Submitted: September 25, 2018
from United States District Court for the District of
Nebraska - Omaha
SMITH, Chief Judge, WOLLMAN, LOKEN, COLLOTON, GRUENDER,
BENTON, SHEPHERD, KELLY, ERICKSON, GRASZ, and STRAS, Circuit
Judges, En Banc. 
BENTON, CIRCUIT JUDGE.
Morgan sued his boss Michael Robinson for First Amendment
retaliation under 42 U.S.C. § 1983. Robinson moved for
summary judgment based on qualified immunity. The district
court denied the motion. This court reverses and remands.
is a deputy in the Washington County, Nebraska Sheriff's
Department. Robinson is the elected sheriff. In 2014, Morgan
ran against Robinson in the primary election. During the
campaign, Morgan publicly made statements about the
sheriff's department and his plans to improve it.
Robinson won. Six days later, Robinson terminated
Morgan's employment, claiming his campaign statements
violated the department's rules of conduct.
sued Robinson for retaliatory discharge in violation of the
First Amendment. Robinson moved for summary judgment based on
qualified immunity. The district court denied the motion,
finding "genuine issues of material fact regarding the
constitutionality of the termination, and whether Robinson
should have reasonably known the termination was
unlawful." Morgan v. Robinson, 2016 WL
10636372, at *5 (D. Neb. Dec. 8, 2016). On appeal, a panel of
this court affirmed. Morgan v. Robinson, 881 F.3d
646, 650 (8th Cir. 2018), reh'g en banc granted,
opinion vacated (Mar. 21, 2018). This court granted
rehearing en banc, vacated the panel decision, and now
judgment is proper when "there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(a). Ordinarily,
this court lacks jurisdiction over a denial of summary
judgment "because such an order is not a final
decision." Division of Emp't Sec. v. Board
of Police Comm'rs, 864 F.3d 974, 978 (8th
Cir. 2017). However, if the moving party claims qualified
immunity, "an immediate appeal is appropriate . . .
because immunity is effectively lost if a case is erroneously
permitted to go to trial." Id. This court
reviews de novo denials of summary judgment based on
qualified immunity. Id. See Spirtas Co. v. Nautilus Ins.
Co., 715 F.3d 667, 670 (8th Cir. 2013) ("This court
reviews de novo a grant of summary judgment, construing all
facts and making all reasonable inferences favorable to the
immunity shields officials from civil liability in §
1983 actions when their conduct "'does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.'"
Pearson v. Callahan, 555 U.S. 223, 231 (2009),
quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). "Qualified immunity analysis requires a two-step
inquiry: (1) whether the facts shown by the plaintiff make
out a violation of a constitutional or statutory right, and
(2) whether that right was clearly established at the time of
the defendant's alleged misconduct." Nord v.
Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014) (internal
quotation marks omitted). "Unless both of these
questions are answered affirmatively, an appellant is
entitled to qualified immunity." Id. "And,
courts are 'permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first.'" Id.
at 738-39, quoting Pearson, 555 U.S. at 236.
district court found "a genuine issue of material
factors" on "the first prong of the qualified
immunity analysis." Morgan, 2016 WL 10636372,
at *5. A panel of this court found that Morgan's
termination "violated a right secured by the First
Amendment." Morgan, 881 F.3d at 656. This court
need not decide the issue because Robinson did not violate a
"clearly established statutory or constitutional right
of which a reasonable person would have known."
Pearson, 555 U.S. at 231.
clearly established right is one that is "sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right." Reichle
v. Howards, 566 U.S. 658, 664 (2012) (internal quotation
marks and alteration omitted). "[T]he longstanding
principle" is that "'clearly established
law' should not be defined 'at a high level of
generality.'" White v. Pauly, 137 S.Ct.
548, 552 (2017), quoting Ashcroft v. al-Kidd, 563
U.S. 731, 742 (2011). Instead, "the clearly established
law must be 'particularized' to the facts of the
case." Id., quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987). There need not be a
case "directly on point, but existing precedent must
have placed the statutory or constitutional question beyond
debate." al-Kidd, 563 U.S. at 741. See
District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018)
(requiring that the "clearly established standard"
be defined with a "high degree of specificity"
(internal quotation marks omitted)). In other words,
qualified immunity "gives government officials breathing
room to make reasonable but mistaken judgments, and protects
all but the plainly incompetent or those who knowingly
violate the law." Stanton v. Sims, 571 U.S. 3,
6 (2013) (per curiam) (internal quotation marks omitted).
Morgan has the burden to demonstrate that the law is clearly
established. Sparr v. Ward, 306 F.3d 589, 593 (8th
determine whether the law was clearly established at the time
of Morgan's termination, this court needs to look no
further than Nord v. Walsh. Nord, 757 F.3d
734. There, a deputy sheriff in Walsh County, North Dakota,
ran against his current boss. Id. at 737. During the
campaign, he made comments critical of the sheriff.
Id. at 742. The sheriff won. Id. at 738.
The next day, after consulting the county attorney and human
resources consultant, he fired the deputy. Id. The
deputy sued under § 1983 for violations of the First and
Fourteenth Amendments. The district court denied the
sheriff's motion for summary judgment based on qualified
immunity. Id., citing Nord v. Walsh Cnty.,
2012 WL 12848433 (D.N.D. Aug. 30, 2012), rev'd,
757 F.3d 734 (8th Cir. 2014). This court reversed, finding
the sheriff entitled to qualified immunity. Id. at
745. This court said, "considering North Dakota law and
well-established state and federal jurisprudence, and
especially the advice given by the Walsh County attorney and
its human resources consultant, Sheriff Wild could have
logically and rationally believed that his decision to
terminate Nord was well within the breathing room accorded
him as a public official in making a reasonable, even if
mistaken, judgment under the circumstances."
Id. at 743, citing Stanton, 571 U.S. at 6.
facts of this case are similar to Nord. Here, as
there, the Washington County Sheriff's Department
enforces the police powers in the county. Compare
Neb. Rev. Stat. § 23-1701.02 ("It shall be the duty
of every sheriff to apprehend . . . all felons and disturbers
and violators of the criminal laws of this state, to suppress
all riots, affrays, and unlawful assemblies . . . and
generally to keep the peace in his or her proper
city."), with Nord, 757 F.3d at 740 (noting
that the "sheriff manages and enforces a substantive
portion of the sovereign's policing powers"). Both
departments are relatively small. In Washington County, three
deputies typically work each shift, with two working one half
of the county and the third working the county at large. This
"presumably means that there will be times when a single
deputy will present the face of the sheriff in the county, at
least in the assigned district." Nord, 757 F.3d
at 741. The deputies thus represent the sheriff in public,
executing the duties and responsibilities of the department.
Washington County sheriff, like the sheriff in Nord,
has the power to appoint and terminate deputies. See
Neb. Rev. Stat. § 23-1704.01 ("The sheriff may
appoint such number of deputies as he or she sees fit for
whose acts he or she will be responsible."); Neb. Rev.
Stat. § 23-1734 ("Any deputy sheriff may be
removed, suspended with or without pay, or reduced in either
rank or grade or both rank and grade by the sheriff . . .
."). This power necessitates deference "in
executing . . . official duties, including the hiring and
firing of employees-especially subordinate officers."
Nord, 757 F.3d at 741. In both counties, the sheriff
"has an interest in maintaining the efficient
operation" of the office. Morgan, 881 F.3d at
653-54, citing Pickering v. Board of Educ., 391 U.S.
563, 568 (1968).
are two distinctions between the cases, but neither warrants
a different outcome. One is the speech at issue. In
Nord, the speech focused on the sheriff, including
comments that his health was poor, his wife did not want him
to run, and he planned to resign. Nord, 757 F.3d at
742. The sheriff contended these statements were lies and not
matters of public concern. Id. Here, the speech
focused on the county and the sheriff's department.
During the campaign, Morgan said: (1) the county
communications center had not been completed; (2) rural fire
departments lacked adequate radio systems; (3) the county
needed more deputies on the road; (4) the office budget did
not consider the public's needs; (5) department morale
was poor; (6) the department was not doing well; and (7)
people were leaving the office because they did not feel
respected. The parties dispute whether all of Morgan's
statements were true; but they agree some involved matters of
argues this difference "render[s] Nord
irrelevant for purposes of determining whether the law was
clearly established in this case." Specifically, he
contends Nord is inapplicable because the speech
there was untruthful, not a matter of public concern, and
undeserving of First Amendment protection. This argument has
no merit. Although the speech here arguably is entitled to
greater protection-an issue this court need not decide-the
speech does not necessarily override the sheriff's
interest in maintaining the "discipline and
harmony" of the office. Id. at 743. The
Nord court said that "even if" the
deputy's speech "was fully protected by the
Constitution," the sheriff "could have reasonably
believed that the speech would be at least potentially
damaging . . . and disruptive" and thus the sheriff
"could have logically and rationally believed that his
decision to terminate Nord was well within the breathing room
accorded him as a public official in making a reasonable . .
. judgment under the circumstances." Id.
difference is the impact of the speech. In Nord,
apparently there was no evidence of disruption or potential
disruption. The sheriff there "testified that, during
the campaign period, there were no complaints about how the
office was run nor were there any communication problems
between the employees." Id. at 748 (Shepherd,
J., dissenting). Here, Robinson testified he believed
Morgan's statements were detrimental to the office,
harmful to morale, and adversely impacted the public's
trust of the office. Deputies expressed similar concerns.
They said Morgan's statements bred
"uneasiness," made some employees feel
uncomfortable, contributed to lack of morale, and created
turmoil. Five of these deputies-the entire command
staff-recommended his termination. The termination letter
said Morgan had "violated the trust" of the
administration and his fellow officers and created
"disharmony in the office."
argues that Robinson "has not proven any
disruption" and thus should have known that firing him
would violate a clearly established right. The dissent also
advances this argument, claiming that Robinson provides
"no evidence" of "actual disruption,"
"actual impact," "demonstrated impact,"
or "indicators of poor morale" created by
Morgan's speech. This argument misstates the record. The
termination letter and the deposition testimony of Robinson
and the command staff about the effect of Morgan's
statements are evidence of "actual disruption" and
without this evidence, however, Robinson could claim
qualified immunity. As the Supreme Court has said, there is
no "necessity for an employer to allow events to unfold
to the extent that the disruption of the office and the
destruction of working relationships is manifest before
taking action." Connick v. Myers, 461 U.S. 138,
152, 154 (1983) (holding that Myer's First Amendment
interest did "not require that Connick tolerate action
which he reasonably believed would disrupt the office,
undermine his authority, and destroy close working
relationships"). See Garcetti v. Ceballos, 547
U.S. 410, 418 (2006) ("A government entity has broader
discretion to restrict speech when it acts in its role as
employer, but the restrictions it imposes must be directed at
speech that has some potential to affect the
entity's operations.") (emphasis added); Waters
v. Churchill, 511 U.S. 661, 673 (1994) ("[W]e have
consistently given greater deference to government
predictions of harm used to justify restriction of employee
speech than to predictions of harm used to justify
restrictions on the speech of the public at large. Few of the
examples we have discussed involve tangible, present
interference with the agency's operation. The danger in
them is mostly speculative. . . . But we have given
substantial weight to government employers' reasonable
predictions of disruption, even when the speech involved is
on a matter of public concern."); Hara v.
Pennsylvania Dep't of Educ., 492 Fed.Appx. 266, 268
(3d Cir. 2012) (citing Garcetti and noting that
"[a]ctual disruption is not necessary").
particularly true here given the "latitude the courts
accord a managing law enforcement officer in executing his
official duties, including the hiring and firing of
employees-especially subordinate officers."
Nord, 757 F.3d at 741. See Buzek v. County of
Saunders, 972 F.2d 992, 995 (8th Cir. 1992) ("[L]aw
enforcement agencies, more than other public employers, have
special organizational needs that permit greater restrictions
on employee speech."); Crain v. Board of Police
Comm'rs, 920 F.2d 1402, 1411 (8th Cir. 1990)
("More so than the typical government employer, the
[Missouri Highway] Patrol has a significant government
interest in regulating the speech activities of its officers
in order to promote efficiency, foster loyalty and obedience
to superior officers, maintain morale, and instill public
confidence in the law enforcement institution.")
(internal quotation marks omitted).
termination letter, Robinson's testimony, and the
testimony of five other deputies, show-even more so than in
Nord-that Robinson "could have reasonably
believed" that Morgan's speech was "at least
potentially damaging to and disruptive of the discipline and
harmony of and among co-workers in the sheriff's office
and detrimental to the close working relationships and