January 8, 2014

On Dec. 10, 2013, a federal appeals court upheld a $1.1 million jury award to James Durham, a Somerset County, Maryland sheriff, who blew the whistle on alleged unethical conduct.

Don’t have time to read the entire blog post? Here are the quick bullet points:

  • Maryland deputy sheriff James Durham physically subdued a motorcyclist suspect
  • Durham’s superiors were afraid the suspect might file an excessive force lawsuit,
  • Durham’s superiors aggressively coerced and pressured him to lie under oath to revise his report
  • Durham filed a grievance, publicized his story, and was fired
  • He sued for retaliation and First Amendment violations
  • Trial court jury awarded $1.1 million.
  • 4th Circuit Court of Appeals upheld this award
  • Case shows public employee whistleblowing and speech about government misconduct is Constitutionally protected

washington-dc-maryland-virginia-whistleblower-lawyer-law-firm-attorneyDurham reportedly pepper sprayed, kneed in the ribs, and slapped a motorcycle driver who was fleeing a fellow police officer. Durham’s superiors were alarmed that his report about the incident might generate an excessive force lawsuit and ordered him to revise it. In response, Durham publicized his superiors’ conduct to the media and he was fired. In response, Durham sued for retaliation.

Durham alleged that a police captain slammed his fist down on his desk while he was preparing the incident report and was loud and rude. He said the same police captain asked if Durham needed to go to the hospital, in an alleged attempt to bolster any self-defense claims. The captain also requested that he fill out another form describing his use of force in the incident. Durham’s superiors later ordered him to charge the suspect with assaulting Durham and for resisting arrest. He was told that if he did not charge the suspect, he would be charged with assault. Durham was later told that two criminal investigators would supervise Durham in correcting “deficiencies” in his report.

Next, Durham was aggressively interrogated by two police detectives where they questioned him about his incident report. The detectives insisted that Durham had to revise his report and delete follow-up reports or he would be charged internally and criminally with assault on the suspect. One of the detectives then reportedly threatened to take Durham’s gun and his badge if he did not revise his report. Because he did not want to “lose everything,” Durham revised the report and one of the detectives allegedly patted him on the back and said Durham was a “good boy, a good guy, and none of this happened.”

After the aggressive interrogation, Durham filed an internal grievance with his superiors and requested an outside investigation. He was demoted the same day and later suspended pending the investigation. In order to bring attention to his situation, Durham publicized his story to a number of media outlets “to expose and to alert the public of the corruption that had taken place.” In an internal investigation, Durham was charged with misconduct and the Law Enforcement Officers Trial Board recommended a suspension. After the Trial Board’s recommendation, Durham was terminated.

Durham sued his superior for First Amendment violations, alleging that he was terminated in retaliation for speaking out about police corruption. At trial, a jury awarded Durham $1.1 million in economic and non-economic damages.

Durham’s superior appealed the jury award to the U.S. Court of Appeals for the Fourth Circuit, arguing that he was protected by qualified immunity. The 4th Circuit applied a three-part test used to analyze whether a public employee like a police officer has a First Amendment claim for retaliatory termination:

  1. Whether public employee was speaking as a citizen about a matter of public concern or about personal interest
  2. Whether employee’s interest in speaking about a public concern outweighed the government’s interest in managing the working environment
  3. Whether the employee’s speech was a substantial factor in the employee’s termination decision

The trial court held, and the 4th Circuit agreed, that Durham’s speech alleging serious law enforcement misconduct and evidence tampering was of public concern. The 4th Circuit further held there was no substantial evidence supporting the claim that the Somerset County, Maryland Sheriff’s Office’s (SCSO) interest in an efficient and effective agency outweighed Durham’s First Amendment speech rights.

In reaching this decision, the Court looked to a nine-factor test outlined in a 2006 4th Circuit case, which included things like impairing harmony among coworkers, impeding performance of duties, and interference with an institution’s operations. Durham’s superior did not present any substantial evidence that Durham’s statements seriously disrupted the SCSO’s operations, which made the decision easy for both the trial court and the 4th Circuit.

The Court further held that “where public employees are speaking out on government misconduct, their speech warrants protection.” The use of coercion and threats went “far beyond” permissible boundaries, the Court held. The case is Durham v. Jones, No. 12-2303, 2013 WL 6439714, Fourth Circuit, __F.3d__ (2013).

Whistleblowers are rewarded for reporting misconduct

This case demonstrates that the justice system will protect government and public employees who speak out about fraud and misconduct. Durham’s legal opponents kept appealing and fighting the court rulings, but it appears they have reached their last straw and will have to pay the $1.1 million jury award. At The Cochran Firm, D.C., our team of experienced attorneys are prepared to provide aggressive and professional legal representation to whistleblowers. If you are aware of fraud or misconduct being committed against the government or by a government agency, please contact our whistleblower lawyers.