PBA member petitions U.S. Supreme Court on First Amendment retaliation issue

PBA member Mark McCaffrey, formerly employed by the Loudoun County (Va.) Sheriff’s Office, filed a petition for a writ of certiorari with the United States Supreme Court in September.  McCaffrey  and his PBA-assigned attorney, Robert J. Cynkar of the firm McSweeney, Cynkar & Kachouroff in Great Falls, Va., are pursuing civil relief for McCaffrey in regard to his December 2015 termination by Loudoun County Sheriff Mark Chapman.  The civil action alleges violations of the First Amendment in that McCaffrey was terminated in retaliation for McCaffrey’s support for Chapman’s opponent for the Republican nomination for sheriff.  

McCaffrey’s support was demonstrated via a sign in his yard supporting the candidate and his acting as a delegate to the Republican convention in which the Republican candidate for sheriff was chosen.  According to his lawsuit, McCaffrey never spoke publicly about the election nor did he in any other way campaign for Chapman’s opponent.  After the Republican convention, Sheriff Chapman stated that he knew McCaffrey was in attendance and said, “I’m going to get him.”  McCaffrey received a letter on December 10, 2015, stating that his appointment as deputy ended at midnight on December 31, 2015.  He had received uniformly outstanding reviews during his service at the department.

The petition to the Supreme Court comes after the Fourth Circuit Court of Appeals ruled in favor of the sheriff and Loudoun County.  The petition states the following reasons for the Supreme Court to grant review:

1) The Fourth Circuit’s holding that Loudoun County deputy sheriffs are subject to partisan termination merits review because it is incorrect and in conflict with decisions of this Court and of other circuits;

2) The Fourth Circuit’s ruling that the Pickering-Connick balancing test for free-speech claims tilts in favor of the government as a matter of law if the claimant’s position falls within the Elrod-Branti exception was incorrect and in conflict with decisions of this Court and other circuits; and

3) This case is an excellent vehicle for review of exceptionally important issues and addressing the disarray among the precedents governing them.

Review by the Supreme Court would provide an opportunity to settle discrepancies in how terminations for deputy sheriffs on the basis of political activity are viewed.  In the Fourth Circuit’s decision on this matter, the longstanding view of deputy sheriffs being considered policymakers for the sheriff with expectations of loyalty to that sheriff was upheld.

In an effort to persuade the Supreme Court to review the McCaffrey case, SSPBA submitted an amicus brief prepared by PBA attorneys J. Michael McGuinness and Megan Milliken.  Among the arguments made in the amicus brief is the following:  “Deputy sheriffs must not be singled out, as an inferior class, for the elimination of fundamental First Amendment rights enjoyed by other Americans.”