Former Loudoun Detective Asks for Summary Judgment Against Sheriff

The former Loudoun detective who brought a $6.35 million lawsuit against Sheriff Michael Chapman and the Board of Supervisors for wrongful termination has asked a judge to bring the case to a swift close.

On Thursday, Mark McCaffrey’s attorney filed a motion for summary judgment, asking federal Judge Anthony Trenga to hold the defendants liable for violating McCaffrey’s right to freedom of expression, and skip straight to a trial to determine what damages he is owed.

The lawsuit alleges Chapman violated McCaffrey’s constitutional right to free speech by not re-hiring him after McCaffrey supported a different candidate in a Republican primary for sheriff. At the time, McCaffrey was the lead investigator in the ongoing case of Braulio M. Castillo, one of Loudoun’s most high-profile murder cases in recent years.

Chapman has never disputed that he did not keep McCaffrey on because he supported a different candidate. According to a declaration by Chief Deputy Commonwealth’s Attorney Nicole Wittmann and a memo documenting the meeting, prosecutors asked Chapman why he had sacked the lead detective in a murder case scheduled to go to trial.

“My co-counsel in the case, Assistant Commonwealth Attorney Alex Rueda, and I were concerned that the defense would use the failure to re-swear McCaffrey to create an issue over his work on the case,” Wittmann said in her sworn declaration. It could also have made McCaffrey, the lead investigator, unavailable for Castillo’s trial if he left the state for a new job.

Wittman said Chapman told prosecutors he had no reason not to trust the work that McCaffrey produced and that he was a good detective, but that McCaffrey’s “active disloyalty” by supporting a different candidate “undermined” the sheriff’s office.

McCaffrey’s motion holds that his support consisted only of a yard sign and voting for a different candidate in the Republican primary.

The sheriff has argued that he has broad authority to fire detectives for political reasons. Virginia law allows constitutional officers to fire people in policy-making decisions for political reasons, and a 1997 case in North Carolina found deputies hold policymaking decisions because “deputies on patrol work autonomously exercising significant discretion in performing their jobs” and in the course of their work will “make some decisions that actually create policy.”

The motion for summary judgment argues this does not apply to McCaffrey, who was a deputy first class when he was let go.

“If it does, then all the more than 600 men and women serving as deputies in the LCSO must vote for the incumbent at the peril of their jobs, and heaven help them if the incumbent loses,” the motion reads. “Such a bizarre result is redolent of the worst days of machine politics in the New York of Tammany Hall or the Chicago of the elder Mayor Daley.”

The plaintiffs have also argued that McCaffrey should have been protected by the county’s agreement with the sheriff, extending county human resources policies to sheriff’s office employees. That agreement came with the county’s funding, which makes up the majority of the sheriff’s budget. The county has argued that agreement was not in effect when McCaffrey was fired, because it ended with the end of Chapman’s first term in 2015, after which he did not re-hire McCaffrey.

The sheriff’s general order prohibiting using one’s position in the office for political ends also states “this order is not intended to prevent an employee of the Sheriff’s Office from exercising his/her rights under the United States Constitution or the Code of Virginia.”

Filed alongside the motion to dismiss are the first round of sworn statements in the case. Those include declarations from Wittmann; former sheriff Stephen Simpson, who ran against Chapman as an independent in 2015; former Lieutenant Colonel Christopher Harmison, who was not re-sworn to his senior position at the same time as McCaffrey; and McCaffrey himself. There are also five years of performance reviews for McCaffrey, written in glowing terms.

The case also alleges a pattern of retaliation by the sheriff, including reducing the scores on performance evaluations for McCaffrey and Sgt. Lee Gables, the wife of Chapman’s primary opponent, Eric Noble. Ultimately, according to the court filing, McCaffrey’s numerical score was lowered at Chapman’s order so that he would not qualify for a bonus, although the substance of the performance review was unchanged.

McCaffrey’s case alleges Chapman’s retaliation followed him after he left the Loudoun sheriff’s office, including trying to prevent him from getting other jobs. Harmison’s statement alleges Chapman told Harmison, “People challenge me. I’m going to crush them. They’ll never work in law enforcement.”

Chapman has filed a motion to dismiss the case, arguing McCaffrey held a policymaking position by his own description of his responsibilities, and that he “had significant discretion in his position, handling investigation work while both on and off-duty, leading investigation teams, and working with Commonwealth Attorneys in preparing cases for trial,” and that there is no direct right to monetary damages for violations to his right to freedom of expression under the Virginia constitution.

A hearing on the motion for summary judgment and the sheriff’s motion to dismiss the suit has been scheduled for Oct. 6 in Alexandria.

rgreene@loudounnow.com
@RenssGreene

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