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LABOR LAW_DIRUZZA v. COUNTY OF TEHAMA (3/21/00 - No. 9815997)
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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
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http://laws.findlaw.com/9th/9815997.html
SHEROL DIRUZZA, aka Sherol Janc, Plaintiff-Appellant, v. No. 98-15997 COUNTY OF TEHAMA, a public entity; ROBERT HEARD, as an D.C. No. individual and as Sheriff for the CV-96-00596-WBS County of Tehama; JERRY FLOYD, OPINION as an individual and as Undersheriff of the County of Tehama, Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
July 12, 1999--San Francisco, California
Filed March 21, 2000
Before: Stephen Reinhardt, Diarmuid F. O'Scannlain, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge O'Scannlain
_________________________________________________________________
COUNSEL
Mike McGuire and David A. Prentice, McGuire & Prentice,
Sacramento, California, for the plaintiff-appellant.
J. Scott Smith, Angelo, Kilday & Kilduff, Sacramento, Cali-
fornia, for defendant-appellee County of Tehema.
Stephen E. Horan, Porter, Scott, Weiberg & Delehant, Sacra-
mento, California, for defendants-appellees Robert Heard and
Jerry Floyd.
Michael Rains, Carroll, Burdick & McDonough, San Fran-
cisco, California, for amicus curiae the Peace Officers
Research Association of California, Peace Officers Research
Association of California Legal Defense Fund, Kern Law
Enforcement Association, and Elko County Sheriffs' Employ-
ees Association.
_________________________________________________________________
OPINION
W. FLETCHER, Circuit Judge:
Plaintiff Sherol DiRuzza was a deputy sheriff in Tehama
County from 1992 to 1995. During the election season in
1994, she supported incumbent Sheriff Mike Blanusa in his
bid for reelection. Blanusa lost to Sheriff Robert Heard, one
of the defendants in this case. DiRuzza asserts that defendants
Heard and Undersheriff Jerry Floyd caused her to lose her job
as a result of her political activity in support of Blanusa.
The district court concluded that DiRuzza's political activi-
ties were not protected under the First Amendment because
deputy sheriffs are policymakers, and that political loyalty is
an appropriate requirement for her job. The district court
accordingly held that defendants were allowed to retaliate
against DiRuzza for her political speech. The district court
granted summary judgment to defendants Heard, Floyd and
Tehama County, and DiRuzza has timely appealed.
We reverse the district court's grant of summary judgment.
We hold that defendants have failed to show as a matter of
law that DiRuzza was a policymaker and that political loyalty
was therefore an appropriate requirement for her job. We
remand for a determination of whether her actual duties were
those of a policymaker. We further hold that the law protect-
ing non-policymaking public employees from retaliation for
the exercise of their First Amendment rights was clearly
established in 1995, and we remand for a determination of the
reasonableness of the actions of defendants Heard and Floyd
in light of the then-clearly established law. Finally, we
remand for further proceedings to determine, whether defen-
dants Heard and Floyd engaged in political retaliation.
I
In November 1994, incumbent Tehama County Sheriff
Mike Blanusa was defeated by defendant Sheriff Robert
Heard. Heard assumed office as the new sheriff on January 3,
1995. DiRuzza had publicly supported Blanusa in the elec-
tion, even appearing in a televised political advertisement on
his behalf. Prior to Heard's assuming office, DiRuzza dis-
charged her service revolver out of her bedroom window dur-
ing a domestic dispute in which her fiance allegedly damaged
her car, tore her phone off the wall, and threatened her with
physical violence. As a result of this incident, Blanusa sus-
pended DiRuzza for 30 days. On December 15, 1994, the dis-
trict attorney charged DiRuzza with the felony of "gross
negligent discharge of a firearm" and the misdemeanor of
"exhibiting a firearm in a rude and threatening manner." Cal.
Penal Code SS 246.3 and 417(a)(2). After Heard took office
in January, DiRuzza was allowed to plead guilty to the lesser
infraction of disturbing the peace, but only on condition that
she resign her position as deputy sheriff.
On March 26, 1996, DiRuzza filed suit in federal district
court, alleging twelve federal and state causes of action
against Sheriff Heard, Undersheriff Floyd, and Tehama
County. The gravamen of her complaint was that Heard and
Floyd retaliated against her because she had supported
Blanusa in the election. She alleged that, due to her political
support of Blanusa and opposition to Heard, she was not re-
sworn as a deputy after the election, was given undesirable
shifts, and was forced to accept resignation under threat of a
felony charge. By the time the district court ruled on defen-
dants' motion for summary judgment, DiRuzza had narrowed
her suit under federal law to claims under 42 U.S.C.SS 1983
and 1985, and sought only damages as a remedy.
Defendants at first denied that there was any political retali-
ation against DiRuzza, contending, in the words of the district
court, "that all the alleged adverse employment actions were
due to the pending felony charge of negligent discharge of her
service weapon." At summary judgment, defendants proposed
as an undisputed material fact that neither Heard nor Floyd
"knew of plaintiff's support for the former Sheriff Blanusa."
DiRuzza disputed this assertion and defendants subsequently
filed a supplemental brief arguing that irrespective of what
knowledge they had, there is no constitutional prohibition
against an elected sheriff's termination of a deputy for parti-
san reasons.
In granting summary judgment for all defendants on
DiRuzza's claims under SS 1983 and 1985, the district court
held, in essence, that deputy sheriffs in California are policy-
makers and may be fired for political reasons. In so holding,
the district court relied upon three cases from other circuits
holding that deputy sheriffs are policymakers. See Jenkins v.
Medford, 119 F.3d 1156 (4th Cir. 1997) (en banc), cert.
denied,
522 U.S. 1090
(1998); Upton v. Thompson, 930 F.2d
1209 (7th Cir. 1991); Terry v. Cook, 866 F.2d 373 (11th Cir.
1989). The district court supported its holding that DiRuzza
was a policymaker and therefore subject to partisan dismissal
by noting that under Cal. Gov't Code S 24100 a deputy sheriff
exercises the same general authority as the sheriff. The district
court further held, in the alternative, that individual defen-
dants Heard and Floyd were entitled to qualified immunity
because they had not violated a clearly established right. The
district court then declined to exercise supplemental jurisdic-
tion over the remaining state law claims.
We review de novo a grant of summary judgment. Margolis
v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). Viewing the evi-
dence in the light most favorable to the non-moving party, we
must determine whether the district court correctly applied the
law and whether there are any genuine issues of material fact.
Id.
II
A. Was Deputy Sheriff DiRuzza a Policymaker?
[1] We must first decide whether DiRuzza could be fired
because of her political activity. "Government officials may
not discharge public employees for refusing to support a polit-
ical party or its candidates, unless political affiliation is a rea-
sonably appropriate requirement for the job in question."
O'Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712
,
714 (1996) (citing Elrod v. Burns,
427 U.S. 347
(1976));
Branti v. Finkel,
445 U.S. 507
(1980). The key inquiry is
whether DiRuzza held a policymaking position where politi-
cal affiliation was a "reasonably appropriate requirement" for
the job. See O'Hare,
518 U.S. at 719
.
[2] The Supreme Court has held repeatedly that public
employees are protected from retaliation for the exercise of
their First Amendment rights. "A state may not condition pub-
lic employment on an employee's exercise of his or her First
Amendment rights." O'Hare,
518 U.S. at 717
. "The First
Amendment prevents the government, except in the most
compelling circumstances, from wielding its power to inter-
fere with its employees' freedom to believe and associate."
Rutan v. Republican Party of Ill.,
497 U.S. 62, 76
(1990)
(emphasis added). However, an employee's rights are not
absolute and must be balanced against the role of government
as an employer. See Pickering v. Board of Educ., 391 U.S.
563, 568 (1968) (finding that the court must "balance . . . the
interests of the [employee], as a citizen, in commenting on
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").
Recognizing that there are some circumstances in which an
employee's First Amendment rights are not absolute, the
Supreme Court has carved out a narrow exception to the First
Amendment's protection in cases where the public employee
is a policymaker or confidential employee. This exception
was first enunciated in 1976 in Elrod v. Burns, where four
non-civil service employees of a sheriff's department were
fired by the new sheriff because they failed to affiliate them-
selves with the party of newly elected Sheriff Elrod. One
employee was the Chief Deputy of the Process Division,
another a bailiff, and the third a process server; the position
of the fourth employee was not described. Elrod, 427 U.S. at
350-51. The Supreme Court held that these patronage dis-
missals were unconstitutional. Justice Brennan's plurality
opinion broadly condemned the constitutional evils of the
patronage system, but recognized an exception for
"policymaking positions" where "the employee acts as an
adviser or formulates plans for the implementation of broad
goals." Elrod,
427 U.S. at 367
-68. Justice Stewart concurred
separately, joined by Justice Blackmun, stating,"The single
substantive question involved in this case is whether a non-
policymaking, non-confidential government employee can be
discharged or threatened with discharge from a job that he is
satisfactorily performing upon the sole ground of his political
beliefs. I agree with the plurality that he cannot." Id. at 374-
75 (Stewart, J., concurring).
The policymaking exception articulated in Elrod was
refined in 1980 in Branti v. Finkel, in which a newly
appointed Democratic public defender gave notices of termi-
nation to Republican assistant public defenders in the office.
The Court held that the terminations were unconstitutional
because an assistant public defender does not occupy a posi-
tion where "party affiliation is an appropriate requirement for
the effective performance of the public office." Branti, 445
U.S. at 518. Rather, "[t]he primary, if not the only, responsi-
bility of an assistant public defender is to represent individual
citizens in controversy with the State," and "whatever policy-
making occurs in the public defender's office must relate to
the needs of individual clients and not to any partisan political
interests." Id. at 519. However, the Court was careful to with-
hold judgment on district attorneys, who exercise "broader
public responsibilities." Id. at 519 n.13. Indeed in Fazio v.
City and County of San Francisco, 125 F.3d 1328 (9th Cir.
1997), implementing Elrod and Branti, this court has held that
certain deputy district attorneys are policymakers who may be
terminated for partisan reasons.
In holding that a California deputy sheriff is a policymaker,
the district court relied on two out-of-circuit cases that upheld
dismissals of 42 U.S.C. S 1983 actions by deputy sheriffs on
the ground that they were policymakers, Jenkins, 119 F.3d at
1156; Terry, 866 F.2d at 373, and a third out-of-circuit case
that upheld qualified immunity on the ground that "deputy
sheriffs operate with a sufficient level of autonomy and dis-
cretionary authority to justify a sheriff's use of political con-
siderations when determining who will serve as deputies,"
Upton, 930 F.2d at 1218. These three cases held that deputy
sheriffs in North Carolina (Jenkins), Alabama (Terry), and
Illinois (Upton) are policymakers subject to termination for
partisan reasons.1 We are willing to assume arguendo that
these holdings are correct, based on the different nature of the
job performed by deputy sheriffs in these circuits and these
states. However, we do not believe that a per se rule concern-
ing deputy sheriffs is appropriate in this circuit and, in partic-
ular, in California.
[3] Under California law, a county sheriff may appoint his
or her "deputies." Cal. Gov't Code S 24101. All peace offi-
cers employed in the county sheriff's office, at whatever
level, are sheriff's deputies. See generally People v. Otto, 77
Cal. 45 (1888). Among the deputies are higher-level employ-
ees such as the undersheriff, lieutenant, sergeant and captain
as well as lower-level employees such as line peace officers
and jail custodians. The title "deputy sheriff" or "sheriff's
deputy" is thus not a clear job category with consistent
responsibilities in California. Any categorization based upon
job title alone obscures rather than clarifies the nature of the
duties actually performed and the constitutional rights at
issue. We find instructive the analysis in Board of County
Commissioners v. Umbehr,
518 U.S. 668
(1996), in which the
Supreme Court rejected a simplified, label-based approach in
a case involving First Amendment rights of government con-
tractors. The Court held that a categorical rule denying inde-
pendent contractors protection for the exercise of their First
Amendment rights "would leave First Amendment rights
unduly dependent on whether state law labels a government
service provider's contract as a contract of employment or a
contract for services, a distinction which is at best a very poor
proxy for the interests at stake." Id. at 678-79; see also
O'Hare,
518 U.S. at 721
-22. Given the range of duties per-
formed by deputy sheriffs in California, a conclusion that dep-
uty sheriffs are per se policymakers is inconsistent with
important First Amendment rights as well as the analysis the
Supreme Court requires under Elrod and Branti.2
[4] Defendants assert that DiRuzza occupied a policymak-
ing position because she gave open political support to the
incumbent sheriff. We disagree. Political and free speech
activities alone cannot make an employee a policymaker. If
this were so, any employee entering the political arena to
oppose re-election of the head of her office would become a
policymaker and would thus be subject to retaliation. That is,
the very act of engaging in political debate would result in the
forfeiture of an employee's First Amendment rights. Defen-
dants further assert that a deputy sheriff may act as a policy-
maker. That is true but beside the point. The actual, not the
possible, duties of an individual employee determine whether
political loyalty is appropriate for the effective performance
of her job.
[5] In Thomas v. Carpenter, 881 F.2d 828 (9th Cir. 1989),
a sheriff's lieutenant who had run unsuccessfully against the
incumbent sheriff brought a retaliation suit similar to DiRuz-
za's. Although the lieutenant had not been terminated, he
alleged that he had been excluded "from attending departmen-
tal staff meetings, from attending policy manual revision
meetings, and from participating as an evaluator for the
department's high risk entry team." Id. at 829. This court
reversed a dismissal under Fed. R. Civ. P. 12(b)(6), holding
that
[defendant] cannot show, based solely on the allega-
tions of [the] complaint, that [plaintiff's ] loyalty is
essential to the effective performance of the tasks
removed from his list of responsibilities. . . .[Defen-
dant] may be able to prove at trial, or perhaps even
by summary judgment, that [plaintiff's] political loy-
alty in each of these positions is needed for the effec-
tive implementation of general departmental policy.
Id. at 832. The clear import of Thomas is that there is no per
se rule in this circuit based solely on job title. The critical
inquiry is the job actually performed.
[6] Quoting Hall v. Ford, 856 F.2d 255, 262 (D.C. Cir.
1988), this court outlined, in Fazio v. City and County of San
Francisco, 125 F.3d 1328, 1334 n.5 (9th Cir. 1997), several
factors to consider in deciding whether political affiliation
could be a job requirement:" `vague or broad responsibilities,
relative pay, technical competence, power to control others,
authority to speak in the name of policymakers, public per-
ception, influence on programs, contact with elected officials,
and responsiveness to partisan politics and political leaders.' "
Based on these factors and looking at the job actually per-
formed, we held that Fazio, a high-ranking Assistant District
Attorney for the City and County of San Francisco, was a
policymaker subject to partisan dismissal. "While[Fazio's]
powers are identical to those of a rank-and-file Assistant Dis-
trict Attorney, they are also nearly identical to those of the
actual District Attorney . . . . Moreover, Fazio was paid over
$100,000 per year, commented to the media about[City and
County of San Francisco] cases and other cases of general
public interest, and handled high profile cases with a great
degree of autonomy." Id. at 1334.
[7] Under the factors articulated in Hall and repeated in
Fazio, the defendants are not entitled to summary judgment
because there are material facts in dispute regarding whether
DiRuzza was a policymaker subject to partisan dismissal. The
Tehama County Sheriff's Department employs 78 deputy
sheriffs. All of them are covered under an extensive Memo-
randum of Understanding between the union and the county.3
Deputy sheriffs appear to be the lowest ranking peace officers
in the department; in the Memorandum of Understanding,
they are listed above secretaries and below other categories of
employees such as sergeants and sheriff's detective investiga-
tors. DiRuzza asserts that she worked in positions associated
with the jails during much of her time with the sheriff's
department. A deputy sheriff in California who works in a
custodial position in a jail is responsible for the custody, care,
supervision, security, movement, and transportation of
inmates, and is limited to her prescribed custodial duties. Cal.
Penal Code S 830.1. According to DiRuzza and other depart-
ment employees, DiRuzza spent three months assisting a lieu-
tenant in a suit involving conditions at the jails and spent six
months assigned to a jail construction project as an assistant
to a sergeant. While working with the construction project,
DiRuzza drafted a "policy manual" for the new jail. Accord-
ing to testimony of DiRuzza's superior, the drafting consisted
of revising an old manual of jail procedures, such as proce-
dures for handling inmates' mail, in order to comply with
court-ordered requirements.
[8] Under Elrod, Branti, and Fazio, there are sufficient
material facts to foreclose summary judgment for defendants.
Indeed, on the current state of the record, there is little to sup-
port a conclusion that DiRuzza is a policymaker. On remand,
defendants have the burden of showing that DiRuzza was a
policymaker and thus vulnerable to politically-based dis-
charge. In determining whether DiRuzza was a policymaker,
the district court should direct its attention to the factors out-
lined in Fazio, including but not limited to whether Diruzza
had vague or broad responsibilities, whether she was paid an
unusually high salary, whether she had the power to control
others or the authority to speak in the name of the department,
whether the public perceived that she had such authority, and
whether she created or substantially influenced the policy of
the sheriff's department.
Our holding is clearly consistent with the law in three other
circuits. The Third Circuit has held 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. Burns v. County of Cambria, 971
F.2d 1015, 1022 (3rd Cir. 1992). That court rejected any con-
sideration of the size of the sheriff's department and stated
that, "[a]lthough loyalty and confidentiality of sheriff's depu-
ties are desirable attributes, those traits are needed for many
working relationships. It has never been suggested that the
need for loyalty and confidentiality alone supports politically
motivated dismissals independent of the tasks which the
employee must perform." Id. at 1023. Further, the Sixth Cir-
cuit, on facts very similar to those in our case, has held that
a rank-and-file deputy sheriff was not subject to patronage
dismissal:
[The] defendant has failed to show that political
affiliation is "an appropriate requirement for the
effective performance" of [the position of deputy
sheriff]. The record does not show that [the ] deputy
sheriffs had the types of specific duties or responsi-
bilities, or the amount of discretion or policymaking
authority, that would make political affiliation an
appropriate requirement for employment.
Hall v. Tollett, 128 F.3d 418, 429 (6th Cir. 1997). Finally, the
Tenth Circuit has held that two non-sworn sheriff's depart-
ment employees, one the head jailer and the other an adminis-
trative assistant, could not be terminated because of political
affiliation. Dickeson v. Quarberg, 844 F.2d 1435, 1443-44
(10th Cir. 1988).
We believe that our holding is also consistent with the law
of the three circuits whose cases were relied upon by the dis-
trict court. In those cases, the courts of appeals held that dep-
uty sheriffs were policymakers subject to partisan dismissal;
but in each case the courts' holdings were based not simply
on the job title of "deputy sheriff," but rather on an analysis
of the actual job performed under that title in the states at
issue. In Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997),
the Fourth Circuit upheld the partisan firings of several dep-
uty sheriffs in North Carolina. After noting that the Supreme
Court had created a "narrow exception" to the otherwise
applicable constitutional protection of government employees
from partisan dismissal, thereby allowing patronage dismiss-
als of those in "policymaking positions," id. at 1161, the court
went on to analyze the position of deputy sheriff in North
Carolina:
[W]e now consider the specific political and social
roles of sheriffs and their deputies in North Carolina.
. . . The North Carolina legislature has also recog-
nized the special status of sheriff's deputies in the
eyes of the law: "The 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." The sheriff may not delegate final
responsibility for his official duties, but he may
appoint deputies to assist him. Our circuit and North
Carolina state courts agree that the sheriff can be
held liable for the misbehavior of his deputies. Pre-
sumably it is for these reasons that the legislature has
made deputies at-will employees who "shall serve at
the pleasure of the appointing officer."
Id. at 1163-64. The court specifically limited its holding, not-
ing that "courts examine the job duties of the position, and not
merely the title, of those dismissed." Id. at 1165.
In Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991), the
Seventh Circuit upheld partisan firings of deputy sheriffs in
Illinois. After recognizing that under Supreme Court law only
employees holding policymaking positions could be fired for
partisan reasons, id. at 1213, the court analyzed the actual
nature of the job performed by deputy sheriffs in Illinois and
concluded that deputy sheriffs were policymakers. Among
other things, the court specifically noted that"[a] deputy sher-
iff in implementing the Sheriff's basic policy, will`make
some decisions that will actually create policy.' " Id. at 1215
(quoting Livas v. Petka, 711 F.2d 798, 801 (7th Cir. 1983)).
Finally, in Terry v. Cook, 866 F.2d 373 (11th Cir. 1989),
the Eleventh Circuit upheld the partisan firing of deputy sher-
iffs in Alabama. The court applied the Elrod-Branti test of
whether "political loyalty is an appropriate requirement for
employment," and analyzed the nature of the job of deputy
sheriff in Alabama in upholding a Rule 12(b)(6) dismissal of
claims brought by deputy sheriffs who had been fired:
Under Alabama law, a deputy sheriff is the general
agent of and empowered to enter into business trans-
actions for the sheriff. Any transaction within the
scope of the sheriff's duties may be acted upon by
his deputy. The deputy sheriff is the alter ego of the
sheriff, and the sheriff is civilly liable for actions
committed by a deputy in the performance of his
duty . . . . The closeness and cooperation required
between sheriffs and their deputies necessitates the
sheriff's absolute authority over their appointment
and/or retention.
Id. at 377 (citations omitted). Significantly, the court in Terry
reversed a Rule 12(b)(6) dismissal of claims brought by other
employees, including "jailers," for the same partisan firing:
It has not been established that loyalty to an individ-
ual sheriff is an appropriate requirement for effective
job performance for the remaining positions of clerk,
investigator, dispatcher, jailer, and process server.
This is a determination that depends upon the actual
responsibilities of each position and the relationship
of each to the sheriff.
Id. at 377-78.
[9] The district court thus erred in granting summary judg-
ment based on a holding that deputy sheriffs in California are
policymakers and may be fired for the exercise of their first
amendment rights. While it is possible that some deputy sher-
iffs in California may be policymakers, an analysis of an indi-
vidual deputy's actual duties is necessary to that
determination. On the record before us, there are material
facts in dispute regarding the duties actually performed by
DiRuzza and whether these duties made her a policymaker.
We therefore remand for an individualized determination of
whether DiRuzza was a policymaker for whom political affili-
ation was a reasonable requirement.
B. Qualified Immunity
[10] Defendants Heard and Floyd contend that even if
DiRuzza was protected against retaliation, they are nonethe-
less entitled to qualified immunity insulating them from dam-
age judgments. Government officials who perform
discretionary functions are entitled to qualified immunity only
"insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald,
457 U.S. 800
, 818
(1982). This test necessitates a two-part analysis:"(1) whether
the law governing the official's conduct was clearly estab-
lished, and (2) whether, given this clearly established stan-
dard, a reasonable official could believe that his or her
conduct was lawful." Biggs v. Best, Best & Krieger, 189 F.3d
989 (9th Cir. 1999); see also Ortega v. O'Connor, 146 F.3d
1149, 1154 (9th Cir. 1998). A decision regarding qualified
immunity is reviewed de novo. Romero v. Kitsap County, 931
F.2d 624, 627 (9th Cir. 1991). While the plaintiff bears the
burden of proof regarding whether the right is clearly estab-
lished, a defendant must prove that his or her conduct was
reasonable. Id.
[11] For purposes of determining qualified immunity, the
law must be clearly established at the time of the defendant's
acts. In this case, the alleged retaliation occurred in 1995. The
test for determining whether a law is clearly established
"requires more than an alleged violation of extremely abstract
rights." Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir. 1988)
(citations omitted).
The contours of the right must be sufficiently clear
that a reasonable official would understand that what
he is doing violates that right. This is not to say that
an official action is protected by qualified immunity
unless the very action in question has previously
been held unlawful, but it is to say that in the light
of pre-existing law the unlawfulness must be appar-
ent.
Anderson v. Creighton,
483 U.S. 635, 640
(1987) (citations
omitted).
[12] Under Elrod and Branti, decided by the Supreme
Court in 1976 and 1980, and under Ninth Circuit case law
decided prior to 1995, it was clearly established that a non-
policymaking public employee in a sheriff's office is pro-
tected from retaliation for the exercise of First Amendment
rights. While neither the Supreme Court nor this court has
previously ruled on deputy sheriffs in Tehama County, such
a ruling is not necessary. Elrod, the initial Supreme Court
decision creating the policymaking exception, involved a
sheriff's department. The Court, in defining the right of cer-
tain employees to be free from retaliation for the exercise of
First Amendment expression in that case, stated that "the
nature of the responsibilities is critical." Elrod, 427 U.S. at
367. The Supreme Court in Branti went on to clarify that the
proper inquiry is "whether the hiring authority can demon-
strate that party affiliation is an appropriate requirement for
the effective performance of the public office involved."
Branti,
445 U.S. at 518
. In 1989, this court in Thomas held
that a lieutenant in a sheriff's office was not necessarily a
policymaker, see 881 F.2d at 832, and that the defendant had
failed to show that "political loyalty is essential to the effec-
tive performance of the tasks removed from his list of
responsibilities." Id.
[13] It was thus clearly established, at the time defendants
acted, that deputy sheriffs were not per se policymakers in
California.4 It was clearly established, as a matter of law, that
the actual duties performed by a deputy sheriff determined
whether he or she was a policymaker and therefore subject to
partisan dismissal, or a non-policymaker and therefore pro-
tected from such dismissal. The record made so far in this
case does not make clear whether DiRuzza's job actually
entailed policymaking and, thus, whether she could be fired
for partisan reasons. This lack of clarity, however, does not
support Floyd's and Heard's claim of qualified immunity. The
fact that the specifics of DiRuzza's job duties are unclear to
the court on the current state of the record, does not mean that
Heard and Floyd did not know those specifics at the time they
acted.
[14] For purposes of summary judgment on the question of
qualified immunity, as well as on all other issues, we must
presume the facts to be those most favorable to the non-
moving party. See Liston v. County of Riverside, 120 F.3d
965, 977 (9th Cir. 1997). Accepting DiRuzza's view of the
facts as correct and drawing all reasonable inferences in her
favor, she was not a policymaker, and that fact would have
been well known to both Heard and Floyd. We need not spec-
ulate here on the merits of the qualified immunity argument
under the facts that might be developed at trial.
C. Retaliation
[15] The district court did not reach the question whether
defendants Heard and Floyd retaliated against DiRuzza for the
exercise of her First Amendment rights. Defendants claim that
their acts were motivated not by her political expression but,
rather, by her unlawful discharge of a firearm. While we may
affirm a grant of summary judgment on grounds other than
those relied upon by the district court, Gemtel Corp. v. Com-
munity Redevelopment Agency of the City of Los Angeles, 23
F.3d 1542, 1546 (9th Cir. 1994), we decline to do so here
because there are disputed facts material to the question of
retaliation that preclude summary judgment. In Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274
(1977), the Supreme Court articulated the standard for deter-
mining when retaliation for protected First Amendment con-
duct is an impermissible factor in a decision to take adverse
action. The burden initially rests on the plaintiff to show that
the conduct at issue was a motivating factor in the defendant's
action. The burden then shifts to the defendant to show by a
preponderance of the evidence that "it would have reached the
same decision . . . even in the absence of the protected
conduct." Id. at 287.
[16] In our case, there are disputed material facts regarding
whether defendants took adverse job action against DiRuzza
and whether political retaliation was a substantial or motivat-
ing factor. DiRuzza was involved in a violent disagreement
with her fiance and fired eight rounds from her service
revolver out her bedroom window. DiRuzza explains the inci-
dent by saying that her fiance was threatening her with a rifle
and that she was attempting to get the neighbors to call the
authorities. The matter was submitted to the district attorney,
and it is undisputed that DiRuzza was suspended for thirty
days under then-Sheriff Blanusa. However, the facts are dis-
puted concerning the influence of defendants Heard and Floyd
on the subsequent actions taken by the district attorney. Plain-
tiff relies upon declarations and depositions stating that defen-
dants influenced the district attorney's decision to continue to
pursue the case and to offer the plea bargain that resulted in
DiRuzza's job loss, and that this influence was motivated by
a desire to retaliate against DiRuzza for her political support
of the incumbent Sheriff. Parker Decl. 3:24 to 4:2; Groves
Dep., 23:14 to 28; Welsh Decl. P 3-5. We believe that this
evidence is enough to foreclose a grant of summary judgment
for defendants. See Soranno's Gasco, Inc. v. Morgan, 874
F.2d 1310 (9th Cir. 1989) (liability depended upon the defen-
dant's motivation, which was a genuine issue of material fact
precluding summary judgment); Allen v. Scribner, 812 F.2d
426 (9th Cir. 1987) (two affidavits of co-workers sufficient
evidence to indicate that the protected expression was a sub-
stantial factor in the disciplinary action, thus precluding sum-
mary judgment); Gilbrook v. City of Westminster, 177 F.3d
839, 855 (9th Cir. 1999) (Mt. Healthy analysis is an intensely
factual determination of motivation and causation).
III
We hold that the district court erred in finding categorically
that deputy sheriffs in California are policymakers and reverse
the grant of summary judgment to defendants Heard, Floyd,
and Tehama County. We further hold that the district court
erred in granting summary judgment to defendants Heard and
Floyd on grounds of qualified immunity. Finally, we hold that
there are material facts in dispute regarding Heard's and
Floyd's alleged retaliation against plaintiff.
Because the district court found no constitutional injury to
DiRuzza, it granted summary judgment to defendant Tehama
County without reaching questions of liability specific to the
county. We leave it the district court to address such ques-
tions, as appropriate, on remand. Further, after dismissing
DiRuzza's federal claims, the district court declined to exer-
cise supplemental jurisdiction over her state claims under 28
U.S.C. S 1367(c). We leave it to the district court to reinstate
and decide those claims, as appropriate, on remand.
We therefore REVERSE the summary judgment granted to
defendants and REMAND for further proceedings consistent
with this opinion.
_________________________________________________________________
O'SCANNLAIN, Circuit Judge, dissenting:
Today, the court holds a sheriff and an undersheriff respon-
sible, ex post facto, for legal rules that did not exist at the time
they acted. Because it would be wrong to hold these law
enforcement officers to standards which the court's analysis
reveals it cannot meet itself, I respectfully dissent.
I
A sheriff's office "would be unmanageable if its head had
to . . . retain his political enemies . . . in positions of confi-
dence or positions in which they would be . . . exercising dis-
cretion in the implementation of policy." Fazio v. City and
County of San Francisco, 125 F.3d 1328, 1333 (9th Cir. 1997)
(quotations omitted). Thus judges must be careful before
interpreting the Constitution to place such a heavy burden on
public employers. I agree with the court that in this circuit
deputy sheriffs are not per se policymakers. I agree that the
inquiry must be fact-specific. But I cannot agree with the
court's misreading of the case law, a misreading that threatens
to place heavy burdens on public officials forced to imple-
ment, through politically disloyal employees, policies the
public elected them to enact.
We simply do not have sufficient information in the record
to determine whether DiRuzza was a policymaker who could
be fired after publicly campaigning for the sheriff's electoral
rival. The district court did not inquire into this because it
relied on out-of-circuit cases to conclude that deputy sheriffs
are per se policymakers. Moreover, DiRuzza has presented lit-
tle evidence of her job responsibilities under Sheriff Blanusa,
describing instead her limited responsibilities after Sheriff
Heard took over. Thus, were I not to conclude that the defen-
dants are qualifiedly immune, I would simply remand the case
to the district court so that it could determine whether DiRuz-
za's authority and responsibilities made her a policymaker.
With the utmost respect, but because the court, in my view,
mischaracterizes the facts and the applicable law, I must dis-
sent to its analysis. I would affirm the district court's holding
that Sheriff Heard and Undersheriff Floyd were entitled to
qualified immunity.
II
I agree with the court that Thomas v. Carpenter, 881 F.2d
828 (9th Cir. 1989), precludes any per se rule that deputy
sheriffs are policymakers and that we must proceed to the
analysis we laid out in Fazio. 125 F.3d at 1334 n.5.1 To deter-
mine, then, whether political loyalty is a reasonably appropri-
ate requirement for an employee in DiRuzza's position we
consider her responsibilities, relative pay, technical compe-
tence, power to control others, authority to speak in the name
of policy makers, public perception, influence on programs,
contact with elected officials, and responsiveness to partisan
politics and political leaders. See id. We should do so mindful
of the admonition in Fazio that "a public employee need not
literally make policy in order to fit within the Elrod policy-
maker exception." Id. at 1332.
First, the position of deputy sheriff has the broadest and
vaguest of responsibilities. Under California law, "both the
general statutes and decisional law establish that[deputy sher-
iffs] possess[ ] all of the powers and may preform all of the
duties attached by law to the office of sheriff." People v.
Woods, 7 Cal. App. 3d 382, 385 (1970); see also Cal. Gov't
Code S 24100. As such they are charged broadly with
"preserv[ing] peace." See Cal. Gov't Code S 26600. DiRuzza
need not regularly exercise these powers in order to qualify as
a policymaker. See Fazio, 125 F.3d at 1333 (citing Mummau
v. Ranck, 687 F.2d 9 (3d Cir. 1982) (holding that an assistant
district attorney (ADA) who only prosecuted juvenile cases
and was not involved in the policymaking details of the office
was a policymaker because regardless of whether the ADAs
actually exercised all their powers, the powers granted to
ADAs were broad)). "So long as the applicable statute, regu-
lations and case law contemplate that the public officer might
be relied upon to . . . implement[ ] policy the official may be
fired for political reasons without offending the First
Amendment." Id. (quotations omitted); see also Dickeson v.
Quarberg, 844 F.2d 1435, 1442 (10th Cir. 1988) ("We focus
on the inherent powers of the positions as well as on the
actual duties performed). As a deputy sheriff, DiRuzza poten-
tially enjoyed broad power, but the record does not contain
sufficient information regarding her specific responsibilities
to allow us to determine the duties she actually performed.
Second, DiRuzza's technical competence appears to be
quite high. She has been chosen at least twice for extensive
assignments relating to prison policy. The majority leaps from
the fact that she has worked in positions associated with the
jails to the conclusion that she worked in a "custodial
position" in which her duties were limited to the care of pris-
oners. Supra at 3274. But the record reveals that DiRuzza's
responsibilities were far more expansive. She first worked on
a "Federal litigation project" assisting at depositions and at
trial. Later, the sheriff appointed her as the number two dep-
uty on the jail construction project, charging her with revising
the policy manual for prison procedures. The majority's dis-
missive account of her responsibilities in this role betrays its
own deaf ear to precedent instructing us that a policy maker
need not literally make policy. See Fazio, 125 F.3d at 1332.
DiRuzza was chosen for this second position precisely
because of the technical competence and expertise she had
acquired while working on the federal prison litigation. Deter-
mined not to allow a repetition of the poor policies and proce-
dures which had led to the federal litigation, Sheriff Blanusa
put DiRuzza in charge of drafting a new policy manual which
would ensure that the prison complied with all of the pertinent
laws.
Third, DiRuzza had extensive contact with and had to be
responsive to elected officials, most obviously the elected
sheriff, to whom she answered directly. As deputy sheriff,
DiRuzza was responsible for implementing the policies of this
elected official. While working, "sheriff's deputies are often
called upon to make on-the-spot split-second decisions effec-
tuating the objectives and law enforcement policies which a
particular sheriff has chosen to pursue." McBee v. Jim Hogg
County, 703 F.2d 834, 839 (5th Cir. 1983), vacated on other
grounds, 730 F.2d 1009 (5th Cir. 1984) (en banc). In rural
Tehama County a deputy sheriff has wide latitude and discre-
tion in implementing the sheriff's policies while on patrol. In
fact her authority and responsibilities continued even when
she was not on duty. See Melendez v. City of Los Angeles, 63
Cal. App. 4th 1, 8-9 (1998). While the sheriff generally is
responsible for developing policy, DiRuzza "may, in carrying
out [her] duties, make some decisions that will actually create
policy." Fazio, 125 F.3d at 1332 (quotations omitted).
Fourth, the public would reasonably perceive that the uni-
formed deputy sheriff speaks for the sheriff. "In order to pro-
mote public confidence in law enforcement, the Sheriff
depends on his deputies to publicly project his competence
and the competence of the office." Upton v. Thompson, 930
F.2d 1209, 1215 (7th Cir. 1991). In the prison and on the beat
she was the face and voice of the sheriff and his policies.
Thus, on remand, and with the benefit of more evidence,
the district court may well conclude that DiRuzza's responsi-
bilities in her position of deputy sheriff indicate the need for
her political loyalty " `not to the end that effectiveness and
efficiency be insured, but to the end that representative gov-
ernment not be undercut by tactics obstructing the implemen-
tation of policies of the new administration, policies
presumably sanctioned by the electorate.' " Thomas, 881 F.2d
at 831 (quoting Elrod,
427 U.S. at 367
). Fewer acts convey
greater opposition to an elected supervisor's policies than
actively campaigning for a rival candidate.2 Unlike the plain-
tiffs in Elrod and Branti, DiRuzza does not allege that Sheriff
Heard retaliated against her merely for belonging to the
wrong political party.3 The court's misapplication of the law
and its characterization of the facts would force a sheriff to
implement his policies through, and to entrust the enforce-
ment of his programs, to a policymaking deputy who actively
campaigned against these policies and programs by appearing
in television commercials for his opponent.
III
More troubling, the court holds that Sheriff Heard and
Undersheriff Floyd cannot benefit from qualified immunity
because they violated Deputy Sheriff DiRuzza's clearly estab-
lished rights. Despite the fact that the Supreme Court's rea-
soning in this area has shifted, that the circuits are split on the
question, and that the four Article III judges who have exam-
ined the very question in this case are equally divided on
whether the First Amendment protects DiRuzza's disloyalty,
the court concludes that the Sheriff and Undersheriff could
have known in 1995 that DiRuzza had a clearly established
right not to be fired under these circumstances.
Even if Sheriff Heard and Undersheriff Floyd improperly
fired DiRuzza for her support of then-Sheriff Blanusa, they
may only be held liable if, at the time they acted, the "law
governing [their] conduct was clearly established" and if
"given this clearly established standard, a reasonable official
could believe that his or her conduct was lawful." Biggs, v.
Best, Best & Krieger 189 F.3d 989, 994 (9th Cir. 1999) (cita-
tion omitted). "A right is `clearly established' if `the contours
of [that] right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.' "
B.C. v. Plumas Unified School District, 192 F.3d 1260, 1268
(9th Cir. 1999) (quoting Anderson v. Creighton,
483 U.S. 635
,
640 (1987)). "To show that the right in question here was
clearly established, [DiRuzza] need not establish that [Heard's
and Floyd's] behavior had been previously declared unconsti-
tutional, only that the unlawfulness was apparent in light of
preexisting law." Id. (quotations and citations omitted).
The question then is whether "the contours of[DiRuzza's]
right were sufficiently clear" when Sheriff Heard and Under-
sheriff Floyd acted in 1995 that "a reasonable official would
[have understood] that what he [was] doing violate[d] that
right." Id. No one could disagree that by 1995, the time the
defendants acted, it was clearly established that a non-
policymaking public employee is protected from political
retaliation. But this begs the question. Rather, we must ask
whether the defendants could have known that a deputy sher-
iff with DiRuzza's job responsibilities was a non-
policymaking employee. The district court got it right: they
could not have.
Recall that, Thomas, decided in 1989, held that political
loyalty is not necessarily a job requirement in a sheriff's
office. This case, however, was decided on a motion to dis-
miss and the court explicitly left open the possibility that a
defendant could establish at the summary judgment stage that
loyalty is necessary for the position. Thomas, therefore, can-
not stand for the proposition that it was clearly established
that a deputy sheriff with DiRuzza's responsibilities was not
a policymaker. Because Thomas does not clearly establish
that DiRuzza was a policymaker, it cannot be said that this
rule was clearly established at the time the defendants acted.
After Thomas, and before 1995, there simply were no other
Ninth Circuit cases to give the defendants guidance on who
was and who was not a policymaking employee.
Most revealing is the majority's extensive reliance on
Fazio, a case decided two years after the defendants acted.
Although the majority is careful to avoid citing it in Part B of
its decision, to reach the conclusion in Part A that DiRuzza
was not a policymaker on these facts, it had to rely heavily on
the Fazio factors. Fazio, however, was decided in 1997, two
years after Sheriff Heard's actions, and thus cannot be con-
strued against him. If the right had been clearly established by
1995, then presumably the majority could have concluded in
Part A that DiRuzza was not a policymaker without ever dis-
cussing Fazio. In reaching its conclusion by leaning so heav-
ily on Fazio, the majority holds Sheriff Heard and
Undersheriff Floyd (who could not have been aware of that
decision) to a standard of legal reasoning it cannot meet itself.
"Given such an underdeveloped state of the law, the officers
in this case cannot have been expected to predict the future
course of constitutional law." Wilson v. Layne, _______ U.S. _______,
119 S.Ct. 1692, 1701 (1999).4
The Supreme Court's splintered and shifting jurisprudence
in this area of the law provides the backdrop for the conclu-
sion that it was not clearly established when the defendants
acted that DiRuzza was a protected non-policymaker. In
Elrod v. Burns,
427 U.S. 347
(1976), the first case fashioning
such a rule, no rationale could command a majority of the jus-
tices. Then in Branti v. Finkel,
445 U.S. 507
(1980), the Court
shifted the "ultimate inquiry . . . [from] whether the label
`policymaker' or `confidential' fits a particular position" to
whether political loyalty "is an appropriate requirement for
the effective performance of the public office involved." Id.
at 518. This formulation of the inquiry caused Justice Stewart
who had concurred in Elrod to dissent in Branti. See id. at 520
(Stewart, J., dissenting). Finally, in O'Hare Truck Serv., Inc.
v. City of Northlake,
518 U.S. 712
(1996), the Supreme Court
cast doubt on the rationale underlying the application of the
First Amendment to this area and rephrased the standard,
shifting from whether political loyalty is essential or needed
to whether it is "reasonably appropriate."
518 U.S. at 712
.5
The lack of clear direction from the Supreme Court in this
area has lead to a circuit split on the precise issue before us.
As the majority notes, three circuits have upheld the legality
of politically motivated dismissals of deputy sheriffs on the
ground that they are policymakers. See Jenkins v. Medford,
119 F.3d 1156 (4th Cir. 1997) (en banc); Upton, 930 F.2d at
1218 (7th Cir.); Terry v. Cook, 866 F.2d 373 (11th Cir. 1989).
On the other hand, at least two circuits have held that employ-
ees in such positions are not policymakers, see Burns v.
County of Cambria, 971 F.2d 1015 (3rd Cir. 1992);6 Hall v.
Tollett, 128 F.3d 418 (6th Cir. 1997),7 yet another that deter-
mining the applicability of First Amendment protection
requires a fact-specific balancing test, see McBee v. Jim Hogg
County, 730 F.2d 1009 (5th Cir. 1984) (en banc). Justice Pow-
ell predicted this confusion in Branti."The standard articu-
lated by the court is framed in vague and sweeping language
certain to create vast uncertainty. Elected and appointed offi-
cials at all levels . . . no longer will know when political affili-
ation is an appropriate consideration in filling a position." 445
U.S. at 524 (Powell, J., dissenting); see also Rutan v. Republi-
can Party of Illinois,
497 U.S. 62
, 111-113 & nn. 5-21 (1990)
(Scalia, J., dissenting) (listing the many conflicting cases
regarding which government positions are protected from
politically motivated dismissal to illustrate the "inconsistent
and unpredictable results"). Nevertheless, peering through all
of this legal fog and the nearly unfathomable variations of
fact-specific analyses, the majority discerns that Sheriff Heard
and Undersheriff Floyd could have known in 1995 that they
could not fire Deputy Sheriff DiRuzza for campaigning
against him.
For my part, I simply cannot agree that "the only reason-
able conclusion from binding authority [was] that the disputed
right existed . . . [such that the Tehama County sheriff and
undersheriff] would be on notice of the right, and [are not]
qualifiedly immune [when] they acted to offend it." B.C., 192
F.3d at 1268 (quoting Blueford v. Prunty, 108 F.3d 251, 255
(9th Cir. 1997)). The tests for determining when political loy-
alty is an appropriate requirement are "so general that for
most positions it is impossible to know whether party affilia-
tion is a permissible requirement until a court renders a
decision." Rutan,
497 U.S. at 111
(Scalia, J., dissenting).
Today's case proves the point. The four Article III judges
who have examined this question have reached three different
conclusions and two different results. One, the district court
judge, ruled that DiRuzza was a policymaker. The three
judges on this panel have now held that we do not know
enough to decide, but only reached this result after conducting
two significantly different analyses of the case law, including
a pivotal case that did not even exist when the defendants
acted. "If judges thus disagree on a constitutional question, it
is unfair to subject police to money damages for picking the
losing side of the controversy." Wilson, 119 S.Ct. at 1701.
Given this level of confusion, "[e]ach of[the] defendants
could `have believed that [his] conduct was lawful.' " B.C.,
192 F.3d at 1268 (quoting Jensen v. City of Oxnard, 145 F.3d
1078, 1086 (9th Cir. 1998)). As no case law by 1995 clearly
established that the Constitution protected Deputy DiRuzza's
political disloyalty, I would affirm the district court's decision
that the defendants are qualifiedly immune.
IV
Qualified immunity protects all but the plainly incompetent
and the willful violators of the law. A public official should
not be held to such high standards of clairvoyance that he is
civilly liable for failing to comply with legal authority that did
not even exist when he acted. I must respectfully dissent.
_______________________________________________________________
FOOTNOTES
1 Although the Seventh Circuit has held that a deputy sheriff may be ter-
minated for political reasons, a deputy may not be retained and then sub-
jected to a campaign of retaliatory harassment. See Wallace v. Benware,
67 F.3d 655, 664 (7th Cir. 1995). In Wallace, the campaign of harassment
was severe, including actions at the scene of a crime that threatened the
plaintiff's life. Id. at 658.
2 This case does not involve the other line of analysis set forth in
Pickering and Connick, where speech on matters of public concern must
be evaluated in terms of the effect on the government's efficient manage-
ment of its operations. See Pickering,
391 U.S. 563
(1968); Connick v.
Myers,
461 U.S. 138
(1983). Defendants do not assert that DiRuzza's
speech and political activities had an effect on the working relationships
in the office or on the efficient operation of the sheriff's department that
would justify limiting her First Amendment rights.
3 We take judicial notice the Memorandum of Understanding entered
into between the County of Tehama and the Tehama County Law Enforce-
ment Officers Bargaining Unit pursuant to Federal Rule of Evidence 201
and Papai v. Harbor Tug and Barge Co., 67 F.3d 203, 211 fn.5 (9th Cir.
1995), rev'd on other grounds,
540 U.S. 548
(1997).
4 The dissent contends that the right of a non-policymaking public
employee to be free from retaliation was not clearly established in 1995,
the date of the actions at issue in this case, because Fazio v. City and
County of San Francisco was decided by this circuit in 1997. This would
be a telling point if Fazio had broken new ground. Fazio, however, was
an obvious application of an already-established rule. Elrod and Branti,
decided by the Supreme Court in 1976, and 1980, and Thomas, decided
by this circuit in 1989, all clearly held that non-policymaking employees
are protected from retaliatory discharge based on the exercise of First
Amendment rights.
1 I use the term "policymaker" only as shorthand for a position in which
political loyalty may reasonably be required. I am mindful of the SupremeCourt's instruction that "the ultimate inquiry is not whether the label `poli-
cymaker' or `confidential' fits a particular position; rather, the question is
whether the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the public office
involved." Branti,
445 U.S. at 518
.
2 "We can think of no clearer way for a deputy to demonstrate opposi-
tion to a candidate for sheriff, and thus actual or potential disloyalty once
the candidate takes office, than to actively campaign against the candi-
date's opponent." Jenkins v. Medford, 119 F.3d 1156, 1164-65 (4th Cir.
1997) (en banc); cf. Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir. 1993)
("The declaration of candidacy in these circumstances is a declaration of
war."); Upton, 930 F.2d at 1218 ("This contrasts sharply with the politi-
cally active deputy who, by vociferously campaigning for the loser,
encounters Matthew 26:52: `All they that take the sword shall perish with
the sword.' ")3 " `If a public official is permitted to fire a confidential or policymaking
employee merely because the latter quietly, inoffensively, undemonstra-
tively belongs to the wrong political party . . . the official should be per-
mitted to fire the same employee when the latter asks the electorate to the
throw the rascal out . . . .' " Fazio, 125 F.3d at 1332 (quoting, Wilbur, 3
F.3d at 218).
4 Contrary to the majority's assertion in its note 4, I do not suggest that
Fazio decided for the first time that a non-policymaking employee is pro-
tected from retaliation; rather, as the majority's reliance on the case
implicitly acknowledges, Fazio is the first case which would allow defen-
dants to determine whether a deputy with DiRuzza's job responsibilities
was a policymaking employee.
5 "It was by no means self-evident whether our First Amendment prece-
dents applied, for as Justice Powell explained in dissent, the patronage
practices at issue had been sanctioned by history and had been thought by
some to contribute to the effective operation of political parties. If indeed
those patronage practices fortify the party system, they may serve impor-
tant First Amendment interests, since parties promote and generate politi-
cal discourse." O'Hare,
518 U.S. at 717
-18 (citations omitted).
6 This case does not support the majority's conclusion as much as the
majority implies because the extent of the responsibilities of the deputy
sheriff in this case was limited to serving process, transporting prisoners
and providing court security. Burns, 971 F.2d at 1022. DiRuzza's respon-
sibilities and powers were far more extensive.
7 Contrary to the majority's assertion, its holding is not consistent with
Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir. 1988). The plaintiffs in
Dickeson were a non-deputized head jailer who job was "housing and
feeding prisoners" and a non-sworn administrative assistant whose job
was "essentially secretarial." Id. at 1437, 1443 & n.7. Thus the case is not
analogous to this one.
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