Deputy Sheriff Wins $1.1 Million Free Speech Lawsuit

Troy Durham was employed as a Deputy Sheriff for the Somerset County, Maryland Sheriff’s Office. In August 2008, Durham used force while assisting a Maryland State Trooper in apprehending a suspect resisting arrest and subsequently prepared an arrest report describing this use of force. According to Durham, one of Durham’s superiors ordered that he change his report, and threatened suspension and criminal charges if he failed to do so. Durham consented and amended the report.

Durham became very upset by what he believed were threats made against him by other members of Department. To bring light to this perceived misconduct, Durham drafted a letter explaining the circumstances of the initial arrest and the conduct of his commanding officers in the days following, and alleging “misconduct, malfeasance, corruption, abuse of power and breach of the public trust” on the part of several officers, including the Sheriff. Durham sent this letter to various state agencies, the Governor, Somerset County State’s Attorney Office, the press, and an unnamed United States Senator. Durham attached to the letters a copy of the police report and the grievance he filed with the County.

Durham was subsequently internally charged with 12 violations of the Department’s Rules, Policy and Procedures: ten violations related to his use of force on the arrest and two violations related to his letter writing. A hearing board recommended five days of suspension without pay for each of two findings of guilt, but the Sheriff increased the discipline to termination of employment.

Durham then filed a federal court lawsuit, alleging that the decision to terminate his employment was wrongful and in violation of his free speech rights under the First Amendment of the United States Constitution. After a trial, a jury returned a verdict in favor of Durham, awarding him $412,000 in economic damages, $700,000 in non-economic damages, and $200 in punitive damages. The County then filed a motion to overturn the verdict.

The federal judge presiding over the case refused to disturb the verdict. The Court observed that the County was arguing that the decision to terminate Durham’s employment was based solely on Durham’s unprotected speech. The Court commented that “this contention, however, is in conflict with the jury’s verdict. The Court instructed the jury as to which portions of the letter were protected and which portions were not, and then charged the jury to determine whether Durham had proven, by a preponderance of the evidence, that his protected speech was a motivating factor in the Sheriff’s decision to terminate Durham’s employment. This was the sole issue that the jury had to determine to reach the verdict. Thus, the jury’s finding in favor of Durham necessarily indicates that it concluded, despite the Sheriff’s testimony to the contrary, that the decision to terminate Durham’s employment was motivated by the portion of speech that was protected.

“The County’s second argument is that Durham’s rights in this context were not clearly established. This Court, however, has already determined that Durham’s right to bring serious police misconduct and a breach of the public trust to the attention of government agencies and the press was clearly established. The speech that the Court found to be protected was that which recounted the circumstances surrounding Durham’s creation of the original police report and the subsequent threats that he faced before amending the report; in other words, the portion of the letter attempting to bring serious police misconduct to the attention of the public. This is the speech on which the jury determined Defendant relied when he terminated Durham’s employment, and is speech for which Durham’s First Amendment rights were clearly established.”

Durham v. Jones, 2012 WL 3985224 (D. Md. 2012).