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Borzilleri v. Mosby

United States Court of Appeals, Fourth Circuit

October 17, 2017

KERI L. BORZILLERI, Plaintiff-Appellant,
v.
MARILYN J. MOSBY, in her official and personal capacities; STATE OF MARYLAND, Defendants-Appellees.

          Argued: September 14, 2017

         Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:15-cv-03760-JFM)

         ARGUED:

          Stacey Kamya Grigsby, BOIES, SCHILLER & FLEXNER LLP, Washington, D.C., for Appellant.

          Patrick Browning Hughes, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

         ON BRIEF:

          Ryan Y. Park, Washington, D.C., Nafees Syed, BOIES, SCHILLER & FLEXNER LLP, New York, New York, for Appellant.

          Brian E. Frosh, Attorney General of Maryland, Julia Doyle Bernhardt, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

          Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.

          WILKINSON, Circuit Judge:

         This case arises out of appellant Keri Borzilleri's suit alleging that appellee Marilyn Mosby fired her for supporting Mosby's political rival, thereby violating Borzilleri's First Amendment rights. The district court determined that, as an Assistant State's Attorney, Borzilleri was a policymaker exempt from the First Amendment's protection against patronage dismissals. We affirm. To hold otherwise would undermine the public mandate bestowed upon the victor of a hard-fought election and would needlessly interfere with a state official's managerial prerogative.

         I.

         A.

         On January 5, 2015, Marilyn Mosby took office as Baltimore City State's Attorney, an elected position with authority over more than one hundred prosecutors. Four days later, Mosby fired Assistant State's Attorney Keri Borzilleri without explanation. As an ASA for nine years, Borzilleri had made charging decisions, negotiated plea deals, and tried serious cases. Near the end of her tenure, she had also served as one of the office's three "Community Prosecutors, " tasked with prosecuting complex crimes and liaising with local police and city residents. Borzilleri's performance was, by her account, exemplary. She alleges-and for the purposes of resolving this appeal, we assume-that the sole motivation for Borzilleri's termination was her prior support for Mosby's political opponent.

         The trouble began in 2014, when Borzilleri took sides in a bruising Democratic primary battle for Baltimore City State's Attorney. She supported Gregg Bernstein, the incumbent, over Mosby, a former colleague. Although Borzilleri had no official role in Bernstein's campaign and never donated money to it, she attended Bernstein's campaign events, placed a Bernstein sign in front of her home, and hosted a gathering of approximately twenty Bernstein supporters. Photos of the event appeared on Facebook. According to Borzilleri, her once-cordial relationship with Mosby quickly soured. Borzilleri alleged that on two occasions after she began supporting Bernstein, Mosby glared at her and declined to acknowledge her in public.

         Mosby defeated Bernstein in the June 2014 primary and went on to win the general election that November. Three days after Mosby took office, a newly appointed political deputy asked Borzilleri about Bernstein's campaign. She ...


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