The ?Plaintiff, ?William? Hunt, ?was ?a ?lieutenant officer?? ?with?? ?the?? ?Orange?? ?County?? ?Sheriff?s Department.???? He ?ran ?for ?office ?against ?the Orange County Sheriff alleging a culture of corruption. ?After the incumbent Sheriff was re- elected, ?the? Plaintiff? was ?placed ?on administrative leave and then demoted.? ?The Plaintiff filed suit alleging a violation of his First Amendment ?rights ?under ?42 ?U.S.C. ?Section 1983. The Plaintiff inadvertently waived his claim against the County.

At trial, it was undisputed that the Plaintiff was demoted because of his campaign against the incumbent.? ?The District Court submitted 37 special interrogatories to a jury on the question of whether the Plaintiff was a ?policymaker? and therefore not protected by the First Amendment. The jury found that he was not a policymaker, although that he did influence department policy affecting San Clemente, where he had formerly been Chief of Police.?? Nevertheless, the judge granted judgment as a matter of law, after concluding? that ?the ?Plaintiff ?was ?a ?policymaker.????? In the alternative, the District Court ruled that the incumbent Sheriff had qualified immunity.? Plaintiff appealed.

The Ninth Circuit determined that the District Court erred? in? its? conclusion? that? the Plaintiff was a policymaker, but affirmed on the grounds of qualified immunity.?? ?The Ninth Circuit recognized that employees generally have a First Amendment ?right ?to ?be? free? from ?retaliation based on political opinions, memberships, or activities.?? ?An exception has been created, however, where the employee occupies a ?policymaking position? so that ?representative government ?not ?be ?undercut ?by? tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.??? Citing Elrod v. Burns, 427 U.S. 347, 357 (1976). ??[T]he burden of establishing this [policymaker] justification as to any particular respondent will rest on the government.? ?Id. ?at 368. ?The inquiry is ?highly fact specific.? Whether ?an ?employee ?is ?a ??policymaker? ?is generally determined ?by a consideration? of nine factors articulated in Fazio v. City and County of San Francisco, 125 F.3d 1328, 1334 n.5 (9th ?Cir. 1997).?? ?But the Fazio factors must not be considered mechanically as did the District Court. 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.? Because the jury?s findings concluded that Plaintiff?s position did not require party affiliation, and that political considerations were not requirements for the effective performance of the public office at issue, the Fazio factors should not have ?been ?considered.???? The ?jury?s ?answers ?to special interrogatories established that the Plaintiff was not a policymaker within the meaning of the First Amendment exception.

Nevertheless, the Ninth Circuit ruled that the incumbent Sheriff had qualified immunity from damages.?? The Court concluded that because the Plaintiff was? the former Chief of Police of San Clemente, and significantly influenced policy as to that particular jurisdiction, the incumbent Sheriff could have reasonably but mistakenly believed that his conduct did not violate a clearly established constitutional right. Judge Leavy would have held the plaintiff was a policymaker.

Hunt v. County of Orange, 672 F.3d 606 (2/13/12). (Wardlaw, Leavy, Mahan)