KERI L. BORZILLERI v. MARILYN J. MOSBY
US Court of Appeals for the Fourth Circuit, Wilkinson, Oct. 17, 2017,
First Amendment – Employment – A prosecutor is a “policymaker” exempt from First Amendment protection against patronage dismissal

Political Dismissal – A “nonpolicymaking, nonconfidential government employee” cannot be fired from a job solely based on his political beliefs

Political Dismissal – The test for determining whether a position is protected from political dismissals is: 1) whether the position involves government decision making on issues where there is room for political disagreement and 2) if so, whether the position calls for political affiliation

From the case: “Assistant prosecutors make discretionary decisions of real consequence. They oversee investigations, prosecute crimes, and negotiate plea deals. As the Supreme Court explained in Branti, prosecutors have “broader public responsibilities” beyond the mere representation of individual citizens. They represent and safeguard the public at large. These responsibilities are laden with ideological content. How much of a prosecutor’s limited resources should go toward a particular category of crime? Does one type of plea deal call for leniency or severity? Questions like these are debated in prosecutorial campaigns across the country. That is to say, there is much “room for political disagreement,” in carrying out prosecutorial priorities.”

First Amendment – Political Speech – A “policymaker” enjoys “substantially less” free speech protection than non-policymakers

First Amendment- Political Speech – A prosecutor speaking in her private capacity can be fired for “political disloyalty”

Political Dismissal – In contrast, public defenders are not policymakers, as political belief has nothing to do with carrying out that job