<\/center><\/p>\n
<\/head>
PUBLISHED<\/b><\/p>\n<\/b><\/p>\n
UNITED STATES COURT OF APPEALS<\/b><\/p>\n
<\/b><\/p>\n
FOR THE FOURTH CIRCUIT<\/b><\/p>\n
No. 94-1403<\/b><\/p>\n
<\/b>PATRICK H. CROMER,<\/p>\n
Plaintiff- Appellant,<\/u><\/p>\n
<\/u><\/p>\n
<\/u>v.<\/p>\n
JOHNNY MACK BROWN, individually<\/p>\n
and in his official capacity as<\/p>\n
Greenville County Sheriff;<\/p>\n
GREENVILLE COUNTY SHERIFF’S<\/p>\n
OFFICE,<\/p>\n
Defendants- Appellees.<\/u><\/p>\n
<\/u><\/p>\n
<\/u>EQUAL EMPLOYMENT OPPORTUNITY<\/p>\n
COMMISSION,<\/p>\n
Amicus Curiae.<\/u><\/p>\n
<\/u><\/p>\n
<\/u>Appeal from the United States District Court<\/p>\n
for the District of South Carolina, at Greenville.<\/p>\n
Henry M. Herlong, District Judge.<\/p>\n
(CA- 92- 3555- 6- 20- AK)<\/p>\n
Argued: December 7, 1994<\/p>\n
Decided: July 15, 1996<\/p>\n
Before RUSSELL and MICHAEL, Circuit Judges, and MESSITTE,<\/p>\n
United States District Judge for the District of Maryland, sitting by<\/p>\n
designation.<\/p>\n
_________________________________________________________________<\/p>\n
Affirmed in part, reversed in part, and remanded by published opin- <\/p>\n
ion. Judge Michael wrote the opinion, in which Judge Russell and<\/p>\n
Judge Messitte joined.<\/p>\n
_________________________________________________________________<\/p>\n
\n
\n
COUNSEL<\/b><\/p>\n
<\/b><\/p>\n
ARGUED:<\/b> Stephen John Henry, TAYLOR & HENRY, Greenville,<\/p>\n
South Carolina, for Appellant. Anna Maria Conner, HAYNS- <\/p>\n
WORTH, BALDWIN, JOHNSON & GREAVES, P.A., Greenville,<\/p>\n
South Carolina, for Appellees. ON BRIEF:<\/b> Thomas A. Bright,<\/p>\n
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P..A.,<\/p>\n
Greenville, South Carolina, for Appellees. James R. Neely, Jr., Dep- <\/p>\n
uty General Counsel, Gwendolyn Young Reams, Associate General<\/p>\n
Counsel, Lorraine C. Davis, Assistant General Counsel, Robert J.<\/p>\n
Gregory, EQUAL EMPLOYMENT OPPORTUNITY COMMIS- <\/p>\n
SION, Washington, D.C., for Amicus Curiae.<\/p>\n
_________________________________________________________________<\/p>\n
OPINION<\/b><\/p>\n
<\/b><\/p>\n
<\/b>MICHAEL, Circuit Judge:<\/p>\n
Patrick Cromer, an African American who sued his former<\/p>\n
employer (Johnny Mack Brown, the Sheriff of Greenville County,<\/p>\n
South Carolina) for racial discrimination and First Amendment viola- <\/p>\n
tions, appeals from the grant of summary judgment to the sheriff on<\/p>\n
some claims and the dismissal of others. We affirm in part, reverse<\/p>\n
in part, and remand for further proceedings.<\/p>\n
First, Cromer claims that because of his race Sheriff Brown<\/p>\n
demoted him from captain to lieutenant, and then fired him from his<\/p>\n
job as lieutenant, in violation of Title VII of the Civil Rights Act of<\/p>\n
1964, 42 U.S.C. § 2000 et seq<\/u>. The district court held that Cromer<\/p>\n
was not protected under Title VII because (as both captain and lieu- <\/p>\n
tenant) he fit within the statute’s exclusion for the “personal staff” of<\/p>\n
an elected official. We affirm the district court on the captaincy exclu- <\/p>\n
sion, but we reverse on the lieutenancy. We hold that Cromer was not<\/p>\n
on Sheriff Brown’s personal staff when he was a lieutenant, so the<\/p>\n
Title VII claim is remanded insofar as it charges that Cromer was<\/p>\n
fired from his job as lieutenant because of race.<\/p>\n
Second, Cromer claims that he was demoted and discharged<\/p>\n
because of his race in violation of the Civil Rights Act of 1991, 42<\/p>\n
2<\/p>\n
\n
U.S.C. § 1981. Sheriff Brown took these actions before the effective<\/p>\n
date of the amendments to § 1981, and the district court dismissed the<\/p>\n
§ 1981 claims on the ground that the Civil Rights Act of 1991 is not<\/p>\n
applied retroactively. We summarily affirm the dismissal of these<\/p>\n
claims. See Rivers v. Roadway Express, Inc.<\/u>, 114 S. Ct. 1510, 1513<\/p>\n
(1994) (the Civil Rights Act of 1991 does not apply retroactively to<\/p>\n
cover conduct completed prior to the law’s enactment).<\/p>\n
Third, invoking 42 U.S.C. § 1983, Cromer claims that Sheriff<\/p>\n
Brown fired him from his job as lieutenant in violation of his First<\/p>\n
Amendment rights of free speech and association because Cromer<\/p>\n
joined a black officers’ association and spoke up about perceived<\/p>\n
racial discrimination in the sheriff’s office. On these claims, the dis- <\/p>\n
trict court granted summary judgment to Sheriff Brown in his individ- <\/p>\n
ual capacity, holding that the sheriff was entitled to qualified<\/p>\n
immunity. We disagree and reverse on this point. Cromer had a<\/p>\n
clearly established right (of which a reasonable official would have<\/p>\n
known) to speak up about the widespread perception of racial dis- <\/p>\n
crimination in the sheriff’s department and to join an association of<\/p>\n
black officers formed to bring complaints of discrimination to the<\/p>\n
sheriff’s attention. To the extent the § 1983 claims were against Sher- <\/p>\n
iff Brown in his official capacity, we affirm the district court’s hold- <\/p>\n
ing that the sheriff, as a state official, is immune from suit for money<\/p>\n
damages. We reverse the district court’s determination that the doc- <\/p>\n
trine of official immunity protects the sheriff from claims for injunc- <\/p>\n
tive relief.<\/p>\n
I.<\/p>\n
A.<\/p>\n
The facts about Cromer’s different roles as captain and lieutenant<\/p>\n
are not in dispute. We construe the other facts in the light most favor- <\/p>\n
able to Cromer, the non- moving party below. See Anderson v. Liberty<\/u><\/p>\n
Lobby, Inc.<\/u>, 477 U.S. 242 (1986).<\/p>\n
Sheriff Brown’s predecessor in office hired Cromer to work as a<\/p>\n
deputy sheriff in 1974. In 1976 Brown was elected sheriff. Upon tak- <\/p>\n
ing office in January 1977, Brown recommissioned Cromer as a dep- <\/p>\n
uty. Within the next two weeks Sheriff Brown promoted Cromer<\/p>\n
3<\/p>\n
\n
twice, first to sergeant and then to lieutenant. Cromer served as a lieu- <\/p>\n
tenant from 1977 until 1988.<\/p>\n
During the twelve- year period from 1977 to 1988, Sheriff Brown<\/p>\n
denied Cromer a promotion to captain several times. According to<\/p>\n
Cromer, Sheriff Brown refused to promote him because of Cromer’s<\/p>\n
long- term relationship with a white woman, Beth Johnson. Specifi- <\/p>\n
cally, Cromer testified (in deposition) as follows:<\/p>\n
Question: [When you asked Sheriff Brown about promo- <\/p>\n
tion to captain], [w]hat did he say?<\/p>\n
Cromer: At that time, I was dating a white female and he<\/p>\n
told me that he would have a serious problem with me being<\/p>\n
a captain for him, since I was dating that white girl. . . .<\/p>\n
Question: All right. Tell me about that conversation.<\/p>\n
When did this take place? . . .<\/p>\n
Cromer: That conversation ha[s] taken place many times<\/p>\n
with myself and Sheriff Brown over the years.<\/p>\n
* * *<\/p>\n
Question: I want to know [about each one of the conversa- <\/p>\n
tions] to the best of your recollection.<\/p>\n
Cromer: All I’m telling you, we had many conversations<\/p>\n
concerning Beth and he made it good and clear that he<\/p>\n
didn’t appreciate interracial dating. He didn’t like it and he<\/p>\n
wasn’t tolerated [sic] for it and he just couldn’t handle it and<\/p>\n
he made it good and plain to me. And many times, he threat- <\/p>\n
ened to terminate me . . . .<\/p>\n
The sheriff also let Cromer know that he should not bring Beth to the<\/p>\n
Annual Sheriff’s Office Awards Banquet. This led Lieutenant Cromer<\/p>\n
to tell his immediate supervisor, Captain Sorrow, that “I would not be<\/p>\n
attending those awards if I couldn’t bring Beth.”<\/p>\n
4<\/p>\n
\n
In 1988 Major Barnett, the officer of highest rank under Sheriff<\/p>\n
Brown, suggested to the sheriff that he promote Cromer to captain.<\/p>\n
Major Barnett later told Cromer “that the Sheriff had reservations, but<\/p>\n
he [Barnett] was standing tall to try to get me promoted because he<\/p>\n
felt like I was qualified and it was about time.” In June 1988 Cromer<\/p>\n
again talked with the sheriff about the possibility of a promotion.<\/p>\n
Again, Beth, Cromer’s white companion, was a subject of discussion.<\/p>\n
However, on July 1, 1988, Sheriff Brown made Cromer the first black<\/p>\n
captain in the history of the Greenville County Sheriff’s Office.<\/p>\n
As one of four captains, Cromer stood high in the chain of com- <\/p>\n
mand in the sheriff’s office. He commanded one of four divisions,<\/p>\n
Uniform Patrol, and supervised 185 officers, including five lieuten- <\/p>\n
ants and twenty- six sergeants. Cromer was outranked only by Major<\/p>\n
Barnett and Sheriff Brown. Together, the four captains, the major and<\/p>\n
the sheriff made up the “command staff.” The command staff met<\/p>\n
weekly to discuss operations, policy and procedure. Cromer felt he<\/p>\n
had a “strong, effective voice” in policy discussions when he was cap- <\/p>\n
tain. The command staff was also responsible for community rela- <\/p>\n
tions. Once, while Cromer was captain, the command staff met with<\/p>\n
the president of the Greenville County NAACP. Cromer told the pres- <\/p>\n
ident, “I [am] the Captain of Uniform Patrol and . . . black, if there<\/p>\n
[are] racial problems [in the sheriff’s office], they [are] brought<\/p>\n
directly to me and we [will] handle them.”<\/p>\n
Cromer’s tenure as captain did not go smoothly. Cromer apparently<\/p>\n
believes that certain white lieutenants orchestrated a campaign to<\/p>\n
have him ousted as captain. Sheriff Brown says that certain lieuten- <\/p>\n
ants did begin to question Cromer’s methods of supervision and that<\/p>\n
Major Barnett investigated the complaints by interviewing the com- <\/p>\n
plaining lieutenants and several sergeants. Barnett then reported to<\/p>\n
Brown, who demoted Cromer from captain to lieutenant on March 13,<\/p>\n
1991. Sheriff Brown asserts that he demoted Cromer because he had<\/p>\n
“lost his ability and his effectiveness as a commander of the uniform<\/p>\n
patrol.” According to the sheriff, Cromer lost his effectiveness<\/p>\n
because he supervised through fear and retaliation. Cromer claims his<\/p>\n
demotion was because of his race. He was treated differently, he says,<\/p>\n
than any white captain whose performance was ever questioned.<\/p>\n
5<\/p>\n
\n
White captains with performance problems had simply been reas- <\/p>\n
signed to other duties without taking a demotion in rank.1<\/b><\/p>\n
As a lieutenant Cromer no longer participated in command staff<\/p>\n
meetings. He rarely saw Sheriff Brown. Cromer’s only formal contact<\/p>\n
with the sheriff occurred at monthly meetings, which were attended<\/p>\n
by every officer in the department. As a lieutenant Cromer was nei- <\/p>\n
ther involved in creating department policy nor consulted on any pro- <\/p>\n
posed changes to policy.<\/p>\n
On May 1, 1991, six weeks after Cromer’s demotion, most (about<\/p>\n
30) of the sheriff department’s 32 black deputies met after work at a<\/p>\n
private residence. There, under the leadership of Sergeant Paul Guy,<\/p>\n
they formed a group called the Black Law Enforcement Officers<\/p>\n
Association (the “Association”). Cromer attended the Association’s<\/p>\n
first four meetings. Each meeting was held after work at a private res- <\/p>\n
idence. At the Association’s meetings the black officers discussed<\/p>\n
their concerns about racial problems in the sheriff’s department. After<\/p>\n
the fourth meeting, in mid- May, 1991, the Association submitted pri- <\/p>\n
vately to Sheriff Brown an unsigned letter entitled”Race Relationship<\/p>\n
Within The Greenville County Sheriffs Office As Perceived By Black<\/p>\n
Deputies.”2<\/b><\/p>\n
The seven- page letter began by saying that “Black officers within<\/p>\n
the [Greenville County Sheriff’s Office] have formed a committee to<\/p>\n
discuss the racial climate within the Sheriff’s Office.” The letter’s<\/p>\n
introduction explained that the black officers had come to a “consen- <\/p>\n
sus” that the command staff and certain unwritten policies in the<\/p>\n
department were “inhibit[ing] the advancement of Black officers.” “It<\/p>\n
is also the consensus among Black officers,” the letter continued,<\/p>\n
“that supervisors are attempting to target, categorize, and defame<\/p>\n
Black officers who exhibit any form of leadership qualities.” The let- <\/p>\n
ter’s introduction ended with the complaint “that the overall white<\/p>\n
structure” in the sheriff’s office had little or no understanding of “the<\/p>\n
_________________________________________________________________<\/p>\n
1 <\/b>As we indicate in other parts of this opinion, we are affirming the<\/p>\n
judgment in favor of Sheriff Brown as to all of Cromer’s claims for dis- <\/p>\n
criminatory demotion.<\/p>\n
2 <\/b>Apparently the letter was slipped under Sheriff Brown’s door while<\/p>\n
he was out of the office.<\/p>\n
6<\/p>\n
\n
Black ethos,” which led “to a High level of insensitivity toward Black<\/p>\n
officers. This insensitivity is both destructive and dangerous in<\/p>\n
regards to . . . the overall effectiveness of the[sheriff’s office] as a<\/p>\n
Law Enforcement Agency.”<\/p>\n
Next in the letter the black officers discussed several areas where<\/p>\n
they believed blacks were receiving unequal treatment. These<\/p>\n
included minority recruitment, cross- training and transfers, promo- <\/p>\n
tion, make- up of the Office of Professional Standards (internal<\/p>\n
affairs), off- duty jobs and equipment.<\/p>\n
As to recruitment, the Association said that the department’s<\/p>\n
recruitment officer “lack[ed] the needed expertise in minority recruit- <\/p>\n
ment.” Recruiters projected an image of the department that “discour- <\/p>\n
age[d] Black applicants.”<\/p>\n
As to cross- training and transfers, the Association said:<\/p>\n
It is felt that [white] supervisors have deliberately limited<\/p>\n
Black officer’s growth by not advancing qualified Black<\/p>\n
officers. This is transmitted by White supervisors recom- <\/p>\n
mending White officers for cross training in certain areas<\/p>\n
within CID such as, white collar crime section, housebreak- <\/p>\n
ing section, school district and major crime section. White<\/p>\n
supervisors within these divisions have made their position<\/p>\n
known to supervisors in uniform patrol as to whom they<\/p>\n
want and do not<\/u> want. Therefore, many officers never<\/u> have<\/p>\n
the opportunity to display their abilities.<\/p>\n
The letter charged that the supervisors of two prestigious units, white<\/p>\n
collar and major crimes, had “made a conscious effort” to keep “their<\/p>\n
sections exclusively White.”<\/p>\n
Lack of promotional opportunities for blacks was a theme that<\/p>\n
appeared throughout the letter. Major Barnett was criticized for recent<\/p>\n
newspaper comments that, according to the Association, “le[ft] the<\/p>\n
reader with the opinion that there are no Black officers with the capa- <\/p>\n
bilities and qualifications to be promoted.” Black officers were dis- <\/p>\n
couraged and many felt that “favoritism is shown toward White<\/p>\n
7<\/p>\n
\n
officers with less education and less job experience. Black officers are<\/p>\n
beginning to lose faith in the promotional process.” Specifically, the<\/p>\n
Association charged that promotional boards were biased against<\/p>\n
black officers, particularly because the boards did not exercise appro- <\/p>\n
priate independence.<\/p>\n
The Association asserted that the Office of Professional Standards<\/p>\n
(internal affairs), which was staffed by white officers, conducted<\/p>\n
internal investigations in ways that “pit White officers against Black<\/p>\n
officers.” The Association suggested the assignment of a black officer<\/p>\n
to internal affairs.<\/p>\n
As to off- duty jobs, the Association charged that the highest paying<\/p>\n
jobs (apparently those in retail stores) went to white officers. As to<\/p>\n
equipment, the group complained that “White officers get the first<\/p>\n
choice in new equipment.” Finally, the black officers believed there<\/p>\n
was a need for a black negotiator on the SWAT team.<\/p>\n
Sheriff Brown was quite upset by the letter, and he blamed Cromer.<\/p>\n
“I suspected Cromer,” the sheriff testified,”because of his reduction<\/p>\n
in rank. In the past 15 to 17 years prior to this, there was never any<\/p>\n
hint of discontent, never. No rumors, nothing. I concluded it had to<\/p>\n
have started after Cromer was demoted. Something like this does not<\/p>\n
happen overnight.”<\/p>\n
Sheriff Brown admitted that he was very angry at Cromer for not<\/p>\n
coming to his (the sheriff’s) defense. The sheriff said he was not<\/p>\n
angry because Cromer had gone to the meetings of the Association.<\/p>\n
Rather, the sheriff said, he was angry “[b]ecause [Cromer], above<\/p>\n
anybody else, should have known that none of these complaints were<\/p>\n
legitimate.” According to the sheriff, Cromer should have known the<\/p>\n
complaints were not true because Cromer before his demotion sat on<\/p>\n
promotion and interview boards and participated in command staff<\/p>\n
meetings where policy was made. The sheriff therefore believed that<\/p>\n
Cromer could have answered all of the complaints at the Association<\/p>\n
meetings, providing a full defense for the sheriff.<\/p>\n
On May 22, 1991, Sheriff Brown sent each black officer a six- page<\/p>\n
response to the Association’s letter. The sheriff opened his response<\/p>\n
by explaining that “I have personally worked to create a personnel<\/p>\n
8<\/p>\n
\n
process that is colorblind, and emphasizes merit over personalities.”<\/p>\n
The sheriff denied each of the charges, but he nevertheless expressed<\/p>\n
a willingness to work hard to cure any perception that race played a<\/p>\n
role in the operations of his office.<\/p>\n
In his written response Sheriff Brown placed much of the blame for<\/p>\n
any problems at the feet of a “black Captain, who was a member of<\/p>\n
the command staff until recently.” The sheriff was referring to Cro- <\/p>\n
mer. He said that Cromer never complained that black officers were<\/p>\n
being discriminated against in assignment and promotion. According<\/p>\n
to the sheriff, in a meeting between the command staff and the presi- <\/p>\n
dent of the Greenville County NAACP, Cromer assured the president<\/p>\n
that “we had no racial problems in the Sheriff’s Office.” The sheriff<\/p>\n
said that Cromer had congratulated the department’s recruiter for out- <\/p>\n
standing minority hires. Finally, the sheriff said that because Cromer<\/p>\n
had recently been in charge of Uniform Patrol, any failure to transfer<\/p>\n
black officers out of Uniform Patrol into more prestigious units<\/p>\n
“would have had . . . [Cromer’s] support and endorsement.” In short,<\/p>\n
the sheriff blamed Cromer for his troubles.<\/p>\n
Sheriff Brown closed his letter to the black officers as follows:<\/p>\n
I have reviewed all of the above complaints and tried to<\/p>\n
respond to them. I am deeply disturbed that such serious<\/p>\n
complaints exist. If they are factually documented, I will<\/p>\n
take strong action to eliminate them. It appears that most of<\/p>\n
the complaints dealing with employment and promotions are<\/p>\n
not justified by the facts. . . . However, I am equally con- <\/p>\n
cerned with even the perception<\/u> of racial division. . . . Even<\/p>\n
though we have a chain of command, my door is always<\/p>\n
open for any officer to bring up complaints of such a serious<\/p>\n
nature.<\/p>\n
Sheriff Brown ended with this warning: “I will . . . not tolerate any<\/p>\n
individual of any race using racial issues to pursue personal vendet- <\/p>\n
tas.”<\/p>\n
On May 27, 1991, five days after Sheriff Brown’s letter to the<\/p>\n
black officers, Sergeant Rodney Watts, a member of the black offi- <\/p>\n
cers’ Association, wrote to the sheriff. Watts reported that Lieutenant<\/p>\n
9<\/p>\n
\n
Kelley had claimed that Sheriff Brown made a racist remark about<\/p>\n
Watts while talking with Kelley at the awards banquet about two<\/p>\n
months earlier. Sergeant Watts requested a meeting with the sheriff.<\/p>\n
Upon getting the letter, the sheriff called Watts to his office. Accord- <\/p>\n
ing to Watts, when he walked in, Sheriff Brown “slammed that door<\/p>\n
behind me, and he said `I can’t believe you have the [expletive<\/p>\n
deleted] audacity to send me this letter.’ . . .`Pat Cromer put you up<\/p>\n
to this, didn’t he?'” Later in the meeting the sheriff again accused<\/p>\n
Cromer. Both times Watts told the sheriff that Cromer had nothing to<\/p>\n
do with Watts’ letter. Within a week of this meeting Sheriff Brown<\/p>\n
fired both Sergeant Watts and Cromer.<\/p>\n
The personnel order terminating Cromer said simply that he was<\/p>\n
fired for conduct “unbecoming an officer.” Cromer learned that he<\/p>\n
was to be fired from Major Barnett. Barnett told Cromer he was being<\/p>\n
terminated for wrongfully accusing one officer of fixing a drunk driv- <\/p>\n
ing ticket and for telling another officer that Sergeant Guy had<\/p>\n
reported (at an Association meeting) that he had been asked to plant<\/p>\n
drugs in the former county administrator’s car. According to Cromer,<\/p>\n
Major Barnett also admitted that Cromer’s membership in the black<\/p>\n
officers’ Association and the Association’s letter to the sheriff “had<\/p>\n
a lot to do with” Cromer’s termination. Cromer was then allowed to<\/p>\n
see the sheriff, who said only, “Pat I’m very disappointed in you and<\/p>\n
I don’t even want to talk to you.”3 <\/b><\/p>\n
Later, at a hearing before the South Carolina Employment Security<\/p>\n
Commission, Major Barnett represented the sheriff’s office in an<\/p>\n
effort to block Cromer from receiving unemployment compensation.<\/p>\n
Major Barnett testified that Cromer’s firing was due in part to his<\/p>\n
involvement in the Association and the “list of grievances” presented<\/p>\n
to the sheriff. Barnett accused Cromer of using the Association for<\/p>\n
personal gain instead of refuting the black officers’ allegations with<\/p>\n
facts.<\/p>\n
_________________________________________________________________<\/p>\n
3 <\/b>Cromer says he was later told of another reason for his firing: that he<\/p>\n
had allowed his lieutenants to keep two sets of overtime books when he<\/p>\n
was captain. In other words, not all overtime was turned in for payroll;<\/p>\n
overtime not turned in was kept in a second, unofficial set of books and<\/p>\n
could be taken as “comp time.” Cromer responds to all allegations by<\/p>\n
denying any wrongdoing or improper conduct on his part.<\/p>\n
10<\/p>\n
\n
B.<\/p>\n
After his firing Cromer was granted a hearing by the Sheriff’s<\/p>\n
Department Grievance Board, an internal body. The board (made up<\/p>\n
of a captain and two lieutenants) heard Cromer’s case and concluded<\/p>\n
that his firing was justified. Cromer then filed a complaint with the<\/p>\n
federal Equal Employment Opportunity Commission (EEOC), which<\/p>\n
determined that Cromer’s discharge violated Title VII but that his<\/p>\n
demotion did not. The EEOC issued Cromer a right- to- sue letter.<\/p>\n
Cromer filed this suit in district court on December 21, 1992. As<\/p>\n
we explained in the introduction, the district court disposed of Cro- <\/p>\n
mer’s case by granting summary judgment to Sheriff Brown on some<\/p>\n
claims and by dismissing others. Cromer now appeals.<\/p>\n
II.<\/p>\n
We must first decide whether the district court was wrong to con- <\/p>\n
clude that Cromer, both as lieutenant and captain, fell under Title<\/p>\n
VII’s exclusion for the “personal staff” of an elected official. This<\/p>\n
conclusion led the district court to enter summary judgment for Sher- <\/p>\n
iff Brown on Cromer’s Title VII claims.<\/p>\n
Title VII defines an “employee” as an “individual employed by an<\/p>\n
employer.” 42 U.S.C. § 2000e(f). The definition, however, excludes<\/p>\n
“any person elected to public office in any State or political subdivi- <\/p>\n
sion of any State by the qualified voters thereof, or any person chosen<\/p>\n
by such officer to be on the officer’s personal staff . . . .” Id.<\/u><\/p>\n
The reach of Title VII’s personal staff exclusion is a question of<\/p>\n
federal, not state, law. Curl v. Reavis<\/u>, 740 F.2d 1323, 1327 (4th Cir.<\/p>\n
1984). “State law is only relevant `insofar as it describes the plain- <\/p>\n
tiff’s position, including his duties and the way he is hired, supervised<\/p>\n
and fired.'” Id.<\/u> (internal citation omitted). We must, therefore, ascer- <\/p>\n
tain as a matter of federal law what Congress meant by the term “per- <\/p>\n
sonal staff.”<\/p>\n
Although the statute does not define “personal staff,” the word<\/p>\n
“personal” certainly narrows the reach of the exclusion to some inti- <\/p>\n
11<\/p>\n
\n
mate subset of the elected official’s staff. With that observation in<\/p>\n
mind, we look beyond the text to the exclusion’s objectives as dis- <\/p>\n
cussed in our prior cases. We have concluded that”`Congress<\/p>\n
intended for the personal staff exception to apply only to those indi- <\/p>\n
viduals who are in highly intimate and sensitive positions of responsi- <\/p>\n
bility on the staff of an elected official.'” Brewster v. Barnes<\/u>, 788<\/p>\n
F.2d 985, 990 (4th Cir. 1986) (quoting Curl<\/u>, 740 F.2d at 1328 (quot- <\/p>\n
ing Owens v. Rush<\/u>, 654 F.2d 1370, 1375 (10th Cir. 1981)).4<\/b> Three<\/p>\n
times we have applied the personal staff exemption in cases involving<\/p>\n
sheriffs’ offices. United States v. Gregory<\/u>, 818 F.2d 1114 (4th Cir.),<\/p>\n
cert. denied<\/u>, 484 U.S. 847 (1987); Curl<\/u>, 740 F.2d 1323; Brewster<\/u>,<\/p>\n
788 F.2d 985. In each of these cases we were “unwilling to treat all<\/p>\n
deputy sheriffs as employees, or to exclude them wholesale from [the<\/p>\n
statute’s] protection.” Curl<\/u>, 740 F.2d at 1328. Instead, we explained<\/p>\n
that whether a given deputy would be treated as a member of a sher- <\/p>\n
iff’s personal staff depended on a “careful examination of the nature<\/p>\n
and circumstances of her role in the Sheriff’s Department.” Id.<\/u>; see<\/u><\/p>\n
Brewster<\/u>, 788 F.2d at 990; Gregory<\/u>, 818 F.2d at 1117.<\/p>\n
In concluding that Cromer was “personal staff” as both captain and<\/p>\n
lieutenant, the district court said it applied the following “four pri- <\/p>\n
mary factors” this court “has considered”:<\/p>\n
1. Is promotion of the employee solely up to the sheriff;<\/p>\n
2. Does the employee occupy a position high in the chain<\/p>\n
of command;<\/p>\n
3. Does the employee have a highly intimate working rela- <\/p>\n
tionship with the sheriff; and<\/p>\n
4. Does the employee contribute to the making of policy<\/p>\n
decisions in the sheriff’s department?<\/p>\n
_________________________________________________________________<\/p>\n
4 Brewster<\/u><\/b> involved the Equal Pay Act. However, the “definition of<\/p>\n
`employee’ in Title VII contains a `personal staff’ exemption which is<\/p>\n
essentially identical to the exemption contained in the Equal Pay Act.”<\/p>\n
Brewster<\/u>, 788 F.2d at 990 n.7. Therefore, Brewster<\/u>‘s reasoning applies<\/p>\n
here.<\/p>\n
12<\/p>\n
\n
Cromer v. Brown<\/u>, C\/A No. 6:92- 3555- 20AK, mem. op. at 4 (D.S.C.<\/p>\n
Feb. 28, 1994).<\/p>\n
We have considered the factors listed by the district court, but we<\/p>\n
have never characterized them as “primary.” Indeed, we have often<\/p>\n
considered factors left off the district court’s list. We have, for exam- <\/p>\n
ple, always emphasized that the “personal staff” exemption is to be<\/p>\n
narrowly construed. Gregory<\/u>, 818 F.2d at 1117; Brewster<\/u>, 788 F.2d<\/p>\n
at 990; Curl<\/u>, 740 F.2d at 1328. We have asked whether the employ- <\/p>\n
ee’s position “was created and compensated by the county pursuant<\/p>\n
to state law.”5<\/b> Gregory<\/u>, 818 F.2d at 1117; see Curl<\/u>, 740 F.2d at 1328.<\/p>\n
We have inquired about the full scope of the employee’s duties, with- <\/p>\n
out limiting the inquiry to whether he is a policy maker. Curl<\/u>, 740<\/p>\n
F.2d at 1328; Brewster<\/u>, 788 F.2d at 991. We have explored whether<\/p>\n
the employee worked in the official’s political campaign. Brewster<\/u>,<\/p>\n
788 F.2d at 990. And we have considered it significant whether the<\/p>\n
employee worked under the direction of the official or someone else.<\/p>\n
Curl<\/u>, 740 F.2d at 1328.<\/p>\n
The factors we have added to those mentioned by the district court<\/p>\n
are not intended to round out a rigid list. A fact- specific examination<\/p>\n
of the employee’s role is what is required. In general, the examination<\/p>\n
should focus on whether the employee worked in an intimate and sen- <\/p>\n
sitive position of trust, close to the elected official.<\/p>\n
When Cromer was a lieutenant, the undisputed facts make it clear<\/p>\n
that Cromer was not a member of Sheriff Brown’s personal staff.<\/p>\n
First, Cromer did not report directly to the sheriff. He reported to his<\/p>\n
captain, who in turn reported to the major, who reported directly to<\/p>\n
the sheriff. Second, as a lieutenant, Cromer rarely saw Sheriff Brown<\/p>\n
and did not work under the sheriff’s personal direction. As a rule Cro- <\/p>\n
mer saw the sheriff only at the monthly meetings of all supervisors,<\/p>\n
including sergeants and lieutenants. At those meetings the sheriff<\/p>\n
spoke only for a few minutes about very general matters.6<\/b> Third, as<\/p>\n
_________________________________________________________________<\/p>\n
5 <\/b>This can be relevant because when a position is created and compen- <\/p>\n
sated under state law, the elected official (the employer) is not required<\/p>\n
to allocate funds from his discretionary budget to pay the employee’s sal- <\/p>\n
ary.<\/p>\n
6 <\/b>Although the record is not clear on the point, it appears that Sheriff<\/p>\n
Brown may have attended at least one platoon meeting with Lieutenant<\/p>\n
Cromer and those in Cromer’s platoon.<\/p>\n
13<\/p>\n
\n
a lieutenant, Cromer had no hand in creating, or even substantively<\/p>\n
discussing, department policy. Fourth, Lieutenant Cromer was not a<\/p>\n
member of the command staff. Fifth, Cromer’s termination was<\/p>\n
reviewed by the Grievance Board, which could have recommended<\/b><\/p>\n
<\/b>reinstatement.7<\/b> Sixth, Cromer apparently did not assist in any of Sher- <\/p>\n
iff Brown’s election efforts. Nor was Cromer initially hired as a dep- <\/p>\n
uty by Brown. Brown’s predecessor in office hired Cromer, and<\/p>\n
Brown simply recommissioned Cromer as a deputy. Seventh, Cro- <\/p>\n
mer’s position was created and compensated pursuant to state law.<\/p>\n
See<\/u> S.C. Code Ann. § 23- 13- 10 et seq <\/u>. Together, the undisputed facts<\/p>\n
establish as a matter of law that Cromer was not a member of Sheriff<\/p>\n
Brown’s personal staff during his service as a lieutenant. We, there- <\/p>\n
fore, reverse the district court on that issue.<\/p>\n
Different facts establish, as a matter of law, that during his service<\/p>\n
as captain Cromer was on Sheriff Brown’s personal staff. First, there<\/p>\n
were only four captains and all were members of the command staff.<\/p>\n
Second, as a member of the command staff, Captain Cromer met<\/p>\n
weekly with the sheriff, the major and the other three captains to dis- <\/p>\n
cuss the substance and merits of proposed operations, policies and<\/p>\n
procedures. In fact, Cromer himself acknowledged that as a captain<\/p>\n
he exerted a “strong, effective voice” on department policy. Third,<\/p>\n
Sheriff Brown personally promoted Cromer to captain and personally<\/p>\n
demoted him. There is no suggestion that Cromer could have taken<\/p>\n
his demotion from captain to the Grievance Board for review. And<\/p>\n
finally, as a captain, Cromer occasionally dealt with citizens’ com- <\/p>\n
plaints and other public matters which required him to speak outside<\/p>\n
the department on behalf of the sheriff. Together, these facts demon- <\/p>\n
strate as a matter of law that when Cromer was a captain, he served<\/p>\n
on Sheriff Brown’s personal staff. Therefore, we affirm the district<\/p>\n
court’s ruling to that effect.<\/p>\n
_________________________________________________________________<\/p>\n
7 <\/b>When a public official cedes exclusive authority to hire or discharge<\/p>\n
an employee, the personal staff exclusion would not apply. In this case,<\/p>\n
Sheriff Brown did not cede his exclusive authority, but he did permit the<\/p>\n
Grievance Board to make a recommendation.<\/p>\n
14<\/p>\n
\n
III.<\/p>\n
We next consider Cromer’s constitutional claims, brought under<\/p>\n
§ 1983. Cromer asserts that his termination violated his First Amend- <\/p>\n
ment rights to speak freely and to associate. The district court, how- <\/p>\n
ever, determined that these asserted rights were not clearly established<\/p>\n
in June of 1991, when Cromer was fired. Therefore, the district court<\/p>\n
held that Sheriff Brown (in his individual capacity) was entitled to<\/p>\n
immunity from these claims.<\/p>\n
A.<\/p>\n
The doctrine of qualified immunity would provide Sheriff Brown,<\/p>\n
in his individual capacity, with a full defense to Cromer’s § 1983<\/p>\n
charges if Brown’s conduct did not “violate clearly established statu- <\/p>\n
tory or constitutional rights of which a reasonable person would have<\/p>\n
known.” Harlow v. Fitzgerald<\/u>, 457 U.S. 800, 818 (1982). The pur- <\/p>\n
pose of the qualified immunity defense under § 1983 is to allow gov- <\/p>\n
ernment officials “the freedom to exercise fair judgment” without<\/p>\n
“being blindsided by liability derived from newly invented rights or<\/p>\n
new, unforeseen applications of pre- existing rights.” Pinder v.<\/u><\/p>\n
Johnson<\/u>, 54 F.3d 1169, 1173 (4th Cir.) (en banc), cert. denied<\/u>, 116<\/p>\n
S. Ct. 530 (1995).<\/p>\n
As we observed in Pinder<\/u>:<\/p>\n
The linchpin of qualified immunity is objective reasonable- <\/p>\n
ness. So long as the officer’s actions, viewed from the per- <\/p>\n
spective of the officer at the time, can be seen within the<\/p>\n
range of reasonableness, then no liability will attach.<\/p>\n
Important to this reasonableness inquiry is whether the<\/p>\n
rights alleged to have been violated were clearly established<\/p>\n
at the time of the challenged actions.<\/p>\n
If the law supporting the allegedly violated rights was not<\/p>\n
clearly established, then immunity must lie. Where the law<\/p>\n
is clearly established, and where no reasonable officer could<\/p>\n
15<\/p>\n
\n
believe he was acting in accordance with it, qualified immu- <\/p>\n
nity will not attach.<\/p>\n
Id.<\/u> (internal citations omitted).<\/p>\n
The right allegedly violated must be articulated in a “particular- <\/p>\n
ized” and “relevant” way. Anderson v. Creighton<\/u>, 483 U.S. 635, 640<\/p>\n
(1987). A plaintiff may not merely assert the violation of some “over- <\/p>\n
arching entitlement” to a named right. Pinder <\/u>, 54 F.3d at 1173.<\/p>\n
Instead, he must be sufficiently specific to allow us to decide whether<\/p>\n
“a reasonable official would understand that what he [did] violates<\/p>\n
that right.” Anderson<\/u>, 483 U.S. at 640. But “[i]t is important not to be<\/p>\n
overspecific – – there need not be a prior case directly on all fours<\/p>\n
with the facts presented to the official.” Pinder<\/u>, 54 F.3d at 1173. Still,<\/p>\n
we must be able to conclude that, in light of pre- existing law, the<\/p>\n
unlawfulness of the challenged action was apparent to the official.<\/p>\n
Anderson<\/u>, 483 U.S. at 640; Pinder<\/u>, 54 F.3d at 1173.<\/p>\n
1.<\/p>\n
Cromer’s first allegation is that Sheriff Brown violated his right to<\/p>\n
speak freely on matters of public concern by firing him for joining in<\/p>\n
the Association’s letter that raised specific charges of racial discrimi- <\/p>\n
nation and animus in the sheriff’s office.<\/p>\n
At the time of Cromer’s discharge in June 1991, it was established<\/p>\n
that a government official “may not discharge an employee on a basis<\/p>\n
that infringes that employee’s constitutionally protected<\/u> interest in<\/p>\n
freedom of speech.” Rankin v. McPherson<\/u>, 483 U.S. 378, 383 (1987)<\/p>\n
(citing Perry v. Sindermann<\/u>, 408 U.S. 593, 597 (1972)) (emphasis<\/p>\n
added). To determine whether a public employee’s speech was consti- <\/p>\n
tutionally protected, we undertake a two- step analysis. First, we ask<\/p>\n
whether the employee spoke as a citizen on a matter of “public con- <\/p>\n
cern.” Connick v. Myers<\/u>, 461 U.S. 138, 146 (1983). If he did, the next<\/p>\n
step requires “balanc[ing] the interests of the [employee], as a citizen,<\/p>\n
in commenting upon matters of public concern and the interest of the<\/p>\n
State, as an employer, in promoting the efficiency of the public ser- <\/p>\n
vices it performs through its employees.” Pickering v. Board of Educ.<\/u>,<\/p>\n
391 U.S. 563, 568 (1968). If these two steps yield a right that was<\/p>\n
clearly established in 1991, we “proceed to determine whether a rea- <\/p>\n
16<\/p>\n
\n
sonable person in the official’s position would have known that his<\/p>\n
actions violated that right.” DiMeglio v. Haines<\/u>, 45 F.3d 790, 794- 95<\/p>\n
n.1 (4th Cir. 1995) (citing Harlow<\/u>, 457 U.S. at 817- 18).<\/p>\n
a.<\/p>\n
We decide whether Cromer spoke as a citizen on a matter of public<\/p>\n
concern by examining the “content, form and context” of his speech.<\/p>\n
Connick<\/u>, 461 U.S. at 147- 48.<\/p>\n
We turn first to the content of Cromer’s speech, the letter the black<\/p>\n
officers’ Association sent to Sheriff Brown. The theme of the letter<\/p>\n
was that the “effectiveness of the [sheriff’s office] as a Law Enforce- <\/p>\n
ment Agency” was being destroyed by internal racial discrimination.<\/p>\n
The seven- page letter included the following charges of discrimina- <\/p>\n
tion by an “overall white [management] structure”: (1) ineffective<\/p>\n
minority recruitment efforts, (2) lack of opportunity for black officers<\/p>\n
to cross- train in and transfer into prestigious units, such as white col- <\/p>\n
lar and major crimes, (3) lack of promotional opportunities for blacks<\/p>\n
and loss of faith in the promotion process, (4) methods of investiga- <\/p>\n
tion by the all- white internal affairs unit that caused racial polariza- <\/p>\n
tion, and (5) favoritism to white officers in the allocation of new<\/p>\n
equipment. Because these specific complaints prompted an expression<\/p>\n
of concern about the inability of the sheriff’s office to carry out its<\/p>\n
vital public mission effectively, we conclude that Cromer and the<\/p>\n
other members of the Association spoke as citizens, not merely as<\/p>\n
employees. See id.<\/u> at 147. Of course, the allegations themselves,<\/p>\n
about racial discrimination within a law enforcement agency, are mat- <\/p>\n
ters of serious public import. Rode v. Dellarciprete<\/u>, 845 F.2d 1195,<\/p>\n
1201 (3d Cir. 1985) (holding that allegations of racial animus within<\/p>\n
the state police raised a matter of “grave public concern”); Leonard<\/u><\/p>\n
v. City of Columbus<\/u>, 705 F.2d 1299, 1305 (11th Cir. 1983) (holding<\/p>\n
that allegations of racially discriminatory hiring and distribution of<\/p>\n
“beat” assignments raised “matters of interest to the community”),<\/p>\n
cert. denied<\/u>, 468 U.S. 1204 (1984). Cf. Connick<\/u>, 461 U.S. at 146, 148<\/p>\n
n.8 (characterizing allegations of a school district’s “racially discrimi- <\/p>\n
natory policies” as “a matter inherently of public concern”).<\/p>\n
Nothing in the form (private letter with no member of the Associa- <\/p>\n
tion identified) or context (slipped under the sheriff’s door) of the<\/p>\n
17<\/p>\n
\n
speech deprives it of its public import. Public employees do not for- <\/p>\n
feit the protection of the Constitution’s Free Speech Clause merely<\/p>\n
because they decide to express their views privately rather than pub- <\/p>\n
licly. Givhan v. Western Line Consol. Sch. Dist. <\/u>, 439 U.S. 410, 413- <\/p>\n
14 (1979).<\/p>\n
In any event, the sheriff considered the letter a group effort by<\/p>\n
black officers, and indeed it was. Virtually all of the black officers in<\/p>\n
the department participated in the Association. They discussed the<\/p>\n
items covered in the letter at four meetings, and they sent the letter<\/p>\n
as a body to voice their concerns about what they considered discrim- <\/p>\n
ination. Thus, the letter was not the expression of a single disgruntled<\/p>\n
employee about a personal employment dispute. See Connick<\/u>, 461<\/p>\n
U.S. at 148 (noting, in reversed circumstances, that the communica- <\/p>\n
tion at issue “if released to the public would convey no information<\/p>\n
at all other than the fact that a single employee is upset with the status<\/p>\n
quo”). Instead, the letter here was delivered in the context or circum- <\/p>\n
stance of a group complaint, and that further demonstrates the public<\/p>\n
import of the speech. Collins v. Robinson<\/u>, 568 F. Supp. 1464, 1468<\/p>\n
(E.D. Ark. 1983) (memorandum to sheriff for which sergeant was<\/p>\n
fired involved matters of public concern because, among other things,<\/p>\n
it expressed the complaints of numerous officers about the behavior<\/p>\n
of a major), aff’d on the reasoning of the district court<\/u>, 734 F.2d 1321<\/p>\n
(8th Cir. 1984).<\/p>\n
In sum, we hold that in 1991 it was clearly established that the<\/p>\n
Association’s letter, which Cromer adopted as his own speech,<\/p>\n
involved a matter of public concern.<\/p>\n
b.<\/p>\n
Because Cromer’s speech involved a matter of public concern, we<\/p>\n
must now balance Cromer’s interest as a citizen in commenting on<\/p>\n
racial discrimination in a law enforcement agency against Sheriff<\/p>\n
Brown’s interest in maintaining an efficient workplace. Pickering<\/u>,<\/p>\n
391 U.S. at 568. Interests of the community also weigh in the balance.<\/p>\n
Piver v. Pender County Bd. of Educ.<\/u>, 835 F.2d 1076, 1078 (4th Cir.<\/p>\n
1987), cert. denied<\/u>, 487 U.S. 1206 (1988) (noting that for speech to<\/p>\n
be constitutionally protected, “the interests of the speaker and the<\/u><\/p>\n
<\/u><\/p>\n
<\/u> 18<\/p>\n
\n
community<\/u> in the speech [must] outweigh the interests of the<\/p>\n
employer”) (emphasis added).<\/p>\n
We have recently noted that “only infrequently will it be `clearly<\/p>\n
established’ that a public employee’s speech on a matter of public<\/p>\n
concern is constitutionally protected, because the relevant inquiry<\/p>\n
requires a `particularized balancing’ that is subtle, difficult to apply<\/p>\n
and not yet well- defined.” DiMeglio<\/u>, 45 F.3d at 806. But we did not<\/p>\n
say that a public employee’s right to speak on matters of public con- <\/p>\n
cern could never<\/u> be clearly established. We believe that Cromer’s is<\/p>\n
one of the “infrequent” cases where an employee’s right to speak on<\/p>\n
a matter of public concern was clearly established. 8<\/b><\/p>\n
i.<\/p>\n
We are persuaded that the interests to be balanced under Pickering<\/u><\/p>\n
weighed so heavily in Cromer’s favor that his right to speak about<\/p>\n
perceived racial discrimination was clearly established in 1991.<\/p>\n
We begin our balancing analysis by examining the interests to be<\/p>\n
weighed on Cromer’s side. We have already said that Cromer’s<\/p>\n
_________________________________________________________________<\/p>\n
8 <\/b>Other circuits have found First Amendment rights to be clearly estab- <\/p>\n
lished in certain cases, even under Pickering <\/u>‘s balancing test. See<\/u>, e.g.<\/u>,<\/p>\n
Kincade v. City of Blue Springs<\/u>, 64 F.3d 389, 398- 99 (8th Cir. 1995)<\/p>\n
(city engineer voiced safety concerns regarding a construction project),<\/p>\n
cert. denied<\/u>, 116 S. Ct. 1565 (1996); Lambert v. Richard<\/u>, 59 F.3d 134,<\/p>\n
137 (9th Cir.) (plaintiff criticized library director’s mismanagement),<\/p>\n
cert. denied<\/u>, 116 S. Ct. 673 (1995); Ramirez v. Oklahoma Dep’t of Men- <\/u><\/p>\n
tal Health<\/u>, 41 F.3d 584, 593- 95 (10th Cir. 1994) (plaintiffs complained<\/p>\n
of mistreatment of a mental patient); Williams v. Kentucky<\/u>, 24 F.3d 1526,<\/p>\n
1537 (6th Cir.) (plaintiff reported employer’s illegal activities), cert.<\/u><\/p>\n
denied<\/u>, 115 S. Ct. 358 (1995); Bieluch v. Sullivan<\/u>, 999 F.2d 666, 673 (2d<\/p>\n
Cir. 1993) (police officer headed groups which campaigned against a<\/p>\n
school construction proposal and a proposed town budget), cert. denied<\/u>,<\/p>\n
114 S. Ct. 926 (1994); Gorman v. Robinson<\/u>, 977 F.2d 350, 356 (7th Cir.<\/p>\n
1992) (plaintiff informed FBI of his employer’s wrongdoings); Stough v.<\/u><\/p>\n
Gallagher<\/u>, 967 F.2d 1523, 1528- 29 (11th Cir. 1992) (captain spoke in<\/p>\n
support of sheriff’s political opponent); Brawner v. City of Richardson,<\/u><\/p>\n
Tex.<\/u>, 855 F.2d 187, 191 (5th Cir. 1988) (police officer made serious alle- <\/p>\n
gations of possible police misconduct).<\/p>\n
19<\/p>\n
\n
speech (reporting widely- held views about racial discrimination in the<\/p>\n
sheriff’s office) involved a matter of grave public concern. Indeed,<\/p>\n
“speech on public issues occupies the `highest rung of the hierarchy<\/p>\n
of First Amendment values.'” Connick<\/u>, 461 U.S. at 145 (citation<\/p>\n
omitted).<\/p>\n
We emphasize that this is not a “run- of- the- mine single plaintiff<\/p>\n
discrimination case.” See Auriemma v. Rice <\/u>, 910 F.2d 1449, 1460 (7th<\/p>\n
Cir. 1990) (en banc), cert. denied<\/u> 501 U.S. 1204 (1991). Although<\/p>\n
Cromer is the only plaintiff, the speech he adopted is a letter sent by<\/p>\n
a group of most of the 32 black officers who worked for Sheriff<\/p>\n
Brown. Cromer’s speech, therefore, had the potential for “broad<\/p>\n
impact,” id.<\/u>, because public safety was put at risk by the group<\/u> per- <\/p>\n
ception that black officers were discriminated against. In other words,<\/p>\n
the effectiveness of a major law enforcement agency was being called<\/p>\n
into question by a significant number of its members. The public has<\/p>\n
a fundamental interest in effective law enforcement organizations that<\/p>\n
are free of discrimination. Cromer’s individual interests, then, merge<\/p>\n
in a real sense with those of the community at large. Those merged<\/p>\n
interests are substantial. “For a police force to be effective it must<\/p>\n
have the respect and support of the community as well as its officers;<\/p>\n
our system of government demands that support be garnered through<\/p>\n
informed evaluation of circumstance, and not through the suppression<\/p>\n
of dissent.” Leonard<\/u>, 705 F.2d at 1305. Accordingly, the public has<\/p>\n
a keen interest in seeing that police officers are free to speak up about<\/p>\n
any broad- based discrimination in their agencies. After all,<\/p>\n
“[g]overnment employees are often in the best position to know what<\/p>\n
ails the agencies for which they work; public debate may gain much<\/p>\n
from their informed opinions.” Waters v. Churchill<\/u>, 114 S. Ct. 1878,<\/p>\n
1887 (1994). These interests weigh heavily in Cromer’s favor.<\/p>\n
We now weigh the interests of Sheriff Brown, “as an employer, in<\/p>\n
promoting the efficiency of the public services[the sheriff’s office]<\/p>\n
performs through its employees.” See Pickering<\/u>, 391 U.S. at 568. In<\/p>\n
weighing the sheriff’s interests, we bear in mind that when the<\/p>\n
employer runs a law enforcement organization where”discipline is<\/p>\n
demanded,” he has “greater latitude . . . in dealing with dissension in<\/p>\n
[the] ranks.” Maciariello v. Sumner<\/u>, 973 F.2d 295, 300 (4th Cir.<\/p>\n
1992), cert. denied<\/u>, 506 U.S. 1080 (1993).<\/p>\n
20<\/p>\n
\n
Here, Sheriff Brown maintains that Cromer’s speech carried the<\/p>\n
potential for disrupting efficiency because it cut against discipline,<\/p>\n
morale and good working relationships in the department. We exam- <\/p>\n
ine the extent to which Cromer’s speech undermined these interests.<\/p>\n
We look preliminarily at Cromer’s position and status when he<\/p>\n
engaged in the speech. Sheriff Brown charges that Cromer endorsed<\/p>\n
the grievances presented by the black officers’ group and “did nothing<\/p>\n
to diffuse the tense racial situation presented by the formation of<\/p>\n
[that] group.” Brief of Appellees at 23. The sheriff says that he looked<\/p>\n
to Cromer to maintain good race relations in the department. Thus,<\/p>\n
the sheriff maintains that Cromer could (and should) have spoken up<\/p>\n
at the black officers’ meetings and allayed the concerns expressed by<\/p>\n
the Association. This might well be an accurate representation of<\/p>\n
what the sheriff expected of Cromer when he was a captain, but it sig- <\/p>\n
nificantly overstates Cromer’s responsibility and influence after he<\/p>\n
was demoted from the command staff to lieutenant.<\/p>\n
Sheriff Brown testified that he demoted Cromer because he had<\/p>\n
“lost his ability and his effectiveness as commander of the uniform<\/p>\n
patrol” by supervising through use of intimidation and retaliation.<\/p>\n
According to the sheriff, Cromer had lost the respect of the lieuten- <\/p>\n
ants and sergeants he supervised. Cromer, for his part, believed he<\/p>\n
was demoted for racial reasons. After his demotion Cromer rarely saw<\/p>\n
the sheriff and did not participate in policymaking. Under these cir- <\/p>\n
cumstances it is not plausible that Sheriff Brown would have looked<\/p>\n
solely to the demoted Cromer to foster racial harmony. Nor could the<\/p>\n
sheriff have expected the demoted Cromer to argue that the depart- <\/p>\n
ment was free of racial discrimination, nor expected other black offi- <\/p>\n
cers to follow Cromer if he had said the charges in the letter were<\/p>\n
groundless.<\/p>\n
Nevertheless, Cromer was a lieutenant, and we must weigh how<\/p>\n
much his speech worked against the efficiency interests asserted by<\/p>\n
the sheriff: discipline, morale and good working relationships.<\/p>\n
As to discipline, the sheriff says that “Cromer never followed the<\/p>\n
chain of command in presenting the [black] officers’ grievances.”<\/p>\n
Brief of Appellees at 24. “Rather, he attended clandestine meetings<\/p>\n
and endorsed the sending of an anonymous letter.” Id.<\/u> According to<\/p>\n
21<\/p>\n
\n
Sheriff Brown, by not presenting the grievances in person to a supe- <\/p>\n
rior, Cromer undermined the authority of the command staff and the<\/p>\n
sheriff. The sheriff maintains that this lack of discipline made Cromer<\/p>\n
an “antagonist[ ]” who had to be “eradicate[d].” See id.<\/u> at 26.<\/p>\n
Sheriff Brown did have an interest in seeing that any grievance was<\/p>\n
channeled up through the chain of command under the name of the<\/p>\n
officer receiving it (or sending it along). Yet that interest in good dis- <\/p>\n
cipline must in turn be measured against what happened here. The<\/p>\n
black officers did not make their allegations of discrimination public.<\/p>\n
Instead, the letter was given only to Sheriff Brown, so that any devia- <\/p>\n
tion from good order and discipline was known only to him and the<\/p>\n
members of the Association. The letter was not insubordinate or<\/p>\n
rebellious in tone, and there was no public display of disobedience or<\/p>\n
protest. Moreover, although the letter was anonymous in the sense<\/p>\n
that no one signed it, it was clear that virtually all black officers were<\/p>\n
behind it. And it goes without saying that Sheriff Brown knew who<\/p>\n
the black officers were.<\/p>\n
To sum up on the discipline interest: we give some weight to Sher- <\/p>\n
iff Brown on this point. We do not, however, give him any great<\/p>\n
weight because the black officers moved quietly and did not try to<\/p>\n
provoke a public confrontation.<\/p>\n
On morale, Sheriff Brown says that Cromer harmed morale by<\/p>\n
joining in a letter containing grievances that Cromer knew were<\/p>\n
groundless. We recognize the importance of good morale in a law<\/p>\n
enforcement organization. Yet here we do not see how Cromer’s par- <\/p>\n
ticipation in the speech could have done much to lower the morale of<\/p>\n
black officers. The fact that meetings were held and the letter was<\/p>\n
written indicates that their morale was already low. Moreover, when<\/p>\n
we consider how the demoted Cromer was regarded (according to the<\/p>\n
sheriff, Cromer had lost the ability to lead and lost the respect of the<\/p>\n
officers he had supervised as captain), we do not see how Cromer<\/p>\n
could have done much to lift morale even if he had spoken up in<\/p>\n
defense of the sheriff. We give Sheriff Brown very little weight on the<\/p>\n
interest in good morale.<\/p>\n
We turn last to the sheriff’s interest in maintaining good working<\/p>\n
relationships. Specifically, Sheriff Brown says that his close working<\/p>\n
22<\/p>\n
\n
relationship with Cromer was destroyed when Cromer endorsed the<\/p>\n
Association’s letter. When Cromer was one of four captains on the<\/p>\n
six- person command staff, we have no doubt that the sheriff and Cro- <\/p>\n
mer had a close working relationship. That relationship ended, how- <\/p>\n
ever, when Cromer was demoted. After his demotion Cromer did not<\/p>\n
work directly with the sheriff and rarely saw him. We give no weight<\/p>\n
to the sheriff on this point.<\/p>\n
As we stand back and look, the scales weigh heavily in Cromer’s<\/p>\n
favor. His interest in speaking about the widespread (internal) percep- <\/p>\n
tion of racial discrimination in a law enforcement agency must be<\/p>\n
given great weight. And the community at large shares in that interest.<\/p>\n
We have, of course, taken care to weigh the efficiency interests<\/p>\n
advanced by the sheriff – – discipline, morale and good working rela- <\/p>\n
tionships. Given Cromer’s demotion and diminished status, however,<\/p>\n
his speech had little or no impact on those interests, and we therefore<\/p>\n
accord them little or no weight in this case. The balancing test clearly<\/p>\n
establishes that Cromer’s speech was protected.<\/p>\n
ii.<\/p>\n
Our conclusion is buttressed by the fact that, at the time Sheriff<\/p>\n
Brown fired Cromer, existing decisions in our sister circuits had given<\/p>\n
First Amendment protection to speech like Cromer’s, that is, a police<\/p>\n
officer’s expressions of concern about racial discrimination and ani- <\/p>\n
mus in his agency.9<\/b><\/p>\n
The most strikingly similar prior case is Leonard v. City of<\/u><\/p>\n
Columbus<\/u>, 705 F.2d 1299 (11th Cir. 1983), cert. denied<\/u>, 468 U.S.<\/p>\n
1204 (1984). Leonard<\/u> involved members of the Columbus, Georgia,<\/p>\n
police department who in 1971 formed the Afro- American Patrol- <\/p>\n
men’s League. The officers formed the League as a vehicle to criti- <\/p>\n
cize department practices which they viewed as discriminatory. In<\/p>\n
particular, the League’s members complained that black officers were<\/p>\n
being discriminated against in hiring and promotion, shift assignment,<\/p>\n
_________________________________________________________________<\/p>\n
9 <\/b>In deciding whether Cromer is asserting a clearly established right, we<\/p>\n
may examine the pre- existing law outside this circuit. See Pinder<\/u>, 54<\/p>\n
F.3d at 1176- 1178 (canvassing decisions outside the Fourth Circuit in a<\/p>\n
qualified immunity case).<\/p>\n
23<\/p>\n
\n
and discipline and alleged that black citizens were subjected to police<\/p>\n
brutality. League members initially complained to the city’s Board of<\/p>\n
Public Safety, but members felt that this resulted in no progress.<\/p>\n
Thereafter, the League issued a press release and held a press confer- <\/p>\n
ence to publicize its criticism of the police department. Three days<\/p>\n
after the press conference a black officer, who had called in sick, was<\/p>\n
disciplined with the extraordinary measure of arrest for contempt of<\/p>\n
court for missing a scheduled court appearance. League members<\/p>\n
responded with two days of peaceful picketing at the police station.<\/p>\n
On the second day of the protest, the Deputy Chief of Police started<\/p>\n
suspension proceedings against three policemen who were League<\/p>\n
officials. On the third day, with the press present, seven picketing<\/p>\n
black officers assisted one another in removing the American flag<\/p>\n
emblem from the sleeves of their uniforms. Later that day, the Chief<\/p>\n
of Police held a press conference to announce the firing of all protest- <\/p>\n
ing officers. The chief publicly accused the officers of making “base- <\/p>\n
less allegations of unlawful conduct, racism, and discrimination.” Id.<\/u><\/p>\n
at 1301. The fired officers sued, and the district court determined that<\/p>\n
their dismissal did not violate the First Amendment. But on appeal the<\/p>\n
Eleventh Circuit determined that the protesting officers’ speech was<\/p>\n
protected under Pickering<\/u>‘s balancing test. Id.<\/u> at 1304- 06.<\/p>\n
Cromer’s case is indistinguishable from Leonard <\/u> in several rele- <\/p>\n
vant respects. First, like the officers in Leonard<\/u>, Cromer spoke<\/p>\n
through an association of black officers formed in response to per- <\/p>\n
ceived racism in their law enforcement agency. Second, the majority<\/p>\n
of the complaints voiced by Cromer’s Association were identical to<\/p>\n
those made by the League in Leonard<\/u>. Cromer’s Association alleged<\/p>\n
discrimination against black officers in recruitment, promotion, cross- <\/p>\n
training and transfer, and equipment. The League in Leonard<\/u> alleged<\/p>\n
discrimination in hiring and promotion, shift assignment and disci- <\/p>\n
pline. Finally, the reaction of the sheriff in Cromer’s case was the<\/p>\n
same as that of the police chief in Leonard<\/u>: both officials felt that the<\/p>\n
allegations of the black officers were baseless and fired those they<\/p>\n
regarded as the main culprits.10<\/b><\/p>\n
_________________________________________________________________<\/p>\n
10 <\/b>The cases do differ as to the methods used by the officers to convey<\/p>\n
their speech. The officers in Leonard<\/u>, after an initial effort to deal with<\/p>\n
the Board of Public Safety, resorted to press conferences, picket lines<\/p>\n
24<\/p>\n
\n
Leonard<\/u>, on facts quite similar to Cromer’s, recognized that the<\/p>\n
fired officers had “sought [through their speech] to emphasize a<\/p>\n
widely- held perception of racially discriminatory practices in the City<\/p>\n
of Columbus Police force.” Id.<\/u> at 1305. This speech, about a matter<\/p>\n
“vital to the public interest,” deserved constitutional protection. Id.<\/u> at<\/p>\n
1304- 05. And Leonard<\/u> bluntly warned officials not to try to suppress<\/p>\n
such speech:<\/p>\n
For a police force to be effective it must have the respect<\/p>\n
and support of the community as well as its officers; our<\/p>\n
system of government demands that support be garnered<\/p>\n
through informed evaluation of circumstance, and not<\/p>\n
through the suppression of dissent . . . . [A] police officer<\/p>\n
does not receive a “watered- down version” of constitution- <\/p>\n
ally protected rights by virtue of his employment on the<\/p>\n
police force.<\/p>\n
Id.<\/u> at 1305 (citations omitted).<\/p>\n
In addition to Leonard<\/u>, other decisions in our sister circuits made<\/p>\n
plain that the First Amendment does not allow state officials to take<\/p>\n
adverse employment action against an employee who speaks out<\/p>\n
about the practice of racial discrimination in a law enforcement<\/p>\n
agency. See Rode<\/u>, 845 F.2d 1195 (First Amendment protected state<\/p>\n
police civilian employee whose speech involved a matter of grave<\/p>\n
public concern, racial animus within state police); Auriemma<\/u>, 910<\/p>\n
F.2d 1449 (First Amendment protected white officers’ right to com- <\/p>\n
plain in federal court about alleged racial discrimination in depart- <\/p>\n
ment reorganization); see also Bridgeport Guardians, Inc. v.<\/u><\/p>\n
Delmonte<\/u>, 553 F. Supp. 601 (D. Conn. 1982) (enjoining police<\/p>\n
department from taking adverse employment actions against members<\/p>\n
_________________________________________________________________<\/p>\n
and symbolic acts of disobedience. In Cromer’s case the officers com- <\/p>\n
plained privately. Thus, the speech of the officers in Leonard<\/u> was far<\/p>\n
more detrimental than was Cromer’s to the state’s interest in discipline<\/p>\n
or efficiency. Yet the court of appeals in Leonard<\/u> concluded that the dis- <\/p>\n
obedient speech in that case was protected under the Pickering<\/u> balancing<\/p>\n
test.<\/p>\n
25<\/p>\n
\n
of police officers’ organization opposing racially discriminatory prac- <\/p>\n
tices of department).<\/p>\n
Leonard<\/u> and the similar authority that existed at the time of Cro- <\/p>\n
mer’s termination bolster our holding that Cromer’s First Amendment<\/p>\n
right to voice his concern about racial discrimination in his law<\/p>\n
enforcement agency was clearly established in June of 1991.11<\/b><\/p>\n
c.<\/p>\n
At this point in the analysis, all that remains is Harlow<\/u>‘s reason- <\/p>\n
ableness inquiry. Harlow<\/u>, 457 U.S. at 818 (immunity shields officials<\/p>\n
“insofar as their conduct does not violate clearly established rights of<\/p>\n
which a reasonable person would have known”). We ask whether an<\/p>\n
objectively reasonable official in Sheriff Brown’s position would<\/p>\n
have known that he could not fire Cromer for participating in the<\/p>\n
Association’s complaint about racial discrimination in the workplace.<\/p>\n
Pinder<\/u>, 54 F.3d at 1173. “If the law was clearly established, the<\/p>\n
immunity defense ordinarily should fail, since a reasonably competent<\/p>\n
_________________________________________________________________<\/p>\n
11 <\/b>We pause to point out that our holding is a narrow one. It is the infre- <\/p>\n
quent Connick<\/u> claim that will survive a qualified immunity defense. See<\/u><\/p>\n
DiMeglio<\/u>, 45 F.3d at 806. Thus, we are not holding that any time a pub- <\/p>\n
lic official fires or otherwise disciplines an employee who has com- <\/p>\n
plained of discrimination, the official has to go to trial. Rather, this is the<\/p>\n
infrequent case where, after the Pickering<\/u> balancing, the employee had<\/p>\n
the right to speak as a citizen about extensive and specific claims of<\/p>\n
racial discrimination. This case is quite different from one where “a pub- <\/p>\n
lic employee speaks not as a citizen upon matters of public concern, but<\/p>\n
instead as an employee upon matters only of personal interest.” Connick<\/u>,<\/p>\n
138 U.S. at 147. Here, Cromer joined about thirty other black officers to<\/p>\n
complain that the effectiveness of the sheriff’s office as a law enforce- <\/p>\n
ment agency was being jeopardized by the following examples of racial<\/p>\n
discrimination: ineffective minority recruitment, lack of opportunity for<\/p>\n
black officers to work in prestigious units, lack of promotional opportu- <\/p>\n
nities for black officers, internal investigation practices that pitted white<\/p>\n
officers against black officers, and favoritism to white officers in the<\/p>\n
allocation of new equipment. These charges were specific enough and<\/p>\n
serious enough to give the community at large an interest in the matter.<\/p>\n
And they were presented in a non- confrontational way that did not appre- <\/p>\n
ciably affect the sheriff’s efficiency interests.<\/p>\n
26<\/p>\n
\n
public official should know the law governing his conduct.” Harlow<\/u>,<\/p>\n
457 U.S. at 800. Accord DiMeglio<\/u>, 45 F.3d at 794- 95 n.1.<\/p>\n
Because the Pickering<\/u> balancing test tips decidedly in Cromer’s<\/p>\n
favor and because caselaw had confirmed his right to speak, we hold<\/p>\n
that any reasonable official in Sheriff Brown’s shoes would have real- <\/p>\n
ized he would violate the Constitution if he fired Cromer for speaking<\/p>\n
of widely held concerns about racial discrimination in the sheriff’s<\/p>\n
office. Accordingly, we reverse the district court’s ruling that Sheriff<\/p>\n
Brown was entitled to qualified immunity with respect to Cromer’s<\/p>\n
free speech claim.<\/p>\n
2.<\/p>\n
Cromer’s second constitutional claim is that Sheriff Brown violated<\/p>\n
his right of association by firing him for participating in the black<\/p>\n
officers’ Association. Again, Sheriff Brown defends himself on<\/p>\n
grounds that Cromer’s associational rights were not clearly estab- <\/p>\n
lished in June of 1991. The parties and the court below treated the<\/p>\n
association and speech claims as inseparable. That approach is logical<\/p>\n
in this case because the Association existed solely to convey the black<\/p>\n
officers’ complaints about racial discrimination.<\/p>\n
The right to associate in order to express one’s views is “insepara- <\/p>\n
ble” from the right to speak freely. Thomas v. Collins<\/u>, 323 U..S. 516,<\/p>\n
530 (1945); Shelton v. Tucker<\/u>, 364 U.S. 479, 486 (1960) (the “right<\/p>\n
of free association [is] a right closely allied to freedom of speech and<\/p>\n
a right which, like free speech, lies at the foundation of a free soci- <\/p>\n
ety”). The Supreme Court has explained that:<\/p>\n
An individual’s freedom to speak, to worship, and to peti- <\/p>\n
tion the Government for the redress of grievances could not<\/p>\n
be vigorously protected from interference by the State<\/p>\n
unless a correlative freedom to engage in group effort<\/p>\n
toward those ends were not also guaranteed . . . . Conse- <\/p>\n
quently, we have long understood as implicit in the right to<\/p>\n
engage in activities protected by the First Amendment a cor- <\/p>\n
responding right to associate with others in pursuit of a wide<\/p>\n
variety of political, social, economic, educational, religious,<\/p>\n
and cultural ends.<\/p>\n
27<\/p>\n
\n
Roberts v. U.S. Jaycees<\/u>, 468 U.S. 609, 622 (1984) (citations omitted).<\/p>\n
Accordingly, since Cromer’s personal right to speak about allegations<\/p>\n
of racial discrimination within his agency was clearly established in<\/p>\n
1991, we hold that his “correlative freedom to engage in group effort<\/p>\n
toward those [same] ends” was likewise clearly established. Since<\/p>\n
Cromer had the clear right to speak as part of the Association, he also<\/p>\n
had a clear right to participate in the Association. See N.A.A.C.P. v.<\/u><\/p>\n
Alabama ex rel. Patterson<\/u>, 357 U.S. 449, 460 (1958) (“It is beyond<\/p>\n
debate that freedom to engage in association for the advancement of<\/p>\n
beliefs and ideas is an inseparable aspect of the`liberty’ assured by<\/p>\n
the Due Process Clause of the Fourteenth Amendment which<\/p>\n
embraces freedom of speech.”); Wilton v. Mayor and City Council of<\/u><\/p>\n
Baltimore<\/u>, 772 F.2d 88, 91 (4th Cir. 1985) (noting that the limitations<\/p>\n
on a public employee’s right to associate are “closely analogous” to<\/p>\n
the limitations on his right to speak).<\/p>\n
Given these principles, we find that any objectively reasonable per- <\/p>\n
son in Sheriff Brown’s shoes (in June of 1991) would have realized<\/p>\n
that he would violate Cromer’s constitutional rights if he fired him for<\/p>\n
participating in the Association. See<\/u>, e.g.<\/u>, Marshall v. Allen<\/u>, 984 F.2d<\/p>\n
787, 799 (7th Cir. 1993) (holding that, in 1988, it was clearly estab- <\/p>\n
lished that freedom of association protected employee from being<\/p>\n
fired for associating with co- workers who filed a civil rights action<\/p>\n
against their agency).<\/p>\n
We therefore reverse the district court’s determination that Sheriff<\/p>\n
Brown was entitled to qualified immunity from Cromer’s free associ- <\/p>\n
ation claim.<\/p>\n
IV.<\/p>\n
Last, we turn briefly to the district court’s determination that Cro- <\/p>\n
mer cannot pursue his § 1983 claims against Sheriff Brown in his<\/p>\n
official capacity. The Eleventh Amendment bars suits in federal<\/p>\n
courts for money damages against an “unconsenting State.” Edelman<\/u><\/p>\n
v. Jordan<\/u>, 415 U.S. 651, 663 (1974). This immunity extends to<\/p>\n
“arm[s] of the State,” Mt. Healthy City Sch. Dist. Bd. of Educ. v.<\/u><\/p>\n
Doyle<\/u>, 429 U.S. 274, 280 (1977), including state agencies and state<\/p>\n
officers acting in their official capacity. Gray v. Laws<\/u>, 51 F.3d 426,<\/p>\n
430 (4th Cir. 1995). The “largely, if not wholly, dispositive” factor in<\/p>\n
28<\/p>\n
\n
determining whether an entity is properly characterized as an arm of<\/p>\n
the state is whether the state treasury will be liable for the judgment.<\/p>\n
Id.<\/u> at 433; see also Bockes v. Fields<\/u>, 999 F.2d 788, 790- 91 (4th Cir.<\/p>\n
1993), cert. denied<\/u>, 114 S. Ct. 992 (1994). If the state’s treasury will<\/p>\n
not be affected by the judgment, we consider other factors, “chief<\/p>\n
among which are whether the suit will jeopardize`the integrity<\/p>\n
retained by [the] State in our federal system’ and whether the state<\/p>\n
possesses such control over the entity claiming Eleventh Amendment<\/p>\n
immunity that it can legitimately be considered an`arm of the state.'”<\/p>\n
Gray<\/u>, 51 F.3d at 434 (quoting Hess v. Port Auth. Trans- Hudson<\/u><\/p>\n
Corp.<\/u>, 115 S. Ct. 394, 400 (1994)) (internal citation omitted).<\/p>\n
Judgments against the Greenville County Sheriff are paid by the<\/p>\n
South Carolina State Insurance Reserve Fund. However, we are<\/p>\n
unable to discern from the record in this case whether the state pays<\/p>\n
any premiums on behalf of Greenville County. See Nelson v. Strawn<\/u>,<\/p>\n
897 F. Supp. 252, 257- 58 (D.S.C. 1995) (noting the same difficulty<\/p>\n
when presented with a similar question), aff’d in part, vacated in part<\/u><\/p>\n
on other grounds<\/u>, 78 F.3d 579 (1996). Compare Bockes<\/u>, 999 F.2d at<\/p>\n
790 (record demonstrated that state paid 80 percent of premiums on<\/p>\n
behalf of the subscribing agencies). Thus, it is unclear whether the<\/p>\n
state treasury would be partially liable for a judgment in this case.<\/p>\n
However, we have considered the remaining factors relevant to the<\/p>\n
immunity analysis and conclude that, in his official capacity, Sheriff<\/p>\n
Brown is an arm of the state. See Gulledge v. Smart<\/u>, 691 F. Supp. 947<\/p>\n
(D.S.C. 1988) (holding that South Carolina sheriffs are state officials<\/p>\n
for Eleventh Amendment purposes), aff’d mem.<\/u>, 878 F.2d 379 (4th<\/p>\n
Cir. 1989). Thus, we affirm the district court’s conclusion that, in his<\/p>\n
capacity as a state official, Sheriff Brown is immune from suit under<\/p>\n
§ 1983 for money damages.<\/p>\n
However, to the extent Cromer sought injunctive relief (e.g.<\/u>, rein- <\/p>\n
statement) against Sheriff Brown in his official capacity, the district<\/p>\n
court should not have granted summary judgment to Sheriff Brown.<\/p>\n
Eleventh Amendment immunity does not protect state officials in<\/p>\n
their official capacities from § 1983 claims for injunctive relief. Will<\/u><\/p>\n
v. Michigan Dep’t of State Police<\/u>, 491 U.S. 58, 71 n.10 (1989).<\/p>\n
Therefore, we reverse the district court’s dismissal of Cromer’s<\/p>\n
§ 1983 claims against Sheriff Brown in his official capacity insofar as<\/p>\n
they request injunctive relief.<\/p>\n
29<\/p>\n
\n
V.<\/p>\n
For the foregoing reasons, we affirm in part, reverse in part, and<\/p>\n
remand for further proceedings consistent with this opinion.<\/p>\n
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED <\/u><\/p>\n
30<\/p>\n
<\/p>\n United States Court of Appealsfor the Fourth CircuitCase: 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,...<\/p>\n","protected":false},"author":1,"featured_media":6240,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[6,67],"tags":[104,117],"class_list":["post-1035","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-government","category-judicial-decisions","tag-government","tag-judiciary"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p89tuq-gH","jetpack_featured_media_url":"https:\/\/multiracial.com\/wp-content\/uploads\/2017\/02\/4th-Circuit-Court.png","_links":{"self":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/1035","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/comments?post=1035"}],"version-history":[{"count":1,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/1035\/revisions"}],"predecessor-version":[{"id":2397,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/1035\/revisions\/2397"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media\/6240"}],"wp:attachment":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media?parent=1035"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/categories?post=1035"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/tags?post=1035"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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