Jenkins v. Medford

119 F.3d 1156, 1997 WL 442679

Opinions

Reversed and remanded by published opinion. Judge DONALD S. RUSSELL wrote the majority opinion, in which Chief Judge WILKINSON, Judge WIDENER, Judge NIEMEYER, Judge WILKINS, Judge HAMILTON, Judge LUTTIG, and Judge WILLIAMS joined. Judge ERVIN wrote a dissenting opinion. Judge DIANA GRIBBON MOTZ wrote a dissenting opinion.

OPINION

DONALD S. RUSSELL, Circuit Judge.

Bobby Lee Medford (“Medford”) was elected sheriff of Buncombe County, North Carolina, in November 1994. The plaintiffs in this action were deputy sheriffs, serving as employees. Shortly after his election, he dismissed several deputy sheriffs, particularly the plaintiffs-appellees (“deputies”) in this case. These deputies filed suit under 42 U.S.C. § 1983, alleging violations of their rights under the First and Fourteenth Amendments to the United States Constitution. They asserted that they were dismissed for failing to support Medford’s election bid, for supporting other candidates, and for failing to associate themselves politically with Medford’s campaign. They also filed a pendent claim under state law.

Medford responded by filing a motion to dismiss for failure to state a claim.¹ In the brief supporting his motion, Medford asserted, inter alia, that he was entitled to qualified immunity. The matter was referred to a magistrate judge, who recommended that Medford’s motion be granted because the deputies had failed to state a claim. The magistrate judge also recommended that Medford be afforded qualified immunity.

The deputies objected to the magistrate’s report and recommendation, and the district court declined to adopt it. The district court denied Medford’s motion to dismiss, and also rejected the magistrate’s recommendation of qualified immunity for Medford. Furthermore, the district court believed that Med-ford’s entitlement to qualified immunity might rest on factual issues not yet before the court, and so ruled that “the Court cannot now determine whether [Medford] is entitled to a qualified immunity defense.”

I.

Our first step is to determine our jurisdiction over this appeal. Normally, a denial of a motion to dismiss is not appeal-able, because it is not a final order as contemplated under 28 U.S.C. § 1291. When a district court denies a motion to dismiss that is based on qualified immunity, however, the action is a final order reviewable by this court.² The policy underlying the defense of qualified immunity supports our exercise of jurisdiction at this point. The defense exists to “give government officials a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as discovery.’ ”³ When a district court denies qualified immunity at the dismissal stage, that denial subjects the official to the burdens of pretrial matters, and some of the rights inherent in a qualified immunity defense are lost.⁴ In this case, the district court refused to rule on the question of qualified immunity, reasoning that because Med-ford had not yet filed an answer, he had not asserted the defense of qualified immunity. The district court was incorrect. Qualified immunity may be raised in a motion to dismiss.⁵ The district court’s refusal to consider the question subjected Medford to further pretrial procedures, and so effectively denied him qualified immunity.

II.

We review a denial of a motion to dismiss based on qualified immunity de novo.6 We accept as true the facts as alleged in the complaint, and view those facts in the light most favorable to the nonmoving party.⁷ In this case, the complaint and amended complaint allege the following facts that are relevant to this appeal: on and before December 5, 1994, the deputies were employed in law enforcement positions in the Buncombe County sheriffs department; Med-ford ran against Walter Hipps in May, 1994, in the Republican primary; Medford won that election, and ran for sheriff against the incumbent, Charles Long, in an election held on November 8, 1994; during the campaign, Medford promised his supporters either jobs or promotions in the sheriffs department; the deputies worked for or otherwise supported Medford’s opponents, but always on their own time, and never at work; each deputy was terminated by Medford on December 5, 1996, the date Medford took office as the newly-elected sheriff; Medford made no attempt to assess the abilities of any of the deputies; and, Medford replaced each deputy with someone politically loyal to Med-ford.

The district court ruled that the facts alleged in the amended complaint were sufficient to state a cause of action. Under 42 U.S.C. § 1988, a plaintiff must establish three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.⁸ Medford argues on appeal, as he did in the court below, that he is entitled to qualified immunity because the deputies have not alleged a violation of a “clearly established” right; he is immune from suit under the 11th Amendment to the United States Constitution; and the pendent state law claim should be dismissed. The deputies assert that by firing them, Medford deprived them of “their rights to freedom of association and to political belief, speech and expression, and their Fourteenth Amendment right to due process of law.”⁹

De novo review allows us to conduct an overall inquiry into the sufficiency of the complaint to determine whether the deputies have stated a claim upon which relief may be granted.¹⁰ When reviewing a claim of qualified immunity, we consider whether the plaintiff has been deprived of a constitutional right. If the complaint shows that the plaintiff has not suffered such a deprivation, the defendant is entitled to dismissal of the claim under Rule 12(b)(6).¹¹ These steps help “weed out insubstantial § 1983 claims” without subjecting the defendant to the burdens of pretrial preparations.¹² We believe the dispositive issue in this case is whether the deputies’ dismissals deprived them of any constitutional right. We therefore turn to an examination of the applicable law.

III.

Today, we are again asked to determine when a public employee may properly be dismissed because of political affiliation. Over the last two decades, the United States Supreme Court has issued four significant opinions on this issue.¹³ Despite the Court’s guidance, lower courts have issued “conflicting and confusing” opinions.¹⁴ It is clear, however, that “[a] State may not condition public employment on an employee’s exercise of his or her First Amendment rights.”¹⁵ Further, “[ajbsent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression.”¹⁶

The deputies’ complaint is properly analyzed under the reasoning developed in Elrod v. Burns¹⁷ and Branti v. Finkel.18 The wholesale dismissal of deputies who campaigned for the losing candidate reveals that the newly-elected sheriff “elevate[d] political support to a job requirement.”¹⁹ This implicates the constitutional analysis of political patronage as developed in the Elrod-Branti line of eases.²⁰ In 1976, in Elrod, the Court declared patronage dismissals unconstitutional, because the practice limited political belief and association, and therefore violated the First and Fourteenth Amendments. However, the Court created a narrow exception to give effect to the democratic process. The Court allowed patronage dismissals of those holding policymaking positions, reasoning that this exception would, in part, advance the important government goal of assuring “the implementation of policies of [a] new administration, policies presumably sanctioned by the electorate.”²¹

Four years later, in Branti, the Court recognized that the labels used in Elrod ignored the practical realities of job duty and structure, and so modified the test: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”²² Simply put, Branti modified the test in Elrod by asking if “there is a rational connection between shared ideology and job performance.” ²³

A.

This court, in Jones v. Dodson,²⁴ had its first opportunity to apply the Elrod-Branti exception to dismissals based on campaign activity. Dodson considered the claims of two Democratic deputy sheriffs, who alleged they were dismissed by the sheriff, a Republican, because of their political affiliations and expressions.²⁵ The panel held that “if [the deputy’s] discharge was solely because of his political party affiliation, it could not as a matter of law be justified under the Branti test.”²⁶ The panel reasoned:

[W]e do not believe that the duties of deputy sheriffs, no matter what the size of the office, or the specific position of the power involved, or the customary intimacy of the associations of the office, or the undoubted need for mutual trust and confidence within any law enforcement agency, could be found to involve policymaking related to partisan political interests and to involve access to confidential information bearing ... on partisan political concerns.²⁷

The panel did not, however, make an explicit inquiry into the specific role or duties of deputy sheriffs, nor did it explore the relationship between the sheriff and his deputies, as that relationship affects the execution of the sheriffs policies.

In Joyner v. Lancaster,²⁸ another panel of this court examined the claims of a deputy sheriff who was dismissed because he campaigned on behalf of the incumbent sheriffs opponent.²⁹ Because Joyner focused on one deputy whose campaign activity caused friction within the department, the panel applied the Connick-Pickering analysis.³⁰ Nonetheless, Joyner is instructive because the court specifically examined deputy Joyner’s role in the sheriffs department. Joyner was one of four captains in a department of some 150 deputies. He had only two superiors and was in charge of a squad of 15 deputies. He helped with department planning, and reviewed and evaluated other deputies.³¹ Furthermore, Joyner played an important role in implementing the sheriffs policies, “and he was an essential link between the sheriff and the deputies whom he supervised.”³² The panel recognized that in those circumstances, “mutual confidence and loyalty are of great importance,” and approved Joyner’s dismissal.³³

In Stott v. Haworth,³⁴ yet another panel addressed politically-motivated dismissals of public employees. Stott refined the inquiry courts in this circuit should make when applying the Elrod-Branti analysis. The court must first determine whether the position held by the dismissed employee relates to partisan political interests. If the position does relate to those interests, the court must then examine the particular responsibilities of the position. When the position at issue resembles a policymaker, a communicator, or a privy to confidential information, political party affiliation can be an appropriate requirement for effective job performance.³⁵ The position then falls into the Elrod-Branti exception to the prohibition against political firings.³⁶

Our eases have moved from wholesale pronouncements (Dodson) to position-specific analyses (Joyner andStott ).³⁷ Other circuits,however, simply refuse to allow deputy sheriffs to pursue the type of claim at issue before us.³⁸ In reaching the decision to bar these claims, they have examined sheriff elections and the roles of sheriffs and their deputies. These circuits have found that sheriffs, as elected officers, require loyal deputies to help them implement their policies— “policies presumably sanctioned by the electorate.”³⁹

B.

In jurisdictions where the sheriff is elected by popular vote, the triumph of one candidate indicates voter approval of the candidate’s espoused platform and general agreement with the candidate’s “expressed political agenda.”⁴⁰ Some candidates gain office by promising changes in current policy. By choosing a particular candidate to protect the citizens of the county, the electorate vests in the sheriff broad discretion to set and implement the policies necessary to carry out his goals.⁴¹ The sheriff owes a duty to the electorate and the public at large to ensure that his espoused policies are implemented.

Deputy sheriffs play a special role in implementing the sheriff’s policies and goals. The sheriff is likely to include at least some deputies in his core group of advisors.⁴² Deputies on patrol work autonomously, exercising significant discretion in performing their jobs.⁴³ In the course of their duties, deputies will “make some decisions that actually create policy.”⁴⁴ The sheriff relies on his deputies to foster public confidence in law enforcement. Furthermore, deputies are expected to provide the sheriff with the truthful and accurate information he needs to do his job.⁴⁵ In some jurisdictions, the deputy sheriff is the general agent of the sheriff, and the sheriff is civilly liable for the acts of his deputy.⁴⁶

The circuits which have examined the interplay between the voters, the sheriff and his policies, and the role of deputies in implementation of policy, have concluded that political affiliation and loyalty to the sheriff are appropriate job requirements. These circuits have held that the position of deputy sheriff is sufficiently political to allow patronage and politically-motivated dismissals under the exception established by Elrod and Branti.47

C.

Following the lead of the Seventh⁴⁸ and Eleventh⁴⁹ Circuits, we now consider the specific political and social roles of sheriffs and their deputies in North Carolina. The North Carolina legislature has declared that “[t]he offices of sheriff and deputy sheriff are ... of special concern to the public health, safety, welfare and morals of the people of the State.”⁵⁰ The sheriff is such an important political figure, the legislature has prescribed a mandatory procedure for filling vacancies in that office: “If the sheriff were elected as a nominee of a political party, the board of commissioners shall consult the county executive committee of that political party ... and shall elect the person recommended” by that party.⁵¹

The North Carolina legislature has also recognized the special status of sheriffs’ deputies in the eyes of the law: “The deputy sheriff has been held by the Supreme Court of this State to hold an office of special trust and confidence, acting in the name of and with powers coterminous with his principal, the elected sheriff.”⁵²- The sheriff may not delegate final responsibility for his official duties,⁵³ but he may appoint deputies to assist him.⁵⁴ Our circuit and North Carolina state courts agree that the sheriff can be held hable for the misbehavior of the deputies.⁵⁵ -Presumably it is for these reasons that the legislature has made deputies at-will employees, who “shall serve at the pleasure of the appointing officer.”⁵⁶

IV.

This examination of the role of deputy sheriffs leads us to conclude that in North Carolina, the office of deputy sheriff is that of a policymaker, and that deputy sheriffs are the alter ego of the sheriff generally, for whose conduct he is hable. We therefore hold that such North Carolina deputy sheriffs may be lawfully terminated for political reasons under the Elrod-Branti exception to prohibited political terminations. This holding “strikes at the heart of the Elrod-Branti least restrictive means test which balances First Amendment rights of the deputies and the need for efficient and effective delivery of public services.”⁵⁷ Because they campaigned for Medford’s opponents, the deputies in the instant ease had no constitutional right to continued employment after the election, and so have faded to state a claim under 42 U.S.C. § 1983.

We recognize that this holding conflicts with our holding in Jones v. Dodson. Dodson was this court’s first opportunity to apply the Elrod-Branti reasoning to patronage dismissal claims brought by sheriffs deputies. We believe Dodson has handicapped and impeded law enforcement since it became the law of this circuit. The intervening years and eases since Dodson reveal that sheriffs have been forced to defend themselves in litigation for dismissing deputies who campaigned against them,⁵⁸ thus diverting sheriffs’ attention from the important public safety issues in their communities. Additionally, we believe the Dodson panel misapplied the Elrod-Branti test.

Dodson rested on language in Branti rejecting the “notion that mutual trust and confidence could only exist between members of the same political party in an agency of the small size there involved.” 59Branti involved the dismissal of assistant public defenders, who were Republicans, by the newly-appointed public defender, a Democrat. The Court reasoned that political affiliation was an inappropriate basis for dismissal because the primary, if not the only, responsibility of an assistant public defender is to represent his clients’ interests in controversies with the State. The Court concluded that in serving that interest, an assistant public defender was not a policymaker or privy to confidential information related to partisan politics.⁶⁰

We disagree with Dodson to the extent it suggests that no deputy sheriff can ever be a policymaker. Instead, the district courts are to engage in a Stott-type analysis, examining the specific position at issue, as we have done here today. If the position resembles “a policymaker, a communicator, or a privy to confidential information,”⁶¹ then loyalty to the sheriff is an appropriate requirement for the job. We hold that newly elected or re-elected sheriffs may dismiss deputies either because of party affiliation or campaign activity. Either basis serves as a proxy for loyalty to the sheriff.⁶²

We can think of no clearer way for a deputy to demonstrate opposition to a candidate for sheriff, and thus actual or potential disloyalty once the candidate takes office, than to actively campaign for the candidate’s opponent. That is the exact measure employed by Sheriff Medford in this case.⁶³ The deputies admit that they campaigned on behalf of Medford’s opponents.⁶⁴ “It was never contemplated that ... sheriffs ... must perform the powers and duties vested in them through deputies or assistants selected by someone else,”⁶⁵ and we do not believe it was ever contemplated that a sheriff must attempt to implement his policies and perform his duties through deputies who have expressed clear opposition to him.

We limit dismissals based on today’s holding to those deputies actually sworn to engage in law enforcement activities on behalf of the sheriff. We issue this limitation to caution sheriffs that courts examine the job duties of the position, and not merely the title, of those dismissed.⁶⁶ Because the deputies in the instant case were law enforcement officers, they are not protected by this limitation.⁶⁷

We reverse the ruling of the district court and hold the deputies failed to state a claim. This holding makes it unnecessary for us to consider whether Sheriff Medford is entitled to qualified immunity.⁶⁸ We direct the district court to dismiss the deputies’ claim. In the absence of a federal action, the deputies’ claim under state law should also be dismissed.⁶⁹

For the foregoing reasons, the order of the district court is reversed, and the ease is remanded to the district court for the entry of an appropriate order of dismissal.

REVERSED AND REMANDED.

1 . Fed.R.Civ.P. 12(b)(6).

2 . Behrens v. Pelletier, - U.S. -, -, 116 S.Ct. 834, 839, 133 L.Ed.2d 773 (1996) (‘‘[A]n order rejecting the defense of qualified immunity at either the dismissal stage or the summary-judgment stage is a ‘final’ judgment subject to immediate appeal.”).

In any event, pendent appellate jurisdiction allows us to review the district court’s denial of the motion to dismiss. Judge Wilkins recently established that pendent appellate jurisdiction is appropriate when a subsidiary issue "is (1) inextricably intertwined with the decision of the lower court to deny qualified immunity or (2) consideration of the additional issue is necessary to ensure meaningful review of the qualified immunity question.” Taylor v. Waters, 81 F.3d 429, 437 (4th Cir.1996) (citing Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995)).

We may exercise jurisdiction in this case under either prong of the Taylor test. At a minimum, the motion to dismiss was "inextricably intertwined” with Medford's claim of qualified immunity. See also Jackson v. Long, 102 F.3d 722, 731 (4th Cir.1996) (concluding that when complaint did not adequately state claim against which immunity could attach, district court should have dismissed complaint).

3 . Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985)). See also Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982).

4 . Behrens, at -, 116 S.Ct. at 839-40.

5 . See id. at -, 116 S.Ct. at 839.

6 . Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996) (citation omitted).

7 . Id.

8 . 42 U.S.C.A. § 1983 (West 1994); West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988).

9 . Amended Complaint, ¶ 36.

10 . Brooks v. City of Winston-Salem , 85 F.3d 178, 181 (4th Cir.1996).

11 . ACLU of Maryland v. Wicomico County, 999 F.2d 780, 784 (4th Cir.1993).

12 . Id. (citing Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)).

13 . See O’Hare Truck Service, Inc. v. City of Northlake, - U.S. -, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996); Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion).

14 . Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir.1991).

15 . O’Hare, at -, 116 S.Ct. at 2356 (1996) (citing Board of County Com’rs v. Umbehr, - U.S. -, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)).

16 . Id. at -, 116 S.Ct. at 2357.

17 . 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547.

18 . 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574.

19 . Terry v. Cook, 866 F.2d 373, 377 (11th Cir.1989).

20 . Id. When public employees are subjected to discipline for the content of their speech, courts analyze those claims under the Connick-Pickering line of cases. Joyner v. Lancaster, 815 F.2d 20, 22-3 (4th Cir.1987) (citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering, 391 U.S. 563, 88 S.Ct. 1731).

21 . Elrod, 427 U.S. at 367, 96 S.Ct. at 2687.

22 . Branti, 445 U.S. at 518, 100 S.Ct. at 1294.

23 . Stott v. Haworth, 916 F.2d 134, 142 (4th Cir.1990) (citing Savage v. Gorski, 850 F.2d 64, 68 (2d Cir.1988)).

24 . 727 F.2d 1329 (4th Cir.1984).

25 . Id. at 1330.

26 . Id. at 1338.

27 . Id. (citing Branti, 445 U.S. at 519, 520 n. 14, 100 S.Ct. at 1295 n. 14) (internal quotation marks omitted).

28 . 815 F.2d 20 (4th Cir.1987).

29 . Id. at 22-23.

³⁰

31 . Id. at 21.

32 . Id. at 24.

³³

34 . 916 F.2d 134. Stott involved a wide range of civil service employees, not deputy sheriffs. We nonetheless find the case useful because of its application of the Elrod-Branti analysis.

35 . Id. at 141-42.

36 . Id. at 142.

37 . This narrowing of the holding of Dodson would also serve to defeat an assertion that the deputies had a "clearly established" right to continued employment after the election. Thus, Medford would be entitled to qualified immunity. See DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir.1995).

38 . Upton, 930 F.2d 1209; Cook, 866 F.2d 373.

³⁹

40 . Upton, 930 F.2d at 1215.

41 . Id. at 1215 (drawing parallel between deputy sheriffs and public prosecutors) (citing Livas v. Petka, 711 F.2d 798 (7th Cir.1983)); McBee v. Jim Hogg County, 703 F.2d 834, 839, vacated on other grounds, 730 F.2d 1009 (5th Cir.1984).

⁴²

43 . Mat 1215.

44 . Id. (citing Livas, 711 F.2d 798, 801); McBee, 703 F.2d at 839 ("[D]eputies are often called upon to make on-the-spot split-second decisions effectuating the objectives and law enforcement policies which a particular sheriff has chosen to pursue.”).

⁴⁵

46 . Cook, 866 F.2d at 377 (discussing Alabama law).

47 . See Upton, 930 F.2d at 1218 ("[W]e conclude that deputy sheriffs operate with a sufficient level of autonomy and discretionary authority to justify a sheriff’s use of political considerations when determining who will serve as deputies."); Cook, 866 F.2d at 377 (“Under the Elrod-Branti standard, loyalty to the individual sheriff and the goals and policies he seeks to implement through his office is an appropriate requirement for the effective performance of a deputy sheriff.... [A] sheriff [has] absolute authority of appointment and to decline to reinstate those who did not support him.”) (emphasis added); McBee, 703 F.2d 834.

See also Wilbur v. Mahan, 3 F.3d 214, 217 (7th Cir.1993) ("A public agency would be unmanageable if its head had to appoint or retain his political enemies ... in positions of confidence or positions in which they would be making policy or, what amounts to the same thing, exercising discretion in the implementation of policy.”).

48 . See Upton, 930 F.2d 1209.

49 . See Cook, 866 F.2d 373.

50 . N.C. Gen.Stat. § 17E-1 (1996).

51 . N.C. Gen.Stat. § 162-5.1 (1996) (emphasis added).

52 . Id. § 17E-1. See Gowens v. Alamance County, 216 N.C. 107, 3 S.E.2d 339, 340 (1939); Cline v. Brown, 24 N.C.App. 209, 210 S.E.2d 446, 449 (1974) ("The deputy is a representative of the sheriff in his official capacity.... The public generally regards the acts of a deputy sheriff as the acts of the sheriff himself. The sheriffs position in government vests in him and his deputies 'substantial responsibility for or control over the conduct of governmental affairs.' This is certainly true where law enforcement and police functions are concerned.... [I]f the deputy's office [is] abused, it has great potential for social harm and thus invites independent interest in the qualifications and performance of the person or persons who hold the position."), cert. denied, 286 N.C. 412, 211 S.E.2d 793 (1975) (citation omitted).

53 . N.C. Gen.Stat. § 162-24.

⁵⁴

55 . McCollum v. Stahl, 579 F.2d 869, 872 (4th Cir.1978) ("[I]Ilegal conduct on the deputy’s part could expose the Sheriff to civil liability. Indeed, in law he occupied a status of alter ego of the Sheriff officially.”) (emphasis in original); Sutton v. Williams, 199 N.C. 546, 155 S.E. 160, 161-62 (1930) ("At common law, if a jailer permitted the escape of a prisoner, ... the sheriff had to answer for the default... .[N]ow, as a general rule, subject of course to exceptions, a sheriff is liable for the act or omission of his deputy as he is for his own.") (citations omitted); Styers v. Forsyth County, 212 N.C. 558, 194 S.E. 305, 308-09 (1937) (sheriff liable on his surety bond for acts of deputy; "If there be a nonfeasance or neglect of duty by the under-sheriff, the sheriff alone is responsible to the party injured....”).

56 . N.C. Gen.Stal. § 153A-103(2) (1996).

57 . Cook, 866 F.2d at 377.

58 . Joyner, 815 F.2d 20 (North Carolina sheriff); Harris v. Wood, 888 F.Supp. 747 (W.D.Va.1995); Pierson v. Gondles, 693 F.Supp. 408 (E.D.Va.1988); Whited v. Fields, 581 F.Supp. 1444 (W.D.Va.1984).

59 . Jones, 727 F.2d at 1338 (citing Branti, 445 U.S. at 520 n. 14, 100 S.Ct. at 1295 n. 14).

60 . Branti, 445 U.S. at 519-20, 100 S.Ct. at 1295-96.

61 . Stott, 916 F.2d at 141-42.

62 . Party affiliation as a proxy for loyalty was noted by the Court in Branti. "[T]he Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments.” Branti, 445 U.S. at 518, 100 S.Ct. at 1295.

63 . Amended Complaint, ¶ 32.

64 . Amended Complaint, ¶ 26.

65 . Tanner v. McCall, 625 F.2d 1183, 1186 (5th Cir.1980) (quoting Blackburn v. Brorein, 70 So.2d 293, 298 (Fla. 1954)).

66 . See Stott, 916 F.2d at 142; Zorzi v. County of Putnam, 30 F.3d 885, 892 (7th Cir.1994) (dispatchers not involved in law enforcement activities or policy, so political affiliation inappropriate job requirement).

The dissent manifests a misunderstanding of our holding. It applies only to those who meet the requirements of the rule as we state it, and does not extend to all 13,600 officers in North Carolina, as the dissent suggests.

67 . Amended Complaint, ¶ 19.

68 . DiMeglio, 45 F.3d at 799 (when reviewing determinations on both a motion to dismiss for failure to state a claim and a denial of qualified immunity, courts are "free to decide the case on the most expedient ground.”).

69 . Tarantino v. Baker, 825 F.2d 772, 779 (4th Cir.1987) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966)).