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Appeals court sets stage for ‘free speech’ trial

A federal appeals court chose free speech over government efficiency to set the stage for a Mecklenburg legal fight pitting a former prosecutor against a sitting judge.

In its ruling, a three-judge panel from the 4th Circuit Court of Appeals overturned the 2012 decision by a Charlotte federal judge to throw out Sean Smith’s lawsuit against longtime Mecklenburg District Attorney Peter Gilchrist.

Four years ago, Gilchrist fired Smith, an assistant district attorney, on grounds of insubordination.

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 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 school.

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, who has since retired, said he considered that insubordination and fired Smith the next day. Smith, who was elected to the Mecklenburg bench later that year, felt his free speech had been violated and 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, Gilchrist had to balance his assistant’s constitutional freedoms with the efficient operation of his office, the judge said.

Smith and his attorney, Matthew Arnold, appealed. In March, Arnold told the 4th Circuit panel that a “legal expert” such as Gilchrist had to know he was violating Smith's rights when he fired him. The prosecutor, he told the judges, “had crossed a bright line.”

Last month, appellate court judges agreed and ordered Smith’s lawsuit to trial. In authoring the blunt and unanimous opinion, Chief Judge William Traxler said Smith should not have been fired for speaking on “matters of public concern,” even if that speech was critical of a program that his boss supported.

Conrad, the panel concluded, erred in giving Gilchrist qualified immunity, saying that “any reasonable official in Gilchrist’s position” would have been aware of Smith’s constitutionally protected rights.

The notion that programs helpful to a government office “are somehow off limits from criticism by government employees even when there is no reason to expect that the criticism will actually hamper the government office’s efficiency has no basis whatsoever in law.”

Arnold said he was pleased with the court’s decision, “and we’re looking forward to the jury trial.”

The attorney general’s office, which represented Gilchrist before the 4th Circuit, did not respond to requests for comment Wednesday.

The trial has not been scheduled.

Gordon: 704-358-5095
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