District Attorney Behaving Badly

May 22nd, 2014
Elizabeth Franklin-Best

This past week the 4th Circuit Court of Appeals reversed a Charlotte, NC federal judge who granted summary judgment to a District Attorney who fired a subordinate (then running for judge) based on statements he made about, of all things, a defensive- driving course.  Smith v. Gilchrist, No. 12-2503 (4th Cir. 2014). Smith, the assistant district attorney, told his boss (“Boss”) he was running for judge.  At first Boss told him he would have to quit, or take an unpaid leave of absence until the election.  Smith showed Boss a statute that said he could stay.  Boss agreed.  Fast forward a few months, and Smith took a defensive driving course and then remarked on that course (criticizing it) as part of his judicial campaign.  Boss got a bit upset and asked for a meeting.  At that meeting, Smith told Boss and Third Person that he “had issues with the driving school and with the fact that the District Attorney’s Office was involved in recommending that people go to the driving school.”  The next day, Smith was fired. 

Smith sued. Boss denied that the firing was related to the comments, and then claimed public-official and qualified immunity as defenses to the suit.  The federal district court judge concluded that Boss was entitled to qualified immunity because a reasonable official in Boss’s position could have believed that the interest of the DA’s office as employer in suppressing Smith’s speech outweighed Smith’s interest in speaking as a citizen on a matter of public concern. 

The Fourth Circuit disagreed.  The Court found that any reasonable official in Boss’s position would have realized that it is the right of an ADA running for public office not to be fired for speaking publicly in his capacity as a candidate on matters of public concern when the speech is critical of the program that substantially reduces the DA’s office’s caseload but there is no reason to believe the speech will negatively impact the DA’s office’s efficiency.  In all, a good case for employees seeking to exercise their rights to free speech especially as it relates to speech regarding the public interest.  The Court cited one of its earlier cases, McVey v. Stacy, 157 F/3d 271. 277 (4th Cir. 1998) to reiterate what constitutional scholars all know:  “Protection of the public interest in having debate on matters of public importance is at the heart of the First Amendment.” 

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