Baltimore Prosecutor Who Opposed Mosby’s Election Loses First Amendment Challenge

Keri Borzilleri, a former high-ranking Assistant State’s Attorney (ASA) who worked for nine years in the Baltimore City State’s Attorney’s office, was fired without cause just four days after Marilyn Mosby took office as the newly elected lead prosecutor in 2015. Though no explanation was publicly given, Borzilleri was likely terminated for having supported Mosby’s political opponent, Gregg Bernstein, during the election cycle. According to Borzilleri, she attended Bernstein’s campaign events, placed a Bernstein yard sign on her lawn, and hosted roughly twenty Bernstein supporters at her house for a gathering.

Borzilleri sued both the State of Maryland and Mosby herself, arguing that the firing violated her First Amendment freedoms of association and speech as a public employee. The district court disagreed and dismissed her claims.

The Fourth Circuit unanimously affirmed. Borzilleri v. Mosby, No. 16-1751 (4th Cir. Oct. 17, 2017). First, as to the freedom-of-association claim, the Court explained that under the Elrod-Branti doctrine set forth in two Supreme Court precedents, there is a narrow exception to First Amendment protections for individuals in policymaking or other sensitive government positions where political party affiliation is considered an appropriate requirement for office. Thus, for example, deputy sheriffs who carry out the sheriff’s vision for his or her law enforcement priorities are considered policymakers, while deputy court clerks who perform mostly ministerial decisions like collecting and disbursing filing fees and court funds are not.

In Borzilleri’s case, the Fourth Circuit had no trouble determining that ASA’s are policymakers. They use their broad discretion to determine which cases to prosecute, whether to offer relatively gentle or severe plea deals, and make many other decisions that result from subjective personal viewpoints and interpretation. Indeed, as the court noted, Borzilleri was one of only three “Community Prosecutors” in the State’s Attorney’s office who had an even more direct role communicating the vision of the office to key constituents than most of her former colleagues. Thus, as the court eloquently stated:

Elections mean something. Majorities bestow mandates. Elected prosecutors translate those mandates into policies. And assistant prosecutors implement those policies. It is therefore entirely proper for an electoral victor to assess whether she has confidence in those charged with fulfilling her duty to the electorate and the public at large to ensure that her espoused policies are implemented.

In other words, it was Mosby’s prerogative to carry out the message on which she had been elected, and Borzilleri has no First Amendment entitlement to keep her job as a public policymaking official. Borzilleri’s free speech claim failed for similar reasons. The court first satisfied itself that Borzilleri’s statements in favor of Mosby’s political rival were protected because they were made in her capacity as a private citizen (as opposed to in the role of her public office) and because they dealt with an election, the quintessential matter of public concern.

As a result, the Fourth Circuit engaged in the Pickering balancing test, weighing three factors: (1) public employees’ interests as citizens in commenting upon matters of public concern, (2) the community’s interest in hearing those employees’ informed opinions on important public issues, and (3) the government’s interest in promoting the efficiency of the public services it performs through its employees. Having found that Borzilleri’s free association rights were not violated, the Court easily concluded that her free speech interests were outweighed by the public interest in promoting effective governance by allowing Mosby the leeway to appoint individuals who would share her policy goals. The court did note, however, that Borzilleri could pursue her other remaining state law claims in state court.

As the case demonstrates, our public officials are as free as the rest of us to make their political voices heard when doing so as private citizens. The First Amendment, however, merely gives speakers the right to voice their opinions; it does not ensure that that speech is free from all consequences, including losing one’s patronage job.

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