BEAM, Circuit Judge.
Ron Nord brought this 42 U.S.C. § 1983 action against Walsh County (the “County”) and Lauren Wild, both in his individual capacity and in his capacity as sheriff of Walsh County, alleging violations of his First Amendment and Fourteenth Amendment rights and various state law claims. Wild moved for summary judgment based upon qualified immunity as to Nord’s First Amendment claim, which the district court denied.1 Wild, supported by the County, brings this interlocutory appeal.2 We reverse.
I. BACKGROUND
From 1991 until his termination on November 3, 2010, Nord was employed as a deputy sheriff in Walsh County, North Dakota. He served at the pleasure of Sheriff Lauren Wild, who had been the duly elected sheriff since 1989. In early 2010, Nord entered the sheriff election, running against Wild. Both Nord and Wild earned enough votes in the primary election to appear on the general election ballot.3 During Nord’s campaign, he [738]*738maintained his position as deputy sheriff without any change in pay or benefits and, according to Wild’s deposition testimony, performed his duties as deputy sheriff. Nord does not assert that Wild in any way interfered with his campaign efforts. On November 2, 2010, Wild won the election.
The day following the election Wild called Nord into the office at 8:00 a.m., rather than his scheduled 1:00 p.m. shift, and terminated Nord’s employment. Pri- or to terminating Nord, Wild consulted Tanya Wieler, the County’s human resources consultant, and Barbara Whelan, the Walsh County attorney, regarding Nord’s tenure. Both Wieler and Whelan told Wild he was within his authority as sheriff to terminate Nord.
Nord’s termination caused some unrest in the County and resulted in a recall election, which Wild also won. During the recall election, Wild made statements that Nord was fired in accordance with an “unwritten rule” that deputy sheriffs who run against the sheriff will be fired and for certain statements Nord made during the campaign. After his termination, Nord searched for another job, and in May 2011, was hired as a deputy in the Grand Forks County Sheriffs Department.
On December 17, 2010, Nord filed this § 1983 lawsuit against Walsh County and Wild. Nord alleged that he was fired in retaliation for the statements he made along the campaign trail, statements, he claims, that were protected by the First Amendment. Wild moved for summary judgment asserting a qualified immunity defense, which the district court denied. Wild appeals the denial of qualified immunity.
II. DISCUSSION
We review a denial of summary judgment on the grounds of qualified immunity de novo. Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir.2013). “Summary judgment is appropriate when the evidence viewed in the light most favorable to the nonmoving party presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (quotation omitted). We have limited jurisdiction to hear an interlocutory appeal of a district court’s denial of qualified immunity. Robbins v. Becker, 715 F.3d 691, 693 (8th Cir.2013). We may review a district court’s order denying such immunity to the extent that it turns on an issue of law, but we have no jurisdiction if the pretrial record sets forth genuine issues of fact necessary for resolution of the interlocutory appeal. Id. No such factual issues present themselves in this case.
“In a § 1983 action, qualified immunity shields a government official from liability unless his conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.” Coker v. Ark. State Police, 734 F.3d 838, 841-42 (8th Cir.2013) (internal quotations omitted). 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.’ ” Winslow v. Smith, 696 F.3d 716, 731 (8th Cir.2012) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir.2009)). Unless both of these questions are answered affirmatively, an appellant is entitled to qualified immunity. Id. And, courts are “permitted to exercise their [739]*739sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
We begin with the first step of the qualified immunity inquiry. In this limited context, Wild concedes that Nord was terminated in violation of his First Amendment rights under the first prong of the investigation. Assuming, without holding, that this is true, we conclude that step one of the qualified immunity analysis has been sufficiently established for purposes of further inquiry.
Despite this concession, Wild contends that given the circumstances of this dispute, qualified immunity nonetheless protects him because his act of terminating Nord did not violate a “clearly established statutory or constitutional right[ ] of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation omitted).
For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (internal citation omitted).
As the Supreme Court has recently reiterated, ‘“[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, — U.S. -, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (internal quotation omitted)). In addition, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quotation omitted).
To evaluate whether Nord makes out a claim that his constitutional rights were clearly established and violated by Wild’s act of termination, we must determine whether or not his particular speech was protected by the First Amendment. Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000). This inquiry is one of law, not fact. Hinshaw v. Smith, 436 F.3d 997, 1004 (8th Cir.2006).4
[740]*740This protected or not conundrum and well-established Supreme Court precedent brings into play the use of the so-called
Free access — add to your briefcase to read the full text and ask questions with AI
BEAM, Circuit Judge.
Ron Nord brought this 42 U.S.C. § 1983 action against Walsh County (the “County”) and Lauren Wild, both in his individual capacity and in his capacity as sheriff of Walsh County, alleging violations of his First Amendment and Fourteenth Amendment rights and various state law claims. Wild moved for summary judgment based upon qualified immunity as to Nord’s First Amendment claim, which the district court denied.1 Wild, supported by the County, brings this interlocutory appeal.2 We reverse.
I. BACKGROUND
From 1991 until his termination on November 3, 2010, Nord was employed as a deputy sheriff in Walsh County, North Dakota. He served at the pleasure of Sheriff Lauren Wild, who had been the duly elected sheriff since 1989. In early 2010, Nord entered the sheriff election, running against Wild. Both Nord and Wild earned enough votes in the primary election to appear on the general election ballot.3 During Nord’s campaign, he [738]*738maintained his position as deputy sheriff without any change in pay or benefits and, according to Wild’s deposition testimony, performed his duties as deputy sheriff. Nord does not assert that Wild in any way interfered with his campaign efforts. On November 2, 2010, Wild won the election.
The day following the election Wild called Nord into the office at 8:00 a.m., rather than his scheduled 1:00 p.m. shift, and terminated Nord’s employment. Pri- or to terminating Nord, Wild consulted Tanya Wieler, the County’s human resources consultant, and Barbara Whelan, the Walsh County attorney, regarding Nord’s tenure. Both Wieler and Whelan told Wild he was within his authority as sheriff to terminate Nord.
Nord’s termination caused some unrest in the County and resulted in a recall election, which Wild also won. During the recall election, Wild made statements that Nord was fired in accordance with an “unwritten rule” that deputy sheriffs who run against the sheriff will be fired and for certain statements Nord made during the campaign. After his termination, Nord searched for another job, and in May 2011, was hired as a deputy in the Grand Forks County Sheriffs Department.
On December 17, 2010, Nord filed this § 1983 lawsuit against Walsh County and Wild. Nord alleged that he was fired in retaliation for the statements he made along the campaign trail, statements, he claims, that were protected by the First Amendment. Wild moved for summary judgment asserting a qualified immunity defense, which the district court denied. Wild appeals the denial of qualified immunity.
II. DISCUSSION
We review a denial of summary judgment on the grounds of qualified immunity de novo. Stoner v. Watlingten, 735 F.3d 799, 802 (8th Cir.2013). “Summary judgment is appropriate when the evidence viewed in the light most favorable to the nonmoving party presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (quotation omitted). We have limited jurisdiction to hear an interlocutory appeal of a district court’s denial of qualified immunity. Robbins v. Becker, 715 F.3d 691, 693 (8th Cir.2013). We may review a district court’s order denying such immunity to the extent that it turns on an issue of law, but we have no jurisdiction if the pretrial record sets forth genuine issues of fact necessary for resolution of the interlocutory appeal. Id. No such factual issues present themselves in this case.
“In a § 1983 action, qualified immunity shields a government official from liability unless his conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.” Coker v. Ark. State Police, 734 F.3d 838, 841-42 (8th Cir.2013) (internal quotations omitted). 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.’ ” Winslow v. Smith, 696 F.3d 716, 731 (8th Cir.2012) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir.2009)). Unless both of these questions are answered affirmatively, an appellant is entitled to qualified immunity. Id. And, courts are “permitted to exercise their [739]*739sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
We begin with the first step of the qualified immunity inquiry. In this limited context, Wild concedes that Nord was terminated in violation of his First Amendment rights under the first prong of the investigation. Assuming, without holding, that this is true, we conclude that step one of the qualified immunity analysis has been sufficiently established for purposes of further inquiry.
Despite this concession, Wild contends that given the circumstances of this dispute, qualified immunity nonetheless protects him because his act of terminating Nord did not violate a “clearly established statutory or constitutional right[ ] of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation omitted).
For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (internal citation omitted).
As the Supreme Court has recently reiterated, ‘“[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, — U.S. -, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) (per curiam) (quoting Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (internal quotation omitted)). In addition, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quotation omitted).
To evaluate whether Nord makes out a claim that his constitutional rights were clearly established and violated by Wild’s act of termination, we must determine whether or not his particular speech was protected by the First Amendment. Sexton v. Martin, 210 F.3d 905, 910 (8th Cir. 2000). This inquiry is one of law, not fact. Hinshaw v. Smith, 436 F.3d 997, 1004 (8th Cir.2006).4
[740]*740This protected or not conundrum and well-established Supreme Court precedent brings into play the use of the so-called Pickering/Connick balancing test. See Pickering v. Bd. of Educ., 391 U.S. 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); see also Shockency v. Ramsey Cnty., 493 F.3d 941, 949 (8th Cir.2007). As an initial matter, if the record supports the application of the test, it provides a balancing of Nord’s First Amendment rights against Wild’s state government employer prerogatives in an exercise that determines whether the contours of Nord’s asserted rights were clearly enough established to make Wild’s conduct actionable. See Shockency, 493 F.3d at 948.
If, upon application of the test, Nord’s rights were not clearly established, Wild is, of course, entitled to a qualified immunity defense against Nord’s claims. Indeed, if the evidence in the record is sufficient to proceed with the Pickering/Connick balancing exercise, this circuit has held that “the asserted First Amendment right will rarely be considered clearly established.” Hall v. Mo. Highway & Transp. Comm’n, 235 F.3d 1065, 1068 (8th Cir.2000).
To determine whether and how to apply Pickering/Connick, we turn to the record to make a substantive analysis of Nord’s speech and Wild’s rights as a public employer. See Pickering, 391 U.S. at 568-70, 88 S.Ct. 1731. This analysis requires a two-step inquiry. “First, we determine whether the employee’s speech can be ‘fairly characterized as constituting speech on a matter of public concern.’ ” Belk v. City of Eldon, 228 F.3d 872, 878 (8th Cir. 2000) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). “Second, if the speech addresses a matter of public concern, we balance the ‘interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Id. (alteration in original) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731).
[A]pplying the Pickering test we weigh the employee’s right to engage in the particular speech ... with such considerations as “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”
Hinshaw, 436 F.3d at 1005 (quoting Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)).
Thus, under Pickering/Connick, this court’s task involves an analysis of (1) the general authority and responsibilities of the employing government entity, (2) the nature and character of the specific employer-employee relationship, (3) the speech involved and (4) evidence tending to establish the speech’s impact on the efficient operation of the government entity. See generally Connick, 461 U.S. at 147-153, 103 S.Ct. 1684.
North Dakota counties are political subdivisions of the State. N.D. Const. Art. VII, § 2. As such, the county sheriff manages and enforces a substantive portion of the sovereign’s policing powers. Indeed, the sheriffs office is, in significant part, the image of North Dakota law enforcement as seen by many citizens, especially in the more rural counties.
The Walsh County Sheriffs Department is relatively small, employing approximately ten officers and six jailers. We particularly focus on the officers, taking judicial notice that the policing mission is a seven-[741]*741day per week, 24-hours per day operation. 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 an assigned district.
In Walsh County there is an official Sheriffs Department Policy Manual which contains the general description of a deputy sheriffs job duties: the deputy sheriff is “[u]nder the general supervision of the Sheriff to be responsible in an assigned district for general police work, prevention and detection of crime, the protection of life and property, and [to] perform duties as assigned.”
The Supreme Court of North Dakota has recognized that “ ‘the official acts of a deputy sheriff are the acts of the sheriff.’ ” Turnquist v. Kjelbak, 77 N.W.2d 854, 857 (N.D.1956) (quoting Wilson v. Russell, 4 Dakota 376, 31 N.W. 645 (1887) and Summerville v. Sorrenson, 23 N.D. 460, 136 N.W. 938 (1912)). The deputy sheriff is the “deputy of the sheriff, not of the office of sheriff as distinct from the person holding the office, to act for the person who is sheriff, and by whom he is appointed.” Wilson, 31 N.W. at 650. The sheriff “creates” the deputy sheriff, and “he can at any time, while in office, at his own will destroy his official existence as his deputy.” Id. The North Dakota Supreme Court has further recognized that the “act of the deputy is the act of the sheriff; he has no original power, but acts as the representative or agent of the sheriff, who is the principal.” Tumquist, 77 N.W.2d at 857 (quotation omitted). Thus, Nord was employed as an agent of Wild.
Furthermore, North Dakota law grants the sheriff the ability to appoint its deputies. N.D. Cent.Code § 11-10-11. From this power, North Dakota Attorney General opinions indicate, the sheriff has the ability to terminate those same deputies. N.D. Op. Att’y Gen. 82-38 (1982) (“The sheriff has the authority to hire and fire deputies, within the number and salary set by the county commissioners. There is no statutory procedure under state law which the sheriff must follow in firing a person appointed by him.”); N.D. Op. Att’y Gen. L-32 (1997) (“It has long been the position of this office that implicit in a county officer’s power to appoint or hire an employee under N.D.C.C. § 11-10-11 is the power to fire that employee.”). The Attorney General also opined, that absent a “just cause” requirement for termination or another source of constraint on the employer’s discretion to terminate its employees, the general rule of employment at will is presumed. N.D. Op. Attfy Gen. L-333 (1993). In sum, based upon the above-precedent and a fair reading of North Dakota Attorney General opinions on the subject, a North Dakota sheriff, in the light of preexisting law, could, and perhaps should, believe that his deputies are “at will employees.”
Of greater importance, perhaps, is 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. This circuit has recognized the deference given to law enforcement agencies. Buzek v. Cnty. 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. Bd. of Police Commissioners, 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.” (alter[742]*742ation in original) (quotation omitted)). Thus, in accord with the holding of Con-nick, ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review. Connick, 461 U.S. at 146, 103 S.Ct. 1684. “[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch.” Id. at 151, 103 S.Ct. 1684 (quotation omitted).
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. Furthermore, we do not see the 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.
Id. at 151-52, 103 S.Ct. 1684 (emphasis added).
With this in mind, we turn to Nord’s speech leading to his termination. The record contains Wild’s deposition taken by Nord and Nord’s deposition taken by Wild. During the course of the interrogatories propounded by Nord’s counsel, Wild testified that he had been told that Nord had indicated to voters that Wild’s health was bad and that he should not be running for office because his health was so bad. And, Wild stated that he heard “[o]ne report ... that my wife didn’t even want me to run.” Wild also stated that another report indicated that he had said “[he] was going to resign as sheriff in two years and run for [Joe Miller’s (a state senator at the time) ] position as senator.” Wild testified that at least some of these statements were outright lies. Nord does not deny making some version of at least some such statements. Indeed, he testified with regard to Joe Miller, downplaying his statement a bit, “I said: Joe, do you want to hear a good one? He said: what’s that? I said: I hear Lauren [Wild] wants to run against you for the next election. Joe just smiled and said: bring it on.” Nord was asked where he heard that information and Nord said, “I don’t recall ... talking between shifts and stuff.” Concerning Wild’s health, Nord stated “the only thing I recall is, one lady asked about his [Wild’s health] ... I said that he’s had some blood pressure issues. And I said: just the joys of growing old.”
It is important to note that Supreme Court precedent strongly implies that some speech may be protected and some may not. Connick, 461 U.S. at 146, 103 S.Ct. 1684. Only when a public employee speaks upon matters of public concern, not matters of personal interest, is a federal court an appropriate forum in which to review the wisdom of a personnel decision made by a public agency. Id. ‘Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Id. at 147-48, 103 S.Ct. 1684. And, this inquiry into the protected status of speech is one of law, not fact. Id. at 148 n. 7, 103 S.Ct. 1684. Certainly, political speech is often considered to be on a matter of public concern and deserving of First Amendment protection. Id. at 145, 103 S.Ct. 1684 (“The First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.... Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.” (internal quotations omitted)). But, the Supreme [743]*743Court continuously emphasizes the diminished value of false factual statements. United States v. Alvarez, — U.S. -, 132 S.Ct. 2537, 2560-61, 183 L.Ed.2d 574 (2012) (cataloging the various cases in which the Court has concluded false speech has little to no value). Accordingly, if some of Nord’s campaign statements were untrue, as contended by Wild, they may be deserving of less protection and were likely more in Nord’s personal interest than items of public concern. Stated differently, the First Amendment permits Nord to utter matters of personal concern as he may wish but such matters are not necessarily protected by the First Amendment. Nord’s statements, however, even if viewed as a matter of public concern, “were not of such public and social importance as to override the [sheriff’s] substantial interest in maintaining” the efficiency and reputation of the workplace, given the nature of the office, to overcome the employment of the Pickering/Connick balancing test. Crain, 920 F.2d at 1411 (internal quotation omitted).
Based upon the foregoing analysis, we conclude that use of the Pickering/Connick balancing test is clearly called for in this dispute. And, based upon the use of such test, we conclude (1) that at least some of Nord’s campaign speech does not merit First Amendment protection; (2) that even if Nord’s speech was fully protected by the Constitution, Wild could have reasonably believed that the speech would be at least potentially damaging to and disruptive of the discipline and harmony of and among co-workers in the sheriffs office and detrimental to the close working relationships and personal loyalties necessary for an effective and trusted local policing operation, Hinshaw, 436 F.3d at 1005, and, the above-mentioned adverse employer-employee circumstance did not need to become manifest in order to be acted upon promptly by Wild, Connick, 461 U.S. at 151-52, 103 S.Ct. 1684; (3) that applying the second step of the qualified immunity inquiry, and 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. Stanton, 134 S.Ct. at 5; and thus (4) that Wild, as a matter of law, is entitled to qualified immunity to shield him from any liability claimed to have arisen through violation of the First Amendment as asserted by Nord. Coker, 734 F.3d at 841-42.
The district court, however, never attempted to reach the Pickering/Connick balancing test, stating, instead that Wild failed to establish that Nord’s speech “disrupted the workplace.” This holding, which we review de novo, ignored the obvious fact that Nord was never in the “workplace” after the conclusion of the November 2010 sheriffs election. But, as earlier noted, Supreme Court precedent does not require him to have been active in the workplace as a condition precedent to the employment of the Pickering/Connick test. We repeat, 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, 461 U.S. at 152,103 S.Ct. 1684.
As an aside, on appeal the parties dispute whether we should apply the Pickering/Connick test, as we did, or the test developed in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (the Elrod/Branti test). While the district court does not discuss this test, we pause briefly [744]*744to do so and find that it does not support Nord’s claim.
Subsequent to Pickering, through its analysis in Elrod and Branti “the Supreme Court established that the termination of a government employee based on the employee’s political affiliation violates the First Amendment unless the hiring authority can demonstrate that party affiliation is an appropriate and reasonable requirement for the effective performance of the public office involved.” Hinshaw, 436 F.3d at 1005. Under the Elrod/Branti set of cases, the court may forego the Pickering balancing test. Id. In such cases, the hiring authority must demonstrate that party affiliation is an appropriate and reasonable requirement for the effective performance of the public office involved. Id. “ ‘[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.’ ” O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 719, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996) (alteration in original) (quoting Branti 445 U.S. at 518, 100 S.Ct. 1287).
This circuit has held that “[i]f discharge solely because of party affiliation is found, this will involve applying the narrow [El-rod/Branti] justification test,” but “[i]f a discharge for overt expressive conduct is found, it will involve application of the [Pickering/Connick] balancing test.” Hin-shaw, 436 F.3d at 1005 (first alteration in original) (quotation omitted). Where speech is intermixed with a political affiliation requirement, the Pickering/Connick balancing is appropriate. Id. at 1006; see also O’Hare Truck Serv., 518 U.S. at 719, 116 S.Ct. 2353. Given the nature of Nord’s claim-that he was fired in accordance with the “unwritten rule” and for statements he made along the campaign trail-his claim is best characterized as an “intermixed case,” necessitating the Pickering/Connick test. And, even when the Pickering/Connick balancing is applied, rather than the Elrod/Branti test, the “employee’s status as a policymaking or confidential employee,” traditionally considered under Elrod/Branti, weighs in favor of the government’s side of the balancing scale. Hinshaw, 436 F.3d at 1007.
At bottom, the nature of Nord’s position is more similar to that of the deputies in Jenkins v. Medford, where deputy sheriffs were fired for campaigning for the sheriffs opponents. 119 F.3d 1156 (4th Cir. 1997). There, the Fourth Circuit held “North Carolina deputy sheriffs may be lawfully terminated for political reasons under the Elrod-Branti exception to prohibited political terminations.” Id. at 1164. The court in Jenkins recognized that the North Carolina deputy sheriffs acted as agents for the sheriff, similar to North Dakota deputies. Id. at 1162. The court reasoned that where the position “resembles a policymaker, a communicator, or a privy to confidential information, then loyalty to the sheriff is an appropriate requirement for the job,” and concluded that “newly elected or re-elected sheriffs may dismiss deputies either because of party affiliation or campaign activity” because either “basis serves as a proxy for loyalty to the sheriff.” Id. at 1164 (internal quotation omitted). For reasons similar to those expressed in Jenkins, loyalty is an appropriate requirement for the deputy sheriff position in the instant case, and accordingly the confidential nature of Nord’s employment weighs heavily on the government’s side of the Pickering/Con-nick balancing, which conclusion likewise supports our denial of qualified immunity because Wild’s actions did not violate a clearly established constitutional right.
[745]*745III. CONCLUSION
For the reasons stated herein, we reverse the district court’s decision to deny qualified immunity to Wild on Nord’s First Amendment claim and remand for further proceedings not inconsistent with this opinion.