Diruzza

Opinion by Judge W. FLETCHER; Dissent by Judge O’SCANNLAIN.

Plaintiff Sherol DiRuzza was a deputy sheriff in Tehama County from 1992 to 1995. During the election season in 1994, she supported incumbent Sheriff Mike Blanusa in his bid for reelection. Blanusa lost to Sheriff Robert Heard, one of the defendants in this case. DiRuzza asserts that defendants Heard and Undersheriff Jerry Floyd caused her to lose her job as a result of her political activity in support of Blanusa.

The district court concluded that DiRuzza’s political activities were not protected under the First Amendment because deputy sheriffs are policymakers, and that political loyalty is an appropriate requirement for her job. The district court accordingly held that defendants were allowed to retaliate against DiRuzza for her political speech. The district court granted summary judgment to defendants Heard, Floyd and Tehama County, and DiRuzza has timely appealed.

We reverse the district court’s grant of summary judgment. We hold that defendants have failed to show as a matter of law that DiRuzza was a policymaker and that political loyalty was therefore an appropriate requirement for her job. We remand for a…

dissenting:

Today, the court holds a sheriff and an undersheriff responsible, ex post facto, for legal rules that did not exist at the time they acted. Because it would be wrong to hold these law enforcement officers to standards which the court’s analysis reveals it cannot meet itself, I respectfully dissent.

I

A sheriffs office “would be unmanageable if its head had to ... retain his political enemies ... in positions of confidence or positions in which they would be ... exercising discretion in the implementation of policy.” Fazio v. City and County of San Francisco, 125 F.3d 1328, 1333 (9th Cir.1997) (quotations omitted). Thus judges must be careful before interpreting the Constitution to place such a heavy burden on public employers. I agree with the court that in this circuit deputy sheriffs are not per se policymakers. I agree that the inquiry must be fact-specific. But I cannot agree with the court’s misreading of the ease law, a misreading that threatens to place heavy burdens on public officials forced to implement, through politically disloyal employees, policies the public elected them to enact.

We simply do not have sufficient information in the record to…