The appeals court focused on the parameters for subordinate officers to report wrongdoing, and how reporting isn’t always protected speech.
RICHMOND, Va. (CN) — After Josh Grose died in the South Carolina jail where he was being held on a 2013 murder charge, a spokesman for the York County Sheriff’s Department quickly assured the public that it had been a suicide.
But Michael Billioni, an employee at the detention center, saw a video that painted a different picture.
“The video showed Detention Officer James Moore punch a naked and restrained detainee twelve times while other officers in the room did nothing to stop him,” Billioni said in a brief to the Fourth Circuit last year.
Billioni appeared before the Richmond, Virginia-based federal appeals court this morning as he fights what happened next.
Media soon began reporting about the video, and Billioni admitted to his superiors that he had described the footage he saw to his wife, a local journalist. Billioni was promptly terminated for ethics and rules violations.
Later a federal judge ruled against Billioni at summary judgment, finding that qualified immunity shielded Sheriff Bruce Bryant from claims that he trampled protected speech related to serious misconduct.
“If District Court’s opinion is allowed to stand no whistleblower will ever be allowed to speak out again about the most abusive conduct: the excessive force of police and the attempt to cover it up,” Beattie Butler, a Charleston-based attorney for Billioni, argued in court Wednesday. “But thanks to the First Amendment that cannot stand.”
U.S. Circuit Judge Harvie Wilkinson, one of three on the panel this morning, pushed back, though, about the limits of protections for employees of the sheriff’s department. Stressing the timeline for the incident, and how sheriff’s departments have the authority to conduct their own investigations, Wilkinson said employees’ speech becomes less protected as they go outside those channels.
“I don’t think we’re talking about covering things up and shutting down whistleblowers, it’s just a question of timing and allowing an internal investigation to wrap up,” the Reagan-appointed judge said. “I know there’s suspicion of internal investigations but, after the investigation is complete, the plaintiff could have gone and offered his view.”
To this, however, Butler emphasized the statements made by the sheriff’s spokesman, who declared their employees had done nothing wrong.
“He lied when he said the sheriffs acted appropriately,” Butler said. “Plaintiff was justified when he saw the video contrasted to the press conference. He has no choice but to think the investigation is completed, and he must speak out.”
Representing the former sheriff — Bryant has since retired — attorney Christopher Johnson with the Columbia firm Gignilliat, Savitz & Bettis, reminded the court that the statement by the spokesman came on the same day Grose had died.
“The preliminary report said the officers did nothing wrong; he was reporting the status at that point,” Johnson said. “The sheriff’s office had no time to come to their own conclusion and instead had to chase down wild geese with this inaccurate information getting to the reporter.”
In an email following the hearing, Butler said their case shows what happens when a government agency “holds a monopoly on the use of deadly force, out of plain sight, and seeks to control the flow of information from behind the walls.”
“The sheriff wants to misinform the public about the internal workings of his office, and punish those who try to hold him to the truth,” Butler said.
In the eight years since the incident, despite multiple requests for access under the Freedom of Information Act, the sheriff still has not released the footage of Grose’s death to the public.
“He shouldn’t be able to have it both ways,” Butler said. “Release the video already.”
Wednesday’s hearing was not the first time the case reached the Fourth Circuit. Back in 2019, a panel remanded the case with instructions for the District Court to reexamine the balancing test used in determining the level of protection Billioni’s speech deserved.
Butler told the panel Wednesday to apply the Pickering Connick test from U.S. Supreme Court precedent, which would require a certain level of disturbance to the agency to fall below a protected threshold.
“Mr. Billioni did not attack the department,” the lawyer stressed. “He told his wife about a video about an inmate’s death. He said there’s a video she might want to check out.”
Johnson disagreed that this disclosure was not disruptive.
“You can’t try and parse the speech into different little buckets with some protected and some not,” the lawyer for the sheriff’s office said. “When you balance the interest in the sheriff’s office in maintaining order and giving accurate information to the public, then it’s clear the sheriff’s interests outweighs the plaintiff’s.”
Johnson did not return a request for comment after the hearing, which ended with no sign of when the panel intends to rule.
Wilkinson presided today with U.S. Circuit Judges Steven Agee, a George W. Bush appointee, and Henry Floyd, a Barack Obama appointee. Both Agee and Floyd were on the panel from 2019, along with U.S. District John Gibney Jr., who sat by designation from Virginia’s Eastern District.