Scenario:  Officer X posts on his public Facebook page the following comment:  “Fellow citizens of City, it is unfortunate that your wasteful Chief of Police and spineless City Council members have refused to fund the purchase of new tactical weapons for the police department.  This decision will someday lead to certain harm for the citizens of City.”  Officer X is terminated.  

I indicated in my previous article related to recent trends in the social media and the workplace (OPBA Police Beat, Volume 33, Number 2, Summer 2011) that there were potential 1st Amendment issues with regard to employer policies.  Many employers have instituted social media policies that restrict or limit a public employee’s ability to criticize, denigrate or voice any opinion about the employer.  This is seen, from the eyes of the employer, as insubordination or conduct unbecoming.  For the most part, the courts have upheld discipline or termination for certain employee speech and by virtue of these decisions, placed reasonable limitations on the public employees right to speech (conduct is also considered a form of speech).  Speech or conduct that disrupts or interferes with the public employer’s efficient and effective operation is punishable regardless of the 1st Amendment protection afforded the average citizen.  The Supreme Court has held, “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” See, e.g., Waters v. Churchill (1994), 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (plurality opinion) ("[T]he government as employer indeed has far broader powers than does the government as sovereign").  Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services.  Connick v. Myers (1983), 461 U.S. 138, 142, 103 S. Ct. 1684 ("[G]overnment offices could not function if every employment decision became a constitutional matter").  

However, the Supreme Court has adopted a standard to determine whether a public employee’s speech is protected speech or unprotected and subject to discipline.  The Supreme Court has held that the Constitution's First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.  Under the First Amendment, (1) the speech restrictions that a government entity imposes in its role as employer must be directed at speech that has some potential to affect the entity's operations; and (2) so long as public employees are speaking as citizens about matters of public concern, such employees must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.  See Garcetti v. Ceballos  (2006), 547 U.S. 410 at syllabus; 126 S. Ct. 1951.  “Thus, two inquiries guide interpretation of the constitutional protections accorded to public employee speech.  The first inquiry requires determining whether the employee spoke as a citizen on a matter of public concern.  If the answer is no, then the employee has no First Amendment cause of action based on his or her employer's reaction to the speech.  If the answer is yes, then (1) the possibility of a First Amendment claim arises, and (2) the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti at 418, citing Pickering v. Board of Educ. (1968), 391 U.S. 563, 88 S. Ct. 1731.  However, “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.” Garcetti, at 421.    

The Court reasoned that, “The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.  See, e.g., Rankin v. McPherson (1987), 483 U.S. 378, 384, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (recognizing "the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment").  Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance."  Connick, 461 U.S., at 154.  

The Court has gone on to note in Borough of Duryea v. Guarnieri  (2011), 131 S. Ct. 2488, 2501, that a petition that “involves nothing more than a complaint about a change in the employee's own duties” does not relate to a matter of public concern and accordingly “may give rise to discipline without imposing any special burden of justification on the government employer.” United States v. Treasury Employees (1995), 513 U.S. 454, 466, 115 S. Ct. 1003.  “The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts.” Duryea, at 2501.  

So back to our scenario regarding Officer X, is the speech protected under the First Amendment so that Officer X can be reinstated or is it unprotected and Officer X’s termination will be upheld?  Every case involves different facts and circumstances, but how would you decide?

Whether an officer is permitted to use deadly force against an apparently fleeing felony suspect remains one of the most critical judgment decisions facing law enforcement officers. Title 42, section 1983 of the United States Code imposes civil liability on an individual who, acting under color of state law, deprives a citizen of, among other things, his or her federally guaranteed constitutional rights. The shooting or killing of a fleeing suspect is a “seizure” under the Fourth Amendment, and is therefore subject to constitutional complaints.

Under U.S. law, the “fleeing felon rule” has been limited to non-lethal force in most cases by Tennessee v. Garner, 471 U.S. 1 (1985). In Garner, the Supreme Court held, “The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” 471 U.S. at 11-12. The Court reasoned that “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Id. The Court affirmed the decision of the 6th Circuit Court of Appeals, which reasoned that the killing of a fleeing suspect is a “seizure” under the Fourth Amendment, and is therefore constitutional only if “reasonable.” The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes – “the facts, as found, did not justify the use of deadly force under the Fourth Amendment.” Officers cannot resort to deadly force unless they “have probable cause . . . to believe that the suspect has committed a felony and poses a threat to the safety of the officers or a danger to the community if left at large.” 471 U.S. at 5.

“Further, the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight; in other words, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).

In Williams v. City of Grosse Pointe Park, 496 F.3d 482, 486 (6th Cir. Mich. 2007), the evidence fully supported the conclusion, as a matter of law, that an officer’s conduct was “objectively reasonable” at the time he fired his weapon. “On the evening of August 17, 2003, Officer Michael Miller and Sgt. James Hoshaw of the Grosse Pointe Park Police Department were on duty. While on duty, they learned of a citizen report that three individuals in a green Dodge Shadow were tampering with cars. Miller and Hoshaw came upon a green Dodge Shadow (the "Shadow"), driven by Williams and containing two other passengers. Miller and Hoshaw subsequently determined that the Shadow had been reported stolen. The video camera in Miller's police cruiser captured the events that followed. Miller and Hoshaw pursued the Shadow. At approximately 7:14 p.m., Hoshaw positioned his cruiser in front of the Shadow in order to block its path, while Miller's cruiser continued to approach from the rear. One of the passengers of the Shadow exited the car on foot. Williams then put the Shadow in reverse in an apparent effort to flee but found his egress blocked by Miller's cruiser. As it reversed, the Shadow collided with Miller's cruiser. Following the collision, Hoshaw exited his cruiser and, brandishing his weapon, directed an expletive toward Williams. Hoshaw approached the Shadow and stuck his gun in the driver's side window, pointing his weapon at Williams's head. Williams then accelerated in an effort to move around Hoshaw's cruiser and flee. In his attempt to navigate around the cruiser, Williams drove the Shadow over the curb and onto the sidewalk. Hoshaw, failing to release his grasp on the car, was knocked down as it accelerated. In the next instant, the video depicts Miller firing several rounds as the car moves out of view.” Id. at 484. According to the Court, “based on Williams' conduct, Officer Miller had probable cause to believe that Williams posed a threat of serious physical harm to Sgt. Hoshaw, himself, and to other citizens.” The Court continued, “viewed objectively, Williams’ conduct showed that he was not intimidated by the police presence, would not hesitate to deliberately use the vehicle as a weapon, and was intent on fleeing from the police, which in turn posed a threat to the public traveling on a major Detroit thoroughfare.” Id. at 486.

Deadly force was not deemed justified, however, even in cases where a suspect was armed where the suspect was not approaching the police or brandishing the weapon in a threatening manner. For instance, deadly force was held not justified where a suspect’s vehicle was “moving slowly and in a non-aggressive manner, could not have hit any of the officers, and was stationary at the time of the shooting.” Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008).

Also, in Smith v. Cupp, 430 F.3d 766, 774-75 (6th Cir. 2005), the Court held that suspect who had taken control of officer’s patrol car, although he was in possession of a dangerous weapon, “was not threatening the lives of those around him” because officer was never in the suspect’s line of flight and had already been passed by the car when he shot the suspect. On April 27, 2002, Deputy Sheriff Marty Dunn proceeded to arrest Glen Smith for making harassing telephone calls in Dunn’s presence. Pursuant to the arrest, Dunn advised Smith of his Miranda rights, cuffed Smith’s hands behind his back and put Smith in the back seat of Dunn’s police cruiser. Additionally, Dunn patted Smith down to be sure that he did not have any weapons or other contraband. Dunn left the engine running to provide air conditioning. Unfortunately, Dunn’s police cruiser was not equipped with a security partition separating the front seat from the back seat. When Dunn left the vehicle to talk to the tow truck driver, Richard Rutherford, Smith climbed into the front seat and took control of Dunn’s cruiser. Rutherford asserted that Dunn ran towards the moving patrol car with his firearm drawn and recalls thinking he “was fixing to watch Officer Dunn get run over.” Id. at 769. Rutherford claimed Smith was turning the patrol car to the left, but stated he was not sure whether Smith’s swerve to the left was for the purpose of redirecting the car at Dunn or following the roadway around the building and presumably out of the parking lot. Dunn claimed he and Rutherford were standing not more than a vehicle’s length from the patrol car’s original position and that Smith was clearly trying to run him and Rutherford over rather than attempting to leave the parking lot. Id. Dunn claimed Smith "rapidly accelerated directly at him” and Rutherford and fearing for his life and that of Mr. Rutherford, he “drew his gun and fired four times in rapid succession at Smith.” Id. According to Dunn, three of the shots hit the car, the fourth hit Smith “above the left ear,” and the patrol car “shot past [Officer] Dunn barely missing him and ran off the parking lot and collided with a tree.” Id. The autopsy report showed the bullet entered the back of Smith’s head, behind his ear, at a slightly back-to-front angle. Id. at 775. The Court noted in denying Dunn’s motion for summary judgment, “[T]hough Smith could have used the police cruiser to injure or kill Officer Dunn, under the plaintiffs’ version of the facts he was not doing so when Dunn shot him or even before Dunn shot him. Although Smith had possession of a dangerous “weapon,” he was not threatening the lives of those around him with it when he was fatally shot. This type of situation does not present “a perceived serious threat of physical harm to the officer or others in the area from the perspective of a reasonable officer.” Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005). A jury would therefore be entitled to determine that Officer Dunn’s use of force was unreasonable and accordingly unconstitutional.” Id. at 775.

Recently, I attended an FMCS seminar on labor arbitration.  One of the topics was on the pitfalls of the social media in the workplace which was moderated by the OPBA Special Counselor Michelle Sullivan.  The discussion covered employee discipline as a result of a wide range of circumstances that employees either actively participated in or were passively involved.  With the advent of modern technology, including Facebook, Twitter, YouTube and scores of other social media, the rules and regulations of the “pencil and paper” workplace are changing quickly and likely do not adequately address the new age.

We all know (but hopefully do not have personal experience with) the employer’s catch-all rule “Conduct Unbecoming.”  The rule is often applied in off-duty situations.  Well what does that mean?  The regulation cannot be simply defined and really depends on each case-by-case situation, but the employer “knows it when he sees it.”  The arbitration standard used to be that management’s right to discipline an employee for off-duty conduct, “depends upon the effect of that conduct upon the [employer’s] operation.” Elkouri and Elkouri, How Arbitration Works, 5^th Ed., p. 896.  Arbitrators have also stressed that the effect of the activity on the operations must be reasonably discernable and not just speculative.  A classic example of this rule applied prior to modern social media is the DUI situation.  The employee was off duty, the conduct was in no way linked or related to the employee’s job and there was no damage other than to the employee’s driving record.  For the employee in the private sector (other than CDL holders) there is probably not any discernable effect on the employer’s operation.  However, police officers are subject to a higher standard, are employed to uphold the law and are required, at some time, to testify about a DUI arrest.  Having a criminal record has been argued by the employer to have a detrimental effect on the officer’s testimony in future cases.  Thus, the employer attempts to establish the nexus between the off-duty conduct and the employer’s operation.

So what has changed?  People, and most people are also employees, can now log onto chat rooms, blogs, Facebook, Twitter, or can post pictures, videos and any other form of media or communication just about anywhere through the internet.  What used to be gossip around the roll call room or “bitch sessions” over the phone are now open to the world and usually memorialized in the memory of some computer.  Trust me, this stuff gets back to the boss.  One of the most prominent early examples of discipline as a result of “modern” technology was in 1999. (I say “modern” because inevitably someone will call and say, “in 1985 I was written up for using my cell phone on duty.”)  Employees of Raytheon were commenting over a public chat room about the new labor contract, company finances and company operations.  Raytheon filed a lawsuit against AOL and Yahoo! to disclose the identities of the posters.  The company discovered, through other means, the names of the employees and terminated them.  The lawsuit was later dismissed.

Here is a scenario: The Police Dept. has the Standard Rules and Regulations of Disciplinary Offenses: 1) Prohibiting disparaging or disrespectful comments about the public, supervisors, the chief, or the employer; 2) Prohibiting any act which brings discredit to the Department, and 3) Conduct unbecoming.  Officer X posts on his Facebook page that, “the Chief doesn’t know his head from a hole in the ground.  I can’t believe he’s friends with those criminals.”  Officer X’s Facebook page is designated “Friends Only” and the comment was posted in a string to a non-police department friend.  The Employer suspends Officer X for 10 days.  Is the discipline for cause?  In some recent cases, arbitrators have upheld discipline for employees posting comments or pictures on the internet.[i]

One aspect of social communication that all employees should be aware of relates to department issued cell phones or email accounts.  DO NOT use those accounts for anything other than work purposes even if the employer has a permitted personal use policy.  In a recent United States Supreme Court case, the Court held that a warrantless search of a police officer’s text messages on a department issued pager was permissible. City of Ontario v. Quon, 130 S. Ct. 2619 (U.S. 2010).[ii] The Court found, “when conducted for a ‘non-investigatory, work-related purpos[e]’ or for the ‘investigatio[n] of work-related misconduct,’ a government employer's warrantless search is reasonable if it is justified at its inception and if the measures adopted are reasonably related to the objectives of the search.” Id., at 2630.

All of these circumstances raise First Amendment issues which may or may not exonerate the disciplined employee.  That analysis is saved for another day.  However, if employees are going to email, post, comment, blog or share photos and videos on the internet, be aware of the potential pitfalls.  Don’t use the department email, pagers or cell phones to send non-work related, disparaging or questionable content.  If you must have a Facebook page, make your Facebook page a private page only.  Don’t post pictures of yourself smoking marijuana. These are easy solutions.  But be aware that seemingly innocuous postings can have dire consequences

[i] 2004 AAA LEXIS 500 (AAA 2004, Sperka)
Grievant, police officer, was issued a 10-day suspension for Grievant's website which contained some comments, including:

NEW! Director of Public Safety & Police disciplines Grievant for reporting convicted felon and Department of Public Works Superintendent's illegal activities to Emergency Financial Manager & the City council (more)

NEW! Director of Public Safety & Police recently reversed one of his earlier lies about police staffing, but in the process: a) lies again or b) has no idea about staffing levels in the departments he is supposed to be effectively running. You decide (more)

NEW! The power generator that was used for the police department during times of emergency is missing. Do you know where your tax owned property is? Do your City officials? (more)

NEW! Department of Public Works Superintendent neglects his duty, has City employees working on his house on company time, and is discovered to be a currently convicted felon on probation (more)

NEW! Employer Hypocrite and City Controller City Controller and Deputy Financial Manager declare layoffs are coming without union concessions but gladly accepts a $ 10,000 raise over the last two years (more)"

2010 AAA LEXIS 559 (AAA 2010, Lowe)
The Arbitrator reduced a termination to a 30 day suspension for the following: On one Facebook page was a picture of what appeared to be the Nursing Station in the Emergency Department with a splay of hundred dollar bills across the table with a notation underneath the picture, "THE THINGS YOU FIND ON YOUR PATIENTS WITH NO JOBS. . . LOL." Then, on another Facebook page was a comment, "City general can GFY!!!" The Arbitrator held, “The grievance was sustained in part and denied in part. Just cause does not exist for the Grievant's termination, but does exist for the imposition of a thirty (30) calendar-day suspension.”

2008 AAA LEXIS 889  (AAA 2008, Siegel)

A grievance filed by the Union on March 23, 2007 challenging the discipline of two security officers employed by the University. Both officers were disciplined for certain listings on their personal web pages.  In the case, the issue consists of three (3) pages. The first page of the three is what appears to be a Website title page for Officer A and shows only a small frontal face photo of him with the words alongside, "City Staff -- Criminal Justice". The second page of the Exhibit however, is listed as being part of Officer B's webpages and is labeled as "page 2 of 4". It shows a photo of a uniformed officer sitting at a desk with his legs and feet up on it. In addition, this webpage lists Officer B's employer as the "University", and his job position as "Public Safety Officer." The third page shows Officer A in uniform with what appears to be in his hand a flashlight shining on two young women looking distressed. Officer A is specifically identified under the photo with the names of the two women. The Arbitrator found the University had just cause when it disciplined Officer A and B.

[ii] When officers exceeded their monthly character limits for several months running, OPD's chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of the officers’ August and September 2002 text messages, it was discovered that many of the messages were not work related, and some were sexually explicit. The officers were disciplined for violating OPD rules.  The Court reasoned that even if Quon had a reasonable expectation of privacy in his text messages, the City did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches "are per se unreasonable under the Fourth Amendment," there are "a few specifically established and well-delineated exceptions" to that general rule. City of Ontario v. Quon, 130 S. Ct. 2619, at 2625-26; citing Katz, supra, at 357, 88 S. Ct. 507, 19 L. Ed. 2d 576. The Court has held that the "'special needs'" of the workplace justify one such exception. O'Connor, 480 U.S., at 725, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (plurality opinion); id., at 732, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (SCALIA , J., concurring in judgment); Von Raab, 489 U.S., at 666-667, 109 S. Ct. 1384, 103 L. Ed. 2d 685.