VERY IMPORTANT – 1st Amendment Update

I have written or reported information about police officers and the 1st Amendment Right to Free Speech before. See U.S. Fifth Circuit Case Update – 1st Amendment and Terry Stops and Police Officer First Amendment Rights. I have also written about Facebook and Free Speech rights. It is time to go over it again.

As time passes, the popularity of Internet websites comes and goes. Facebook has ceased to be a tool for the younger generation, but 1.56 billion people still log into Facebook every day. That number includes a lot of police officers (and firefighters). This article is probably just as applicable to firefighters as it is to police officers. The executive summary of this article is: “DON’T USE FACEBOOK TO SHARE YOUR POLITICAL VIEWS.” If you think that nobody is paying attention, you are mistaken.

That brings me to the Plain View Project. The Plain View Project says the following about itself:

The Plain View Project is a database of public Facebook posts and comments made by current and former police officers from several jurisdictions across the United States.

 

We present these posts and comments because we believe that they could undermine public trust and confidence in our police. In our view, people who are subject to decisions made by law enforcement may fairly question whether these online statements about race, religion, ethnicity and the acceptability of violent policing—among other topics—inform officers’ on-the-job behaviors and choices.

 

To be clear, our concern is not whether these posts and comments are protected by the First Amendment. Rather, we believe that because fairness, equal treatment, and integrity are essential to the legitimacy of policing, these posts and comments should be part of a national dialogue about police.

The website goes on to explain:

In the summer of 2016, a team of attorneys in Philadelphia learned that numerous local police officers had posted content on Facebook that appeared to endorse violence, racism and bigotry. In some of these posts, officers commented that apprehended suspects—often black men— “should be dead” or “should have more lumps on his head.” In other Facebook conversations, officers advocated shooting looters on sight and using cars to run over protestors. Numerous posts deemed Islam “a cult, not a religion” and referred to Muslims as “savages” and “goat-humpers.” And, in still others, officers appeared to joke about beating and raping women.

This discovery inspired the creation of the Plain View Project (PVP), a research project that has identified thousands of Facebook posts and comments by current and former police officers. We believe that these statements could erode civilian trust and confidence in police, and we hope police departments will investigate and address them immediately.

The website claims to search for Facebook accounts belonging to law enforcement officers. They claim to verify that the person is really a law enforcement officer employed by a law enforcement agency. They then collect posts from those officers and publish them to a searchable database. Right now, the database only consists of a limited number of jurisdictions:

  • Philadelphia, PA
  • Dallas, TX
  • St. Louis, MO
  • Phoenix, AZ
  • York, PA
  • Twin Falls, ID
  • Denison, TX
  • Lake County, FL
  • Others

Some officers believe that the First Amendment protects speech like posts made to Facebook or other social media outlets.

YOU ARE ONLY PROTECTED BY THE FIRST AMENDMENT TO THE U.S. CONSTITUTION IF (1) YOU ARE SPEAKING AS A PRIVATE CITIZEN AND (2) YOU ARE SPEAKING ON A MATTER OF PUBLIC CONCERN.

What constitutes speaking as a private citizen? If you want to be safe, the answer is NOTHING. A private citizen doesn’t have information which is only available because of that person’s position as a law enforcement officer. A private citizen isn’t trying to promote a law enforcement officer’s career or adversely impact someone else’s.

Just forget about the First Amendment coming to your rescue.

In short, these posts could easily lead to disciplinary action or even termination. We have seen several of these cases, but nothing like what you can find in the Plain View Project database.

Do yourself a favor and read through some of the info collected. Hopefully, it will make you think twice about posting anything but cute pictures of kittens on social media. Just don’t do it.

Click here for AP Story,,

Click here for 6/19/19 AP Story

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5th Circuit Court of Appeals Upholds Termination of Wife-Swapping Deputies

There is an interesting case that would normally fall in the “Hard to Believe” category and remembered only for its entertainment value. Unfortunately, the case comes out of the U.S. 5th Circuit Court of Appeals. Therefore, the case sets precedent in the federal court circuit in which we live. The case is Brandon Coker and Michael a Golden v. Julian Whittington and Charles Owens. The case arises out of the Western District of Louisiana (we are in the Eastern District of Louisiana) and involves two Sheriff’s Deputies. Since they are Sheriff’s Deputies, they are at-will employees and do not have Civil Service protection.

The case involves two employees of the Bossier Parish Sheriff’s Office, Coker and Golden. Coker and Golden swapped wives. Actually, they swapped families. Golden moved into Coker’s house and Coker moved into Golden’s house. Nothing else changed and nobody got divorced. When Chief Deputy Owens learned of this arrangement, he told Golden and Coker that they either went back to their own homes or they would be considered voluntarily terminated. Needless to say, the two deputies did not comply with the Chief Deputy’s instructions. They were terminated for a provision of the Sheriff’s Code of Conduct that states employees must “Conduct yourselves at all times in such a manner as to reflect the high standards of the Bossier Sheriff’s Office … [and] Do not engage in any illegal, immoral, or indecent conduct, nor engage in any legitimate act which, when performed in view of the public, would reflect unfavorabl[y] upon the Bossier Sheriff’s Office.” This is similar to NOPD’s Professionalism rule. They were also charged with failing to notify a supervisor of a change of address within 24 hours.

One thing that is disconcerting about this case is that Coker and Golden lost not once, but twice – Western District and the 5th Circuit. The District Court held that the disciplinary action was to be upheld because the policies at issue are “supported by the rational grounds of preserving a cohesive police force and upholding the public trust and reputation of the Sheriff’s Department.”

The 5th Circuit Court of Appeals held that precedent in the 5th Circuit has uniformly upheld terminations for sexually inappropriate conduct. Furthermore, the Court held that there are no decisions which stand for the proposition that an officer’s freedoms to associate under the 1st Amendment means freedom to associates with the other’s wife before a formal divorce. They went on to say that pursuant to the U.S. Supreme Court’s holding in Garcetti, public employees “shed some of their constitutional rights as a legitimate exchange for the privilege of their positions.” They went on to say the rule was not constitutionally vague.

The rest of the justification for the holding speaks best for itself. So, here is the Court’s reasoning:

We find no reversible error of fact or law in the district court’s decision. Sexual decisions between consenting adults take on a different color when the adults are law enforcement officers. Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public. Their involvement in relations that openly and “notoriously” violate the legally sanctioned relationships of marriage and family is likely to besmirch the reputation of the Sheriff’s Department and hinder its ability to maintain public credibility. Moreover, these officers’ extramarital relationships, even if consensual and loving at the outset, have great potential to create internal dissension within the force. Finally, it is not hard to envision how the existence of Coker’s and Golden’s cohabitation with each other’s wives prior to divorce and remarriage might be adversely used in litigation concerning the deputies’ official conduct.

 

The Supreme Court’s recent decision in Obergefell v. Hodges does not alter applicable law. ––– U.S. ––––, 135 S.Ct. 2584, 2598, 192 L.Ed.2d 609 (2015). Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best, but Obergefell is expressly premised on the unique and special bond created by the formal marital relationship and children of that relationship. Id. at 2594–95. Obergefell does not create “rights” based on relationships that mock marriage, and no court has so held.

While I don’t think I would recommend house-swapping, I am baffled by the connection between an officer’s ability to investigate human trafficking or domestic violence and the officers’ decisions to swap households. The moral to this story is that, as law enforcement officers, one cannot rely on the Constitution to provide the protection is does for everyone else – at least in the eyes of some ultra conservative jurists.

The case can be downloaded here (.pdf): Coker v. Whittington, 858 F.3d 304, 2017 WL 2240300 (C.A.5 (La.)), 2 (C.A.5 (La.), 2017)

#HB418 – A Response to Rep. Stuart Bishop

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The following letter appeared in The Advocate on April 29, 2015.  I find it offensive that Rep. Bishop would use such blatantly misleading and inflammatory rhetoric to attempt to influence my beliefs on this issue.  Much of the information in the letter appears to come from the website paycheckprotectionla.com.  The website is registered to an undisclosed company in Toronto, Ontario, Canada.  The petition the website urges folks to sign is a function of Americans for Prosperity.  Americans for Prosperity is a multi-million dollar political activism group associated with the Tea Party based out of Arlington, Virginia.  I mention that only to point out a lack of Louisianans.  Here is Rep. Bishop’s letter:

Our state and local governments should not be acting as membership liaison for unions. Yet our state payroll office deducts money from employees’ paychecks — at their request — to pay their union dues. Last year alone, Louisiana paid close to $1 million to unions. This is allowed at the local level as well.

 I’ve filed a bill this session to end this practice, HB418, telling unions to do their own legwork and collect their own dues.

I’m doing this for two reasons — first, because I think this practice is wrong and it has to stop. Second, because not many taxpayers even know of this activity, and it deserves a little sunshine. Because when my constituents get word that our state and local governments are using time and resources to cut checks to pay union dues for public employees, they’re appalled.

I’m all for freedom of speech. I’m all for the right to advocate for issues that matter to you. But when I want to be part of an organization, I send a check myself. If I’m unhappy with that organization, I cancel my membership.

Those annual dues are an expression of my continued support. And the fact that our government pays $1 million in union dues annually not only says that our state and local governments support union activities, it also pressures our public employees to join up and leaves unions unaccountable to their members.

That goes for any organization. But supporting unions in particular is problematic, especially in Louisiana.

Louisiana supports the Second Amendment. We support family values. We’re more traditional and conservative than the rest of the nation, yet the money our governments are funneling to these unions is being kicked up to national organizations to push positions on issues like birth control, gun restrictions, immigration, global warming, even the Affordable Care Act. Why should our state government be in the business of promoting organizations that promote issues and activities our taxpayers wouldn’t otherwise willingly support?

My bill is simple. It protects workers from paycheck deductions and gives public employees the freedom to choose whether or not they want to contribute to a union and fund union political activities.

Louisiana is not a pro-union state. So why do we cut pro-union paychecks? It’s time to end this inappropriate practice.

Stuart Bishop
state representative
Lafayette

First of all, this bill does not only impact labor unions.  I am a member of the Fraternal Order of Police.  The Fraternal Order of Police is a 501(c)(8) fraternal organization with over 330,000 law enforcement members.  HB 418 would repeal La. R.S. 42:457.1 which specifically addresses the ability of professional law enforcement and firefighter associations to collect dues through payroll deduction.  You can probably substitute any number of professional organizations for the FOP below.  Teachers, firefighters, engineers, and mechanics all have their own professional associations. 

The first paragraph states “Last year alone, Louisiana paid close to $1 million to unions.”  This statement may be technically true.  However, we are not talking about public funds.  These are funds earned by public employees through their hard work.  These public employees freely choose to spend their hard-earned money on paying these dues.  These funds are paid by Louisiana only in the sense that Regions Bank pays my bills.

The third paragraph states “Because when my constituents get word that our state and local governments are using time and resources to cut checks to pay union dues for public employees, they’re appalled.”  I don’t know about Lafayette, but in New Orleans, once an employee indicates that he or she wishes for these dues to be deducted from their paycheck, the computer that calculates pay and other deductions performs the calculation.

The next paragraph states “I’m all for freedom of speech. I’m all for the right to advocate for issues that matter to you. But when I want to be part of an organization, I send a check myself. If I’m unhappy with that organization, I cancel my membership.”  First of all, Rep. Bishop’s affinity for freedom of speech certainly seems rather disingenuous.  Secondly, I appreciate having options when it comes to paying for things.  The Fraternal Order of Police allows its members to pay dues by check or cash if they choose to do so.  Nobody is forced to pay by payroll deduction.  Yet, overwhelmingly, our members choose this method of paying dues.  Since it has little to no impact on the employing body, it seems like it is nice to offer this option to our hard-working public servants.

The fifth paragraph states “Those annual dues are an expression of my continued support. And the fact that our government pays $1 million in union dues annually not only says that our state and local governments support union activities, it also pressures our public employees to join up and leaves unions unaccountable to their members.”  Again, there is the misleading statement that somehow our state and local governments are footing the bill for membership dues for the Fraternal Order of Police.  I can say that it has been my experience that police departments usually do not encourage or discourage membership in the Fraternal Order of Police.

I don’t know how payroll deduction leads to the Fraternal Order of Police being unaccountable to its members.  Without its members, the Fraternal Order of Police would be unable to provide the services and benefits it provides to its members.  The Fraternal Order of Police would also be unable to undertake projects for the betterment of our community.  We value our membership and are always accountable to them.

Paragraph 7 reads “Louisiana supports the Second Amendment. We support family values. We’re more traditional and conservative than the rest of the nation, yet the money our governments are funneling to these unions is being kicked up to national organizations to push positions on issues like birth control, gun restrictions, immigration, global warming, even the Affordable Care Act. Why should our state government be in the business of promoting organizations that promote issues and activities our taxpayers wouldn’t otherwise willingly support?”

The Fraternal Order of Police spends its dues money on services and benefits provided directly to its members.  The Fraternal Order of Police also supports Easter Seals and the Torch Run for Special Olympics.  Following Hurricanes Katrina and Rita, over $1 Million dollars of Fraternal Order of Police dues flowed to Louisiana to support its members in their time of need.  The Fraternal Order of Police spends dues money on promotional training for its members.  The Fraternal Order of Police spends dues money on services to our community.  I don’t guess everyone supports Easter Seals.  However, I would guess that even those folks wouldn’t begrudge the Fraternal Order of Police for spending some dues money collected through payroll deduction on the exceptional children supported by their charity.

The 8th paragraph indicates “My bill is simple. It protects workers from paycheck deductions and gives public employees the freedom to choose whether or not they want to contribute to a union and fund union political activities.”  Louisiana is a Right to Work state.  Nobody is forced to belong to a union.  As I mentioned earlier, the Fraternal Order of Police is not a union.  Police employees throughout the state do not need protection from the Fraternal Order of Police.   Membership in the Fraternal Order of Police is a privilege afforded to commissioned law enforcement officers, active and retired.  If police employees do not wish to belong to the organization, they are free not to.  If police employees do not wish to belong to the organization, the Fraternal Order of Police is not going to collect dues money from them.  Furthermore, the Fraternal Order of Police is an organization driven by the membership.  They choose what their membership dues are spent on.

The Fraternal Order of Police has over 6,000 members in Louisiana.  In New Orleans, 90% of active law enforcement officers choose to belong to the Fraternal Order of Police.  The Fraternal Order of Police works diligently to serve its members and the communities those members serve.  Being able to pay dues by payroll deduction is an option that does not adversely impact the employing agency.  Our members do not need anyone to protect their paychecks from the Fraternal Order of Police.

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CLICK HERE TO TELL YOUR ELECTED OFFICIALS TO VOTE NO ON HB 418.