Cromer v. Brown (No. 94-1403)

United States Court of Appeals
for the Fourth Circuit
Case: Cromer v. Brown
(7/15/1996, No. 94-1403)


PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 94-1403

PATRICK H. CROMER,

Plaintiff- Appellant,

v.

JOHNNY MACK BROWN, individually

and in his official capacity as

Greenville County Sheriff;

GREENVILLE COUNTY SHERIFF’S

OFFICE,

Defendants- Appellees.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, District Judge.

(CA- 92- 3555- 6- 20- AK)

Argued: December 7, 1994

Decided: July 15, 1996

Before RUSSELL and MICHAEL, Circuit Judges, and MESSITTE,

United States District Judge for the District of Maryland, sitting by

designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Michael wrote the opinion, in which Judge Russell and

Judge Messitte joined.

_________________________________________________________________

COUNSEL

ARGUED: Stephen John Henry, TAYLOR & HENRY, Greenville,

South Carolina, for Appellant. Anna Maria Conner, HAYNS-

WORTH, BALDWIN, JOHNSON & GREAVES, P.A., Greenville,

South Carolina, for Appellees. ON BRIEF: Thomas A. Bright,

HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P..A.,

Greenville, South Carolina, for Appellees. James R. Neely, Jr., Dep-

uty General Counsel, Gwendolyn Young Reams, Associate General

Counsel, Lorraine C. Davis, Assistant General Counsel, Robert J.

Gregory, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-

SION, Washington, D.C., for Amicus Curiae.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Patrick Cromer, an African American who sued his former

employer (Johnny Mack Brown, the Sheriff of Greenville County,

South Carolina) for racial discrimination and First Amendment viola-

tions, appeals from the grant of summary judgment to the sheriff on

some claims and the dismissal of others. We affirm in part, reverse

in part, and remand for further proceedings.

First, Cromer claims that because of his race Sheriff Brown

demoted him from captain to lieutenant, and then fired him from his

job as lieutenant, in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. &#167 2000 et seq. The district court held that Cromer

was not protected under Title VII because (as both captain and lieu-

tenant) he fit within the statute’s exclusion for the “personal staff” of

an elected official. We affirm the district court on the captaincy exclu-

sion, but we reverse on the lieutenancy. We hold that Cromer was not

on Sheriff Brown’s personal staff when he was a lieutenant, so the

Title VII claim is remanded insofar as it charges that Cromer was

fired from his job as lieutenant because of race.

Second, Cromer claims that he was demoted and discharged

because of his race in violation of the Civil Rights Act of 1991, 42

2

U.S.C. &#167 1981. Sheriff Brown took these actions before the effective

date of the amendments to &#167 1981, and the district court dismissed the

&#167 1981 claims on the ground that the Civil Rights Act of 1991 is not

applied retroactively. We summarily affirm the dismissal of these

claims. See Rivers v. Roadway Express, Inc., 114 S. Ct. 1510, 1513

(1994) (the Civil Rights Act of 1991 does not apply retroactively to

cover conduct completed prior to the law’s enactment).

Third, invoking 42 U.S.C. &#167 1983, Cromer claims that Sheriff

Brown fired him from his job as lieutenant in violation of his First

Amendment rights of free speech and association because Cromer

joined a black officers’ association and spoke up about perceived

racial discrimination in the sheriff’s office. On these claims, the dis-

trict court granted summary judgment to Sheriff Brown in his individ-

ual capacity, holding that the sheriff was entitled to qualified

immunity. We disagree and reverse on this point. Cromer had a

clearly established right (of which a reasonable official would have

known) to speak up about the widespread perception of racial dis-

crimination in the sheriff’s department and to join an association of

black officers formed to bring complaints of discrimination to the

sheriff’s attention. To the extent the &#167 1983 claims were against Sher-

iff Brown in his official capacity, we affirm the district court’s hold-

ing that the sheriff, as a state official, is immune from suit for money

damages. We reverse the district court’s determination that the doc-

trine of official immunity protects the sheriff from claims for injunc-

tive relief.

I.

A.

The facts about Cromer’s different roles as captain and lieutenant

are not in dispute. We construe the other facts in the light most favor-

able to Cromer, the non- moving party below. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986).

Sheriff Brown’s predecessor in office hired Cromer to work as a

deputy sheriff in 1974. In 1976 Brown was elected sheriff. Upon tak-

ing office in January 1977, Brown recommissioned Cromer as a dep-

uty. Within the next two weeks Sheriff Brown promoted Cromer

3

twice, first to sergeant and then to lieutenant. Cromer served as a lieu-

tenant from 1977 until 1988.

During the twelve- year period from 1977 to 1988, Sheriff Brown

denied Cromer a promotion to captain several times. According to

Cromer, Sheriff Brown refused to promote him because of Cromer’s

long- term relationship with a white woman, Beth Johnson. Specifi-

cally, Cromer testified (in deposition) as follows:

Question: [When you asked Sheriff Brown about promo-

tion to captain], [w]hat did he say?

Cromer: At that time, I was dating a white female and he

told me that he would have a serious problem with me being

a captain for him, since I was dating that white girl. . . .

Question: All right. Tell me about that conversation.

When did this take place? . . .

Cromer: That conversation ha[s] taken place many times

with myself and Sheriff Brown over the years.

* * *

Question: I want to know [about each one of the conversa-

tions] to the best of your recollection.

Cromer: All I’m telling you, we had many conversations

concerning Beth and he made it good and clear that he

didn’t appreciate interracial dating. He didn’t like it and he

wasn’t tolerated [sic] for it and he just couldn’t handle it and

he made it good and plain to me. And many times, he threat-

ened to terminate me . . . .

The sheriff also let Cromer know that he should not bring Beth to the

Annual Sheriff’s Office Awards Banquet. This led Lieutenant Cromer

to tell his immediate supervisor, Captain Sorrow, that “I would not be

attending those awards if I couldn’t bring Beth.”

4

In 1988 Major Barnett, the officer of highest rank under Sheriff

Brown, suggested to the sheriff that he promote Cromer to captain.

Major Barnett later told Cromer “that the Sheriff had reservations, but

he [Barnett] was standing tall to try to get me promoted because he

felt like I was qualified and it was about time.” In June 1988 Cromer

again talked with the sheriff about the possibility of a promotion.

Again, Beth, Cromer’s white companion, was a subject of discussion.

However, on July 1, 1988, Sheriff Brown made Cromer the first black

captain in the history of the Greenville County Sheriff’s Office.

As one of four captains, Cromer stood high in the chain of com-

mand in the sheriff’s office. He commanded one of four divisions,

Uniform Patrol, and supervised 185 officers, including five lieuten-

ants and twenty- six sergeants. Cromer was outranked only by Major

Barnett and Sheriff Brown. Together, the four captains, the major and

the sheriff made up the “command staff.” The command staff met

weekly to discuss operations, policy and procedure. Cromer felt he

had a “strong, effective voice” in policy discussions when he was cap-

tain. The command staff was also responsible for community rela-

tions. Once, while Cromer was captain, the command staff met with

the president of the Greenville County NAACP. Cromer told the pres-

ident, “I [am] the Captain of Uniform Patrol and . . . black, if there

[are] racial problems [in the sheriff’s office], they [are] brought

directly to me and we [will] handle them.”

Cromer’s tenure as captain did not go smoothly. Cromer apparently

believes that certain white lieutenants orchestrated a campaign to

have him ousted as captain. Sheriff Brown says that certain lieuten-

ants did begin to question Cromer’s methods of supervision and that

Major Barnett investigated the complaints by interviewing the com-

plaining lieutenants and several sergeants. Barnett then reported to

Brown, who demoted Cromer from captain to lieutenant on March 13,

1991. Sheriff Brown asserts that he demoted Cromer because he had

“lost his ability and his effectiveness as a commander of the uniform

patrol.” According to the sheriff, Cromer lost his effectiveness

because he supervised through fear and retaliation. Cromer claims his

demotion was because of his race. He was treated differently, he says,

than any white captain whose performance was ever questioned.

5

White captains with performance problems had simply been reas-

signed to other duties without taking a demotion in rank.1

As a lieutenant Cromer no longer participated in command staff

meetings. He rarely saw Sheriff Brown. Cromer’s only formal contact

with the sheriff occurred at monthly meetings, which were attended

by every officer in the department. As a lieutenant Cromer was nei-

ther involved in creating department policy nor consulted on any pro-

posed changes to policy.

On May 1, 1991, six weeks after Cromer’s demotion, most (about

30) of the sheriff department’s 32 black deputies met after work at a

private residence. There, under the leadership of Sergeant Paul Guy,

they formed a group called the Black Law Enforcement Officers

Association (the “Association”). Cromer attended the Association’s

first four meetings. Each meeting was held after work at a private res-

idence. At the Association’s meetings the black officers discussed

their concerns about racial problems in the sheriff’s department. After

the fourth meeting, in mid- May, 1991, the Association submitted pri-

vately to Sheriff Brown an unsigned letter entitled”Race Relationship

Within The Greenville County Sheriffs Office As Perceived By Black

Deputies.”2

The seven- page letter began by saying that “Black officers within

the [Greenville County Sheriff’s Office] have formed a committee to

discuss the racial climate within the Sheriff’s Office.” The letter’s

introduction explained that the black officers had come to a “consen-

sus” that the command staff and certain unwritten policies in the

department were “inhibit[ing] the advancement of Black officers.” “It

is also the consensus among Black officers,” the letter continued,

“that supervisors are attempting to target, categorize, and defame

Black officers who exhibit any form of leadership qualities.” The let-

ter’s introduction ended with the complaint “that the overall white

structure” in the sheriff’s office had little or no understanding of “the

_________________________________________________________________

1 As we indicate in other parts of this opinion, we are affirming the

judgment in favor of Sheriff Brown as to all of Cromer’s claims for dis-

criminatory demotion.

2 Apparently the letter was slipped under Sheriff Brown’s door while

he was out of the office.

6

Black ethos,” which led “to a High level of insensitivity toward Black

officers. This insensitivity is both destructive and dangerous in

regards to . . . the overall effectiveness of the[sheriff’s office] as a

Law Enforcement Agency.”

Next in the letter the black officers discussed several areas where

they believed blacks were receiving unequal treatment. These

included minority recruitment, cross- training and transfers, promo-

tion, make- up of the Office of Professional Standards (internal

affairs), off- duty jobs and equipment.

As to recruitment, the Association said that the department’s

recruitment officer “lack[ed] the needed expertise in minority recruit-

ment.” Recruiters projected an image of the department that “discour-

age[d] Black applicants.”

As to cross- training and transfers, the Association said:

It is felt that [white] supervisors have deliberately limited

Black officer’s growth by not advancing qualified Black

officers. This is transmitted by White supervisors recom-

mending White officers for cross training in certain areas

within CID such as, white collar crime section, housebreak-

ing section, school district and major crime section. White

supervisors within these divisions have made their position

known to supervisors in uniform patrol as to whom they

want and do not want. Therefore, many officers never have

the opportunity to display their abilities.

The letter charged that the supervisors of two prestigious units, white

collar and major crimes, had “made a conscious effort” to keep “their

sections exclusively White.”

Lack of promotional opportunities for blacks was a theme that

appeared throughout the letter. Major Barnett was criticized for recent

newspaper comments that, according to the Association, “le[ft] the

reader with the opinion that there are no Black officers with the capa-

bilities and qualifications to be promoted.” Black officers were dis-

couraged and many felt that “favoritism is shown toward White

7

officers with less education and less job experience. Black officers are

beginning to lose faith in the promotional process.” Specifically, the

Association charged that promotional boards were biased against

black officers, particularly because the boards did not exercise appro-

priate independence.

The Association asserted that the Office of Professional Standards

(internal affairs), which was staffed by white officers, conducted

internal investigations in ways that “pit White officers against Black

officers.” The Association suggested the assignment of a black officer

to internal affairs.

As to off- duty jobs, the Association charged that the highest paying

jobs (apparently those in retail stores) went to white officers. As to

equipment, the group complained that “White officers get the first

choice in new equipment.” Finally, the black officers believed there

was a need for a black negotiator on the SWAT team.

Sheriff Brown was quite upset by the letter, and he blamed Cromer.

“I suspected Cromer,” the sheriff testified,”because of his reduction

in rank. In the past 15 to 17 years prior to this, there was never any

hint of discontent, never. No rumors, nothing. I concluded it had to

have started after Cromer was demoted. Something like this does not

happen overnight.”

Sheriff Brown admitted that he was very angry at Cromer for not

coming to his (the sheriff’s) defense. The sheriff said he was not

angry because Cromer had gone to the meetings of the Association.

Rather, the sheriff said, he was angry “[b]ecause [Cromer], above

anybody else, should have known that none of these complaints were

legitimate.” According to the sheriff, Cromer should have known the

complaints were not true because Cromer before his demotion sat on

promotion and interview boards and participated in command staff

meetings where policy was made. The sheriff therefore believed that

Cromer could have answered all of the complaints at the Association

meetings, providing a full defense for the sheriff.

On May 22, 1991, Sheriff Brown sent each black officer a six- page

response to the Association’s letter. The sheriff opened his response

by explaining that “I have personally worked to create a personnel

8

process that is colorblind, and emphasizes merit over personalities.”

The sheriff denied each of the charges, but he nevertheless expressed

a willingness to work hard to cure any perception that race played a

role in the operations of his office.

In his written response Sheriff Brown placed much of the blame for

any problems at the feet of a “black Captain, who was a member of

the command staff until recently.” The sheriff was referring to Cro-

mer. He said that Cromer never complained that black officers were

being discriminated against in assignment and promotion. According

to the sheriff, in a meeting between the command staff and the presi-

dent of the Greenville County NAACP, Cromer assured the president

that “we had no racial problems in the Sheriff’s Office.” The sheriff

said that Cromer had congratulated the department’s recruiter for out-

standing minority hires. Finally, the sheriff said that because Cromer

had recently been in charge of Uniform Patrol, any failure to transfer

black officers out of Uniform Patrol into more prestigious units

“would have had . . . [Cromer’s] support and endorsement.” In short,

the sheriff blamed Cromer for his troubles.

Sheriff Brown closed his letter to the black officers as follows:

I have reviewed all of the above complaints and tried to

respond to them. I am deeply disturbed that such serious

complaints exist. If they are factually documented, I will

take strong action to eliminate them. It appears that most of

the complaints dealing with employment and promotions are

not justified by the facts. . . . However, I am equally con-

cerned with even the perception of racial division. . . . Even

though we have a chain of command, my door is always

open for any officer to bring up complaints of such a serious

nature.

Sheriff Brown ended with this warning: “I will . . . not tolerate any

individual of any race using racial issues to pursue personal vendet-

tas.”

On May 27, 1991, five days after Sheriff Brown’s letter to the

black officers, Sergeant Rodney Watts, a member of the black offi-

cers’ Association, wrote to the sheriff. Watts reported that Lieutenant

9

Kelley had claimed that Sheriff Brown made a racist remark about

Watts while talking with Kelley at the awards banquet about two

months earlier. Sergeant Watts requested a meeting with the sheriff.

Upon getting the letter, the sheriff called Watts to his office. Accord-

ing to Watts, when he walked in, Sheriff Brown “slammed that door

behind me, and he said `I can’t believe you have the [expletive

deleted] audacity to send me this letter.’ . . .`Pat Cromer put you up

to this, didn’t he?'” Later in the meeting the sheriff again accused

Cromer. Both times Watts told the sheriff that Cromer had nothing to

do with Watts’ letter. Within a week of this meeting Sheriff Brown

fired both Sergeant Watts and Cromer.

The personnel order terminating Cromer said simply that he was

fired for conduct “unbecoming an officer.” Cromer learned that he

was to be fired from Major Barnett. Barnett told Cromer he was being

terminated for wrongfully accusing one officer of fixing a drunk driv-

ing ticket and for telling another officer that Sergeant Guy had

reported (at an Association meeting) that he had been asked to plant

drugs in the former county administrator’s car. According to Cromer,

Major Barnett also admitted that Cromer’s membership in the black

officers’ Association and the Association’s letter to the sheriff “had

a lot to do with” Cromer’s termination. Cromer was then allowed to

see the sheriff, who said only, “Pat I’m very disappointed in you and

I don’t even want to talk to you.”3

Later, at a hearing before the South Carolina Employment Security

Commission, Major Barnett represented the sheriff’s office in an

effort to block Cromer from receiving unemployment compensation.

Major Barnett testified that Cromer’s firing was due in part to his

involvement in the Association and the “list of grievances” presented

to the sheriff. Barnett accused Cromer of using the Association for

personal gain instead of refuting the black officers’ allegations with

facts.

_________________________________________________________________

3 Cromer says he was later told of another reason for his firing: that he

had allowed his lieutenants to keep two sets of overtime books when he

was captain. In other words, not all overtime was turned in for payroll;

overtime not turned in was kept in a second, unofficial set of books and

could be taken as “comp time.” Cromer responds to all allegations by

denying any wrongdoing or improper conduct on his part.

10

B.

After his firing Cromer was granted a hearing by the Sheriff’s

Department Grievance Board, an internal body. The board (made up

of a captain and two lieutenants) heard Cromer’s case and concluded

that his firing was justified. Cromer then filed a complaint with the

federal Equal Employment Opportunity Commission (EEOC), which

determined that Cromer’s discharge violated Title VII but that his

demotion did not. The EEOC issued Cromer a right- to- sue letter.

Cromer filed this suit in district court on December 21, 1992. As

we explained in the introduction, the district court disposed of Cro-

mer’s case by granting summary judgment to Sheriff Brown on some

claims and by dismissing others. Cromer now appeals.

II.

We must first decide whether the district court was wrong to con-

clude that Cromer, both as lieutenant and captain, fell under Title

VII’s exclusion for the “personal staff” of an elected official. This

conclusion led the district court to enter summary judgment for Sher-

iff Brown on Cromer’s Title VII claims.

Title VII defines an “employee” as an “individual employed by an

employer.” 42 U.S.C. &#167 2000e(f). The definition, however, excludes

“any person elected to public office in any State or political subdivi-

sion of any State by the qualified voters thereof, or any person chosen

by such officer to be on the officer’s personal staff . . . .” Id.

The reach of Title VII’s personal staff exclusion is a question of

federal, not state, law. Curl v. Reavis, 740 F.2d 1323, 1327 (4th Cir.

1984). “State law is only relevant `insofar as it describes the plain-

tiff’s position, including his duties and the way he is hired, supervised

and fired.'” Id. (internal citation omitted). We must, therefore, ascer-

tain as a matter of federal law what Congress meant by the term “per-

sonal staff.”

Although the statute does not define “personal staff,” the word

“personal” certainly narrows the reach of the exclusion to some inti-

11

mate subset of the elected official’s staff. With that observation in

mind, we look beyond the text to the exclusion’s objectives as dis-

cussed in our prior cases. We have concluded that”`Congress

intended for the personal staff exception to apply only to those indi-

viduals who are in highly intimate and sensitive positions of responsi-

bility on the staff of an elected official.'” Brewster v. Barnes, 788

F.2d 985, 990 (4th Cir. 1986) (quoting Curl, 740 F.2d at 1328 (quot-

ing Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir. 1981)).4 Three

times we have applied the personal staff exemption in cases involving

sheriffs’ offices. United States v. Gregory, 818 F.2d 1114 (4th Cir.),

cert. denied, 484 U.S. 847 (1987); Curl, 740 F.2d 1323; Brewster,

788 F.2d 985. In each of these cases we were “unwilling to treat all

deputy sheriffs as employees, or to exclude them wholesale from [the

statute’s] protection.” Curl, 740 F.2d at 1328. Instead, we explained

that whether a given deputy would be treated as a member of a sher-

iff’s personal staff depended on a “careful examination of the nature

and circumstances of her role in the Sheriff’s Department.” Id.; see

Brewster, 788 F.2d at 990; Gregory, 818 F.2d at 1117.

In concluding that Cromer was “personal staff” as both captain and

lieutenant, the district court said it applied the following “four pri-

mary factors” this court “has considered”:

1. Is promotion of the employee solely up to the sheriff;

2. Does the employee occupy a position high in the chain

of command;

3. Does the employee have a highly intimate working rela-

tionship with the sheriff; and

4. Does the employee contribute to the making of policy

decisions in the sheriff’s department?

_________________________________________________________________

4 Brewster involved the Equal Pay Act. However, the “definition of

`employee’ in Title VII contains a `personal staff’ exemption which is

essentially identical to the exemption contained in the Equal Pay Act.”

Brewster, 788 F.2d at 990 n.7. Therefore, Brewster‘s reasoning applies

here.

12

Cromer v. Brown, C/A No. 6:92- 3555- 20AK, mem. op. at 4 (D.S.C.

Feb. 28, 1994).

We have considered the factors listed by the district court, but we

have never characterized them as “primary.” Indeed, we have often

considered factors left off the district court’s list. We have, for exam-

ple, always emphasized that the “personal staff” exemption is to be

narrowly construed. Gregory, 818 F.2d at 1117; Brewster, 788 F.2d

at 990; Curl, 740 F.2d at 1328. We have asked whether the employ-

ee’s position “was created and compensated by the county pursuant

to state law.”5 Gregory, 818 F.2d at 1117; see Curl, 740 F.2d at 1328.

We have inquired about the full scope of the employee’s duties, with-

out limiting the inquiry to whether he is a policy maker. Curl, 740

F.2d at 1328; Brewster, 788 F.2d at 991. We have explored whether

the employee worked in the official’s political campaign. Brewster,

788 F.2d at 990. And we have considered it significant whether the

employee worked under the direction of the official or someone else.

Curl, 740 F.2d at 1328.

The factors we have added to those mentioned by the district court

are not intended to round out a rigid list. A fact- specific examination

of the employee’s role is what is required. In general, the examination

should focus on whether the employee worked in an intimate and sen-

sitive position of trust, close to the elected official.

When Cromer was a lieutenant, the undisputed facts make it clear

that Cromer was not a member of Sheriff Brown’s personal staff.

First, Cromer did not report directly to the sheriff. He reported to his

captain, who in turn reported to the major, who reported directly to

the sheriff. Second, as a lieutenant, Cromer rarely saw Sheriff Brown

and did not work under the sheriff’s personal direction. As a rule Cro-

mer saw the sheriff only at the monthly meetings of all supervisors,

including sergeants and lieutenants. At those meetings the sheriff

spoke only for a few minutes about very general matters.6 Third, as

_________________________________________________________________

5 This can be relevant because when a position is created and compen-

sated under state law, the elected official (the employer) is not required

to allocate funds from his discretionary budget to pay the employee’s sal-

ary.

6 Although the record is not clear on the point, it appears that Sheriff

Brown may have attended at least one platoon meeting with Lieutenant

Cromer and those in Cromer’s platoon.

13

a lieutenant, Cromer had no hand in creating, or even substantively

discussing, department policy. Fourth, Lieutenant Cromer was not a

member of the command staff. Fifth, Cromer’s termination was

reviewed by the Grievance Board, which could have recommended

reinstatement.7 Sixth, Cromer apparently did not assist in any of Sher-

iff Brown’s election efforts. Nor was Cromer initially hired as a dep-

uty by Brown. Brown’s predecessor in office hired Cromer, and

Brown simply recommissioned Cromer as a deputy. Seventh, Cro-

mer’s position was created and compensated pursuant to state law.

See S.C. Code Ann. &#167 23- 13- 10 et seq . Together, the undisputed facts

establish as a matter of law that Cromer was not a member of Sheriff

Brown’s personal staff during his service as a lieutenant. We, there-

fore, reverse the district court on that issue.

Different facts establish, as a matter of law, that during his service

as captain Cromer was on Sheriff Brown’s personal staff. First, there

were only four captains and all were members of the command staff.

Second, as a member of the command staff, Captain Cromer met

weekly with the sheriff, the major and the other three captains to dis-

cuss the substance and merits of proposed operations, policies and

procedures. In fact, Cromer himself acknowledged that as a captain

he exerted a “strong, effective voice” on department policy. Third,

Sheriff Brown personally promoted Cromer to captain and personally

demoted him. There is no suggestion that Cromer could have taken

his demotion from captain to the Grievance Board for review. And

finally, as a captain, Cromer occasionally dealt with citizens’ com-

plaints and other public matters which required him to speak outside

the department on behalf of the sheriff. Together, these facts demon-

strate as a matter of law that when Cromer was a captain, he served

on Sheriff Brown’s personal staff. Therefore, we affirm the district

court’s ruling to that effect.

_________________________________________________________________

7 When a public official cedes exclusive authority to hire or discharge

an employee, the personal staff exclusion would not apply. In this case,

Sheriff Brown did not cede his exclusive authority, but he did permit the

Grievance Board to make a recommendation.

14

III.

We next consider Cromer’s constitutional claims, brought under

&#167 1983. Cromer asserts that his termination violated his First Amend-

ment rights to speak freely and to associate. The district court, how-

ever, determined that these asserted rights were not clearly established

in June of 1991, when Cromer was fired. Therefore, the district court

held that Sheriff Brown (in his individual capacity) was entitled to

immunity from these claims.

A.

The doctrine of qualified immunity would provide Sheriff Brown,

in his individual capacity, with a full defense to Cromer’s &#167 1983

charges if Brown’s conduct did not “violate clearly established statu-

tory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The pur-

pose of the qualified immunity defense under &#167 1983 is to allow gov-

ernment officials “the freedom to exercise fair judgment” without

“being blindsided by liability derived from newly invented rights or

new, unforeseen applications of pre- existing rights.” Pinder v.

Johnson, 54 F.3d 1169, 1173 (4th Cir.) (en banc), cert. denied, 116

S. Ct. 530 (1995).

As we observed in Pinder:

The linchpin of qualified immunity is objective reasonable-

ness. So long as the officer’s actions, viewed from the per-

spective of the officer at the time, can be seen within the

range of reasonableness, then no liability will attach.

Important to this reasonableness inquiry is whether the

rights alleged to have been violated were clearly established

at the time of the challenged actions.

If the law supporting the allegedly violated rights was not

clearly established, then immunity must lie. Where the law

is clearly established, and where no reasonable officer could

15

believe he was acting in accordance with it, qualified immu-

nity will not attach.

Id. (internal citations omitted).

The right allegedly violated must be articulated in a “particular-

ized” and “relevant” way. Anderson v. Creighton, 483 U.S. 635, 640

(1987). A plaintiff may not merely assert the violation of some “over-

arching entitlement” to a named right. Pinder , 54 F.3d at 1173.

Instead, he must be sufficiently specific to allow us to decide whether

“a reasonable official would understand that what he [did] violates

that right.” Anderson, 483 U.S. at 640. But “[i]t is important not to be

overspecific – – there need not be a prior case directly on all fours

with the facts presented to the official.” Pinder, 54 F.3d at 1173. Still,

we must be able to conclude that, in light of pre- existing law, the

unlawfulness of the challenged action was apparent to the official.

Anderson, 483 U.S. at 640; Pinder, 54 F.3d at 1173.

1.

Cromer’s first allegation is that Sheriff Brown violated his right to

speak freely on matters of public concern by firing him for joining in

the Association’s letter that raised specific charges of racial discrimi-

nation and animus in the sheriff’s office.

At the time of Cromer’s discharge in June 1991, it was established

that a government official “may not discharge an employee on a basis

that infringes that employee’s constitutionally protected interest in

freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383 (1987)

(citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)) (emphasis

added). To determine whether a public employee’s speech was consti-

tutionally protected, we undertake a two- step analysis. First, we ask

whether the employee spoke as a citizen on a matter of “public con-

cern.” Connick v. Myers, 461 U.S. 138, 146 (1983). If he did, the next

step requires “balanc[ing] the interests of the [employee], as a citizen,

in commenting upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the public ser-

vices it performs through its employees.” Pickering v. Board of Educ.,

391 U.S. 563, 568 (1968). If these two steps yield a right that was

clearly established in 1991, we “proceed to determine whether a rea-

16

sonable person in the official’s position would have known that his

actions violated that right.” DiMeglio v. Haines, 45 F.3d 790, 794- 95

n.1 (4th Cir. 1995) (citing Harlow, 457 U.S. at 817- 18).

a.

We decide whether Cromer spoke as a citizen on a matter of public

concern by examining the “content, form and context” of his speech.

Connick, 461 U.S. at 147- 48.

We turn first to the content of Cromer’s speech, the letter the black

officers’ Association sent to Sheriff Brown. The theme of the letter

was that the “effectiveness of the [sheriff’s office] as a Law Enforce-

ment Agency” was being destroyed by internal racial discrimination.

The seven- page letter included the following charges of discrimina-

tion by an “overall white [management] structure”: (1) ineffective

minority recruitment efforts, (2) lack of opportunity for black officers

to cross- train in and transfer into prestigious units, such as white col-

lar and major crimes, (3) lack of promotional opportunities for blacks

and loss of faith in the promotion process, (4) methods of investiga-

tion by the all- white internal affairs unit that caused racial polariza-

tion, and (5) favoritism to white officers in the allocation of new

equipment. Because these specific complaints prompted an expression

of concern about the inability of the sheriff’s office to carry out its

vital public mission effectively, we conclude that Cromer and the

other members of the Association spoke as citizens, not merely as

employees. See id. at 147. Of course, the allegations themselves,

about racial discrimination within a law enforcement agency, are mat-

ters of serious public import. Rode v. Dellarciprete, 845 F.2d 1195,

1201 (3d Cir. 1985) (holding that allegations of racial animus within

the state police raised a matter of “grave public concern”); Leonard

v. City of Columbus, 705 F.2d 1299, 1305 (11th Cir. 1983) (holding

that allegations of racially discriminatory hiring and distribution of

“beat” assignments raised “matters of interest to the community”),

cert. denied, 468 U.S. 1204 (1984). Cf. Connick, 461 U.S. at 146, 148

n.8 (characterizing allegations of a school district’s “racially discrimi-

natory policies” as “a matter inherently of public concern”).

Nothing in the form (private letter with no member of the Associa-

tion identified) or context (slipped under the sheriff’s door) of the

17

speech deprives it of its public import. Public employees do not for-

feit the protection of the Constitution’s Free Speech Clause merely

because they decide to express their views privately rather than pub-

licly. Givhan v. Western Line Consol. Sch. Dist. , 439 U.S. 410, 413-

14 (1979).

In any event, the sheriff considered the letter a group effort by

black officers, and indeed it was. Virtually all of the black officers in

the department participated in the Association. They discussed the

items covered in the letter at four meetings, and they sent the letter

as a body to voice their concerns about what they considered discrim-

ination. Thus, the letter was not the expression of a single disgruntled

employee about a personal employment dispute. See Connick, 461

U.S. at 148 (noting, in reversed circumstances, that the communica-

tion at issue “if released to the public would convey no information

at all other than the fact that a single employee is upset with the status

quo”). Instead, the letter here was delivered in the context or circum-

stance of a group complaint, and that further demonstrates the public

import of the speech. Collins v. Robinson, 568 F. Supp. 1464, 1468

(E.D. Ark. 1983) (memorandum to sheriff for which sergeant was

fired involved matters of public concern because, among other things,

it expressed the complaints of numerous officers about the behavior

of a major), aff’d on the reasoning of the district court, 734 F.2d 1321

(8th Cir. 1984).

In sum, we hold that in 1991 it was clearly established that the

Association’s letter, which Cromer adopted as his own speech,

involved a matter of public concern.

b.

Because Cromer’s speech involved a matter of public concern, we

must now balance Cromer’s interest as a citizen in commenting on

racial discrimination in a law enforcement agency against Sheriff

Brown’s interest in maintaining an efficient workplace. Pickering,

391 U.S. at 568. Interests of the community also weigh in the balance.

Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1078 (4th Cir.

1987), cert. denied, 487 U.S. 1206 (1988) (noting that for speech to

be constitutionally protected, “the interests of the speaker and the

18

community in the speech [must] outweigh the interests of the

employer”) (emphasis added).

We have recently noted that “only infrequently will it be `clearly

established’ that a public employee’s speech on a matter of public

concern is constitutionally protected, because the relevant inquiry

requires a `particularized balancing’ that is subtle, difficult to apply

and not yet well- defined.” DiMeglio, 45 F.3d at 806. But we did not

say that a public employee’s right to speak on matters of public con-

cern could never be clearly established. We believe that Cromer’s is

one of the “infrequent” cases where an employee’s right to speak on

a matter of public concern was clearly established. 8

i.

We are persuaded that the interests to be balanced under Pickering

weighed so heavily in Cromer’s favor that his right to speak about

perceived racial discrimination was clearly established in 1991.

We begin our balancing analysis by examining the interests to be

weighed on Cromer’s side. We have already said that Cromer’s

_________________________________________________________________

8 Other circuits have found First Amendment rights to be clearly estab-

lished in certain cases, even under Pickering ‘s balancing test. See, e.g.,

Kincade v. City of Blue Springs, 64 F.3d 389, 398- 99 (8th Cir. 1995)

(city engineer voiced safety concerns regarding a construction project),

cert. denied, 116 S. Ct. 1565 (1996); Lambert v. Richard, 59 F.3d 134,

137 (9th Cir.) (plaintiff criticized library director’s mismanagement),

cert. denied, 116 S. Ct. 673 (1995); Ramirez v. Oklahoma Dep’t of Men-

tal Health, 41 F.3d 584, 593- 95 (10th Cir. 1994) (plaintiffs complained

of mistreatment of a mental patient); Williams v. Kentucky, 24 F.3d 1526,

1537 (6th Cir.) (plaintiff reported employer’s illegal activities), cert.

denied, 115 S. Ct. 358 (1995); Bieluch v. Sullivan, 999 F.2d 666, 673 (2d

Cir. 1993) (police officer headed groups which campaigned against a

school construction proposal and a proposed town budget), cert. denied,

114 S. Ct. 926 (1994); Gorman v. Robinson, 977 F.2d 350, 356 (7th Cir.

1992) (plaintiff informed FBI of his employer’s wrongdoings); Stough v.

Gallagher, 967 F.2d 1523, 1528- 29 (11th Cir. 1992) (captain spoke in

support of sheriff’s political opponent); Brawner v. City of Richardson,

Tex., 855 F.2d 187, 191 (5th Cir. 1988) (police officer made serious alle-

gations of possible police misconduct).

19

speech (reporting widely- held views about racial discrimination in the

sheriff’s office) involved a matter of grave public concern. Indeed,

“speech on public issues occupies the `highest rung of the hierarchy

of First Amendment values.'” Connick, 461 U.S. at 145 (citation

omitted).

We emphasize that this is not a “run- of- the- mine single plaintiff

discrimination case.” See Auriemma v. Rice , 910 F.2d 1449, 1460 (7th

Cir. 1990) (en banc), cert. denied 501 U.S. 1204 (1991). Although

Cromer is the only plaintiff, the speech he adopted is a letter sent by

a group of most of the 32 black officers who worked for Sheriff

Brown. Cromer’s speech, therefore, had the potential for “broad

impact,” id., because public safety was put at risk by the group per-

ception that black officers were discriminated against. In other words,

the effectiveness of a major law enforcement agency was being called

into question by a significant number of its members. The public has

a fundamental interest in effective law enforcement organizations that

are free of discrimination. Cromer’s individual interests, then, merge

in a real sense with those of the community at large. Those merged

interests are substantial. “For a police force to be effective it must

have the respect and support of the community as well as its officers;

our system of government demands that support be garnered through

informed evaluation of circumstance, and not through the suppression

of dissent.” Leonard, 705 F.2d at 1305. Accordingly, the public has

a keen interest in seeing that police officers are free to speak up about

any broad- based discrimination in their agencies. After all,

“[g]overnment employees are often in the best position to know what

ails the agencies for which they work; public debate may gain much

from their informed opinions.” Waters v. Churchill, 114 S. Ct. 1878,

1887 (1994). These interests weigh heavily in Cromer’s favor.

We now weigh the interests of Sheriff Brown, “as an employer, in

promoting the efficiency of the public services[the sheriff’s office]

performs through its employees.” See Pickering, 391 U.S. at 568. In

weighing the sheriff’s interests, we bear in mind that when the

employer runs a law enforcement organization where”discipline is

demanded,” he has “greater latitude . . . in dealing with dissension in

[the] ranks.” Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir.

1992), cert. denied, 506 U.S. 1080 (1993).

20

Here, Sheriff Brown maintains that Cromer’s speech carried the

potential for disrupting efficiency because it cut against discipline,

morale and good working relationships in the department. We exam-

ine the extent to which Cromer’s speech undermined these interests.

We look preliminarily at Cromer’s position and status when he

engaged in the speech. Sheriff Brown charges that Cromer endorsed

the grievances presented by the black officers’ group and “did nothing

to diffuse the tense racial situation presented by the formation of

[that] group.” Brief of Appellees at 23. The sheriff says that he looked

to Cromer to maintain good race relations in the department. Thus,

the sheriff maintains that Cromer could (and should) have spoken up

at the black officers’ meetings and allayed the concerns expressed by

the Association. This might well be an accurate representation of

what the sheriff expected of Cromer when he was a captain, but it sig-

nificantly overstates Cromer’s responsibility and influence after he

was demoted from the command staff to lieutenant.

Sheriff Brown testified that he demoted Cromer because he had

“lost his ability and his effectiveness as commander of the uniform

patrol” by supervising through use of intimidation and retaliation.

According to the sheriff, Cromer had lost the respect of the lieuten-

ants and sergeants he supervised. Cromer, for his part, believed he

was demoted for racial reasons. After his demotion Cromer rarely saw

the sheriff and did not participate in policymaking. Under these cir-

cumstances it is not plausible that Sheriff Brown would have looked

solely to the demoted Cromer to foster racial harmony. Nor could the

sheriff have expected the demoted Cromer to argue that the depart-

ment was free of racial discrimination, nor expected other black offi-

cers to follow Cromer if he had said the charges in the letter were

groundless.

Nevertheless, Cromer was a lieutenant, and we must weigh how

much his speech worked against the efficiency interests asserted by

the sheriff: discipline, morale and good working relationships.

As to discipline, the sheriff says that “Cromer never followed the

chain of command in presenting the [black] officers’ grievances.”

Brief of Appellees at 24. “Rather, he attended clandestine meetings

and endorsed the sending of an anonymous letter.” Id. According to

21

Sheriff Brown, by not presenting the grievances in person to a supe-

rior, Cromer undermined the authority of the command staff and the

sheriff. The sheriff maintains that this lack of discipline made Cromer

an “antagonist[ ]” who had to be “eradicate[d].” See id. at 26.

Sheriff Brown did have an interest in seeing that any grievance was

channeled up through the chain of command under the name of the

officer receiving it (or sending it along). Yet that interest in good dis-

cipline must in turn be measured against what happened here. The

black officers did not make their allegations of discrimination public.

Instead, the letter was given only to Sheriff Brown, so that any devia-

tion from good order and discipline was known only to him and the

members of the Association. The letter was not insubordinate or

rebellious in tone, and there was no public display of disobedience or

protest. Moreover, although the letter was anonymous in the sense

that no one signed it, it was clear that virtually all black officers were

behind it. And it goes without saying that Sheriff Brown knew who

the black officers were.

To sum up on the discipline interest: we give some weight to Sher-

iff Brown on this point. We do not, however, give him any great

weight because the black officers moved quietly and did not try to

provoke a public confrontation.

On morale, Sheriff Brown says that Cromer harmed morale by

joining in a letter containing grievances that Cromer knew were

groundless. We recognize the importance of good morale in a law

enforcement organization. Yet here we do not see how Cromer’s par-

ticipation in the speech could have done much to lower the morale of

black officers. The fact that meetings were held and the letter was

written indicates that their morale was already low. Moreover, when

we consider how the demoted Cromer was regarded (according to the

sheriff, Cromer had lost the ability to lead and lost the respect of the

officers he had supervised as captain), we do not see how Cromer

could have done much to lift morale even if he had spoken up in

defense of the sheriff. We give Sheriff Brown very little weight on the

interest in good morale.

We turn last to the sheriff’s interest in maintaining good working

relationships. Specifically, Sheriff Brown says that his close working

22

relationship with Cromer was destroyed when Cromer endorsed the

Association’s letter. When Cromer was one of four captains on the

six- person command staff, we have no doubt that the sheriff and Cro-

mer had a close working relationship. That relationship ended, how-

ever, when Cromer was demoted. After his demotion Cromer did not

work directly with the sheriff and rarely saw him. We give no weight

to the sheriff on this point.

As we stand back and look, the scales weigh heavily in Cromer’s

favor. His interest in speaking about the widespread (internal) percep-

tion of racial discrimination in a law enforcement agency must be

given great weight. And the community at large shares in that interest.

We have, of course, taken care to weigh the efficiency interests

advanced by the sheriff – – discipline, morale and good working rela-

tionships. Given Cromer’s demotion and diminished status, however,

his speech had little or no impact on those interests, and we therefore

accord them little or no weight in this case. The balancing test clearly

establishes that Cromer’s speech was protected.

ii.

Our conclusion is buttressed by the fact that, at the time Sheriff

Brown fired Cromer, existing decisions in our sister circuits had given

First Amendment protection to speech like Cromer’s, that is, a police

officer’s expressions of concern about racial discrimination and ani-

mus in his agency.9

The most strikingly similar prior case is Leonard v. City of

Columbus, 705 F.2d 1299 (11th Cir. 1983), cert. denied, 468 U.S.

1204 (1984). Leonard involved members of the Columbus, Georgia,

police department who in 1971 formed the Afro- American Patrol-

men’s League. The officers formed the League as a vehicle to criti-

cize department practices which they viewed as discriminatory. In

particular, the League’s members complained that black officers were

being discriminated against in hiring and promotion, shift assignment,

_________________________________________________________________

9 In deciding whether Cromer is asserting a clearly established right, we

may examine the pre- existing law outside this circuit. See Pinder, 54

F.3d at 1176- 1178 (canvassing decisions outside the Fourth Circuit in a

qualified immunity case).

23

and discipline and alleged that black citizens were subjected to police

brutality. League members initially complained to the city’s Board of

Public Safety, but members felt that this resulted in no progress.

Thereafter, the League issued a press release and held a press confer-

ence to publicize its criticism of the police department. Three days

after the press conference a black officer, who had called in sick, was

disciplined with the extraordinary measure of arrest for contempt of

court for missing a scheduled court appearance. League members

responded with two days of peaceful picketing at the police station.

On the second day of the protest, the Deputy Chief of Police started

suspension proceedings against three policemen who were League

officials. On the third day, with the press present, seven picketing

black officers assisted one another in removing the American flag

emblem from the sleeves of their uniforms. Later that day, the Chief

of Police held a press conference to announce the firing of all protest-

ing officers. The chief publicly accused the officers of making “base-

less allegations of unlawful conduct, racism, and discrimination.” Id.

at 1301. The fired officers sued, and the district court determined that

their dismissal did not violate the First Amendment. But on appeal the

Eleventh Circuit determined that the protesting officers’ speech was

protected under Pickering‘s balancing test. Id. at 1304- 06.

Cromer’s case is indistinguishable from Leonard in several rele-

vant respects. First, like the officers in Leonard, Cromer spoke

through an association of black officers formed in response to per-

ceived racism in their law enforcement agency. Second, the majority

of the complaints voiced by Cromer’s Association were identical to

those made by the League in Leonard. Cromer’s Association alleged

discrimination against black officers in recruitment, promotion, cross-

training and transfer, and equipment. The League in Leonard alleged

discrimination in hiring and promotion, shift assignment and disci-

pline. Finally, the reaction of the sheriff in Cromer’s case was the

same as that of the police chief in Leonard: both officials felt that the

allegations of the black officers were baseless and fired those they

regarded as the main culprits.10

_________________________________________________________________

10 The cases do differ as to the methods used by the officers to convey

their speech. The officers in Leonard, after an initial effort to deal with

the Board of Public Safety, resorted to press conferences, picket lines

24

Leonard, on facts quite similar to Cromer’s, recognized that the

fired officers had “sought [through their speech] to emphasize a

widely- held perception of racially discriminatory practices in the City

of Columbus Police force.” Id. at 1305. This speech, about a matter

“vital to the public interest,” deserved constitutional protection. Id. at

1304- 05. And Leonard bluntly warned officials not to try to suppress

such speech:

For a police force to be effective it must have the respect

and support of the community as well as its officers; our

system of government demands that support be garnered

through informed evaluation of circumstance, and not

through the suppression of dissent . . . . [A] police officer

does not receive a “watered- down version” of constitution-

ally protected rights by virtue of his employment on the

police force.

Id. at 1305 (citations omitted).

In addition to Leonard, other decisions in our sister circuits made

plain that the First Amendment does not allow state officials to take

adverse employment action against an employee who speaks out

about the practice of racial discrimination in a law enforcement

agency. See Rode, 845 F.2d 1195 (First Amendment protected state

police civilian employee whose speech involved a matter of grave

public concern, racial animus within state police); Auriemma, 910

F.2d 1449 (First Amendment protected white officers’ right to com-

plain in federal court about alleged racial discrimination in depart-

ment reorganization); see also Bridgeport Guardians, Inc. v.

Delmonte, 553 F. Supp. 601 (D. Conn. 1982) (enjoining police

department from taking adverse employment actions against members

_________________________________________________________________

and symbolic acts of disobedience. In Cromer’s case the officers com-

plained privately. Thus, the speech of the officers in Leonard was far

more detrimental than was Cromer’s to the state’s interest in discipline

or efficiency. Yet the court of appeals in Leonard concluded that the dis-

obedient speech in that case was protected under the Pickering balancing

test.

25

of police officers’ organization opposing racially discriminatory prac-

tices of department).

Leonard and the similar authority that existed at the time of Cro-

mer’s termination bolster our holding that Cromer’s First Amendment

right to voice his concern about racial discrimination in his law

enforcement agency was clearly established in June of 1991.11

c.

At this point in the analysis, all that remains is Harlow‘s reason-

ableness inquiry. Harlow, 457 U.S. at 818 (immunity shields officials

“insofar as their conduct does not violate clearly established rights of

which a reasonable person would have known”). We ask whether an

objectively reasonable official in Sheriff Brown’s position would

have known that he could not fire Cromer for participating in the

Association’s complaint about racial discrimination in the workplace.

Pinder, 54 F.3d at 1173. “If the law was clearly established, the

immunity defense ordinarily should fail, since a reasonably competent

_________________________________________________________________

11 We pause to point out that our holding is a narrow one. It is the infre-

quent Connick claim that will survive a qualified immunity defense. See

DiMeglio, 45 F.3d at 806. Thus, we are not holding that any time a pub-

lic official fires or otherwise disciplines an employee who has com-

plained of discrimination, the official has to go to trial. Rather, this is the

infrequent case where, after the Pickering balancing, the employee had

the right to speak as a citizen about extensive and specific claims of

racial discrimination. This case is quite different from one where “a pub-

lic employee speaks not as a citizen upon matters of public concern, but

instead as an employee upon matters only of personal interest.” Connick,

138 U.S. at 147. Here, Cromer joined about thirty other black officers to

complain that the effectiveness of the sheriff’s office as a law enforce-

ment agency was being jeopardized by the following examples of racial

discrimination: ineffective minority recruitment, lack of opportunity for

black officers to work in prestigious units, lack of promotional opportu-

nities for black officers, internal investigation practices that pitted white

officers against black officers, and favoritism to white officers in the

allocation of new equipment. These charges were specific enough and

serious enough to give the community at large an interest in the matter.

And they were presented in a non- confrontational way that did not appre-

ciably affect the sheriff’s efficiency interests.

26

public official should know the law governing his conduct.” Harlow,

457 U.S. at 800. Accord DiMeglio, 45 F.3d at 794- 95 n.1.

Because the Pickering balancing test tips decidedly in Cromer’s

favor and because caselaw had confirmed his right to speak, we hold

that any reasonable official in Sheriff Brown’s shoes would have real-

ized he would violate the Constitution if he fired Cromer for speaking

of widely held concerns about racial discrimination in the sheriff’s

office. Accordingly, we reverse the district court’s ruling that Sheriff

Brown was entitled to qualified immunity with respect to Cromer’s

free speech claim.

2.

Cromer’s second constitutional claim is that Sheriff Brown violated

his right of association by firing him for participating in the black

officers’ Association. Again, Sheriff Brown defends himself on

grounds that Cromer’s associational rights were not clearly estab-

lished in June of 1991. The parties and the court below treated the

association and speech claims as inseparable. That approach is logical

in this case because the Association existed solely to convey the black

officers’ complaints about racial discrimination.

The right to associate in order to express one’s views is “insepara-

ble” from the right to speak freely. Thomas v. Collins, 323 U..S. 516,

530 (1945); Shelton v. Tucker, 364 U.S. 479, 486 (1960) (the “right

of free association [is] a right closely allied to freedom of speech and

a right which, like free speech, lies at the foundation of a free soci-

ety”). The Supreme Court has explained that:

An individual’s freedom to speak, to worship, and to peti-

tion the Government for the redress of grievances could not

be vigorously protected from interference by the State

unless a correlative freedom to engage in group effort

toward those ends were not also guaranteed . . . . Conse-

quently, we have long understood as implicit in the right to

engage in activities protected by the First Amendment a cor-

responding right to associate with others in pursuit of a wide

variety of political, social, economic, educational, religious,

and cultural ends.

27

Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (citations omitted).

Accordingly, since Cromer’s personal right to speak about allegations

of racial discrimination within his agency was clearly established in

1991, we hold that his “correlative freedom to engage in group effort

toward those [same] ends” was likewise clearly established. Since

Cromer had the clear right to speak as part of the Association, he also

had a clear right to participate in the Association. See N.A.A.C.P. v.

Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (“It is beyond

debate that freedom to engage in association for the advancement of

beliefs and ideas is an inseparable aspect of the`liberty’ assured by

the Due Process Clause of the Fourteenth Amendment which

embraces freedom of speech.”); Wilton v. Mayor and City Council of

Baltimore, 772 F.2d 88, 91 (4th Cir. 1985) (noting that the limitations

on a public employee’s right to associate are “closely analogous” to

the limitations on his right to speak).

Given these principles, we find that any objectively reasonable per-

son in Sheriff Brown’s shoes (in June of 1991) would have realized

that he would violate Cromer’s constitutional rights if he fired him for

participating in the Association. See, e.g., Marshall v. Allen, 984 F.2d

787, 799 (7th Cir. 1993) (holding that, in 1988, it was clearly estab-

lished that freedom of association protected employee from being

fired for associating with co- workers who filed a civil rights action

against their agency).

We therefore reverse the district court’s determination that Sheriff

Brown was entitled to qualified immunity from Cromer’s free associ-

ation claim.

IV.

Last, we turn briefly to the district court’s determination that Cro-

mer cannot pursue his &#167 1983 claims against Sheriff Brown in his

official capacity. The Eleventh Amendment bars suits in federal

courts for money damages against an “unconsenting State.” Edelman

v. Jordan, 415 U.S. 651, 663 (1974). This immunity extends to

“arm[s] of the State,” Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 280 (1977), including state agencies and state

officers acting in their official capacity. Gray v. Laws, 51 F.3d 426,

430 (4th Cir. 1995). The “largely, if not wholly, dispositive” factor in

28

determining whether an entity is properly characterized as an arm of

the state is whether the state treasury will be liable for the judgment.

Id. at 433; see also Bockes v. Fields, 999 F.2d 788, 790- 91 (4th Cir.

1993), cert. denied, 114 S. Ct. 992 (1994). If the state’s treasury will

not be affected by the judgment, we consider other factors, “chief

among which are whether the suit will jeopardize`the integrity

retained by [the] State in our federal system’ and whether the state

possesses such control over the entity claiming Eleventh Amendment

immunity that it can legitimately be considered an`arm of the state.'”

Gray, 51 F.3d at 434 (quoting Hess v. Port Auth. Trans- Hudson

Corp., 115 S. Ct. 394, 400 (1994)) (internal citation omitted).

Judgments against the Greenville County Sheriff are paid by the

South Carolina State Insurance Reserve Fund. However, we are

unable to discern from the record in this case whether the state pays

any premiums on behalf of Greenville County. See Nelson v. Strawn,

897 F. Supp. 252, 257- 58 (D.S.C. 1995) (noting the same difficulty

when presented with a similar question), aff’d in part, vacated in part

on other grounds, 78 F.3d 579 (1996). Compare Bockes, 999 F.2d at

790 (record demonstrated that state paid 80 percent of premiums on

behalf of the subscribing agencies). Thus, it is unclear whether the

state treasury would be partially liable for a judgment in this case.

However, we have considered the remaining factors relevant to the

immunity analysis and conclude that, in his official capacity, Sheriff

Brown is an arm of the state. See Gulledge v. Smart, 691 F. Supp. 947

(D.S.C. 1988) (holding that South Carolina sheriffs are state officials

for Eleventh Amendment purposes), aff’d mem., 878 F.2d 379 (4th

Cir. 1989). Thus, we affirm the district court’s conclusion that, in his

capacity as a state official, Sheriff Brown is immune from suit under

&#167 1983 for money damages.

However, to the extent Cromer sought injunctive relief (e.g., rein-

statement) against Sheriff Brown in his official capacity, the district

court should not have granted summary judgment to Sheriff Brown.

Eleventh Amendment immunity does not protect state officials in

their official capacities from &#167 1983 claims for injunctive relief. Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989).

Therefore, we reverse the district court’s dismissal of Cromer’s

&#167 1983 claims against Sheriff Brown in his official capacity insofar as

they request injunctive relief.

29

V.

For the foregoing reasons, we affirm in part, reverse in part, and

remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

30


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