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Fired Prosecutor May Have Free-Speech Case

(CN) - A North Carolina prosecutor must face claims that he fired an assistant district attorney for exercising his free-speech rights by running for judicial office, the 4th Circuit ruled.

Sean Smith had worked as an assistant district attorney for the District Attorney's Office in Mecklenburg County, N.C., from 2004 through July 2010.

In February 2010, Smith met with DA Peter Gilchrist to tell his boss he intended to run for an open seat on the Mecklenburg County District Court.

Gilchrist allegedly expressed some reservations about Smith's intentions, telling the ADA that he'd either have to resign from him job or take an unpaid leave of absence until the November election.

Smith responded by pointing to a provision of North Carolina law that he said showed he could run without having to leave his position. After Gilchrist reconsidered his earlier position on the matter, Smith formalized his candidacy.

A few months later, Smith allegedly attended - on his own time and at his own expense - a four-hour defensive-driving course in Charlotte offered by the Safety and Health Council of North Carolina.

Ticketed drivers who complete the course are not assessed a fine, and the course is considered to have substantially reduced the number of cases that the DA's office and the courts must handle, freeing up resources that could be used for other matters.

Nevertheless, Smith gave an on-camera interview to the Charlotte FOX television affiliate on July 9, 2010, detailing his concerns about the program. A few days later, the reporter from the television station called Gilchrist to ask if he had any comment on what Smith had said.

Gilchrist allegedly had not seen the report and immediately called Smith into his office. Smith said he and the DA then discussed Smith's concerns about the defensive-driving program, with the candidate insisting that his televised statements were in no way intended as a criticism of the DA's office.

The conversation ended with Gilchrist asking Smith if there were any policies of the DA's office with which he disagreed. Smith said he acknowledged that there were but declined to elaborate. He was fired the next day and promptly filed suit in Charlotte. The federal complaint alleged that it was the statements he made during his television interview that motivated Gilchrist's decision to let him go, and that the firing violated his free-speech rights under the United States and North Carolina constitutions.

Gilchrist denied firing Smith for making the statements during the interview, saying he considered the ADA's refusal to answer the question about DA office policies insubordinate.

The DA also asserted public-official and qualified immunity, and U.S. District Judge Robert Conrad granted Gilchrist summary judgment.

Conrad reasoned that any reasonable official in Gilchrist's position could have believed 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.

By the same reasoning, Conrad concluded Gilchrist was also entitled to public-official immunity on the state-law claim.

The Richmond, Va.-based federal appeals court reversed Wednesday.

There was no evidence that Smith sought to place any blame on Gilchrist during his interview with the Fox reporter, "nor was there any evidence that Gilchrist had any reason to believe that Smith's interview would negatively affect the efficiency or effectiveness of the DA's office," the 24-page opinion states.

Gilchrist's attempt to connect what Smith said to the DA's office "is such a stretch as to be entitled to no weight at all," Chief Judge William Traxler Jr. wrote for the court.

"It is true, of course, that Gilchrist believed that two of the concerns Smith raised in the interview were invalid," Traxler continued. "Nevertheless, it has been long established that such differences of opinion cannot justify terminating the speaker."

As with 1968 Supreme Court case Pickering v. Board of Education, "the simple fact that Gilchrist may have disagreed with Smith's vision of how SHC should be running its defensive driving course or whether police officers should be giving legal advice to ticketed drivers 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," Traxler said.

Gilchrist also failed to show that a reasonable DA might have believed he was justified in firing Smith for publicly making the statements in question.

"For purposes of determining whether Smith's right to speak without recrimination was clearly established, we conclude that the right at issue, described at the appropriate level of specificity, is as follows: 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 a 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," Traxler wrote.

"Any reasonable official in Gilchrist's position would have been aware of that right on the day of Smith's termination," Traxler concluded. "The notion that programs that reduce a government agency's workload are somehow off limits from criticism by government employees even when there is no reason to expect that the criticism will actually hamper the government office's efficiency finds no basis whatsoever in the law."

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