The opening salvo in former Loudoun detective Mark McCaffrey’s appeal of a federal district court dismissing his $6.3 million lawsuit has been fired.
McCaffrey sued Sheriff Michael Chapman and the county government after he was not re-sworn for supporting a different candidate in the 2015 Republican primary election for sheriff. Deputies are routinely re-sworn at the beginning of each term; McCaffrey was one of a handful of employees not re-sworn at the beginning of Chapman’s second term. McCaffrey alleged his right to freedom of expression had been violated, but in October, Judge Anthony Trenga dismissed the suit.
Trenga cited court precedent giving public officials broad authority to fire people in policymaking positions for political reasons, and a case in North Carolina that found deputies are in effect policymakers.
McCaffrey appealed the case the decision that same day.
In an argument filed Monday, McCaffrey’s attorneys, from the firm McSweeney, Cynkar & Kachouroff PLLC, argued the court was mistaken to apply those exceptions to first amendment protections. Among other things, the filing states, McCaffrey’s opposition to Chapman in the 2015 election was not over policy or politics, but Chapman’s “corruption, malfeasance and lack of integrity as the elected Loudoun County Sheriff.”
“Chapman did not simply end McCaffrey’s career at the LCSO,” McCaffrey’s attorneys wrote. “He also forced the score of McCaffrey’s evaluation to be lowered to deprive him of the monetary benefits of his outstanding work, and took steps to block McCaffrey from getting another job. Such vindictive retaliation cannot be justified as necessary steps to implement policies chosen by the voters. Rather, by these vengeful moves Chapman sought to punish McCaffrey’s free speech, pure and simple.”
McCaffrey’s first case alleged a number of other bad practices in the agency, from mismanaging the budget, to awarding contracts to or hiring Chapman’s campaign contributors, to protecting the sheriff’s friends from law enforcement, to poor morale among officers.
At the time, Chapman called the complaint “a reprised chronicle of false allegations, conjecture, innuendo and/or grossly exaggerated stories designed to smear me, our staff, and the honor and integrity of the entire Loudoun County Sheriff’s Office” in a statement.
McCaffrey’s case also argues that, in the nearly 600-member-strong Loudoun County Sheriff’s Office, McCaffrey’s relatively low-ranking position should not be considered a policymaking position. When he left the sheriff’s office, McCaffrey was a deputy first class, the second-lowest rank in the department.
The appeal cites another court precedent that found “an employee with supervisory power does not necessarily have broad policy setting power.”
“The district court’s animating mistake was keeping its analysis at a fairly superficial level of broad characterizations, rather than examining how the LCSO itself, as expressed in the Sheriff’s General Orders, understood McCaffrey’s responsibilities,” McCaffrey’s attorneys argued.
The attorney for Chapman has not yet returned a phone message requesting comment. Chapman and the county’s attorney in the case both declined to comment.