Durham v. Jones

• Decision Date: 10 December 2013
• Docket Number: No. 12–2303.,12–2303.
• Citation: 737 F.3d 291
• Parties: James DURHAM, Plaintiff–Appellee, v. Sheriff Robert N. JONES, Defendant–Appellant, and Somerset County, Defendant, and Somerset County, Maryland; Hebron Savings Bank, Garnishees. The National Fraternal Order of Police, Amicus Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

737 F.3d 291

James DURHAM, Plaintiff–Appellee,

v.Sheriff Robert N. JONES, Defendant–Appellant,andSomerset County, Defendant,

and

Somerset County, Maryland; Hebron Savings Bank, Garnishees.

The National Fraternal Order of Police, Amicus Supporting Appellee.

No. 12–2303.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 30, 2013.

Decided: Dec. 10, 2013.

ARGUED:Julia Doyle Bernhardt, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellant. Howard Benjamin Hoffman, Rockville, Maryland, for Appellee. ON BRIEF:Douglas F. Gansler, Attorney General of Maryland, John B. Howard, Jr., Deputy Attorney General, Office of the Attorney General of Maryland, Baltimore, Maryland, for Appellant. Steven H. Goldblatt, Director, Nilam A. Sanghvi, Supervising Attorney, Rita K. Lomio, Supervising Attorney, Jeffrey P. DeSousa, Student Counsel, Robyn R. English, Student Counsel, Lindsey Oken, Student Counsel, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Appellee. Larry H. James, Christina L. Corl, Crabbe, Brown & James, LLP, Columbus, Ohio, for Amicus Curiae.

Before MOTZ, GREGORY, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge DAVIS wrote the opinion in which Judge MOTZ and Judge GREGORY joined.

DAVIS, Circuit Judge:

This appeal arises from a $1.1 million jury award in favor of a terminated employee on a claim of retaliation for the exercise of his First Amendment rights.

A veteran deputy sheriff used pepper spray and physical force to subdue a motorcyclist fleeing from a fellow law enforcement officer. The deputy duly prepared his report of the incident and submitted the report to his superiors, who in turn passed it along to their superiors. Alarmed that a damages lawsuit against the Office of the Sheriff might result from the deputy's actions, officers in the upper echelon of the chain of command authorized detectives to interrogate him aggressively, while ordering him to revise his incident report. The deputy opposed this order as factually and legally unwarranted. After the deputy broadly publicized to numerous public officials, the media, and others, what he described as corrupt and unlawful practices occurring in the Office of the Sheriff, the Sheriff terminated his employment.

The sole issue presented in this appeal is whether the district court erred in failing to grant qualified immunity to the Sheriff. For the reasons stated within, we hold that the district court did not err and accordingly, we affirm the judgment.

I.

To a significant extent, the cardinal facts underlying this appeal are undisputed but, as always in an appeal from a district court's denial of a motion for judgment, we summarize the evidence in the light most favorable to the prevailing party in the district court. Sloas v. CSX Transpo., Inc., 616 F.3d 380, 392 (4th Cir.2010).

Appellee James “Troy” Durham, who had worked in public safety and law enforcement for nearly twenty years, was employed as one of about twenty deputy sheriffs in the Somerset County, Maryland, Sheriff's Office (SCSO). On August 21, 2008, while on routine patrol, Durham used pepper spray and physical force to detain a suspect in the course of assisting a Maryland state trooper arresting a man fleeing from the trooper on a motorcycle. Shortly after the incident, as Durham was preparing his report,¹ Captain Bill Lewis of the SCSO came into Durham's office to confirm that he was preparing a report. Captain Lewis “slammed his fist down on [Durham's] desk, and in a very loud, rude manner, he said, ‘Good, because Mr. Pitts, the suspect, has been transported to the hospital, claiming that he is injured.’ ” J.A. 104.

Durham's report included the following statements explaining his use of force on the suspect:

Based on DFC ² Durham's training, knowledge, and experience, in self-defense, DFC Durham delivered two forearm blows to the ridge area under the suspect's nose, in an effort to gain control of the suspect and to overcome the resistance that the suspect was putting up.

* * *

DFC Durham then delivered two knee blows to the left side of the suspect's body in an effort to gain control of the suspect and to overcome the resistance that the suspect was putting up.J.A. 453. Durham provided copies of his report to his immediate supervisors. Despite Durham's use of the terms “self-defense” and “resistance” in describing the need for force against the suspect, Durham has unfailingly insisted throughout these proceedings that he regarded his role in the encounter as merely one of assisting the pursuing state trooper in detaining the fleeing suspect. The suspect did not assault Durham and, from Durham's perspective, he had no basis whatsoever to charge the suspect with a criminal offense.³

The next day, August 22, 2008, although Durham's immediate supervisors had approved his reports, Captain Lewis asked Durham to complete another Use of Force report using a different form. Captain Lewis also asked Durham if he needed to go to the hospital, suggesting obliquely that Durham surely must require medical attention as a result of the incident the day before. Durham stated that he was not hurt or in need of medical attention. Durham added a follow-up report to his initial report explaining this exchange with Captain Lewis.

Four days later, on August 26, 2008, Durham's supervisors explicitly ordered him to charge the suspect with assaulting Durham and resisting arrest. The supervisors further told Durham that if he failed to do so, Durham himself would be charged with assaulting the suspect. Durham then spoke with other supervisory officers, and based on those consultations, he decided he would not place charges against the suspect. Durham also detailed these exchanges in a second follow-up report.

On August 27, 2008, Durham received a memorandum from Captain Lewis, advising him that Detective Sergeants Renny Miles and George Nelson, two specially-trained criminal investigators with the SCSO, would supervise Durham in correcting the “deficiencies” in his report. At this time, Durham contacted his attorney through his collective bargaining organization, the Fraternal Order of Police, giving him copies of his original report and the memorandum. Again, Durham detailed the exchange with Captain Lewis in a third follow-up report.

Upon reporting for duty on August 29, 2008, Durham was escorted into an interrogation room by Detectives Miles and Nelson, where they aggressively questioned him about his use of force report.⁴ Durham asked to have his attorney present. Miles refused to permit Durham to contact his attorney, had Durham read and sign a document containing the Miranda⁵ warnings, and continued to question him with increasing aggressiveness. Durham then told Miles and Nelson that he had already retained an attorney and given his attorney a copy of Durham's original police report and the follow-up reports. Miles insisted that Durham must revise his original police report and delete the follow-up reports; if Durham did not, he would be charged both internally and criminally with assault on the suspect. Specifically, Miles instructed Durham to remove the facts concerning his use of force against the suspect.⁶ Miles also instructed Durham to delete the follow-up reports as they each reported how superior officers had asked him to change his reports.

Durham did not believe that he should revise any of his previous reports; as he later testified, it was his understanding that when any law enforcement officer signs a report “you're swearing under oath and swearing to God that that's the truth, that's the facts of the case.” J.A. 108. As the interrogation continued, Miles threatened to take Durham's gun and badge if he did not change his report.

Durham theorized that the reason the superior officers wanted him to revise his report, and charge the suspect with assault and battery and resisting arrest, was to “cover the Sheriff's office.” J.A. 109. Durham suspected that the supervisors anticipated the suspect would file a complaint of excessive force (and perhaps a lawsuit), and “wanted to have everything lined up in case that event happened[.]” Id.⁷

Durham persisted in his refusal to revise the report, and eventually Miles demanded Durham's gun, ID, and badge, which he deposited in an evidence bag. After this, Durham decided to revise the reports because he did not want to “lose everything.” J.A. 112. Using a computer terminal in the interrogation room, Durham made the revisions and deletions Miles demanded that he make. After first refusing to return Durham's service weapon, ID, and badge, Miles eventually returned the items to Durham. As Durham left the interrogation room (after more than two hours) Miles “patted [Durham] on the back, and ... said [Durham] was a good boy, a good guy, and that none of this happened.” J.A. 114. SCSO supervisors gave Durham the afternoon off with pay and he went home, emotionally and psychologically shaken by the experience.⁸

Within days after his interrogation, Durham filed an internal grievance with his superiors, requesting an outside investigation into the matter. On the same day that Durham filed his grievance, Appellant, Sheriff Robert N. Jones, demoted him from DFC to Deputy. On September 10, 2008, Durham was suspended with pay pending further investigation. The parties spar over the precise circumstances and sequence of events surrounding the means Durham originally chose to pursue his grievance. Apparently, Durham first invoked Somerset County human relations remedies, but soon County officials seemingly deferred to proceedings within the purview of the Sheriff's Office.

In any event, after receiving a letter from the County Administrator informing him that the grievance would be investigated by the very officials in the SCSO against whom the grievance had been made in the first place, Durham decided to take proactive measures of a highly public nature. Specifically, h...