Carey v. Throwe

• Decision Date: 30 April 2020
• Docket Number: No. 19-1194,19-1194
• Parties: Norris Paul CAREY, Jr., Plaintiff – Appellant, v. Deputy Secretary Joanne THROWE; Captain Edward Johnson; Captain Charles Vernon; Robert K. Ziegler, Superintendent, Defendants – Appellees, and Maryland Natural Resources Police, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

957 F.3d 468

Norris Paul CAREY, Jr., Plaintiff – Appellant,

v. Deputy Secretary Joanne THROWE; Captain Edward Johnson; Captain Charles Vernon; Robert K. Ziegler, Superintendent, Defendants – Appellees,andMaryland Natural Resources Police, Defendant.

No. 19-1194

United States Court of Appeals, Fourth Circuit.

Submitted: March 17, 2020

Decided: April 30, 2020

Robin R. Cockey, Ashley A. Bosché, COCKEY, BRENNAN & MALONEY, P.C., Salisbury, Maryland, for Appellant. Andrew M. Winick, HOFMEISTER & BREZA, Hunt Valley, Maryland, for Appellee Captain Edward Johnson. Brian E. Frosh, Attorney General, Roger L. Wolfe, Jr., Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Annapolis, Maryland, for Appellees.

Before WILKINSON and KEENAN, Circuit Judges, and Rossie D. ALSTON, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Keenan and Judge Alston joined.

WILKINSON, Circuit Judge:

In December 2016 and January 2017, Norris Paul Carey, Jr., then an employee of Maryland’s Department of Natural Resources ("DNR"), submitted to a local website two anonymous blog posts about Edward Johnson, then Captain of the Internal Affairs Unit of the Maryland Natural Resources Police ("MNRP"). To say the least, the posts were not flattering. Among other things, they collected screenshots from Johnson’s private Facebook page that showed photos of Johnson posing with scantily-clad women and various comments that he had made about gun violence. In the months that followed, though, it was Carey whose life took a turn. He was fired from the DNR, his Law Enforcement Officer Safety Act ("LEOSA") card to carry a concealed firearm was rescinded, and he was disparaged on social media. As Carey tells it, these actions were all part of a concerted and unlawful effort by persons at the DNR and MNRP to retaliate against him for the blog posts. The district court disagreed, calling the whole business the product of a personal spat and dismissing Carey’s suit for failure to state a claim upon which relief may be granted. For the reasons that follow, we affirm.

I.

Carey served in the Maryland Natural Resources Police for twenty-six years.^* For most of his tenure, Carey worked in field enforcement, performing tasks like polygraph examinations, before retiring on December 31, 2013. Three months before retiring, Carey became involved in an internal MNRP investigation concerning a missing M16 patrol rifle. During this probe, Captain Johnson interviewed Carey on the suspicion that Carey had improperly talked to a key suspect in the investigation—the first chapter in what would become a heated conflict between the two. Carey denied this, and the MNRP eventually dropped the matter. According to Carey, he ultimately retired in good standing.

Carey joined the Maryland Department of Natural Resources in a civilian capacity in August 2015. As one might suspect from their names, the MNRP and DNR are related; the former is the law enforcement arm of the latter. Carey was hired by the DNR as an at-will employee for their Boat Tax Enforcement Unit. While his contract was set to end on August 8, 2017, Carey’s supervisor told him it would be renewed.

During his time with the DNR, Carey received a certification card that allowed him to carry a concealed firearm. Maryland issued this card to Carey pursuant to the Law Enforcement Officer Safety Act, a federal law that provides for retired law enforcement officers to carry concealed firearms under certain conditions. 18 U.S.C. § 926C. Two of these conditions are that the officer (i) retired in "good standing," and (ii) currently holds a certain form of state-issued identification (i.e. , in Maryland, the "LEOSA card").

But Carey’s tenure with the DNR ended abruptly. On May 25, 2017, Joanne Throwe, the DNR Deputy Secretary, and Mike Lathrom, a Corporal within the MNRP, pulled Carey aside and told him that his contract had been terminated. Carey asked for an explanation but was never given one. It seems, though, he was not fired for cause.

To Carey, the reason for his termination became apparent: the defendants were retaliating against him for two blog posts that he submitted anonymously to the Salisbury News Blog, a popular website among local first responders. In those posts, Carey went after Captain Johnson. Carey submitted the first one in December 2016 (the "December post"). There, he copied the MNRP’s Code of Conduct and Agency Values and placed it alongside a series of screenshots from Johnson’s Facebook. Those screenshots included photos of scantily-clad women (some with Johnson and some on their own) in provocative poses and the back of a man wearing a jacket associated with a motorcycle club.

Carey submitted his second post in January 2017 (the "January post"). There, Carey displayed not only some of the same provocative photos from Johnson’s Facebook, but also added a series of screenshots where Johnson boasted about his gun collection and seemed to make light of gun violence. For instance, one photo showed Johnson’s AR-15 with him commenting, "I don’t think the game warden can catch us ... LOL," J.A. 65, and another showed a picture of a skull with a bullet hole through its forehead, with Johnson remarking that it had a "45 caliber [headache]," id. at 61. The January post also featured certain commentary by Carey. For instance, he wrote that Johnson was "denigrating law enforcement and fanning the flames of an already hostile environment that needs healing" and queried, "what is going on with Maryland Natural Resources Police??" J.A. 61, 66.

Although each of these posts was made anonymously, it seems that word got out about their author. On January 21, 2017, an unknown person commented below the January post: "Since you seem to be protected on this site Paul Carey your deeds will be spread far and wide elsewhere including disparaging the very Department you’re still employed by—for now ...." J.A. 110. According to Carey, things took a turn for the worst once he was outed as the posts’ author. On top of getting fired, Carey alleges that certain DNR and MNRP employees retaliated against him for the posts over two other episodes.

First, on April 28, 2017, MNRP Captain Charles Vernon called Carey to tell him that he had not retired from the MNRP in good standing and needed to return his LEOSA card (which was no longer valid). Confused by this, Carey reached out to the Maryland Police and Correctional Training Commission to check his retirement status. According to Carey, an official there confirmed that he had, in fact, retired in good standing. Carey therefore refused to return his LEOSA card, but he did stop carrying his concealed firearm. For the next few weeks, MNRP officials repeatedly contacted Carey’s DNR supervisors to tell them Carey did not retire in good standing and was refusing to return his LEOSA card.

What is more, the tensions that erupted over Carey’s posts boiled over into other aspects of his life. By way of background, while Carey was working for the DNR, he was also running a private business where he would offer independent polygraph examinations. As part of this, Carey was hired by the organizers of the White Marlin Open ("WMO"), a local fishing tournament, to conduct polygraph exams of tournament winners to ensure there was no foul play. For reasons not relevant here, the WMO soon descended into litigation, and Carey was later called as a witness to discuss his post-tournament polygraph exam. On May 8, 2017, about two weeks before Carey was fired by the DNR, Captain Johnson emailed him to ask for the date and time of the White Marlin trial—an email Carey understood as "threatening" because Johnson had no reason to contact him about his work in this litigation "other than to try to intimidate him." J.A. 114. The next day, an anonymous post appeared on the Salisbury News Blog that read: "Consider the drama in court when they learn one of the polygraph examiners has a less than stellar background and lacks integrity." Id . at 115. Finally, and most significant, one day after the WMO trial ended, but about three weeks after Carey was fired, Johnson commented on the WMO’s Facebook page: "Too bad one of the polygraphers—Paul Carey, has the integrity of a lifer on death row." Id. at 116.

In January 2018, Carey filed this lawsuit against the MNRP, Deputy Secretary Throwe, Captain Johnson, and Captain Vernon. That May, Carey amended his complaint to add as a defendant Robert Ziegler, the MNRP Superintendent responsible for overseeing the LEOSA certification program, and to remove the MNRP as a defendant. Carey raised three claims. First, Carey brought a First Amendment retaliation claim under 42 U.S.C § 1983 against Throwe, Johnson, and Vernon, arguing that he was unlawfully terminated for exercising his free speech rights. Second, Carey brought a claim, also under § 1983, against Ziegler and Vernon, alleging that they had interfered with his right to carry a concealed firearm under LEOSA by improperly rescinding his LEOSA card. Third, Carey brought a defamation per se claim against Johnson for the disparaging comment that he put on the WMO’s Facebook page.

In the months that followed, the defendants filed motions to dismiss and/or for summary judgment and, in January 2019, the district court granted their motion to dismiss the entire lawsuit. Carey v. Throwe , No. GLR-18-162, 2019 WL 414873 (D. Md. Jan. 31, 2019). The court held that none of Carey’s three claims could get out of the starting gate due to at least one fundamental defect. The court dismissed the First Amendment retaliation claim on the ground that neither of the Salisbury News posts at issue involved a "matter of public concern," a prerequisite to bringing such a suit. Next, the court dismissed Carey’s LEOSA claim, brought under § 1983, because LEOSA is not privately enforceable under that statute. Lastly, the...