North Carolina District Attorney Not Entitled to Qualified Immunity for Allegedly Firing Employee Based on His Public Statements Criticizing Program

The U.S. Court of Appeals for the Fourth Circuit has reversed the holding of a lower court granting a district attorney’s motion for summary judgment based on qualified immunity for allegedly firing an employee who exercised his federal and state constitutional freedom-of-speech rights.

Sean Smith, an assistant district attorney (“DA”) in North Carolina, gave a public speech criticizing a defensive driving course. After a subsequent private meeting between Smith, DA Peter Gilchrist and Deputy DA Bart Menser, Gilchrist fired Smith, allegedly for refusing to reveal his disagreements with policies of the DA’s office. Smith filed suit in the U.S. District Court for the Western District of North Carolina, claiming that Gilchrist had fired him because of his public statements, thereby violating his constitutional rights. Gilchrist sought summary judgment, and public-official and qualified immunity, arguing that Smith had not produced sufficient evidence to support his claim and even if he had, Gilchrist was immune. The district court granted qualified and public-official immunity and Smith appealed. On May 14, 2014, citing that Smith’s rights were clearly established, the appellate court reversed the judgment and remanded the action for trial.

Smith, employed with Mecklenburg County DA’s Office from 2004 to July 2010, declared his intent in February 2010 to run for Mecklenburg County district court judge. On his own and unrelated to his responsibilities at the DA’s office, he attended a defensive driving course. The course was held by an independent state entity for ticketed drivers, which reduced cases handled by the DA’s office. Smith gave a television interview on July 9, 2010, reciting his concerns about the course. Gilchrist was subsequently contacted by the interviewer for a response to these concerns and on July 14, after Smith admitted to giving this interview, Gilchrist asked Smith to come to his office.

In a private conversation with Gilchrist and Menser, Smith told them that he had given the interview as part of his campaign for district judge and had expressed in the interview that (1) some drivers were harming themselves by taking the course, (2) law enforcement was offering legal advice influencing a driver’s decision whether to take the course, and (3) the drivers were not paying attention. Smith additionally stated in private that he “didn’t think the driving school was a good idea” and that he had problems with the DA’s office’s involvement “in recommending that people go to the driving school.”

In response to Menser asking if Smith disagreed with any policies of the DA’s office, Smith said that he did but declined to identify what they were. The next day, Gilchrist fired Smith without specifying a reason. Smith then filed suit against Gilchrist, seeking money damages and alleging that Gilchrist had fired him because of his public statements, violating his federal and state constitutional rights to free speech. Gilchrist refuted this allegation, claiming that he had fired Smith because of his refusal to reveal the policies of the DA’s office with which he disagreed.

Asserting public-official and qualified immunity, Gilchrist initially testified that Smith’s public criticism “had [nothing] to do with…[d]istrict [a]ttorney policy.” Gilchrist subsequently filed a motion for summary judgment, claiming that Smith had failed to produce evidence that Gilchrist’s motivation for firing Smith had been his interview. Next, through the direction of the district court, Gilchrist once again sought qualified immunity. He admitted that Smith “was speaking as a citizen on a matter of public concern” and Smith’s “interest in speaking outweighed the government’s interest in providing effective and efficient services to the public.” However, as this balance was “subtle, difficult to apply, and not yet well-defined” and as Smith’s “interview [had] criticized the policies of the office for which he worked,” Gilchrist argued that even if Smith had a claim, a reasonable similarly-situated DA might have thought that firing Smith was constitutional.

The district court granted summary judgment based on immunity, partly relying on Smith’s private statements about the driving school and the DA’s involvement with it. Smith appealed the judgment against both his federal and state constitutional claims.

The issue before the appellate court was whether Smith’s right to speak of public concerns outweighed the government’s interest in serving the public and whether that right was clearly established. This balancing of interests, according to the appellate court, requires the court “to consider the context in which the speech was made, including the employee’s role and the extent to which the speech impairs the efficiency of the workplace.” Gilchrist argued on appeal that this balancing test was subtle and that the “interview criticized a program which directly impacted the [DA’s} office” and because of these two factors, he was entitled to qualified immunity if he had fired Smith for his public statements.

The appellate court disagreed, holding specifically that “it is the [clearly established] right of an [assistant DA] 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 a program that substantially reduces the DA’s office’s efficiency” and “[a]ny reasonable official in Gilchrist’s position would have been aware of that right.”

Gilchrist offered no evidence of Smith’s statements negatively impacting the operation of the DA’s office. The court also stated that Gilchrist’s disagreements with Smith’s opinion of the driving course “is clearly not the sort of consideration that could be weighed against Smith’s interest in speaking as a citizen on matters of public concern.” The appellate court further determined that the district court’s reliance on Smith’s private statements made about the driving school in granting qualified immunity was “irrelevant to the issue of whether Gilchrist could fire Smith for [public] statements.”

Gilchrist, however, continued to assert that he had not fired Smith for his public statements. The appellate court found that it was an issue to be resolved at trial and therefore reversed the district court’s judgment that Gilchrist was entitled to a public-official and qualified immunity. See: Smith v. Gilchrist, 749 F.3d 302 (4th Cir. N.C. 2014).

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