ST. LOUIS (CN) – A Nebraska sheriff accused of retaliating against a deputy running for his office pushed the en banc Eighth Circuit on Tuesday to grant him immunity.
Washington County Sheriff Michael Robinson fired his deputy, Donald Morgan, six days after Morgan lost the May 2014 primary to Robinson.
Though Robinson claimed that the move was justified based on Morgan’s campaign statements about purported deficiencies in the department, Morgan claimed in an ensuing federal lawsuit, that his First Amendment right to free speech was trampled.
An arbitrator later ordered Morgan be reinstated to his job, and meantime both a federal judge and the Eight Circuit Court of Appeals refused Robinson’s bid for immunity against Morgan’s civil claims.
Fighting that ruling now before the full Eighth Circuit on Tuesday, Angle & Murphy attorney Charles Campbell argued for Robinson that Morgan’s statements had to be reviewed in context of the particulars of the case.
“You look at the statements that he (Morgan) made that were damaging to the department that were relied upon by Sheriff Robinson in his termination,” Campbell said during the hearing. “That is that the morale of the office was bad, that the entire department was doing bad, that employees are leaving because they don’t feel respected, that several deputies are looking for work elsewhere.”
The en banc panel asked Campbell what an employer must establish under the First Amendment with regard to the firing an employee, and how likely a disruption could be caused by exercising certain speech.
“It’s not something you can qualify,” Campbell told the court. “It’s subjective. These are statements by people in the office saying, ‘This is what we see going on. This is what we believe is happening. If he continues to work here he’s going to undermine morale. He’s damaged the reputation of the office and our leadership.’”
Campbell also said the involvement of a law enforcement agency here changes the analysis.
“Law enforcement agencies are different from say from a university fine arts department,” he said. “They’re a paramilitary type of organization. … They’re entitled to maintain loyalty and have a strong structure.”
Morgan’s attorney with the firm White & Jorgensen argued meanwhile that the courts must send a clear message protecting the First Amendment.
“The lynchpin of Sheriff Robinson’s argument is that he was doing that in good faith to prevent discord in his department,” attorney Thomas White told the court. “One of the big problems is [Robinson’s] speech and statements were made after Deputy Morgan declared his candidacy in July 2013, and [Morgan] is fired six days after the primary in May 2014. During that time Sheriff Robinson admits in his deposition that at all times Deputy Morgan’s service was satisfactory. He admits in no event did Deputy Morgan in any way disrupt or otherwise not perform his duties.”
Himself a former member of the Nebraska Legislature, White emphasized that it is incumbent on those who run for office to develop thick skin.
“This is not protecting about my hurt feelings as an elected politician,” White told the court. “It’s about protecting the people of Nebraska so that their government is effective. If you look at the totality of what Deputy Morgan said, I cannot imagine a more politely responsible campaign. How can you possibly say I’m running for sheriff to make things better and by the way the department’s doing great? It’s impossible.”
White also highlighted that his client’s reinstatement followed a determination by the arbitrators that he was credible
In an interview after the hearing, White said they are navigating a difficult area of law, but one that is critical to the public sphere.
“It’s about as civil as discourse as can be,” White said. “Where were these comments made? They were made at Lions meetings, and a forum for the candidates at the high school, in a newspaper interview, on a radio interview. Classic political speech and not really vicious things said about anybody. The meanest thing said was morale was low, and if that means you’re not entitled to First Amendment protection, I really fear that.”