ed.2d 574

(1980). Accordingly, as the Court explained, the labels that may be applied to a public employee, such as "policymaker" or "confidential," are not dispositive of whether that employee may be fired because of political loyalty.

Id.

Adhering to Supreme Court precedent, this Court and our sister courts of appeals have recognized that the

Elrod

-

Branti

exception is "narrow" and must always be applied with caution.

See

Bland v. Roberts

,

730 F.3d 368

, 374 (4th Cir. 2013) ("

Elrod

created a narrow exception ....");

Stott v. Haworth

,

916 F.2d 134

, 140 (4th Cir. 1990) (explaining that

Elrod

and

Branti

were "specific, narrow application[s] of" exception to principle against infringement of First Amendment rights (internal quotation marks omitted));

see also

Thompson v. Shock

,

852 F.3d 786

, 793 (8th Cir. 2017) (describing application of "narrow

Elrod

-

Branti

justification test" (alteration and internal quotation marks omitted));

Hunt v. Cnty. of Orange

,

672 F.3d 606

, 611 (9th Cir. 2012) ("[W]e have held that the [

Elrod

-

Branti

] exception is 'narrow' and should be applied with caution." (quoting

DiRuzza v. Cnty. of Tehama

,

206 F.3d 1304

, 1308 (9th Cir. 2000) ));

Assaf v. Fields

,

178 F.3d 170

, 177 (3d Cir. 1999) (giving guidance as to when a position will "meet the narrow

Branti

-

Elrod

exception").

Again, the

Elrod

-

Branti

exception must always be applied narrowly, to prevent the coercion of the beliefs and associations of public servants.

See

O'Hare Truck Serv., Inc.v. City of Northlake

,

518 U.S. 712

, 718,

116 S.Ct. 2353

,

135 L.Ed.2d 874

(1996) ("

Elrod

and

Branti

establish that patronage does not justify the coercion of a person's political beliefs and associations."). At bottom, the

Elrod

-

Branti

exception is reserved for those exceptional and "high-level" government positions for which interference with the "employees' freedom to believe and associate" is justified by the effective implementation of government policy.

See

Rutan

,

497 U.S. at 74 -76

,

110 S.Ct. 2729

.

B.

In

Stott v. Haworth

in 1990, our Judge Russell identified the two-prong test for conducting the

Elrod-Branti

analysis.

See

916 F.2d at 141 -43

. The threshold inquiry is whether the position at issue implicates "partisan political interests or concerns."

Id.

at 141

(alterations and internal quotation marks omitted). Thus, pursuant to the first prong of the

Stott

test, we inspect whether "the position involve[s] government decisionmaking on issues where there is room for political disagreement on goals or their implementation."

Id.

(internal quotation marks omitted). If that question is answered in the affirmative, we turn to the

Stott

test's second prong, under which we "examine the particular responsibilities of the position to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that [political loyalty] is an equally appropriate requirement."

Id.

at 142

(internal quotation marks omitted).

Although the first

Stott

prong "requires us to examine the issues dealt with by the employee 'at a very high level of generality,' " the second prong " 'requires a much more concrete analysis of the specific position at issue.' "

See

Bland

,

730 F.3d at 375

(quoting

Fields v. Prater

,

566 F.3d 381

, 386 (4th Cir. 2009) ). Significantly, the Supreme Court and our Court have consistently emphasized that we are obliged to examine the specific duties of a "particular position," not merely the general nature thereof.

See

Branti

,

445 U.S. at 518

,

100 S.Ct. 1287

(explaining that the ultimate inquiry assesses whether politics is "an appropriate requirement for the effective performance of the public office involved");

Stott

,

916 F.2d at 142

(describing dispositive inquiry as "particular responsibilities" "of the public office in question" (internal quotation marks omitted)).

C.

In

Jenkins v. Medford

in 1997, our en banc majority acknowledged the

Stott

test and ruled that the

Elrod

-

Branti

exception permitted the political firings of North Carolina deputy sheriffs engaged in law enforcement activities.

See

Jenkins

,

119 F.3d at 1162-65

. As broad as that holding was, we have recognized that

Jenkins

can be read even more broadly, to allow the political firings of any and all deputy sheriffs in North Carolina.

See

id.

at 1166

(Motz, J., dissenting) (protesting that "the majority broadly holds that

all

deputy sheriffs in North Carolina - regardless of their actual duties - are policymaking officials");

see also

Bland

,

730 F.3d at 377

(confronting "a significant amount of language in [

Jenkins

] seemingly indicating that all North Carolina deputies could be terminated for political reasons regardless of the specific duties of the particular deputy

in question"). In the face of the "very mixed signals" sent by

Jenkins

, however, we have resolved "that

Jenkins

is best read as analyzing the duties of the particular deputies before the court," i.e., North Carolina deputies tasked with law enforcement.

See

Bland

,

730 F.3d at 391

. Indeed, that is the only way to read

Jenkins

in a manner even arguably consistent with the controlling Supreme Court precedent.

Although it did not explicitly refer to the first

Stott

prong in doing so, the

Jenkins

majority began its

Elrod

-

Branti

analysis with what was apparently an inquiry into how the position of deputy sheriff relates to partisan political interests or concerns.

See

Jenkins

,

119 F.3d at 1162-63

. Invoking decisions of other courts of appeals,

Jenkins

determined that a sheriff's election by popular vote "indicates voter approval of [the sheriff's] espoused platform and general agreement with [his] expressed political agenda"; "[t]he sheriff owes a duty to the electorate and the public at large to ensure that his espoused policies are implemented"; and "[d]eputy sheriffs play a special role in implementing the sheriff's policies and goals."

Id.

at 1162

(internal quotation marks omitted). As examples of the "special role" that may be played by deputies in implementing the sheriff's policies and goals,

Jenkins

specified that deputies may be included in the sheriff's "core group of advisors," may "work autonomously" while "exercising significant discretion," and may "make some decisions that actually create policy."

Id.

(internal quotation marks omitted).

Jenkins

further noted that the sheriff may rely "on his deputies to foster public confidence in law enforcement" and expect them to provide "the truthful and accurate information he needs to do his job."

Id.

Finally,

Jenkins

observed that, "[i]n some jurisdictions, the deputy sheriff is the general agent of the sheriff, and the sheriff is civilly liable for the acts of his deputy."

Id.

at 1162-63

.

The

Jenkins

majority only then turned, albeit without naming the second

Stott

prong, to the

Elrod

-

Branti

inquiry concerning the particular responsibilities of the plaintiff North Carolina deputy sheriffs.

See

Jenkins

,

119 F.3d at 1163

("[W]e now consider the specific political and social roles of sheriffs and their deputies in North Carolina."). That examination led to the following holding:

[We] conclude that in North Carolina, the office of deputy sheriff is that of a policymaker, and that deputy sheriffs are

the alter ego of the sheriff generally

, for whose conduct he is liable. We therefore hold that such North Carolina deputy sheriffs may be lawfully terminated for political reasons under the

Elrod

-

Branti

exception to prohibited political terminations.

Id.

at 1164

(emphasis added).

The North Carolina deputy sheriffs' role as "the alter ego of the sheriff generally" was plainly crucial to the

Jenkins

majority and an explicit part of its succinct holding. In designating North Carolina deputy sheriffs as the sheriff's alter ego,

Jenkins

relied on a combination of factors. Of obvious and exceptional importance,

Jenkins

highlighted that the North Carolina legislature had "recognized the special status of sheriffs' deputies in the eyes of the law."

See

119 F.3d at 1163

. Specifically,

Jenkins

pointed to the legislature's findings related to sheriffs and their deputies. As part of those findings, as quoted in

Jenkins

, the legislature related that " '[t]he deputy sheriff has been held by the Supreme Court of this State to hold an office of special trust and confidence, acting in the name of and with powers coterminous with his principal, the elected sheriff.' "

Id.

(quoting N.C. Gen. Stat. § 17E-1 ).

The

Jenkins

majority elaborated that, although "[t]he sheriff may not delegate

final responsibility for his official duties, ... he may appoint deputies to assist him [and] can be held liable for the misbehavior of the deputies."

See

119 F.3d at

1163 (citing, inter alia,

N.C. Gen. Stat. § 162-24

). Additionally,

Jenkins

cited the North Carolina legislature's declaration "that '[t]he offices of sheriff and deputy sheriff are ... of special concern to the public health, safety, welfare and morals of the people of the State,' " as well as the legislature's mandatory procedure for filling a vacancy in the office of sheriff by accepting the recommendation of the elected sheriff's political party.

Id.

(citing N.C. Gen. Stat. §§ 17E-1, 162-5.1 ).

Jenkins

also recognized that - presumably due to the special status of North Carolina deputy sheriffs - "the legislature has made deputies at-will employees, who 'shall serve at the pleasure of the appointing officer.' "

Id.

at 1163-64

(quoting N.C. Gen. Stat. § 153A-103(2) ).

Notwithstanding the language indicating that all North Carolina deputy sheriffs are policymakers subject to political firings, the

Jenkins

majority eventually cabined its decision to those deputies whose particular functions rendered them "the alter ego of the sheriff generally," i.e., "those deputies actually sworn to engage in law enforcement activities on behalf of the sheriff."

See

119 F.3d at 1165

. Moreover,

Jenkins

is replete with language that limits its pronouncements to

North Carolina

deputies tasked with law enforcement.

See, e.g.

,

id.

at 1163

(turning to analysis of "specific political and social roles of sheriffs and their deputies

in North Carolina

" (emphasis added));

id.

at 1164

(concluding that "

in North Carolina

, the office of deputy sheriff is that of a policymaker, and that deputy sheriffs are the alter ego of the sheriff generally, for whose conduct he is liable" (emphasis added));

id.

( "hold[ing] that such

North Carolina

deputy sheriffs may be lawfully terminated for political reasons" (emphasis added)).

Although it did not explicitly peg its analysis to the two

Stott

prongs, the

Jenkins

majority also underscored the applicability of the

Stott

test and the need to examine the particular position at issue.

See

Jenkins

,

119 F.3d at 1164

(instructing that "the district courts are to engage in a

Stott

-type analysis, examining the specific position at issue, as we have done here today");

id.

at 1165

(explaining "that courts examine the job duties of the position, and not merely the title, of those dismissed").

After announcing its core holding, the

Jenkins

majority considered what bases may "serve[ ] as a proxy for loyalty to the sheriff" and further "h[eld] that newly elected or re-elected sheriffs may dismiss deputies either because of party affiliation or campaign activity."

See

119 F.3d at 1164

. The

Jenkins

majority then took the opportunity to suggest that all deputy sheriffs everywhere

should

be subject to political firing, remarking:

We can think of no clearer way for a deputy to demonstrate opposition to a candidate for sheriff, and thus actual or potential disloyalty once the candidate takes office, than to actively campaign for the candidate's opponent. ... It was never contemplated that sheriffs must perform the powers and duties vested in them through deputies or assistants selected by someone else, and we do not believe it was ever contemplated that a sheriff must attempt to implement his policies and perform his duties through deputies who have expressed clear opposition to him.

Id.

at 1164-65

(alterations and internal quotation marks omitted). Nevertheless, it was at that point that the

Jenkins

majority "limit[ed] dismissals based on today's holding" - the holding that North Carolina deputy sheriffs are subject to political firings

as "the alter ego of the sheriff generally" - "to those deputies actually sworn to engage in law enforcement activities on behalf of the sheriff."

Id.

at 1165

. In other words, the

Jenkins

majority recognized that it was constrained to place some limitations on the

Elrod

-

Branti

exception, despite its apparent desire to apply the exception to all deputy sheriffs everywhere.

Indeed, that

Jenkins

limited its holding to North Carolina deputy sheriffs engaged in law enforcement activities as "the alter ego of the sheriff generally," and that it insists upon a position-specific

Elrod

-

Branti

analysis, is ultimately supported by not only

Jenkins

itself, but also more recent decisions of this Court. Those decisions include

Bland

, wherein we explained that, "to be true to

Jenkins

, we too must consider whether requiring political loyalty was an appropriate requirement for the effective performance of the public employment of the deputies before us

in light of the duties of their particular positions

."

See

730 F.3d at 377

. They also include

Lawson v. Union County Clerk of Court

, wherein we clarified that - in assigning the "alter-ego" designation to the

Jenkins

plaintiffs - the

Jenkins

majority's "analysis focused on the fact that deputy sheriffs held a special position under North Carolina law, in that they 'act[ed] in the name of and with powers coterminous with [their] principal, the elected sheriff.' "

See

828 F.3d 239

, 249 (4th Cir. 2016) (alterations in original) (quoting

Jenkins

,

119 F.3d at

1163 ).

II.

As the foregoing discussion shows, there is simply no basis in precedent - including the

Jenkins v. Medford

decision on which my good colleagues almost exclusively rely - to properly conclude that the

Elrod

-

Branti

exception allowed the political firing of plaintiff Mark McCaffrey from his position as a deputy sheriff in Virginia by Loudoun County Sheriff Michael Chapman. Indeed, any valid effort to analogize this matter to

Jenkins

would have to end with this: Nothing in McCaffrey's complaint or Virginia law establishes that McCaffrey was "the alter ego of [Sheriff Chapman] generally" and thus a policymaker who could lawfully be terminated for political reasons.

See

Jenkins v. Medford

,

119 F.3d 1156

, 1164 (4th Cir. 1997) (en banc).

Specifically, McCaffrey's complaint relates that he was a "major crimes detective" and "lead" investigator who was "highly successful" and repeatedly awarded for his service.

See

McCaffrey v. Chapman

, No. 1:17-cv-00937, at ¶¶ 6, 12 (E.D. Va. Aug. 21, 2017), ECF No. 1-2, (the "Complaint").

1

The Complaint explicitly disclaims, however, that McCaffrey was either "a policymaker" or "a spokesperson" for the sheriff's office.

Id.

¶¶ 13-14. As the Complaint explains, the sheriff's office maintained "a strict, paramilitary chain-of-command structure," with Sheriff Chapman at the top and his seven "Senior Commanders" as the "Command Staff" tasked with supporting Chapman and advising him on policy matters.

Id.

¶¶ 55-57. Employees like McCaffrey lower in the chain of command were "not policymakers" and did not "advise the Sheriff and the Command Staff on matters of policy."

Id.

¶ 57. Moreover, Chapman insisted on

being "the only 'voice' and 'face' of the [sheriff's department] to the outside world."

Id.

¶ 58. Chapman imposed limitations on the authority and discretion of his deputies - including McCaffrey - through the Sheriff's General Orders.

Id.

¶ 37.

2

The Sheriff's General Orders confirm that McCaffrey's position was near the bottom of the chain of command. Criminal cases were assigned to McCaffrey and other lead detectives only after having been screened by a section supervisor.

See

General Order 411.9(III)(E)(2). Once assigned, McCaffrey had the authority to conduct routine investigative tasks, such as interviewing witnesses and collecting evidence.

Id.

411.12. But such investigative work was subject to "continuous screening" by supervisors in the sheriff's office in order for those supervisors to "better control the investigative efforts, workload and potential for success of their personnel and section."

Id.

411.9(III)(E)(2)(d).

Meanwhile, there simply is no Virginia law that, like the North Carolina law crucial to the

Jenkins

holding, confers a "special status" on deputy sheriffs and accords them " 'powers coterminous with ... the elected sheriff.' "

See

Jenkins

,

119 F.3d at 1163

(quoting N.C. Gen. Stat. § 17E-1 ). That is, there is no Virginia law that renders deputies "the alter ego of the sheriff generally."

See

id.

at 1164

. Rather, Virginia statutes enacted in 1997 permit the sheriff to appoint deputies "who

may

discharge any of the official duties of their principal,"

see

Va. Code Ann. § 15.2-1603

(emphasis added), but empower the sheriff to set "the terms and conditions" for the appointment of his deputies,

see

id.

§ 15.2-1600(B). As the Complaint and the General Orders establish, Sheriff Chapman did not opt to make McCaffrey his alter ego by exercising discretion to give McCaffrey powers coterminous with his.

Cf.

Lawson v. Union Cnty. Clerk of Court

,

828 F.3d 239

, 249 (4th Cir. 2016) (explaining that

Elrod

-

Branti

exception did not apply under

Jenkins

where statute authorized deputy to perform all functions of court clerk, but court clerk did not assign deputy policymaking duties).

Remarkably, today's panel majority does not even mention "coterminous" powers and barely discusses the "alter ego" language of

Jenkins

. In a footnote, the majority observes that this "dissent emphasizes that

Jenkins

hinged on this Court's finding that in North Carolina, deputy sheriffs are alter egos of sheriffs."

See

ante

---- n.6. Relying on an outdated federal district court decision and two even older decisions of the Supreme Court of Appeals of Virginia, the majority then declares that "Virginia case law" is "clear" that a deputy sheriff " 'is not simply the "alter ego" of the sheriff, but he is one and the same as the sheriff.' "

Id.

(quoting

Whited v. Fields

,

581 F.Supp. 1444

, 1454 (W.D. Va. 1984), and citing

Bd. of Supervisors v. Lucas

,

142 Va. 84

,

128 S.E. 574

(1925), and

Mosby's Adm'r v. Mosby's Adm'r

,

50 Va. (9 Gratt.) 584

(1853) ). Critically, the decisions invoked by the majority long pre-date the 1997 Virginia statutes authorizing sheriffs to decide which of their powers to confer upon - and to withhold from - their deputies. Moreover, neither of the Virginia decisions ruled or contemplated that Virginia deputy sheriffs ever possessed powers that would render them the "alter ego" of the sheriff under

Jenkins

, i.e., powers coterminous with those of the sheriff.

See

Lucas

,

128 S.E. at 576

(concluding that a deputy was subject to an elected sheriff's

exclusion from the Virginia Workmen's Compensation Act, in that "[a] deputy can only come into being by virtue of the appointment of a sheriff" and thus "a sheriff and a deputy sheriff are one" under the law);

Mosby's Adm'r

, 50 Va. (9 Gratt.) at 602-05 (explaining when sheriff may, and may not, be considered "one" with his deputy and thereby held liable for deputy's acts).

Aside from its cursory and unsound "alter ego" discussion, the majority cherry picks other language from

Jenkins

and distorts that decision to even more broadly hold that any deputy sheriff tasked with law enforcement anywhere may be terminated for political reasons.

See

ante

---- n.5 (asserting that "

Jenkins

was not 'cabined' to North Carolina sheriffs and deputy sheriffs as the dissent suggests"). The majority particularly relies on the discussion in

Jenkins

that began, "We hold that newly elected or re-elected sheriffs may dismiss deputies either because of party affiliation or campaign activity," and that included the commentary, "[W]e do not believe it was ever contemplated that a sheriff must attempt to implement his policies and perform his duties through deputies who have expressed clear opposition to him."

See

Jenkins

,

119 F.3d at 1164 -65

.

To be sure, that passage in

Jenkins

conveyed the message that all deputy sheriffs everywhere

should

be subject to political firings.

Jenkins

simply gave that commentary, however, in the course of explaining that - where a deputy sheriff falls within the

Elrod

-

Branti

exception based on his particular functions - he

can

be terminated for either his "party affiliation" or his "campaign activity." Contrary to the majority, that discussion did not constitute a "holding" that each and every deputy sheriff who has " 'expressed clear opposition to [the sheriff]' " may be fired.

See

ante

---- (quoting

Jenkins

,

119 F.3d at

1165 );

see also

id.

at ---- (asserting that "Sheriff Chapman was entitled to carry out the policies on which he ran and won with deputy sheriffs who did not oppose his re-election").

The majority further misrepresents

Jenkins

to simply instruct that, "[i]n determining whether the deputy sheriff's duties and responsibilities fall within the

Elrod

-

Branti

exception, ... we look to whether [the] deputy sheriff [was] 'actually sworn to engage in law enforcement activities on behalf of the sheriff.' "

See

ante

---- (quoting

Jenkins

,

119 F.3d at

1165 ). According to the majority,

Jenkins

"made clear" that "a sworn deputy sheriff like McCaffrey had a special role in carrying out the law enforcement policies, goals and priorities on which Sheriff Chapman campaigned and prevailed."

Id.

at ----. That is, all that matters to the majority's

Elrod

-

Branti

analysis is that the allegations of the Complaint - indicating that McCaffrey "was a lead investigator of high-profile crimes" and received awards and recognition for his work - establish that "McCaffrey engaged in law enforcement functions on behalf of the sheriff."

Id.

at ----. The majority expressly discounts the fact that, under the Complaint, McCaffrey was neither a policymaker nor a spokesperson for the sheriff's office, and that, pursuant to the Sheriff's General Orders, McCaffrey had circumscribed powers and was not high enough in the chain-of-command to have a policymaking role.

Id.

at ----.

3

Of course, as

Jenkins

itself emphasized and our Court has repeatedly recognized over the years,

Jenkins

did not hold that law enforcement responsibilities render any deputy sheriff eligible for political firing. Rather,

Jenkins

actually held that North Carolina deputy sheriffs tasked with law enforcement are policymakers who fall within the

Elrod

-

Branti

exception because, under North Carolina law, they are "the alter ego of the sheriff generally."

See

119 F.3d at 1164

. Before today, the chief criticism of

Jenkins

was that it could be read to authorize the political firings of any and all North Carolina deputy sheriffs, no matter their job responsibilities. But now,

Jenkins

has been interpreted even more broadly and egregiously, to allow the political firings of any and all deputy sheriffs anywhere, so long as they are simply tasked with law enforcement.

In ruling as it does, the majority not only misreads

Jenkins

, but also disregards other controlling precedent of this Court and the Supreme Court. Contrary to our instruction that "low-level policymaking authority does not outweigh an employee's First Amendment rights of political affiliation," the majority has made political firings a possibility for middle- and lower-level government employees.

See

Fields v. Prater

,

566 F.3d 381

, 387 (4th Cir. 2009) (alterations and internal quotation marks omitted). Merely by performing "law enforcement activities," any beat cop in our bailiwick can now be fired for not having the right political association. Such a result was never contemplated by the Supreme Court in developing what is supposed to be the narrow

Elrod

-

Branti

exception.

See

Rutan v. Republican Party of Ill.

,

497 U.S. 62

, 74, 76,

110 S.Ct. 2729

,

111 L.Ed.2d 52

(1990) (explaining that the narrow

Elrod

-

Branti

exception applies to only "certain high-level employees," as "[t]he First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate, or to not believe and not associate"). And it should not be countenanced by our Court.

III.

Conducting a proper assessment of McCaffrey's deputy sheriff position, we can assume under the first prong of our

Stott

test that - "at a very high level of generality,"

see

Fields v. Prater

,

566 F.3d 381

, 386 (4th Cir. 2009) - the position implicates "partisan political interests or concerns."

See

Stott v. Haworth

,

916 F.2d 134

, 141 (4th Cir. 1990) (alterations and internal quotation marks omitted). That is, we can rely here on what was apparently the first

Stott

prong analysis in

Jenkins v. Medford

,

119 F.3d 1156

, 1162-63 (4th Cir. 1997) (en banc) (explaining, inter alia, that deputy sheriffs generally "play a special role in implementing the sheriff's policies and goals," as espoused by the sheriff on the campaign trail).

4

Turning to the second

Stott

prong, however, the allegations of the Complaint reveal that McCaffrey did not act as "a policymaker, a privy to confidential information, a communicator, or some other office holder" for whom political considerations are appropriate job requirements.

See

Stott

,

916 F.2d at 142

(internal quotation marks omitted). McCaffrey's limited realm of investigative duties, although important, neither required nor benefitted from "a particular political philosophy."

See

Lawson v. Union Cnty. Clerk of Court

,

828 F.3d 239

, 248 (4th Cir. 2016). Furthermore, given the constraints on his job performance and his position at the bottom of Sheriff Chapman's chain of command, McCaffrey's duties did not involve "setting or implementing a policy agenda."

See

id.

at 249

.

That McCaffrey worked on important cases in a "lead" role does not mean that his employment was subject to political considerations.

See

Lawson

,

828 F.3d at 249

(explaining that supervisory title does not establish that employee was policymaker). Indeed, as we have consistently made clear, "a supervisory employee does not automatically hold a position that is subject to the

Elrod

-

Branti

exception."

See

id.

;

see also

Fields

,

566 F.3d at 387

(recognizing that supervisory responsibilities alone do not permit application of

Elrod

-

Branti

exception). A managerial role over a limited number of employees and decisions does not necessitate that a person in such a position has "broad policy setting power."

See

Lawson

,

828 F.3d at 249

. And because of the strict hierarchy in Sheriff Chapman's office, as well as the levels of approval and screening incorporated therein, McCaffrey merely performed routine investigative tasks and lacked any "broad policy setting power." Although those responsibilities involved "some discretion," discretion does not alone make a deputy a "policymaker," for which political allegiance is an appropriate job requirement.

See

Bland v. Roberts

,

730 F.3d 368

, 378 (4th Cir. 2013). To conclude otherwise would leave "only the most low-level government employees" protected from political firings.

See

Fields

,

566 F.3d at 387

.

McCaffrey's achievements and commendations for his exemplary service also do not render him subject to political firing. In 2015 - the year that McCaffrey was terminated because of politics - he received the "Loudoun County Investigator of the Month Award" three times, and also was part of a team designated as "Team of the Month" on three occasions.

See

Complaint ¶ 12. And it was not just his coworkers at the sheriff's office who recognized McCaffrey's good work; the local commonwealth's attorney awarded McCaffrey the "Victim Services Award" in 2014.

Id.

Those commendations show McCaffrey's effectiveness, which was also illustrated by his case closure rate that greatly exceeded the national average.

Id.

But McCaffrey's stellar work does not establish that he possessed the broad discretion that would remove his First Amendment protections and render him subject to the

Elrod

-

Branti

exception. A law enforcement officer can excel in his duties without becoming a

policymaker. Indeed, it would be odd to permit a law officer to be fired for political reasons because of his success. If anything, the commendations for good work received by McCaffrey show that he performed his duties as a deputy sheriff without exceeding his authority, responded appropriately to his supervisors, and adhered to their orders. On the other hand, McCaffrey's awards fail to show that "there is a rational connection between shared [political] ideology and job performance."

See

Stott

,

916 F.2d at 142

(internal quotation marks omitted).

Finally, the statutory provisions governing Virginia law enforcement support the conclusion that the

Elrod

-

Branti

exception does not apply here. As we have recognized, "whether state law prohibits politically-based hiring for a particular position is relevant to whether political [allegiance] is necessary for effective job performance."

See

Fields

,

566 F.3d at 388

(internal quotation marks omitted). And the Virginia Code explicitly prohibits "law-enforcement officers [from] discriminat[ing] against any employee or applicant for employment because of that person's political affiliations or political activities."

See

Va. Code Ann. § 15.2-1512.2

(D). Virginia law also provides that a deputy sheriff may not be prohibited from "voting"; "expressing opinions, privately or publicly, on political subjects and candidates"; "displaying a political picture, sign, sticker, badge, or button"; "participating in the activities of ... a political candidate or campaign"; or "attending or participating in a political convention."

Id.

§ 15.2-1512.2(B)-(C). Virginia law thus confirms the impermissibility of McCaffrey being fired for a lack of political loyalty. In these circumstances, McCaffrey is entitled to proceed with his claims.

5

IV.

Pursuant to the foregoing, I would vacate the district court's dismissal of McCaffrey's Complaint and remand for further proceedings.

I therefore respectfully dissent.

In his Complaint, McCaffrey alleges four claims, each premised upon his termination by Sheriff Chapman due to McCaffrey's support of Chapman's political opponent. McCaffrey pursues two claims against Chapman, primarily a

42 U.S.C. § 1983

claim for contravention of McCaffrey's rights under the First Amendment, plus an equivalent state claim for violation of the Virginia Constitution. McCaffrey also alleges derivative claims against Loudoun County and its Board of Supervisors.

Because the Sheriff's General Orders are incorporated into the Complaint by reference, they are properly considered here.

See

Tellabs, Inc. v. Makor Issues & Rights, Ltd.

,

551 U.S. 308

, 321,

127 S.Ct. 2499

,

168 L.Ed.2d 179

(2007).

As the majority would have it,

Jenkins

and our subsequent precedent have established a test under which a deputy sheriff is either subject to political firing because he is tasked with law enforcement, or protected from political firing because he is a low-level jailer whose duties are "custodial."

See

ante

---- - ---- (reasoning that "the

Elrod

-

Branti

exception applies to McCaffrey" because his Complaint "leave[s] no doubt that he was a deputy sheriff engaged in law enforcement activities and was not performing 'custodial' duties like the deputies in [

Bland v. Roberts

,

730 F.3d 368

(4th Cir. 2013), and

Knight v. Vernon

,

214 F.3d 544

(4th Cir. 2000) ]");

see also

id.

at ---- n.5. Nonetheless, there is no support for such a simplistic test in

Jenkins

,

Bland

, or

Knight

, which all recognize that the

Elrod

-

Branti

analysis requires an examination of the specific duties of the particular position at issue to assess whether political loyalty is an appropriate job requirement.

My willingness to assume that the first

Stott

prong has been satisfied should not be interpreted as an endorsement of the

Jenkins

analysis. I have serious doubts as to whether that analysis was too general, and whether it should have focused more on deputies with the job responsibilities of the plaintiffs. Here, that would mean looking at boots-on-the-ground investigators of violent crimes like McCaffrey. I question whether such a deputy can ever make decisions that leave room for political disagreement, as we should always adhere to the principle that "[p]olitics should not be an active ingredient of good law enforcement."

See

Mitchell v. Thompson

,

18 F.3d 425

, 428 (7th Cir. 1994) (Wood, J., dissenting). In any event, I certainly do not sanction the panel majority's analysis, which focused on McCaffrey specifically but invented facts in so doing. Notwithstanding the Complaint's silence as to Sheriff Chapman's campaign platform, the majority pronounces that "Chapman won an election for sheriff after espousing positions on how the [sheriff's office] should be run," and that McCaffrey's "duties and responsibilities involved carrying out ... Chapman's policies and priorities."

See

ante

----.

As a final point, the majority has implicitly ruled that the district court erred in failing to assess McCaffrey's claims under the

Pickering

and

Connick

decisions.

See

Pickering v. Bd. of Educ.

,

391 U.S. 563

,

88 S.Ct. 1731

,

20 L.Ed.2d 811

(1968) ;

Connick v. Myers

,

461 U.S. 138

,

103 S.Ct. 1684

,

75 L.Ed.2d 708

(1983). Rather than remand to rectify that error, however, the majority itself has conducted the fact-intensive

Pickering

-

Connick

analysis and resolved the issue in favor of the defendants. It bears emphasizing that "we are a court of review, not of first view."

See

Lovelace v. Lee

,

472 F.3d 174

, 203 (4th Cir. 2006) (quoting

Cutter v. Wilkinson

,

544 U.S. 709

, 718 n.7,

125 S.Ct. 2113

,

161 L.Ed.2d 1020

(2005) ).