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Billioni v. York County

United States District Court, D. South Carolina, Rock Hill Division

October 10, 2019

Michael Billioni, Plaintiff,
v.
York County and Sheriff Bruce Bryant, individually and in his official capacity as York County Sheriff, Defendants.

          ORDER ON REMAND

         Plaintiff Michael Billioni filed this action against Defendants York County and Sheriff Bruce Bryant, individually and in his official capacity as York County Sheriff (“Sheriff Bryant”), (together “Defendants”) seeking damages and injunctive relief stemming from the termination of his employment. (ECF No. 120.) On June 20, 2017, the court entered an Order and Opinion (ECF No. 171) that denied Sheriff Bryant's Motion for Summary Judgment (ECF No. 145) as to Plaintiff's claim alleging infringement of his right to free speech under the First Amendment for comments made to his wife on October 22, 2013, regarding what Plaintiff saw on a video recording of the incident that led to Joshua Grose's death.

         This matter is before the court on remand from the United States Court of Appeals for the Fourth Circuit, which vacated this court's decision regarding Plaintiff's First Amendment claim and remanded the matter for the court “to apply the correct legal standard to determine whether Billioni's speech is protected under the First Amendment.” (See ECF No. 193 at 15.) Specifically, the Fourth Circuit found error in the aforementioned opinion because in applying the second prong of the McVey test, [1] the court erroneously required Defendants to show an “actual disruption” instead of a reasonable apprehension of disruption based on the court's observation that “any disruption caused by the internal investigation that was conducted by the YCSO, [2] such disruption is clearly outweighed ‘by the public's interest in the disclosure of misconduct or malfeasance.'” (See Id. at 12; see also ECF No. 171 at 23.) As a result of the Fourth Circuit's decision to remand, the court is required to consider “whether the evidence permits a conclusion that a reasonable factfinder could find that Sheriff Bryant reasonably apprehended disruption within the YCSO as a result of Billioni telling his wife about the surveillance video that outweighs Billioni's interest in speaking out about the surveillance video.” (ECF No. 193 at 13.)

         In light of the Fourth Circuit's opinion, the court permitted the parties to submit briefing and oral argument regarding the issue on remand. (See ECF Nos. 204, 205, 208, 209, 212.)

         I. ANALYSIS

         A. The Parties' Arguments

         In his brief, Sheriff Bryant contends that a reasonable apprehension of disruption within the YCSO is demonstrated by his having to “investigate the source of conflicting information” that resulted from Plaintiff's “misinformation about Grose's treatment [that] got to the press.” (ECF No. 204 at 12.) To this point, Sheriff Bryant asserts that his “staff was telling him the officers handled Grose properly but the media was accusing the Sheriff's officers of having murdered Grose, and now the Sheriff had to reconcile the two versions of events, if he could at all.” (Id. at 15.) More specifically, Sheriff Bryant argues that:

Had Plaintiff reported his concerns up the chain of command or even to SLED in the first instance and been disciplined, this might be a different case. Whatever information Plaintiff had, it would have been conveyed directly to investigators with no chance for miscommunication and no chance for misinformation being released to the public. Instead, however, Plaintiff took confidential Sheriff's Office information to his wife for the express purpose of getting her to take the story straight to her TV-station employer without giving the investigation that the Sheriff's Office had ordered, and Plaintiff knew was ongoing, any time to come to a conclusion. In so doing, the facts reaching the media got warped into Grose's being hit in the head twelve times - something everyone agrees did not happen - before succumbing to death in the Sheriff's custody. That this false information was in the press was in and of itself disruptive because, as Sheriff Bryant and Chief Arwood testified, it contradicted what the SLED investigators were telling them and, thus, had to be investigated from the ground up. They had to determine who gave the information to the press, what that person saw, and how, if at all, what that person saw fit with what SLED had disclosed to the Sheriff's Office.

(ECF No. 204 at 16-17.) Moreover, in consideration of the foregoing, Sheriff Bryant posits he is entitled to summary judgment because “[t]here simply is no credible argument that Plaintiff's interest in rushing to judge his colleagues based on incomplete information outweighed the Sheriff's interest in enforcing a policy designed to provide the public with accurate information.” (Id. at 23.)

         In his remand brief, Plaintiff argues that “a reasonable factfinder could find [][his] speech would not cause a reasonable apprehension of disruption.” (ECF No. 205 at 3.) In support of his argument, Plaintiff asserts that “[t]he deposition testimony of his work colleagues, clearly establishes that [][his] speech did not impair the disciplinary authority of supervisors; impair harmony among his coworkers; impede[] the performance of his duties; interfere with the operation of the institution; or undermine[] the mission of the institution.” (Id. (citing ECF Nos. 205-1, 205-2, 205-3, 205-4).) However, Plaintiff asserts that “even if this Court were to find [][his] speech created a reasonable apprehension of disruption, it would be outweighed due to the importance of his speech.” (Id. at 7.)

         B. The Court's Review

         1. The Standard of Review

         As the second prong of the test the Fourth Circuit described in McVey v. Stacey, 157 F.3d. 271 (4th Cir. 1998), the court balances “whether the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public.” Id. at 277; see also Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563, 568 (1968) (“The problem in any case is to arrive at a balance between the interests of the teacher, 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 services it performs through its employees.”). “The public's interest in hearing the employee's speech also weighs in the balance: ‘A stronger showing of public interest in the speech requires a concomitantly stronger showing of government-employer interest to overcome it.'” Brickey v. Hall, 828 F.3d 298, 304 (4th Cir. 2016) (quoting McVey, 157 F.3d at 279). “Whether the employee's interest in speaking outweighs the government's interest is a question of law for the court.” Smith v. Gilchrist, 749 F.3d 302, 309 (4th Cir. 2014) (citing Joyner v. Lancaster, 815 F.2d 20, 23 (4th Cir. 1987)). Moreover, when balancing the competing interests, the public employer is not required “to prove that the employee's speech actually disrupted efficiency, but only that an adverse effect was “reasonably to be apprehended.” Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992) (citing Jurgensen v. Fairfax Cty., Va., 745 F.2d 868, 879 (4th Cir.1984)).

         To accomplish this balancing, the court “must take into account the context of the employee's speech, including the employee's role in the government agency, and the extent to which it disrupts the operation and mission of the agency.” McVey, 157 F.3d at 278 (citing Rankin v. McPherson, 483 U.S. 378, 388-91 (1987)). “Factors relevant to this inquiry include whether the employee's speech (1) ‘impairs discipline by superiors'; (2) impairs ‘harmony among co-workers'; (3) ‘has a detrimental impact on close working relationships'; (4) impedes the performance of the public employee's duties; (5) interferes with the operation of the agency; (6) undermines the mission of the agency; (7) is communicated to the public or to co-workers in private; (8) conflicts with the ‘responsibilities of the employee within the agency'; and (9) makes use of the ‘authority and public accountability the employee's role entails.'” Id. (quoting/citing Rankin, 483 U.S. at 388-91). “Of particular relevance to this case, police entities have a uniquely strong interest in maintaining orderly operations because they are ‘paramilitary,' such that ‘discipline is demanded, and freedom must be correspondingly denied.'” Supinger v. Virginia, 259 F.Supp.3d 419, 446 (W.D. Va. 2017) (quoting Maciariello, 973 F.2d at 300).[3]

         2. Sheriff Bryant's Interest

         Sheriff Bryant asserts that he has an interest “in maintaining effective and efficient law enforcement operations.” (ECF No. 204 at 12.) To accomplish this task, Sheriff Bryant specifies that he has policies in place to (1) protect the confidentiality of inmate data, [4] (2) ensure the accuracy of information conveyed to the public, [5] and (3) require honesty and full cooperation of officers regarding any observed violations of the law.[6] (Id. at 13.) Sheriff Bryant further points out that Plaintiff admits that he violated these provisions. (Id. at 12 (citing ECF No. 145-6 at 140:8-141:6).) As for the adverse effect of Plaintiff's speech on the Sheriff's Office's ability to serve the public effectively and efficiently, Sheriff Bryant posits that he had to essentially divert resources to investigate the source of information conflicting with reports coming from an investigation that the South Carolina Law Enforcement Division was conducting. (ECF No.145-8 at 48:8-11 (“I would not allow my employees to talk about an investigation that would prohibit that investigation from being concluded.”).) In this regard, Sheriff Bryant testified as follows:

Q: What was your response to Ms. Jordan[, Sheriff's Office General Counsel], after she told you about this phone call [from local ...

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