Smith v. County of Orange

MEMORANDUM *

Defendant Tony Rackauckas (the District Attorney of Orange County), the County of Orange, and other defendants appeal the district court’s denial of their motion for summary judgment based on *653 qualified immunity in a 42 U.S.C. § 1988 lawsuit filed by Joseph Smith, a former employee of the District Attorney’s office. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Rackauckas was not entitled to summary judgment under the Elrod/Branti Doctrine because Rackauckas did not meet his burden of proving Smith was a “policymaker” as a matter of law in any of the positions at issue. Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir.1997); Elrod v. Burns, 427 U.S. 347, 368 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) (the government-employer bears the burden of establishing that the plaintiff-employee is a “policymaker”); Branti v. Finkel, 445 U.S. 507, 517 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980). The district court was correct in its determination that there is a “genuine issue [of] material fact” whether Smith was a “policymaker.” Fed.R.Civ.P. 56(c).

Absent a proper finding that Smith was a “policymaker.” under Pickering v. Board of…