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  • LEO's First Amendment Rights

    Does anyone have and link they can share, or name some court cases that I can look up that deal with a LEO's First Amendment rights? Other than the Law Enforcement Officers Bill of Rights I am specificly looking for court cases which revolve around officers being diciplined or terminated due to post on social networking sites, conversations in public, etc, and the ensuing court cases. Ill take both in favor of the officer and not. Thanks in advance.
    The greatest misconception in police work that gets more officers killed is alot of cops are still taught to use the "minimum force necessary". In reality a true professional will always resort to the "Maximum Allowable Force" to resolve a situation. They mean the same thing, however one is a restriction and the other is an empowerment.

  • #2
    tp://forums.officer.com/forums/shofvbsad.php?p=2134544#post2134544it!
    Last edited by Nobody; 12-31-2009, 10:17 AM.

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    • #3
      Originally posted by TazedYaBro View Post
      Does anyone have and link they can share, or name some court cases that I can look up that deal with a LEO's First Amendment rights? Other than the Law Enforcement Officers Bill of Rights I am specificly looking for court cases which revolve around officers being diciplined or terminated due to post on social networking sites, conversations in public, etc, and the ensuing court cases. Ill take both in favor of the officer and not. Thanks in advance.
      There may be a few out there, but isolated at best. Most departmental policies/General Orders have rules in place that prohibit any behavior/actions that would bring detriment to the agency. This normally falls under the code of conduct/ethics policies. The agency conducts an investigation and punishment is handed down, up to and including termination if the violation is severe enough. If it was not bad enough to pursue criminal charges, then you won't find anything about it on the internet or in current case law, as I'm sure agencies do not post their disciplinary findings on the net. Any such cases are probably more prevalant in civil court, where the defendant files suit to get his/her job back plus damages, lost wages, etc.
      I'm 10-8 like a shark in a sea of crime..

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      • #4
        I don't know the name of the case, but there is one currently being reviewed out of Ontario, CALIF. A number of officers and supervisors were disciplined for using the itranet at their agency to chit-chat, etc.

        Aha, here is a run down on the case:

        http://www.scpr.org/news/2009/12/14/...ext-messaging/
        Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence!

        [George Washington (1732 - 1799)]

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        • #5
          The greatest misconception in police work that gets more officers killed is alot of cops are still taught to use the "minimum force necessary". In reality a true professional will always resort to the "Maximum Allowable Force" to resolve a situation. They mean the same thing, however one is a restriction and the other is an empowerment.
          I wholly disagree with this assertion. They do not mean the same thing, and most police officers do not resort to the "maximum allowable force," which means the most force that could be justified under the circumstances.
          Last edited by DAL; 12-28-2009, 06:49 PM.
          Facts do not cease to exist because they are ignored. -- Aldous Huxley
          Two things are infinite: the universe and human stupidity. -- Albert Einstein

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          • #6
            They are NOT the same. If you think they are, go back to school.
            Free Deke O'Mally!!!

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            • #7
              Here is a case from Houston Police Department that went to the Court of Appeals that upheld the termination of an officer over his comments.

              http://www.judicialview.com/Court-Ca...itizen/28/1840
              Ut humiliter opinor

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              • #8
                I think the OP is seeking court cases/opinions regarding officers' statements/activity on social networking sites such as facebook & myspace. I found one article where a State police agency dismissed a recruit because there were pictures of him drinking beer straight out of a pitcher among a few other things. I believe he also had pictures of himself in uniform next to a patrol vehicle. Where does one draw the line? Obviously we are held to higher standards, but if my agency finds a picture of me at a family/social gathering with a beer in my hand (off-duty of course), should I be disciplined?
                I'm 10-8 like a shark in a sea of crime..

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                • #9
                  Please be careful what you post, say or do on the INTERNET when it comes to the JOB. Many agencies are coming up with policies regarding your (our) behavior on public forums.

                  I do not have a face book or my space account and probably never will (I'm computer stupid), but my wife does and I refuse to have any pictures of me or any discussions of what I have done during my time as a Police Officer.

                  Be careful my friends, people like to dig!!!!!

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                  • #10
                    You've got the right to say and do whatever you please. Your employer has the right to fire you if what you say and do brings discredit upon them. The 1st Amendment protects you against punishment by the government for excercising your freedom of speech. It doesn't protect you if you go onto an internet forum and call your boss a "**** cocker" and sign your name to it.
                    Originally posted by K40
                    To me, open carry is the equivalent of the couple making out and groping each other at the food court in the mall. Yeah, they are probably legal, as long as they don't start getting undressed. But they are still social retards.
                    ‎"You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him." - Rooster Cogburn

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                    • #11
                      Originally posted by PtlCop View Post
                      The 1st Amendment protects you against punishment by the government for excercising your freedom of speech. It doesn't protect you if you go onto an internet forum and call your boss a "**** cocker" and sign your name to it.
                      x2.

                      People tend to forget that the 1st amendment right to free speech was conceived as the right to protest, the right to express your religous views, your right to criticize the government, etc. It's not carte blance to shoot your mouth off about whatever pops into your skull at this moment.

                      Getting fired for calling your boss something involving **** is one thing and you'll find yourself losing any case. Getting fired for legitimate political activism would be quite another.
                      I miss you, Dave.
                      http://www.odmp.org/officer/20669-of...david-s.-moore

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                      • #12
                        Definitely be careful what you post on the internet. There have been a couple of cases of young NYPD Cops getting jammed up because of their postings on places like my space.

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                        • #13
                          The Supreme Court ruled that police officers have a partially limited 1st Amendment Right to Free Speech. What that means is we can get fired for talking about internal departmental issues publicly.

                          The whole thing came from an officer who was discontent with the politics in the department so he granted an interview with the newspaper to whine about it. He got fired, so he sued saying that the department can't limit his free speech because of the 1st amendment. The Supreme Court disagreed, saying that the public needs of the department could be jeopardized by talking about it outside of work so the 1st amendment didn't apply in that situation.

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                          • #14
                            Here is a Client Alert on the subject the California Peace Officer's Association just put out to its members.

                            "LIMITATIONS ON PUBLIC EMPLOYEE’S FREEDOM OF SPEECH"

                            The "right" of public sector employees to speak out on work-related issues does not, necessarily, have the protection of the First Amendment. Normally, one is permitted to express his or her opinion about government, its operations and its employees. It is considered protected speech when it involves matters of "public concern" and is expressed by a member of the public. However, if that individual is a public sector employee, and speaks out in that capacity, the situation is viewed differently.

                            For example, in the recent opinion entitled Kaye v Board of Trustees of the San Diego County Public Law Library (2009)179 Cal.App.4th 48, the Fourth District Court of Appeal held that when an employee makes statements pursuant to official job duties, the employee is not speaking as a private citizen for First Amendment purposes. Accordingly, if the employee makes negative statements constituting insubordination against his or her employer or management personnel pursuant to official job duties, neither the federal nor state constitutions will insulate the employee from discipline, including dismissal, for the employee’s speech.

                            PROCEDURAL AND FACTUAL BACKGROUND OF CASE
                            In February 2006, a representative from the Administrative Office of the Courts ("AOC") contacted the San Diego County Public Law Library ("Library") requesting a panel member for a program designed to help self-represented litigants with appeals. A Library staff member referred the AOC representative to Plaintiff, Michael Kaye. Because Kaye’s supervisor, Joan Allen-Hart, was on sick leave that week, Kaye requested permission to participate in the program from the Library’s director, Robert Riger. Riger approved Kaye’s request.

                            When Allen-Hart returned to work and learned of the invitation, she questioned its genesis and why the request had not been routed through either her or Riger first. Allen-Hart directed an inquiry into the matter. Angered by the inquiry, Kaye rescinded his acceptance to participate in the program.

                            Kaye thereafter sent Allen-Hart a lengthy email, which he copied to his coworkers, questioning Library management’s treatment of reference librarians, the assignment of Library personnel and criticizing recent schedule changes implemented by Allen-Hart. Kaye further stated that Allen-Hart’s implementation of the schedule changes was "hypocritical," and "smack[ed] of autocracy." Finally, Kaye asserted that the inquiry concerning the AOC program constituted a pretext to discipline him or harass him into an early retirement.

                            The day after Kaye sent the critical email, Kaye was placed on administrative leave pending an investigation of the email. Approximately two weeks later, Library management sent Kaye another letter notifying him that he was subject to discharge for "insubordination and serious misconduct." In response, Kaye submitted a "post-termination administrative appeal" to the Library’s Board of Trustees. After considering the matter in two separate sessions, the Board voted to discharge Kaye.

                            Kaye subsequently filed a complaint for wrongful termination asserting various causes of action, including that his discharge violated the free-speech clause set forth in article I, section 2, subdivision (a) of the California Constitution. Kaye also asserted that his discharge violated the whistle-blower protections set forth in the California False Claims Act. The trial court granted summary adjudication as to each of the state law causes of action.

                            COURT OF APPEAL’S DECISION
                            The California Court of Appeal affirmed the trial court’s decision to grant summary adjudication in favor of the employer on each of Kaye’s state law causes of action. Specifically, in response to Kaye’s contention that his email to Allen-Hart constituted protected speech under the California Constitution’s free-speech clause, the court applied the United States Supreme Court’s recent decision in the case entitled Garcetti v. Ceballos (2006) 547 U.S. 410.

                            In Garcetti, a deputy district attorney (Ceballos) claimed his employer retaliated against him for writing a memorandum questioning the truthfulness of an affidavit filed by a deputy sheriff that was used to support a search warrant. Ceballos recommended dismissal of the related criminal case. Ceballos’s superiors disagreed with his conclusions and did not dismiss the case. Ceballos then informed defense counsel that he believed the facts in the affidavit were untrue. As a result, the defense called Ceballos as its witness and he testified on behalf of the defendant. Ceballos claimed the District Attorney thereafter disciplined him in retaliation for exercising his First Amendment rights.

                            The employer asserted that the memorandum was not protected speech under the First Amendment to the United States Constitution because Ceballos wrote it as part of his employment duties as a deputy district attorney, and not as a private citizen. The Supreme Court agreed and granted judgment in favor of the employer.

                            The Garcetti Court observed that Ceballos wrote the memorandum as part of his regular job duties. Accordingly, Ceballos was speaking as a prosecutor fulfilling a responsibility to advise his supervisor about how to proceed with a pending case. Based upon this analysis, the Garcetti Court reasoned that restricting an employee’s speech, which owed its existence to a public employee’s professional responsibilities, did not infringe upon any liberties the employee might have enjoyed as a private citizen. Rather, the employer’s decision reflected its exercise of control over what the employer itself had commissioned of its employees. Consequently, the Garcetti Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

                            The Court of Appeal in Kaye adopted the reasoning of the Garcetti decision, and found that there was no reasoned distinction between the Federal Constitution’s free speech clause and the California Constitution’s free speech clause for purposes of its determination of Kaye’s appeal. The Court further determined that Kaye’s speech consisted of an email made during the ordinary course of his duties as a public employee. Accordingly, the Court of Appeal concluded that Kaye could not establish his discharge violated the California Constitution’s free speech clause. The Court of Appeal further concluded that Kaye’s other causes of action did not have any merit. As such, the Court of Appeal affirmed the trial court’s judgment in favor of the employer.

                            SPEECH BY A "POLICYMAKER" EMPLOYEE
                            Attorneys Jim Touchstone and Kimberly Hall Barlow, partners with Jones & Mayer, recently defended a sheriff and a county, in the Federal District Court in Los Angeles, involving a First Amendment claim filed by a former lieutenant of the department who had served as chief of police services for a city which contracted with the sheriff.

                            The lieutenant decided to oppose the incumbent sheriff in the next election. He was not successful and, thereafter, was noticed for demotion for making numerous critical comments regarding his employer, its policies, other members of the department, and its command staff, during the course of his political campaign for sheriff. Before the demotion became effective, the lieutenant retired. He then sued his employer, alleging a claim of retaliation in violation of the First Amendment.

                            Following a two-week jury trial, the District Court rendered a complete defense verdict for the employer in the case. Although the comments by the former lieutenant hadn't been made as part of his employment duties, they were made as a candidate for office, the court ruled that he filled a "policy maker" role (in simple terms, one who is part of the management team and on whom the elected official is entitled to rely for support) and, therefore, in this case as well, his statements were not protected by the First Amendment.

                            HOW THIS AFFECTS YOUR AGENCY
                            The Kaye decision, in conjunction with the United States Supreme Court’s decision in Garcetti, provides that an employee may be subject to discipline, including termination, for negative speech about his or her employer if the speech is made pursuant to the employee’s official duties. The determination of whether an employee’s speech is made pursuant to his or her official duties, and appropriate discipline based thereon, must be made on a case-by-case basis, following a thorough investigation of the underlying facts and circumstances surrounding the employee’s speech.

                            Prior to disciplining an employee for his or her speech activities, we strongly urge you to confer with your agency’s legal counsel in advance of making any such decisions.
                            Going too far is half the pleasure of not getting anywhere

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                            • #15
                              Originally posted by CruiserClass View Post
                              x2.

                              It's not carte blance to shoot your mouth off about whatever pops into your skull at this moment.
                              Ditto. On the Fed side, I can't even have a political sticker on my car or someone is in my butt sideways. I had a Warden who got 2 weeks of unpaid "vacation" for making a sideways comment about the President within earshot of upper management. I won't get within 100 miles of an avatar with my name or likeness in it.
                              If you are my supervisor and reading this...I'm calling off sick tomorrow.

                              All posts made under this username are solely the opinion of the author (ME) and do not represent the opinion of my employer or any Federal, State, or local government agency and/or municipality. So get a grip and put on your big girl panties...'cuz if you suck at your job, I will probably tell you so.

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