First Amendment for Public Employees Update

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I was recently contacted by a law enforcement officer asking if I was aware of a case out of North Carolina which ruled in favor of some police officers in regard to a disciplinary action involving posts made to Facebook.  I was aware of this case and I think it is important to put this in context for FOP members in Louisiana.  First and foremost, it is important to recognize that this case, Hebert E. Liverman and Vance R. Richards v. City of Petersburg, et al, 2016 WL 7240179 (not yet published) ,comes out of the U.S. Court of Appeals, Fourth Circuit.  This is important because the case does not constitute binding precedent for the U.S. Court of Appeals, Fifth Circuit — Louisiana’s court.  This case could be persuasive precedent, but it is not binding.  That means the argument could be adopted by the Fifth Circuit if a similar case were to be brought here, but the court does not have to adopt it.

More particularly, two officers of the City of Petersburg Bureau of Police were disciplined with an oral reprimand and 6 months of probation for violating the department’s regulations on social media.  The department’s regulations on social media read as follows:

J.A. 161 – Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected b the First Amendment free speech clause, in accordance with established case law.

J.A. 162 – Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer.  The instances much be judged on a case-by-case basis.

Generally, Liverman made a post on Facebook expressing his opinion on rookie officers being assigned as instructors for his department.  Richards replied to Liverman’s post expanding on that post discussing new officers being placed in specialized units.  Liverman replied again and Richards again replied to Liverman’s reply.

In short, the court held that the Supreme Court set forth how to analyze whether a public employee’s speech was protected speech in its rulings in Pickering and Connick.  There are three questions that have to be answered:

  1. Was the employee speaking as a member of the public on a matter of public concern?
  2. Does the employee’s interest in First Amendment expression outweigh the employer’s interest in the efficient operation of the workplace?
  3. Was the protected speech a substantial factor in the employer’s decision to take adverse employment action?

The Fourth Circuit came to the conclusion that the officers were, in fact, speaking as members of the public on a matter of public concern.  The court went on to conclude that the second and third prongs of the test set forth in Pickering and Connick were also met, making the Facebook comments protected speech.

More importantly, the court held that the regulations themselves were unconstitutionally overbroad.  The reasoning of the court was that the regulations constituted prior restraint of protected speech.  As evidenced by this case, the regulations did lead to discipline of protected speech.

Many of you may have regulations similar to the regulations at issue in this case.  It has long been my belief that these regulations are overbroad and I still think that they are.  This case supports my contention that they are overbroad.  The NOPD regulation on social media reads as follows:

Employees shall not post any material on the internet including but not limited to photos, videos, word documents, etc. that violates any local state or federal law, and/or embarrasses, humiliates, discredits or harms the operations and reputation of the Police Department or any of its members.

It is my opinion that this regulation suffers the same constitutional shortcoming identified in the Petersburg case.  However, the Petersburg case means does not control what happens in Louisiana.  We may, one day, have a chance to argue for a similar ruling here.  But until that happens, please be careful with posts made to Facebook, Twitter, etc.

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A Move in the Right Direction?

Some public safety watchers greet the January 3rd, 2017 return of the ” Targeted Marigny, ” to the New Orleans Police Department’s  5th District with alarm and skepticism.

Currently in the French Quarter-focused 8th District, its robust violent crime statistics, critics say, will now be added to the 5th Districts loaded ledger. Less suspicious, but equally concerned, observers wonder about active complaints and investigations which may soon land in limbo. They join skeptics in asking, is moving the ” Targeted Marigny ” to the incident-rich 5th District a move in the right direction?

-Nadra Enzi aka Cap Black, RLSH. Creator,#CapBlackStreetPatrol. *Walking escorts* *Victim advocacy* Last but never least, police support

Citizens Patrol Amid Depolicing

New Orleans Police Department is in a stranglehold of external oversight leaving little room for being proactive. This scarcity of proactivity is exploited daily by criminals in captive communities.

Citizens on patrol are acutely aware of this drought and list it as part of why they hit the pavement. A 40-year high in low retention and surplus of violent offenders mean citizens on patrol, like less adventurous peers, can’t assume fast police response to 911 calls. Combined with external pressure on case management, citizens on patrol realize local partners in blue are less willing to act on complaints brought by the public. The incentive skews now toward not investigating complaints to avoid career ending outside inquiry.

Such sobering restrictions are part of the landscape for citizens patrol amid depolicing. Some ask, what good is being extra eyes and ears for a department with its hands tied by red tape?

-Nadra Enzi aka Cap Black, RLSH. #CapBlackStreetPatrol creator. @nadraenzi on twitter.

Neighborhood Walk: Watch with Our Feet

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I’m a big fan of neighborhood watch. It fits my model of having residents create safety within their comfort zones. For most folks, they’re comfortable peering through the blinds and calling 911.

In combative cities like New Orleans, Neighborhood Walk is my suggestion to folks whose streets are overtaken by violent youth and other criminals. Neighborhood Watch is often organized in relatively stable communities. While high crime areas have it too, stability comes only if visibility is present.

While I created my own citizen patrol, Cap Black Street Patrol, Neighborhood Walk is what I’d like to see proactive folks start doing in captive communities. I’ll gladly help organize them but my purpose isn’t just to recruit people for my group. I’d love new members but want folks hitting the pavement on their own too!

In a city with a police department under a federal consent decree; with plummeting officer morale and man power, deterring crime is our responsibility now more than ever! New Orleans streets belong to those who actively claim them and it’s clear law abiding citizens aren’t currently doing the claiming.

Lets help our communities and our police department, by deterring crime and serving as witnesses when we hit the pavement.

The streets belong to us too🙂

Nadra Enzi aka Cap lBack, RLSH: real life superhero for folks feeling like zeroes!