Uniting police and public in very dis-united urban areas is a major part of my safety advocacy. A brief glimpse over the hotly debated cause of rioting after officers shoot Black male subjects is the latest reason why I work to unite brothers who sow safety with counterparts wearing badges.
See the below two cases for important case law out of the U.S. 5th Circuit. Case summaries compiled by The Federal Law Enforcement Informer, Federal Law Enforcement Training Center (FLETC).
United States v. Monsivais, 848 F.3d 353 (5th Cir. Tex. Feb. 2, 2017)
While on patrol in a marked police car, two officers saw Monsivais walking on the side of an interstate highway away from an apparently disabled truck. The officer stopped the patrol car in front of Monsivais and activated the car’s emergency lights, planning to ask Monsivais if he needed assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going, where he had been and if he needed any help. Monsivais told the officers where he was going, and while he appeared to be nervous, he responded politely to all of the officers’ questions. After approximately four-minutes, one of the officers told Monsivais that he was going to pat Monsivais down for weapons “because of his behavior” and for “officer safety reasons.” Monsivais then told the officer that he had a firearm in his waistband. The officer seized the firearm and the government subsequently charged Monsivais with possession of a firearm while being unlawfully present in the United States.
Monsivais filed a motion to suppress the firearm. Monsivais argued that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him.
The court agreed. First, the court determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer had converted an offer for roadside assistance into an investigative detention or Terry stop.
Second, the court noted that police officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.
Third, the court concluded that while Monsivais’ behavior might not have been typical of all stranded motorists, the officer could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him. The officer testified that he never suspected Monsivais was involved in criminal activity, but rather that Monsivais was acting “suspicious.” As a result, the court found that the officer seized Monsivais without reasonable suspicion and that the firearm seized from Monsivais should have been suppressed.
For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-10357/15-10357-2017-02-02.pdf?ts=1486081834
Turner v. Driver, 848 F.3d 678 (5th Cir. Tex. Feb. 16, 2017)
In September 2015, Turner was videotaping the Fort Worth Police Station from a public sidewalk across the street from the station. During this time, Fort Worth Police Officers Grinalds and Dyess pulled up in their patrol car and approached Turner. Officer Grinalds asked Turner if he had identification, but Turner continued videotaping. When Turner asked the officers if he was being detained, Officer Grinalds told Turner that he was being detained for investigation because the officers were concerned about who was videotaping their building. After Turner refused Officer Grinalds’ continued request for identification, the officers handcuffed Turner, took his video camera, and placed Turner in their patrol car.
A short time later a supervisor, Lieutenant Driver, arrived and spoke briefly with Turner as well as Officers Grinalds and Dyess. After Lieutenant Driver left, the officers went back to their patrol car, released Turner, and returned his video camera to him.
Turner sued Lieutenant Driver and Officers Grinalds and Dyess under 42 U.S.C. § 1983 claiming that they violated his rights under the First and Fourth Amendments. The officers filed a motion to dismiss Turner’s suit, claiming they were entitled to qualified immunity.
First, the court found that at the time of the incident, in the Fifth Circuit1, there was no clearly established First Amendment right to record the police2. As a result, the court held that all three officers were entitled to qualified immunity as to Turner’s First Amendment claim.
Although the right was not clearly established at the time of Turner’s activities, the court held that going forward in the Fifth Circuit, a First Amendment right to record the police exists subject only to reasonable time, place, and manner restrictions. The court did not determine which specific time, place, and manner restrictions would be reasonable, but stated that restrictions must be “narrowly tailored to serve a significant governmental interest.”
Concerning Turner’s Fourth Amendment claims, the court held that the officers’ initial questioning and detention of Turner, before he was handcuffed and placed in the patrol car was reasonable. The court noted that an objectively reasonable person in Officer Grinalds’ or Dyess’ position could have suspected that Turner was casing the station for an attack or stalking an officer. As a result, the officers could have found Turner’s videotaping of the station sufficiently suspicious to warrant questioning and a brief detention.
However, the court held that Officers Grinalds and Dyess were not entitled to qualified immunity on Turner’s claim that handcuffing him and placing him in the officers’ patrol car amounted to an unlawful arrest. The court found that a reasonable person in Turner’s position would have understood the officers’ actions constituted a restraint on his freedom of movement to the degree associated with a formal arrest. The court commented that the officer’s actions in this regard were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers. Consequently, the court concluded that handcuffing Turner and placing him in the patrol car was not reasonable under the circumstances.
Finally, the court held that Lieutenant Driver was entitled to qualified immunity as to Turner’s Fourth Amendment claims. First, under §1983, supervisors are not liable for the direct actions of their subordinates. Second, by the time Lieutenant Driver arrived, Turner had already been handcuffed and placed in the officers’ patrol car. Third, after Lieutenant Driver arrived, he immediately investigated the situation by talking with Officers Grinalds and Dyess as well as Turner, and he then promptly ordered Turner’s release.
1 The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties.
2 While no circuit has held that the First Amendment does not extend to the video recording of police activity, the Third, Fourth and Tenth Circuits have held that the law in their circuits is not clearly established, without specifically determining whether such a right exists under the First Amendment.
For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-10312/16-10312-2017-02-16.pdf?ts=1487291433
Garrity v. State of New Jersey, 87 S.Ct. 616 (Jan. 16, 1967) is a very important case for law enforcement officers everywhere. It is also widely misunderstood and there are aspects of its implementation that are as of yet undecided. The fact that this case is very important to law enforcement officers and still widely misunderstood underscores the value of the FOP Legal Defense Plan and attorneys who practice law on behalf of law enforcement officers every day.
It has been well-documented that one of the biggest legal issues people face is that they cannot afford access to the legal assistance they need. Many legal issues go unaddressed. I am sure that if you haven’t experienced this yourself, you probably know someone who has. The FOP Legal Plan helps FOP members access the legal services they need. I cannot say this enough: Pick up the phone and call. It doesn’t matter how important or unimportant it seems, pick up the phone and call. As an FOP member, you have access to legal professionals at no cost to you beyond your monthly dues. Pick up the phone and call. Now, on to Garrity v. State of New Jersey.
Six individuals, including Police Chief Edward Garrity, four police officers, and a clerk of court were investigated by the New Jersey Attorney General at the direction of the New Jersey Supreme Court in connection with a ticket fixing racket. During questioning, the employees were advised that:
- Anything he or she said might be used in a criminal proceeding;
- He or she had the privilege to refuse to answer if the answer would tend to be self-incriminatory; and
- Refusal to answer would be cause for removal from office.
The answers to their questions were used in their prosecution, over their objections, to secure their conviction for conspiracy to obstruct the administration of traffic laws. The convictions were affirmed by the New Jersey Supreme Court and an appeal was taken to the U.S. Supreme Court.
The U.S. Supreme Court overturned the convictions, holding that police officers were “not relegated to a watered-down version of constitutional rights.” Basically, the U.S. Supreme Court held that since they were given the choice of self-incrimination or job-forfeiture, the statements were coerced. Since the statements were coerced, they were inadmissible.
We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.
What that boils down to for police officers is that any time their employer, or someone who is authorized to terminate the officer’s employment, informs an officer that the choice is answer questions or be fired, those answers, and any fruits of those answers, will be inadmissible in criminal proceedings against that officer.
First issue: The person asking the questions must have the authority to terminate the officer’s employment. For example, if an FBI Agent tells a city police officer that they are required to answer questions or be terminated, Garrity does not apply. If a city police officer is ordered by his employer to answer the Agent’s questions or be fired, then clearly Garrity will control.
Second issue: In order for Garrity to control, the officer must reasonably believe that he will be terminated should he refuse to answer. If the penalty for refusing to answer is minor or non-existent, the answers will be considered voluntary and will be admissible. It is preferable to have this ultimatum in writing. At the very least, it should be audio recorded. If it is not in writing or read into the record by someone in a position of authority, the officer will have to prove that he had a reasonable belief that he was under an order to answer questions or face termination. This is not a sure thing.
Third issue: Garrity does not stand for the proposition that officers have the option of refusing to answer incriminating statements. It only stands for the proposition that police officers cannot be coerced into making incriminating statements by threatening their employment. The cases known as Uniformed Sanitation I and Uniformed Sanitation II address refusal to answer and, basically, if the statements are immunized, an officer can be terminated for refusing to answer.
Fourth issue: Garrity protects an officer from incriminating himself. It does not mean that the statements cannot be used against someone else.
Fifth issue: Garrity stands for the proposition that coerced statements are inadmissible in a criminal proceeding. That may not include grand jury proceedings.
There are many other questions about the application of Garrity.
- Can the ADA get copies of Garrity protected statements? Yes. If they do, they run the risk of having evidence ruled inadmissible as a result. The DA may very well be able to use Garrity statements for Grand Jury proceedings.
- What is the remedy if an ADA gets copies of Garrity protected statements? That depends. If it is possible to continue the prosecution if the statements or their fruits are excluded, it could be continued. If, however, the statements or their fruits are so intertwined with the prosecution that there is no way to separate them from excluded statements, then the remedy could be dismissal.
- What about statements made in police reports? While officers are probably required to complete police reports or face disciplinary action, statements in police reports are not likely to qualify as immunized statements. In general, statements made in the normal and usual course of business will not be immunized statements.
- What if I write in my own Garrity warning? There is a school of thought that if an officer perceives that he is answering questions under a thread of termination, that he should write that in. I do not see a downside to that. However, there is no real reason to believe it will be successful.
- If I am ordered to answer questions, can I assert my 5th Amendment right to remain silent? No. In the Uniformed Sanitation II case, the court held that once you are immunized, you no longer have the right to remain silent.
- Do the holdings in Garrity apply to breathalyzers, blood tests, etc.? No. Garrity applies ONLY to statements (testimonial or communicative communication). See Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826 (June 20, 1966).
- Are the contents of police reports subject to the provisions of Garrity? No. Documents written in the regular course of business are not going to be covered by Garrity. In prosecution of police officer for beatings and assaults, the government’s introduction in evidence of the arrest report made out by defendant concerning the drug raid in which the complainants were arrested, and his grand jury testimony, did not implicate in any way his right against self-incrimination. U.S. v. Rios Ruiz, C.A.1 (Puerto Rico) 1978, 579 F.2d 670.
- What about Force Statements? One could make the case that Force Statements are compelled testimony as the documents are created as a result of an order specifically related to the act in question. This is not settled. It is worth noting that most prosecutors believe these are NOT Garrity protected documents. This may be a good place to include your own Garrity statement, but may very well turn into a trial-time fight about admissibility.
Is this a special perk of being in law enforcement? Are police officers given some benefit not available to the average citizen? No. Everyone has the right to remain silent pursuant to the 5th Amendment to the U.S. Constitution. Most people do not have government agents as employers. Police officers, and other public employees, can be ordered to answer questions posed by government agents or face termination. Private employers can order an employee to answer questions, but answering those questions does not place a private employee in the position of having to incriminate themselves to a government agent. One way or another, the fact is that the application of Garrity simply allows police officers and other government employees to make use of the same constitutional protections as everyone else.
There are plenty of resources available on the internet regarding Garrity. You can download the Garrity case by clicking here (.pdf). You can download the Schmerber case here (.pdf).
Don’t hesitate to contact your FOP attorney with any questions about Garrity or any other legal issues you may encounter as a police officer.
Click here to download the NOPD Handbook app for your smart phone – https://apps.appmachine.com/nopdhandbook/promote/js
Officer should be aware of the below case. The Fifth Circuit held that officers who are aware of a constitutional violation can be liable under bystander liability if they fail to intervene. In such a case, because the law is clearly established, an officer will be denied qualified immunity. It is additionally a violation of many department policies (including NOPD) to fail to intervene in an unlawful use of force.
Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. §1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches; therefore, he was entitled to qualified immunity.
The district court denied Officer Kindred qualified immunity. The court found that Hamilton and Randle had adequately alleged a claim of excessive force. The court also held it was clearly established at the time of the incident that bystander liability applied. In addition, the court concluded that there was a serious dispute as to material facts in the case regarding the objective reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court of Appeals.
First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in their complaint that they were seized during the traffic stop when they were handcuffed and placed in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirty minutes and subjected to invasive body cavity searches in violation of the Fourth Amendment.
Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities constituted a use of force, which the plaintiffs allege occurred during their seizure.
Third, at the time of the incident, it was clearly established that it was not reasonable to conduct a roadside body cavity search, unless there were exigent circumstances that required the search to be conducted on the roadside rather than at a medical facility. Consequently, the court found that Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of force “excessive to its need.”
The court further held, at the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and he had a reasonable opportunity to prevent the harm.
However, because there were serious disputes as to material facts regarding Officer Kindred’s potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the case and dismissed Officer Kindred’s appeal.
As some of you may have seen in the past week, Antigravity Magazine recently published a story (Get Behind the Mask, February 2017) disparaging the Fraternal Order of Police and law enforcement generally. Most importantly, author Jules Bentley leveled a serious allegation directed at a fictitious NOPD officer in her feature.
While I in no way wish to legitimize this fringe publication, it is troubling to consider that this writer is also a frequent contributor to Gambit Weekly. The FOP takes seriously the growing number of platforms in which conspiracy theorists spread nonsense and outright falsehoods that damage our relationship with the communities we serve. In such instances I make no distinction between legitimate media and this gratis alternative rag – if it has a circulation, the editorial board has a responsibility to fact-check. If they refuse to fact-check, the FOP will step in to rebuke such openly false claims.
Bentley’s incoherent stream-of-consciousness story makes little sense as it weaves between Nazis, police, and untruthful allegations of police misconduct during recent anti-Trump protests; the relevant excerpt can be found in the initial message of the email chain pasted below.
As always, the Fraternal Order of Police, New Orleans, remains vigilant in protecting our members (both real and fictional) and our profession from outright lies and we believe our duty to do so applies especially when such allegations are made in a public forum. While the exchange is humorous, keep in mind that at least some number of readers of this magazine believe this is journalism and the claims to be factual.
To: Jules Bentley and Editorial Board, Antigravity Magazine (February 9, 2017)
From: Jacob Lundy, Fraternal Order of Police
I recently was invited by a friend who is an NOPD officer to attend a mediation facilitated by members of the Office of Independent Police Monitor. My role was to be his support person and chime in as needed during the discussion.
Across the table was a highly agitated fellow whom my friend has cited and arrested numerous times over the years. Their relationship is replicated endless times around the county and world between police officers and problem people on their beats.
It was a fiery exchange of allegations and not-so-subtle threats which my friend weathered with trademark calm. It provided a ringside seat for how measures to foster understanding between officers and the public they encounter can also be abused by career criminals to berate and accuse an officer.
We emerged the same as we went in, two supporters of proactive policing and community partnerships facing a proponent of crime & excuse making. The experience once again made me appreciate policing in what I call a ” post-police : city where law enforcement is overseen by folks who confuse our streets with mythical Mayberry from the Andy Griffith Show.
As a friend and safety advocate, I could do no less than honor his request to be a support person.
Nadra Enzi aka Cap Black, safety advocate in an unsafe city.
In the 2016 Regular Session of the Louisiana Legislature, La. R.S. 14:107.2 was revised to amend paragraph A and add paragraph E via Act No. 184, H.B. 953 by Representative Lance Harris. The change to paragraph A added the following phrase “or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel” to the motivations which can qualify a crime as a hate crime. Paragraph E included definitions of emergency medical services personnel, firefighter, and law enforcement officer. For the purposes of this discussion, law enforcement officer is defined as follows:
“an active or retired city, parish, or state law enforcement officer, peace officer, sheriff, deputy sheriff, probation or parole officer, marshal, deputy, wildlife enforcement agent, state correctional officer, or commissioned agent of the Department of Public Safety and Corrections, as well as a federal law enforcement officer or employee, whose permanent duties include making arrests, performing search and seizures, execution fo criminal arrest warrants, execution of civil seizure warrants, any civil functions performed by sheriffs or deputy sheriffs, enforcement of penal or traffic laws, or the care, custody, control, or supervision of inmates.”
There have been a few missteps in the application of this law. On September 5, 2016, the perpetrator of criminal damage to a French Quarter hotel was charged with violating La. R.S. 14:107.2 based on racial and gender slurs used against the arresting officer. On October 26, 2016, another individual was charged with violating La. R.S. 14:107.2 with the underlying crime being terrorizing when he told the 911 operator that “he was going to shoot and kill any officer that responded to the call.” Neither of these charges made it very far. The charge was refused by the District Attorney in the September 5, 2016 case and the Magistrate dismissed the hate crime charge and the terrorizing charge in the September 5, 2016 case, opting for La. R.S. 14:59, criminal mischief, instead.
What constitutes a hate crime?
As with any other crime, La. R.S. 14:107.2 hate crimes, has necessary elements that must be met. The law reads as follows:
It shall be unlawful for any person to select the victim of the following offenses against person and property because of actual or perceived race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization, or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel: first or second degree murder; manslaughter; battery; aggravated battery; second degree battery; aggravated assault with a firearm; terrorizing; mingling harmful substances; simple or third degree rape, forcible or second degree rape, or aggravated or first degree rape; sexual battery, second degree sexual battery; oral sexual battery; carnal knowledge of a juvenile; indecent behavior with juveniles; molestation of a juvenile or a person with a physical or mental disability; simple, second degree, or aggravated kidnapping; simple or aggravated arson; communicating of false information of planned arson; simple or aggravated criminal damage to property; contamination of water supplies; simple or aggravated burglary; criminal trespass; simple, first degree, or armed robbery; purse snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.
Therefore, the elements of the crime are:
- A person
- must select a victim
- of one of the enumerated offenses
- because of
- actual or perceived race, or
- age, or
- gender, or
- religion, or
- color, or
- creed, or
- disability, or
- sexual orientation, or
- national origin, or
- ancestry of that person or the owner or occupant of that property, or
- actual or perceived membership or service in, or employment with, an organization, or
- because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel.
- The enumerated crimes are:
- first or second degree murder, or
- manslaughter, or
- battery, or
- aggravated battery, or
- second degree battery, or
- aggravated assault with a firearm, or
- terrorizing, or
- mingling harmful substances, or
- simple or third degree rape, or
- forcible or second degree rape, or
- aggravated or first degree rape, or
- sexual battery, or
- second degree sexual battery, or
- oral sexual battery, or
- carnal knowledge of a juvenile, or
- indecent behavior with juveniles, or
- molestation of a juvenile or a person with physical or mental disability, or
- simple or aggravated criminal damage to property, or
- contamination of water supplies, or
- simple or aggravated burglary, or
- criminal trespass, or
- simple, first degree, or armed robbery, or
- purse snatching, or
- extortion, or
- theft, or
- desecration of graves, or
- institutional vandalism, or
- assault by drive-by shooting.
This law is, by necessity, a specific intent crime. Violation of La. R.S. 14:107.2 results in an additional penalty that runs consecutively with the underlying offense. So, in order to charge someone with a violation of La. R.S. 14:107.2, the officer must have probable cause to believe that the offender violated the underlying offense and then that they selected the victim of the crime based on the reasons listed in the statute (4(a)-4(l) above).
It is not enough that the victim has specific traits or associations. The victim must be chosen for that reason. In the September 5, 2016 incident, the offender allegedly committed the crime of simple criminal damage to property by breaking some windows at the Royal Sonesta hotel in New Orleans’s French Quarter. The offender also made some racially offensive comments to a security guard and other rude and insensitive remarks to the female officer who made the arrest. Being an ass does not make one guilty of a hate crime. Furthermore, even if the comments which led to this charge were sufficient to constitute resisting arrest, it is still not a hate crime. Resisting arrest is not, in and of itself, a hate crime.
Example of what could be considered a hate crime:
John Doe, a sovereign citizen, is sitting at home seething about how much he dislikes law enforcement officers. He knows that active and retired law enforcement officers gather at the FOP lodge. He grabs his firearm of choice and heads over the FOP lodge where he opens fire, striking nobody.
Example of what is not a hate crime:
John Doe, a sovereign citizen, is having a few beers, walking around the neighborhood harassing people. The police are summoned to the area and decide to arrest Mr. Doe for public intoxication. When the police attempt to apply handcuffs, Doe says “I hate you law enforcement professionals and there is no way you are putting those cuffs on me.” He then proceeds to fight like the dickens, but is ultimately subdued and incarcerated.
The Legislature, the Governor, and the people of Louisiana sent a powerful message in passing the law that they support law enforcement and appreciate the dangers our law enforcement officers, firefighters and EMS workers face. However, officers must be circumspect in its application. Officers and the community alike would be better served if this statute were reserved for those unprovoked attacks on police officers that are unrelated to any action taken by the officers.
In any event, if an officer finds himself inclined to charge someone with a hate crime, against a law enforcement officer or any of the other protected classes, that officer should ensure that he can articulate probable cause establishing that the offender specifically intended to commit one of the enumerated crimes because the victim fit one of the protected classes listed in the statute. This usually involves a more in-depth investigation into the motivation of the perpetrator. It may be a good idea to consult with the District Attorney prior to charging anyone with violating La. R.S. 14:107.2. If there is any difficulty articulating the probable cause necessary to demonstrate that the perpetrator intentionally chose the victim of one of the enumerated crimes because the victim was part of a protected class, then perhaps it would be better to consult with the District Attorney and let them add the charge via grand jury or bill of information.
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:
- Was the employee speaking as a member of the public on a matter of public concern?
- Does the employee’s interest in First Amendment expression outweigh the employer’s interest in the efficient operation of the workplace?
- 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.
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