(CN) - The Maryland sheriff who fired a deputy for releasing documents showing he was forced to falsify a police report is not entitled to immunity, the 4th Circuit ruled, affirming a $1.1 million jury award.
James "Troy" Durham had worked as a deputy sheriff in the Somerset County Maryland, Sheriff's Office (SCSO) for twenty years when, in 2008, he used pepper spray and physical force to arrest a man fleeing from a state trooper.
Durham later prepared a report on the incident stating that he hit the suspect twice on the suspect's face in self defense, and "delivered two knee blows to the left side of the suspect's body" to overcome his resistance.
The next day, Durham's supervisor asked him if he needed to go to the hospital, suggesting that he must require medical attention as a result of the incident. Durham said he did not need to go to the hospital.
Four days later, his supervisor ordered Durham to charge the suspect with assaulting him and resisting arrest, but Durham declined to do so after speaking with other supervisory officers.
Less than 24 hours later, Durham was escorted into an interrogation room by two detectives who aggressively questioned him about his report.
The detectives refused to allow him to call his attorney, and told Durham that if he did not revise his original police report, he would be charged internally and criminally with assault on the suspect.
Durham suspected that his supervisors anticipated the suspect would file a complaint of excessive force, and "wanted to have everything lined up in case that even happened."
While he initially refused to falsify the report, he caved several hours into the interrogation when the detectives took his badge and gun.
Days later, Durham filed a grievance with his superiors, and was immediately demoted.
Discovering that his grievance would be reviewed by the very people it was filed against, Durham chose to "take proactive measures of a highly public nature," and send documents describing the interrogation, the original police report, and the "false" police report to five state agencies, including the county state's attorney, and three local media outlets.
He later testified that he sent these materials "to expose and to alert the public ... on what had taken place involving falsifying reports, deleting reports, placing false charges on an innocent person, violating county policy, violating my rights, me being assaulted."
The sheriff's office charged Durham with misconduct for disseminating departmental information, and ultimately fired him.
At a federal trial, a jury found Sheriff Robert Jones guilty of retaliating against Durham for exercising his First Amendment rights and awarded Durham $1.1 million in damages.
The award included $400,000 for loss of pay, and $700,000 for damage to reputation, and public humiliation.
On appeal, the 4th Circuit affirmed the lower court's pre-trial decision that the sheriff was not entitled to qualified immunity for his actions.
"Durham is claiming First Amendment protection for his publicizing of those materials in connection with his overarching allegations of serious and pervasive law enforcement misconduct in the SCSO. To be sure, it cannot be denied on this record that the misconduct alleged came to light mainly because, or perhaps only because, Durham himself became a victim of the misconduct," Judge Andre Davis said, writing for the three-judge panel. "Nevertheless, that circumstance does not undermine the conclusion that his allegations rose to the level of speech on a matter of public concern."
And while the sheriff paid "lip service" to the damage to office moral and function due to Durham's revelations, "he was unable to articulate any way in which the office would have been different or was actually different," beyond that officers had to spend time investigating the allegations, the 28-page judgment said.
"Serious, to say nothing of corrupt, law enforcement misconduct is a substantial concern that must be met with a similarly substantial disruption in the calibration of the controlling balancing test. Given Jones' inability to show at trial how Durham's actions had an adverse impact on the proper functioning of the SCSO in some serious manner, 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 concluded.
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