UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2153

JAMES LANE,

Plaintiff - Appellant,

 v.

SHERIFF JOHN W. ANDERSON; MAYOR & CITY COUNCIL OF BALTIMORE,

Defendants – Appellees,

and

COL. MARCUS L. BROWN,

Defendant.

-------------------------

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MARYLAND; 

PUBLIC JUSTICE CENTER, INC.,

Amici Supporting Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:14-cv-03739-RDB)

Argued: May 12, 2016 Decided: August 17, 2016

Before KING, DIAZ, and THACKER, Circuit Judges.
2

Affirmed in part, reversed in part, and remanded by unpublished 

per curiam opinion. 

ARGUED: Howard Benjamin Hoffman, Rockville, Maryland, for 

Appellant. Jason L. Levine, OFFICE OF THE ATTORNEY GENERAL OF 

MARYLAND, Annapolis, Maryland; Jason Robert Foltin, BALTIMORE 

CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees. ON 

BRIEF: Steven H. Goldblatt, Director, Shon Hopwood, Appellate 

Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, 

Washington, D.C., for Appellant. Brian E. Frosh, Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, 

Maryland, for Appellee Anderson. George A. Nilson, City 

Solicitor, William R. Phelan, Jr., Chief Solicitor, BALTIMORE 

CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellee Mayor and 

City Council of Baltimore. Deborah A. Jeon, Sonia Kumar, 

Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, 

Baltimore, Maryland; Debra Gardner, Tassity Johnson, PUBLIC 

JUSTICE CENTER, Baltimore, Maryland, for Amici American Civil 

Liberties Union Foundation of Maryland and Public Justice 

Center. 

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

James Lane (“Appellant”) appeals the district court’s 

dismissal of his complaint against the Mayor and City Council of 

Baltimore (“Baltimore City”) and the Sheriff of Baltimore City, 

John W. Anderson in his official and individual capacities

(“Sheriff Anderson”) (collectively, “Appellees”). Appellant, a 

deputy sheriff at the time, was shot in the face during the 

execution of an arrest warrant. After the shooting incident, 

Appellant voiced doubts, alleging possible friendly fire and an 

official cover-up of that possibility, and thereafter, Sheriff 

Anderson fired him. Appellant then sued Appellees, claiming a 

violation of his First Amendment rights.

The district court dismissed Appellant’s complaint, 

holding that it lacked subject matter jurisdiction, Sheriff 

Anderson was entitled to qualified immunity and Eleventh 

Amendment immunity, and Baltimore City was not liable for 

Sheriff Anderson’s employment actions because he was not a final 

policymaker for Baltimore City. 

For the reasons that follow, we affirm the dismissal 

of Appellant’s claim against Baltimore City. But because 

subject matter jurisdiction exists and Sheriff Anderson is not 

entitled to immunity, we reverse and remand in all other 

respects.
4

I.

A.

Appellant became a deputy sheriff with the Baltimore 

City Sheriff’s Office (“BCSO”) in 2003. On September 15, 2008, 

while executing an arrest warrant with other law enforcement 

officers from the Warrant Apprehension Task Force, Appellant 

suffered a gunshot wound to the face. Purportedly, the subject 

of the arrest warrant (the “Suspect”) shot Appellant. Another 

officer then shot the Suspect, killing him. The subsequent

internal investigation of the incident concluded that it was the 

Suspect who shot Appellant. But Appellant still had his doubts, 

as he suspected another law enforcement officer accidentally 

shot him. When Appellant expressed his concerns to his 

superiors, they “told him to forget about it.” J.A. 8.1 When

Appellant and two other deputy sheriffs continued to question 

the shooting, they were all transferred out of the task force.

On December 15, 2010, Appellant expressed his 

reservations about the shooting in interviews with certain media

outlets -- namely, Fox 45 News (television) and “Investigative 

Voice” (web-based). The interviews revealed not only 

Appellant’s doubts about the investigation, but also his 

 1 Citations to the “J.A.” refer to the Joint Appendix 

filed by the parties in this appeal.
5

suspicion about a potential cover-up. Appellant also expressed 

his belief that the other officer he suspected had accidentally 

shot him lied about the incident because that officer had failed 

a polygraph examination.

Three months later, in March 2011, the BCSO 

administratively charged Appellant with six counts of prohibited 

conduct stemming from his interviews with the media. 

Ultimately, in December 2011, a hearing board found Appellant 

guilty of five of the six charges, including two counts for 

engaging in conduct that reflected unfavorably upon the BCSO,

two counts for representing the BCSO without permission, and one 

count for publicly criticizing the BCSO. He was found not 

guilty of making a false statement. The hearing board made a 

non-binding recommendation of a five-day suspension without pay 

to Sheriff Anderson.

Sheriff Anderson declined to follow the recommendation 

and instead terminated Appellant. In explaining this decision, 

Sheriff Anderson said that he could “no longer trust 

[Appellant’s] reliability and [Appellant’s] credibility”; 

Appellant’s violations brought the BCSO “into disrepute”; 

Appellant’s appearances on television and the internet displayed 

“sullenness and anger” towards the BCSO; Appellant’s criticisms 

and accusations of another officer lying were “divisive[] [and] 

disloyal to the mission of the [BCSO] and intended to undermine 
6

the effective operation of the [BCSO]”; and Appellant had 

“become a polarizing force within the [BCSO].” J.A. 177-78.

B.

Appellant appealed his termination to the Maryland 

Circuit Court for Baltimore City, asserting that he was found 

guilty despite insufficient evidence, and that he was terminated 

for conduct that was both not charged and outside the record. 

The Maryland Circuit Court reversed the termination and ordered 

reinstatement, but on appeal, the Court of Special Appeals of 

Maryland, which considered “only . . . the ultimate sanction 

imposed,” J.A. 72, upheld Appellant’s termination.

Thereafter, on December 1, 2014, Appellant filed a 

complaint in the United States District Court for the District 

of Maryland against Sheriff Anderson, in his official and 

individual capacities, and Baltimore City.2 Pursuant to 42 

U.S.C. § 1983, Appellant claimed retaliatory discharge in 

violation of his First Amendment right to freedom of speech. 

Additionally, he claimed violations of the Maryland Declaration 

of Rights. Appellant sought injunctive relief to permit his 

 2 Appellant also alleged that Colonel Marcus Brown, in his 

official capacity as the chair of the Maryland Police Training 

Commission, violated his First Amendment rights and his due 

process rights. The district court granted Appellant’s motion 

to voluntarily dismiss the claims against Colonel Brown on 

August 13, 2015. Accordingly, these respective allegations are 

no longer part of the complaint on appeal. 
7

reinstatement as a deputy sheriff, declaratory relief, and money 

damages.

Appellees moved to dismiss the complaint, and the 

district court granted the motions. See Lane v. Anderson, No. 

1:14-cv-3739, 2015 WL 5136035 (D. Md. Sept. 1, 2015). The 

district court, reasoning that Appellant was seeking federal 

review of a state-court decision, held that it lacked subject

matter jurisdiction over Appellant’s injunctive relief claims 

pursuant to the Rooker-Feldman3 doctrine. See id. at *8. 

The district court further concluded that Sheriff 

Anderson, in his individual capacity, was entitled to qualified 

immunity because, at the time he terminated Appellant, the law 

was not clearly established that doing so was a violation of 

Appellant’s First Amendment rights. See Lane, 2015 WL 5136035, 

at *6-7. Finally, the district court determined Sheriff 

Anderson enjoyed Eleventh Amendment immunity from the claim for 

monetary damages brought against him in his official capacity 

because, pursuant to Maryland law, he was an arm of the state. 

See id. at *4-6.

As for Baltimore City’s involvement, the district 

court reasoned that Baltimore City could not be liable for 

 3 See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
8

Sheriff Anderson’s actions because Sheriff Anderson was a 

Maryland official, not an official acting on behalf of Baltimore 

City.4 See Lane, 2015 WL 5136035, at *8.

Appellant timely appealed. 

II.

Subject Matter Jurisdiction

A.

As an initial matter, Appellant challenges the 

district court’s determination that it lacked subject matter 

jurisdiction. Because the jurisdictional question is a 

“threshold issue,” we address it before proceeding to the merits 

of the appeal. Elyazidi v. SunTrust Bank, 780 F.3d 227, 232 

(4th Cir. 2015). We review challenges to subject matter 

jurisdiction de novo. See Flame S.A. v. Freight Bulk Pte. Ltd., 

807 F.3d 572, 580 (4th Cir. 2015).

 4 As for the state law claim pursuant to the Maryland 

Declaration of Rights against Baltimore City, the district court 

concluded that because Sheriff Anderson was not a Baltimore City 

employee, Baltimore City could not be liable. See Lane v. 

Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *9 (D. Md. Sept. 

1, 2015). Appellant does not challenge on appeal the dismissal 

of Baltimore City’s liability premised on the Maryland 

Declaration of Rights. Accordingly, that argument is waived. 

See United States v. Avila, 770 F.3d 1100, 1104 n.1 (4th Cir. 

2014) (failing to raise an argument in the opening briefs 

constitutes an abandonment of that issue).
9

B.

Appellant argues that the Rooker-Feldman doctrine, 

which would deprive us of jurisdiction if applicable, does not 

apply here because he is not challenging the state court’s 

decision. See Davani v. Va. Dep’t of Transp., 434 F.3d 712, 718

(4th Cir. 2006). Rather, he seeks relief for the termination 

that Sheriff Anderson imposed upon him. We agree. 

Pursuant to the Rooker-Feldman doctrine, district 

courts are generally barred from reviewing state-court 

decisions. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 

483 n.16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 

415-16 (1923). Notwithstanding that premise, federal courts may 

still entertain claims the state court examined, so long as 

those claims do not challenge the state-court decision itself. 

See Elyazidi, 780 F.3d at 233 (claims not challenging the statecourt judgment do not present a jurisdictional bar). Instead, 

“[t]he Rooker–Feldman doctrine . . . is confined to cases 

. . . brought by state-court losers complaining of injuries 

caused by state-court judgments rendered before the district 

court proceedings commenced and inviting district court review 

and rejection of those judgments.” Exxon Mobil Corp. v. Saudi 

Basic Indus. Corp., 544 U.S. 280, 284 (2005) (emphasis 

supplied). So, “[i]f [the state-court loser] is not challenging 
10

the state-court decision, the Rooker-Feldman doctrine does not 

apply.” Davani, 434 F.3d at 718.

Here, Appellant is not challenging the Maryland 

court’s decision or judgment, but rather the injury that Sheriff 

Anderson imposed, that is, Appellant’s termination. See Exxon, 

544 U.S. at 284. In Davani, a state employee challenged his 

termination for discrimination and retaliation, and the 

administrative agency upheld the termination. See Davani, 434 

F.3d at 715. The state court dismissed his appeal, and the 

employee filed a complaint in federal court alleging retaliation 

and discrimination, which thereafter was dismissed for lack of 

subject matter jurisdiction pursuant to the Rooker-Feldman

doctrine. See id. We reversed, concluding that the employee 

was not “seek[ing] redress for an injury caused by the 

state-court decision itself,” id. at 718, but rather for the 

injury that the employer caused when it terminated the employee, 

see id. at 719. 

Like in Davani, the state-court judgment here did not 

cause Appellant’s injury when it upheld Sheriff Anderson’s 

decision to terminate Appellant. Appellant’s complaint does not 

allege that the state court caused the injury, and instead, he 

alleges that Sheriff Anderson caused his termination, an event 

that happened prior to the state-court decision. Accordingly, 

we hold that Appellant’s claims are not barred by 
11

Rooker-Feldman, and therefore, federal subject matter 

jurisdiction remains intact.

III.

Qualified Immunity

A.

On a motion to dismiss pursuant to qualified immunity, 

we review the district court’s conclusion de novo. See Occupy 

Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013). The 

official asserting qualified immunity carries the burden of 

establishing his right to it. See Durham v. Jones, 737 F.3d 

291, 299 (4th Cir. 2013).

B.

In assessing whether Sheriff Anderson was entitled to 

qualified immunity, the district court assumed that terminating 

Appellant in retaliation for speaking to the media violated a 

right protected by the First Amendment, but held that the right 

was not clearly established when the violation occurred. See

Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *7 (D. 

Md. Sept. 1, 2015). Therefore, the district court held Sheriff 

Anderson was entitled to qualified immunity. See id. This 

holding is contrary to our precedent.

C.

When a government official is sued in his individual 

capacity, he may be entitled to a qualified immunity defense. 
12

See Bland v. Roberts, 730 F.3d 368, 391 (4th Cir. 2013). 

However, qualified immunity is not bestowed when “(1) the 

allegations underlying the claim, if true, substantiate [a] 

violation of a federal statutory or constitutional right; and 

(2) this violation was of a clearly established right of which a 

reasonable person would have known.” Smith v. Gilchrist, 749 

F.3d 302, 308 (4th Cir. 2014) (alteration in original) (quoting 

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 306 

(4th Cir. 2006)); see also Saucier v. Katz, 533 U.S. 194 (2001). 

A clearly established right exists when “existing precedent 

. . . place[s] the . . . constitutional question beyond debate.” 

Gilchrist, 749 F.3d at 308 (quoting Ashcroft v. al-Kidd, 131 S. 

Ct. 2074, 2083 (2011)). When the official acts in legal “gray 

areas,” he is entitled to qualified immunity. Id. at 307. 

With these principles in mind, we address the 

qualified immunity inquiry, considering first the constitutional 

right at issue, and second, whether this right was clearly 

established when the alleged violation occurred. 

1.

First Amendment Right

The First Amendment protects “the right to be free 

from retaliation by a public official for the exercise of 

[freedom of speech].” Gilchrist, 749 F.3d at 308 (internal 

quotation marks omitted). However, this right is not limitless, 
13

particularly for public employees. See id. (citing McVey v. 

Stacy, 157 F.3d 271, 277 (4th Cir. 1998)). “[T]he government, 

as an employer, ‘is entitled to maintain discipline and ensure 

harmony as necessary to the operation and mission of its 

agencies,’” and therefore has “an interest in regulating the 

speech of its employees.” Id. (quoting McVey, 157 F.3d at 277). 

As the Supreme Court explained in Pickering v. Board of 

Education, 391 U.S. 563 (1968),

The problem in any case is to arrive at a 

balance between the interests of the [public 

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.

391 U.S. at 568. Finally, when an employee asserts a § 1983 

retaliation claim based on his exercise of free speech, we 

analyze the claim using the following three queries:

(1) [W]hether the public employee was 

speaking as a citizen upon a matter of 

public concern or as an employee about a 

matter of personal interest; 

(2)[W]hether 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; and 

(3) [W]hether the employee’s speech was a 

substantial factor in the employee’s 

termination decision.

McVey, 157 F.3d at 277-78. The first two prongs present 

questions of law to be resolved by the court, and the third 
14

prong is a question of fact best resolved on “summary judgment 

only in those instances when there are no causal facts in 

dispute.” Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir. 

2004).

a.

With respect to the first McVey prong, we cannot agree 

with Sheriff Anderson that Appellant stated his concerns merely 

as a self-serving complaint. Rather, Appellant, as a private 

citizen, spoke on a matter of public concern when he questioned 

a police shooting, which resulted in a fatality, and the

subsequent investigation.

When Appellant communicated with the media, he was 

acting outside the scope of his duties as a deputy sheriff. 

Although Appellant’s “expressions related to [his] job,” the 

First Amendment affords him protection when he conveys these 

views as a private citizen. Garcetti v. Ceballos, 547 U.S. 410, 

421 (2006). It is “antithetical to our jurisprudence to 

conclude . . . speech by public employees regarding information 

learned through their employment [] may never form the basis for 

a First Amendment retaliation claim”. Hunter v. Town of 

Mocksville, 789 F.3d 389, 396-97 (4th Cir. 2015).

Appellant’s speech was not just an airing of a 

personal grievance. It was a matter of public concern. 
15

Speech involves matters of public concern when it can 

be fairly considered as relating to any matter of 

political, social, or other concern to the community, 

or when it is a subject of legitimate news interest; 

that is, a subject of general interest and of value 

and concern to the public.

Lane v. Franks, 134 S. Ct. 2369, 2380 (2014) (internal quotation 

marks omitted). We consider the character of speech in this 

regard by taking into account “the content, form, and context of 

a given statement.” Durham, 737 F.3d at 299 (quoting Connick v. 

Myers, 461 U.S. 138, 147-48 (1983)). “Matters relating to 

public safety are quintessential matters of public concern.”

Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 

353 (4th Cir. 2000). By contrast, comments properly 

characterized as personal grievances “about conditions of 

employment” are not matters of public concern. Durham, 737 F.3d 

at 300 (internal quotation marks omitted).

The content of Appellant’s speech here was undeniably 

a matter of public concern. He questioned a shooting in which a 

suspect was killed (and Appellant himself injured). He 

questioned an allegedly botched investigation, which he 

suspected was cloaked in a police cover-up. And he ultimately 

questioned whether friendly fire occurred, as opposed to the 

Suspect having allegedly shot him, which resulted in the 

Suspect’s death. 
16

The form and context of Appellant’s speech further 

strengthens the conclusion that Appellant spoke on a matter of 

public concern. Appellant spoke to a broad audience, through 

both television and internet. Clearly, Appellant’s story 

interested the local press, and in two different mediums, no 

less. See Durham, 737 F.3d at 301 (explaining “interest[] 

[from] the media indicates that [the issue] was of public 

interest”); Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998) 

(public dissemination through press shows matter of public 

concern). 

For these reasons, we hold that Appellant’s speech 

satisfied the first McVey prong as protected speech. 

b.

With respect to the second prong, we must assess 

whether Appellant’s interest in speaking about the September 

2008 shooting and the subsequent internal investigation

outweighs the government’s legitimate interest in providing 

efficient public services. See Gilchrist, 749 F.3d at 308. It 

is the government’s burden to justify the termination on 

legitimate grounds. See id. at 309. As we explained in 

Ridpath, we evaluate the government’s interests utilizing the 

following factors: 

[W]hether a public employee’s speech 

(1) impaired the maintenance of discipline 

by supervisors; (2) impaired harmony among 
17

coworkers; (3) damaged close personal 

relationships; (4) impeded the performance 

of the public employee’s duties; 

(5) interfered with the operation of the 

institution; (6) undermined the mission of 

the institution; (7) was communicated to the 

public or to coworkers in private; 

(8) conflicted with the responsibilities of 

the employee within the institution; and

(9) abused the authority and public 

accountability that the employee’s role 

entailed.

447 F.3d at 317. In this context, law enforcement agencies are 

afforded some leeway to restrict their employees’ speech because 

“they are paramilitary -- discipline is demanded, and freedom 

must be correspondingly denied.” Durham, 737 F.3d at 301 

(internal quotation marks omitted). And, “[a] stronger showing 

of public interest in the speech requires a concomitantly 

stronger showing of government-employer interest to overcome 

it.” McVey, 157 F.3d at 279 (Murnaghan, J., concurring).

Moreover, the government need not “prove that the 

employee’s speech actually disrupted efficiency”; rather, its 

burden is to show “an adverse effect was reasonably to be 

apprehended.” Gilchrist, 749 F.3d at 309 (internal quotation 

marks omitted); see also Durham, 737 F.3d at 302 (stating that 

more than “vague references” and “lip service to ostensible 

damage” to morale, relationships, and general office 

functionality is necessary).
18

Here, as previously discussed, Appellant’s speech 

dealt with a matter of public concern: he suspected friendly 

fire ultimately resulted in a person being killed, and yet, when 

he voiced that suspicion, he was told not to worry about 

uncovering the truth. Akin to our holding in Durham, the facts 

here do not tip the balance in favor of Appellees. See 737 F.3d 

at 302-03. To the contrary. 

As for the Government, Sheriff Anderson has spoken of 

Appellant’s alleged effect on the office in mere generalities. 

He has offered no concrete examples to back up his claim that 

Appellant brought “disrepute” to the agency, and was divisive, 

disloyal, and a “polarizing force.” J.A. 73. Sheriff Anderson 

has asserted nothing more than “lip service” and “vague 

references” in this regard. Durham, 737 F.3d at 302 (explaining 

that a showing of an actual disruption is not needed, and, at 

the same time, indicating an articulation of “a reasonable 

apprehension of such a disruption” is required).

Ultimately, at the motion to dismiss stage, based upon 

these generalized statements, we cannot conclude that Sheriff 

Anderson has met his burden of justifying the Appellant’s 

termination on legitimate grounds, particularly considering the 

significant public interests raised by Appellant. See

Gilchrist, 749 F.3d at 309.
19

c.

The third McVey prong, which presents an issue of fact

as to whether Appellant’s speech was “a substantial factor” in 

his termination, can be swiftly dispensed. McVey, 157 F.3d at 

277-78. When reviewing a Rule 12(b)(6) motion to dismiss, we 

view the facts in the light most favorable to Appellant. When 

dealing with a First Amendment retaliation claim in this 

posture, we generally infer causation based on the facts alleged 

in the complaint because, at the motion to dismiss stage, “we 

are unable and unwilling to speculate as to the outcome.” Tobey 

v. Jones, 706 F.3d 379, 391 (4th Cir. 2013).

Here, as in Tobey, Appellant has adequately set forth

a plausible claim that his First Amendment rights were violated 

when his comments directly precipitated his firing. As a direct 

result of his media interviews, Appellant faced internal 

charges, and ultimately termination. Sheriff Anderson’s stated

basis for terminating Appellant included the fact that Appellant 

had commented publicly about the internal investigation. In 

fact, Sheriff Anderson said, “I find that . . . . [Appellant’s]

appearance on television, [and] on the website, [were] 

disrespectful, accusatory, and . . . displayed an attitude of 

sullenness and anger towards the [BCSO]. . . . Nothing short of 

termination will permit the division and discord caused by 

[Appellant’s] conduct to heal.” J.A. 177-78. Thus, we readily 
20

conclude that Appellant’s speech was “a substantial factor” that

led to his firing. McVey, 157 F.3d at 277-78.

2.

Clearly Established Right

Having concluded that Appellant’s speech should be 

accorded First Amendment protection, we now turn to the second 

prong of the qualified immunity analysis: whether every

reasonable official would have known that terminating Appellant 

for speaking out would be in violation of his First Amendment

rights. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per 

curiam). Appellees maintain that Maryland state law, 

specifically the Law Enforcement Officers’ Bill of Rights, 

expressly provides that the law enforcement agency’s 

chief -- here, Sheriff Anderson -- is permitted to punish 

Appellant for “divulg[ing] information” that is contrary to the 

department’s policy. Appellees’ Br. 28. If Sheriff Anderson 

complied with this express statutory right, Appellees’ argument 

goes, “he had no reason to doubt the constitutionality of the 

policies.” Id. at 29. But, the position urged by Appellees, 

and adopted by the district court, that the Sheriff was acting 

within his legal authority because he was acting pursuant to 

Maryland law, ignores clearly established precedent. See Lane, 

2015 WL 5136035, at *7. 
21

Sheriff Anderson’s adherence to state law is not 

helpful here. An independent basis for sanctions does not 

provide a shield from liability when the speech is 

constitutionally protected. See Durham, 737 F.3d at 304; Am. 

Civ. Liberties Union of Md., Inc. v. Wicomico Cty., 999 F.2d 

780, 785 (4th Cir. 1993) (per curiam) (recognizing 

“[r]etaliation by a public official for the exercise of a 

constitutional right is actionable under 42 U.S.C. § 1983, even 

if the act, when taken for different reasons, would have been 

proper”). 

More significantly, years before Sheriff Anderson 

terminated Appellant, there was ample authority reinforcing the 

notion that Appellant’s speech was of the type that was afforded 

protection. See Durham, 737 F.3d 291; Andrew v. Clark, 561 F.3d 

261 (4th Cir. 2009); see also Hunter, 789 F.3d at 402 (holding 

that the law was clearly established in December 2011 that 

speech about serious misconduct was protected).

In Andrew -- decided two years before the incident at 

issue -- we held that a police commander in the Baltimore Police 

Department stated a First Amendment claim when he alleged that 

he was terminated for leaking information to the media about a 

police-involved shooting and its investigation. See Andrew, 561 

F.3d at 263. In Durham, the right at issue was of a deputy 

sheriff to speak out on “serious governmental misconduct,”
22

specifically, his right to accuse “high-ranking law enforcement 

officials . . . of falsifying law enforcement reports and 

. . . authorizing aggressive threats against a member of their 

own agency if he persisted in his opposition to such a 

practice.” Durham, 737 F.3d at 303. There, we held, “[w]e have 

been clear that where public employees are speaking out on 

government misconduct, their speech warrants protection.” Id.

at 303 (citing Balog, 160 F.3d at 189).

Thus, when Sheriff Anderson terminated Appellant in 

2012, the law was not in any “gray area[].” Gilchrist, 749 F.3d 

at 307. Rather, the law was clearly established. After our 

decisions in Andrew and Durham, no reasonable official could 

have believed that a law enforcement officer’s statements to 

media outlets regarding misconduct and corruption surrounding a 

police-involved shooting lacked First Amendment protection. 

Therefore, we hold that Sheriff Anderson is not entitled to 

qualified immunity, and Appellant can continue to press the 

damages claim brought against Sheriff Anderson in his individual 

capacity.5

 5 We note that this case is unlike Brickey v. Hall, where we 

held that a police chief was entitled to qualified immunity 

after he had been sued under § 1983 for terminating a 

subordinate in violation of the First Amendment. No. 14-1910, 

2016 WL 3648462, at *1 (4th Cir. July 8, 2016) (published 

opinion). In Brickey, a police officer who was running for a 

town council seat made statements in two newspapers that 

(Continued)
23

IV.

Eleventh Amendment Immunity

A.

“Whether an action is barred by the Eleventh Amendment 

is a question of law that we review de novo.” Hutto v. S. 

Carolina Ret. Sys., 773 F.3d 536, 542 (4th Cir. 2014).

B.

We next address the Eleventh Amendment immunity 

defense raised by Sheriff Anderson in his official capacity. 

The Eleventh Amendment protects a state entity from 

suit in federal court. See U.S. Const., amend. XI. This 

protection is also accorded to “state agents and state 

instrumentalities,” or in other words, arms of the state. 

 

suggested that the police chief misused -- either through 

negligence or malfeasance -- $500 in the Drug Abuse Resistance 

Education (“D.A.R.E.”) budget. Id. at *1, *5. After 

commissioning an independent investigation into the officer’s 

statements, the police chief terminated him. Id. at *2–3.

There are at least four key differences between Brickey and 

the instant case. First and most notably, the misconduct 

Appellant alleges is far more serious than the misconduct 

alleged in Brickey. Second, unlike Sheriff Anderson, the police 

chief in Brickey did more than merely “‘pa[y] lip service’ to 

potential disruption to his police force.” Id. at *7. Third, 

the allegations in Brickey were shown to be false. Id. at *8. 

Finally, unlike Appellant, the officer in Brickey did not intend 

to accuse the police chief of wrongdoing. Id. Based on these 

differences -- which also distinguished Brickey from Durham, id.

at *7–8 -- Brickey does not control our decision here. 
24

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); 

see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 

274, 280 (1977). Yet, not every entity exercising a “slice of 

state power” is entitled to protection, Lake Country Estates, 

Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 400-01 

(1979), and immunity “does not extend to counties and similar 

municipal corporations,” Mt. Healthy, 429 U.S. at 280.

“Whether an entity is an arm of the state is 

ultimately a question of federal law, ‘[b]ut that federal 

question can be answered only after considering the provisions 

of state law that define the agency’s character.’” United 

States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 

F.3d 131, 138 (4th Cir. 2014) (quoting Doe, 519 U.S. at 429 

n.5). 

The district court held that Sheriff Anderson enjoyed 

Eleventh Amendment immunity because he was a state officer. 

However, the district court came to this conclusion without 

analyzing the test we have outlined for such a determination. 

See Lane v. Anderson, No. 1:14-cv-3739, 2015 WL 5136035, at *6 

(D. Md. Sept. 1, 2015); Ram Ditta v. Md. Nat’l Capital Park &

Planning Comm’n, 822 F.2d 456, 457–58 (4th Cir. 1987). 

In assessing whether an entity is state or local in 

character, we have employed the four-factor test described in 

Ram Ditta, 822 F.2d at 457–58. The first factor to be 
25

considered is “whether the state treasury will be responsible 

for paying any judgment that might be awarded.” Id. at 457; see

Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir. 

2001). We have concluded that a judgment’s effect on the state 

treasury, though still “of considerable importance, does not 

deserve dispositive preeminence.” Oberg, 745 F.3d at 137 n.4

(internal quotation marks and citations omitted); cf. Cash, 242 

F.3d at 223; Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 

48 (1994) (stating treasury factor is “the most salient factor 

in Eleventh Amendment determinations”). The other three Ram 

Ditta factors are: “[W]hether the entity exercises a significant 

degree of autonomy from the state, whether [the entity] is 

involved with local versus statewide concerns, and how [the 

entity] is treated as a matter of state law.” Ram Ditta, 822 

F.2d at 457-58 (internal footnotes omitted).

Upon consideration of all of these factors, we must 

“determine whether the governmental entity is so connected to 

the State that the legal action against the entity would 

. . . amount to ‘the indignity of subjecting a State to the 

coercive process of judicial tribunals at the instance of 

private parties.’” Cash, 242 F.3d at 224 (quoting Seminole 

Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)).

Here, the district court admittedly did not engage in 

the Ram Ditta analysis at all: “[T]his Court need not apply the 
26

Ram Ditta test to the subject action. Maryland Code and case 

law make clear that sheriffs are state officers, with authority 

derived from state law.” Lane, 2015 WL 5136035, at *6. The 

district court based its reasoning on the fact that sheriffs are 

elected state officials, see Md. Const. art. IV, § 44; are 

defined as “state personnel” for the purposes of the Maryland 

Tort Claims Act, see Md. Code Ann., State Gov’t § 12-101(a)(6), 

Rucker v. Harford Cty., 558 A.2d 399, 412 (Md. 1989); are 

granted authority by state law to hire deputy sheriffs, see Md. 

Code Ann., Cts. & Jud. Proc. § 2-309(d)(1)(ii); and are state 

officials, not local government officials, see Lane, 2015 WL 

5136035, at *5 (citing cases). 

Yet, this is only part of the analysis, and the 

district court’s failure to apply the proper legal framework was 

erroneous. See Gray v. Laws, 51 F.3d 426, 434–35 (4th Cir. 

1995) (remanding when the district court did not “undertake the 

appropriate Eleventh Amendment analysis”). As a result, we 

reverse and remand the district court’s holding in this regard 

so that it can fully consider the issue pursuant to the proper 

Ram Ditta test.
27

V.

Baltimore City’s Liability

A.

We review the district court’s grant of a motion to 

dismiss de novo, accepting as true all well-pled facts in the 

complaint and construing them in the light most favorable to the 

plaintiff. See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 

412, 422 (4th Cir. 2015).

B.

Appellant asserts that the district court erred in 

dismissing his claim against Baltimore City on the theory that 

Sheriff Anderson was acting as the Baltimore City policymaker in 

making BCSO employment decisions. Therefore, Appellant 

contends, Baltimore City can also be held liable for his 

termination. We disagree. 

In Monell v. Department of Social Services of New 

York, the Supreme Court held that a municipality (a local 

government entity) may be liable for a constitutional violation 

pursuant to § 1983 if a plaintiff can show “a policy statement, 

ordinance, regulation, or decision officially adopted and 

promulgated by that body’s officers” resulted in a 

constitutional violation. 436 U.S. 658, 690 (1978) (stating 

that municipalities are “persons” subject to suit pursuant to 

§ 1983). This “‘official policy’ requirement was intended to 
28

distinguish acts of the municipality from acts of employees of 

the municipality, and thereby make clear that municipal 

liability is limited to action for which the municipality is 

actually responsible.” Riddick v. Sch. Bd. of Portsmouth, 238 

F.3d 518, 523 (4th Cir. 2000) (quoting Pembaur v. City of 

Cincinnati, 475 U.S. 469, 479 (1986)). Municipal liability 

results when the acts have been “officially sanctioned or 

ordered” by the municipality. Love-Lane v. Martin, 355 F.3d 

766, 782 (4th Cir. 2004) (quoting Pembaur, 475 U.S. at 480). 

Under appropriate circumstances, a single decision by 

a policymaker can result in municipal liability. See Pembaur, 

475 U.S. at 480. “Municipal liability attaches only where the 

decisionmaker possesses final authority to establish municipal 

policy with respect to the action ordered.” Id. at 481; see 

also McMillian v. Monroe Cty., 520 U.S. 781, 784-85 (1997) (“A 

court’s task is to identify those officials or governmental 

bodies who speak with final policymaking authority for the local 

governmental actor concerning the action alleged to have caused 

the particular constitutional or statutory violation at issue.”

(internal quotation marks omitted)); Love-Lane, 355 F.3d at 782.

“To qualify as a ‘final policymaking official,’ a 

municipal official must have the responsibility and authority to 

implement final municipal policy with respect to a particular 

course of action.” Riddick, 238 F.3d at 523 (quoting Pembaur, 
29

475 U.S. at 483); see also Spell v. McDaniel, 824 F.2d 1380, 

1386 (4th Cir. 1987) (“‘[P]olicymaking authority’ implies 

authority to set and implement general goals and programs of 

municipal government, as opposed to discretionary authority in 

purely operational aspects of government.”).

Here, Baltimore City “does not dispute that Sheriff 

Anderson has final policymaking authority” for employment 

matters relating to those decisions within the BCSO. Appellees’

Br. 7; see also Pembaur, 475 U.S. at 483. However, the issue 

lies in whether Sheriff Anderson made the unfavorable employment 

decision for Baltimore City.

C.

In determining whether Sheriff Anderson acted as the 

final policymaker for Baltimore City, our analysis “is guided by 

two principles.” McMillian, 520 U.S. at 785. First, “the 

question is not whether [a sheriff] acts for [the state] or [a 

county] in some categorical, ‘all or nothing’ manner.” Id. 

Rather, the question is whether the sheriff was a final 

policymaker “for the local government in a particular area, or 

on a particular issue.” Id.

Second, we resolve this issue based upon state law, 

“[r]eviewing the relevant legal materials, including state and 

local positive law, as well as custom or usage having the force 

of law.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 
30

(1989) (internal quotation marks omitted). “[S]imply labeling 

as a state official an official who clearly makes county policy”

cannot answer the question. McMillian, 520 U.S. at 786; see

Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) (“[T]he 

Sheriff is not always a state employee or always a county 

employee. He may, on occasion, be both, or sometimes one and 

sometimes the other. It all depends on the particular function 

the Sheriff is performing.”); Rucker v. Harford Cty., 558 A.2d 

399, 406 (Md. 1989) (“This conclusion does not mean that, for 

some purposes and in some contexts, a sheriff may not be treated 

as a local government employee.”).

Here, we conclude that, as a matter of Maryland law, 

Sheriff Anderson is not a final policymaker for Baltimore City. 

State law, rather than the local government, provides Sheriff

Anderson with his power. See Md. Const. art. IV, § 44 (stating 

that the sheriff “in each county and in Baltimore City” shall 

“exercise such powers and perform such duties as now are or may 

hereafter be fixed by law”); Prince George’s County v. Aluisi, 

731 A.2d 888, 894 (Md. 1999) (explaining that, pursuant to the 

Maryland Constitution, “the duties of the sheriffs are those 

prescribed by the common law, the enactments of the General 

Assembly, and the rules of the Court of Appeals”). Moreover, 

the Court of Appeals of Maryland has explained that the duties 

of sheriffs “are determined by state law, not locally enacted 
31

ordinances.” Aluisi, 731 A.2d at 895. And here, the Charter of 

Baltimore City does not include the sheriff’s department as a 

principal agency of Baltimore City, or more generally, even

reference the sheriff’s position or the sheriff’s department 

within its provisions. See generally Charter of Balt. City art. 

I to IX. 

With respect to a sheriff’s personnel decision-making

authority, state law establishes the authority for hiring and 

discipline, including termination processes. See Md. Code Ann., 

Cts. & Jud. Proc. § 2-309(d)(1)(viii) (requiring the sheriff to 

“select[] [his deputy sheriffs] according to the provisions of 

the State Personnel and Pensions Article”); Md. Code Ann., Pub. 

Safety § 3-102(c) (providing the Law Enforcement Officers’ Bill 

of Rights “does not limit the authority of the [sheriff] to 

regulate the competent and efficient operation and management of 

a law enforcement agency by any reasonable means including 

transfer and reassignment if . . . the [sheriff] determines that 

action to be in the best interests of the internal management of

the law enforcement agency”); Md. Code Ann., Pub. Safety 

§ 3-108(d) (granting chief of law enforcement agency authority 

to make final decision regarding discipline of subordinate 

officers subject to certain procedural requirements mandated by 

Sections 3-101 to -109 of the Code of Maryland); Md. Code Ann., 

St. Pers. & Pens. § 11-104 (granting the sheriff power to take 
32

disciplinary actions, including demotion and termination, 

against any employee).

Further, although state law does not conclusively 

establish the state’s liability for a judgment against Sheriff 

Anderson in a § 1983 claim, it indicates that, in a tort claim

brought pursuant to state law, the state, as opposed to 

Baltimore City, would cover a judgment against the sheriff based 

on his personnel decisions. See generally Md. Code Ann., State 

Fin. & Proc. § 9-108 (providing that, pursuant to the Maryland 

Tort Claims Act, the state of Maryland, and not Baltimore City, 

is liable for tort claims against a sheriff for those claims 

relating to “personnel and other administrative activities”); 

Rucker, 558 A.2d at 401 (though not deciding whether sheriffs 

were state or local employees for federal purposes, which was 

not before the court, holding sheriffs are state personnel 

pursuant to the Maryland Tort Claims Act -- and thus the state 

bore responsibility for judgments). This suggests that 

personnel decisions do not create local municipal liability and 

are not paid by the local government entity. See State v. Card, 

656 A.2d 400, 402–03 (Md. Ct. Spec. App. 1995) (explaining that 

in the early 1990s, the Maryland legislature amended the 

Maryland code “to sort out the various functions performed by 

sheriffs and their deputies throughout the State . . . and to 

provide an umbrella of State protection, with the cost of that 
33

protection to be assessed to the State or the county, depending 

on the function involved”).

In sum, we hold that Sheriff Anderson did not act as a 

Baltimore City policymaker when making employment and personnel 

decisions. Accordingly, Appellant’s Monell claim was properly 

dismissed.6

VI.

For the reasons set forth herein, we affirm the 

judgment of district court to the extent it dismisses 

Appellant’s claim against Baltimore City. In all other 

respects, we reverse the judgment of the district court and 

remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, 

REVERSED IN PART, 

AND REMANDED

 6 We note that our resolution of the Monell liability issue 

does not resolve the Eleventh Amendment immunity question that 

the district court will consider on remand. See Gray, 51 F.3d 

at 435 (explaining that the district court erred by “appl[ying]

in the Eleventh Amendment context principles applicable only 

under section 1983”).