Six former deputy sheriffs in Missouri lost their First Amendment lawsuit before a federal appeals court in a case involving political retaliation.
The six Christian County plaintiffs had alleged that the newly elected sheriff fired or demoted them in retaliation for their support of his political opponent. But the 8th U.S. Circuit Court of Appeals found that the position of deputy sheriff requires political loyalty, and thus the sheriff’s actions were lawful.
In 2015, the Christian County Commission held a special election for sheriff after the previous sheriff resigned. Four candidates ran for the position, including Brad Cole and sheriff’s deputy Keith Mills. Many of the sheriff’s office employees supported Mills, as he was the only candidate employed by the office. Mills’ supporters included other sheriff’s deputies, including John Burns, Tyler Clark, Michael Denton, Joseph Gallant, Michael Wells, and Gary Klossing.
Burns and Clark had posted messages on social media and displayed yard signs in support of Mills. If asked, Denton told people he supported Mills. Gallant posted on social media and otherwise supported Mills. Wells donated money, handed out fliers, and engaged in other actions in support of Mills.
When Cole won the election, he fired Mills, Clark, Denton, Gallant, Wells and Klossing. He also demoted Burns, who resigned after the demotion. Six of these seven individuals — Burns, Clark, Denton, Gallant, Wells, and Mills — filed suit in federal district court against Cole, Christian County, and the Christin County Commission. They alleged that the defendants retaliated against them for their political actions because they supported Mills instead of Cole in the election. Klossing filed a separate lawsuit.
The defendants filed a motion for summary judgment, which a federal district court granted based on qualified immunity. This doctrine enables defendants to avoid liability unless they violated clearly established constitutional or statutory law. The district court reasoned that a previous 8th Circuit decision against Cole by two other sheriff’s deputies — Curtis v. Christian County (2020) — compelled a finding in Cole’s favor. In the Curtis decision, the 8th Circuit determined that the position of sheriff’s deputy is one that requires political loyalty.
On appeal, a three-judge panel of the 8th Circuit affirmed the district court in its Nov. 29, 2021, decision in Burns v. Cole. Like the district court, the 8th Circuit relied on its previous decision in Curtis, in which the circuit court had identified five reasons that the position of deputy sheriff requires political loyalty:
(1) Missouri sheriffs are elected.
(2) Missouri deputy sheriffs assist the sheriff in the performance of his duties.
(3) Missouri sheriffs are liable for their deputies’ actions.
(4) Missouri deputy sheriffs are at-will employees who serve at the pleasure of the sheriff.
(5) Missouri deputy sheriffs are sworn to engage in law enforcement activities on behalf of the sheriff.
Burns and the other plaintiffs argued that the Curtis case did not apply, because a footnote in that decision seemed to imply that there may be a difference if the employees are first responders. Burns, Mills, and other plaintiffs submitted extensive evidence that deputy sheriffs are first responders under Missouri law.
The 8th Circuit was not persuaded.
“This Court already examined Missouri law in Curtis when reviewing the role of a Missouri deputy sheriff and determining that political loyalty is a requirement for effective performance of that role,” the panel wrote. “We see no need to replicate that review one year later.”
The 8th Circuit concluded that the lower court had properly granted qualified immunity.
The Free Speech Center newsletter offers a digest of First Amendment and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).