Political Non-Affiliation Is Protected Under 1st Amendment
Gann sued the public employer and individual defendants, asserting a 1st Amendment political affiliation discrimination claim. The trial court denied an individual defendant's motion to dismiss on grounds of qualified immunity. The 10th Circuit affirmed, rejecting the defendant's arguments 1) that non-affiliation is not protected by the 1st Amendment, and that Gann's claim thus failed because she neither supported nor opposed him; 2) that Gann did not sufficiently allege causation; and 3) that at the time of the conduct at issue, the 1st Amendment right to "non-affiliation" was not clearly established.
With respect to the topic of non-affiliation, the court reasoned "it is irrelevant whether Ms. Gann actively campaigned for [the defendant's] opponent or merely declined to campaign for [the defendant]. All that matters is that Ms. Gann was discharged because she did not campaign for or support [the defendant]. In other words, our only relevant consideration is the impetus for the elected official's employment decision vis-a-vis the plaintiff, i.e., whether the elected official prefers to hire those who support or affiliate with him and terminate those who do not."
Gann v. Cline
The 10th Circuit Court of Appeals’ jurisdiction includes Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
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