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Former DA Peter Gilchrist faces free-speech lawsuit

A federal appeals court poked and probed Thursday at a Charlotte freedom-of-speech lawsuit involving the conflicts of running a government office vs. running for one.

Four years ago, then-Mecklenburg District Attorney Peter Gilchrist fired one of his assistants, Sean Smith. Smith, who was running for District Court judge, had made critical comments to a TV reporter about a driving school that Gilchrist believed saved his office from handling thousands of traffic cases every year.

Smith, who took the driving course himself, didn’t warn his superiors about the interview and told Gilchrist that he did not like the fact that the DA’s office was affiliated with the program.

When asked by his bosses why he had not warned them about the TV spot, Smith said he thought they wouldn’t have liked him doing it. Asked if there were any other office policies with which he disagreed, Smith declined to answer.

Gilchrist said he considered that insubordination and fired Smith the next day.

Smith, who was elected to the Mecklenburg bench later that year, felt his constitutional rights of free speech had been violated. He filed suit.

In late 2012, U.S. District Judge Robert Conrad threw the case out on the grounds that Gilchrist had “qualified immunity.”

While Conrad agreed that Smith’s free speech had been violated, he also ruled that it was not reasonable to assume that Gilchrist knew that Smith’s rights had been compromised. Gilchrist, the judge reasoned, had to balance his assistant’s constitutional freedoms with the efficient operation of his office.

Smith’s attorney, Matthew Arnold, appealed.

On Thursday, three years after Gilchrist’s retirement and Smith’s election to the District Court bench, a three-judge appellate panel reopened the case during a session at the College of William and Mary in Richmond, Va.

For almost 45 minutes, Chief Judge William Traxler and colleagues Allyson Duncan and Andre Davis pressed Arnold and Assistant Attorney General Grady Balentine, who was representing Gilchrist, on the dueling interests of politics, employee-boss relations and free speech.

Arnold said a “legal expert” such as Gilchrist, who served as district attorney for 36 years, clearly had to know he was violating Smith’s rights when he fired him after the TV interview. The prosecutor, he told the judges, “had crossed a bright line.”

As such, Conrad erred in giving him immunity for his decision, Arnold said, and a jury, not the judge, should decide why Smith lost his job.

Balentine, however, said the only thing clear in the case is Smith’s insubordination – in speaking out against a program that benefited the district attorney’s office, and in refusing to answer questions from his superiors.

Smith was a political candidate speaking to the media on a matter of public interest, Balentine said in his written argument, but he was also an employee of an office where rules, efficiency and chain or command could not be ignored.

The judges should rule later this year.

Gordon: 704-358-5095
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