Bardzik

concurring in part and dissenting in part:

The majority holds that Bardzik was a policymaker while serving as Reserve Division Commander, but was not a policymaker while serving in Court Operations. I agree that whether Bardzik was a policymaker while serving as Reserve Division Commander is a close question. See Maj. op. at 1146. However, resolving all factual disputes in Bardzik’s favor, I would conclude that he was not a policymaker in either the Reserve Division or in Court Operations. Thus, I dissent from the majority opinion in part.

To conclude that Bardzik was a policymaker while commanding the Reserve Division, the majority analyzes Bardzik’s duties under the factors stated in Fazio v. City of San Francisco, 125 F.3d 1328 , 1334 n. 5 (9th Cir.1997) (“vague or broad responsibilities, relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and respon *1153 siveness to partisan politics and political leaders”). The majority concedes that some of the factors favor Bardzik: he did not have a relatively high salary, he did not have authority to speak…

Joshua Piovia-Scott, Hadsell, Stormer, Keeny, Richardson & Renick LLP, Pasadena, CA, for the plaintiff-appellee.

Norman J. Watkins and Shannon L. Gustafson, Lynberg & Watkins, Orange, CA, for the defendants-appellants.

Before: HARRY PREGERSON and ROBERT R. BEEZER, Circuit Judges, and SUZANNE B. CONLON, District Judge. [*]

Opinion by Judge BEEZER; Partial Concurrence and Partial Dissent by Judge PREGERSON.

BEEZER, Circuit Judge:

Plaintiff Jeffrey Bardzik was a lieutenant in the Orange County Sheriff's Department under the command of Defendant Sheriff Michael Carona. [1] Bardzik sues Carona under 42 U.S.C. § 1983 , alleging that Carona violated Bardzik's First Amendment right to free speech by retaliating against Bardzik for supporting Carona's opponent in the 2006 Sheriff's election. Bardzik argues that Carona retaliated against him by transferring him from the prestigious position of Reserve Division Commander to an undesirable post at Court Operations. Bardzik also argues that Carona continued punishing him even after he was transferred.

Before the district court, Carona moved for summary judgment, arguing that he was permitted to retaliate against Bardzik for his political…

Opinion by Judge BEEZER; Partial Concurrence and Partial Dissent by Judge PREGERSON.

OPINION

Plaintiff Jeffrey Bardzik was a lieutenant in the Orange County Sheriffs Department under the command of Defendant Sheriff Michael Carona. 1 Bardzik sues Carona under 42 U.S.C. § 1983 , alleging that Carona violated Bardzik’s First Amendment right to free speech by retaliating against Bardzik for supporting Carona’s opponent in the 2006 Sheriffs election. Bardzik argues that Carona retaliated against him by transferring him *1141 from the prestigious position of Reserve Division Commander to an undesirable post at Court Operations. Bardzik also argues that Carona continued punishing him even after he was transferred.

Before the district court, Carona moved for summary judgment, arguing that he was permitted to retaliate against Bardzik for his political activities because Bardzik was a “policymaker” under Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), or, at the very least, that Carona was entitled to qualified immunity for his actions. Carona argued that Bardzik was a policymaker because Bardzik was Reserve Division Commander in charge of over 600 reserve…