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Somerset sheriff owes deputy $1.1M, 4th Circuit affirms

The 4th U.S. Circuit Court of Appeals has upheld a $1.1 million jury verdict for a Somerset County sheriff’s deputy against his boss.

James “Troy” Durham filed retaliation claims against Sheriff Robert N. Jones after he was fired in 2009 for complaining about being ordered to tamper with a police report. Durham was reinstated three years later as a result of a separate state-court action.

Durham obtained the $1.1 million verdict in May 2012, after trial in U.S. District Court in Baltimore.

Jones appealed, claiming the case should have been dismissed before trial because he had qualified immunity.

The 4th Circuit disagreed on Tuesday, saying there is no immunity against violating a clearly established constitutional right and “it was clearly established … that an employee’s speech about serious governmental misconduct, and certainly not least of all serious misconduct in a law enforcement agency,” is protected under the First Amendment.

“It’s a strongly-worded published opinion by the 4th Circuit affirming the principle that law enforcement whistleblowers can be protected in the course of their employment for blowing the whistle,” said Durham’s attorney, a solo practitioner at Howard B. Hoffman, Attorney at Law in Rockville.

It is unclear at this point whether the Office of the Maryland Attorney General will seek review of the panel’s decision, either by the full court or the U.S. Supreme Court. The office declined to comment on the case.

“It’s been a tough fight along the way, but we hold out some hope that the sheriff will work toward a resolution of this case instead of trying to appeal it further and further,” Hoffman said.

In addition to raising qualified immunity, Jones argued on appeal that he had not violated Durham’s constitutional rights. He claimed Durham’s speech was not a matter of public concern because he was only airing his discontent with the sheriff’s office. The 4th Circuit held that it was a matter of public concern because Durham was publicizing materials which he believed were connected to law enforcement misconduct.

Jones also argued that the government’s interest in maintaining an efficient law enforcement agency outweighed Durham’s right to free speech. He had testified that Durham’s actions damaged office morale, relationships between colleagues and the general functioning of the office.

However, Jones failed to present evidence of any actual disruption in the office, “other than vague references to Durham’s actions ‘undermining public trust,’” Judge André M. Davis wrote for the appellate panel.

“The balance between Durham’s rights as a private citizen under the First Amendment and Jones’ interest in ensuring an efficient and effective work environment tilts heavily in favor of Durham and his entitlement to enjoy protected speech,” Davis wrote.

Jones also argued Durham’s rights were not clearly established because there is not enough guidance on a public employee’s right to free speech. The 4th Circuit, however, held that a public employee’s speech about “serious governmental misconduct” is protected.

“The mere fact that Jones may have had an independent basis to impose some lesser disciplinary sanction on Durham short of outright termination, such as a short suspension from duty, does not muddle the clarity of that legal principle,” Davis wrote.

The history

The case stems from an incident in August 2008, when Durham reportedly kneed a motorcyclist in the ribs, sprayed him with pepper spray and slapped him during an arrest after a high-speed chase.

Durham did not charge the motorcyclist with resisting arrest or assault, and a detective sergeant told him to add those charges to the report and erase any mention of the use of force. Durham claims his supervisors were concerned a complaint or lawsuit alleging excessive force would be filed against the department.

Durham, however, refused. His supervisors then told him he would be suspended or face assault charges. Several supervisors brought him into an interrogation room a week later, again asking him to remove details about the use of force from the report.

The supervisors then took Durham’s gun, identification and badge. After that, Durham agreed to revise the reports.

However, he filed an internal grievance with his superiors. Jones demoted him the same day and, the following month, Durham was suspended with pay pending an investigation of his complaint.

When Durham discovered the investigating officers were the same ones he had accused, he sent sheriff’s office documents, including a copy of his original report and the follow-up report he had altered, to several media outlets, the governor, the Somerset County State’s Attorney, the Maryland Police Training Commission and the Maryland State Police.

As the disclosures continued, Jones placed Durham under a gag order. The materials, however, did not contain any confidential police information.

In July, an administrative trial board voted to suspend Durham for disseminating police department material. The trial board recommended a 10-day suspension. Instead, Jones fired him.

Separate actions

In the related state-court action, the Court of Special Appeals ordered Durham’s reinstatement in August 2012. The department reinstated him that October.

In May, however, Durham filed a separate $5 million federal lawsuit against the Maryland Police Training Commission for not restoring his full police powers. In that action, Durham claims the commission withheld his law enforcement certification and that, without certification, he is an officer “in name only” and has no police powers. Officers cannot be employed for more than a year without the certification under state law.

This August, the commission voted to reinstate his certification, but Hoffman said Durham still has not received it.

However, the lawyer said he hoped Tuesday’s 4th Circuit decision would be the start of Durham’s litigation winding down.

“This is not per se the end, but it hopefully will be yet another reminder to some of the different factions that are involved in this thicket that there needs to be responsible, prompt resolution of this matter as it’s only requiring more attention from the courts and respective government agencies,” Hoffman said.

WHAT THE COURT HELD

Case:

James Durham v. Sheriff Robert N. Jones, No. 12-2303, Argued Oct. 30, 2013. Decided Dec. 10, 2013. Opinion by Davis, J.

Issue:

Did the trial judge err in failing to grant qualified immunity to a sheriff accused of firing an employee in retaliation for publicly complaining about being ordered to tamper with a police report?

Holding:

No, affirmed. It was clearly established, at the time of the incident, that the First Amendment protects a public employee’s speech about serious governmental misconduct; there is no immunity against violating a clearly established constitutional right.

Counsel:

Howard B. Hoffman, Attorney at Law in Rockville, for appellant; Julia Doyle Bernhardt, Office of the Attorney General, for appellee.

RecordFax #13-1210-60 (28 pages).