Case law on public employees' 1st and 4th Amendment rights


As I had said in my column on criminals having more rights that cops, when it comes to free speech, protesters can burn the American flag and call the President profane names and you may be required to protect this expression.

But you can be fired for criticizing your boss or agency even — or especially — on the Internet. In that column I spoke briefly about several court cases, and here I want to expound on two of them somewhat.

Sgt. Vose v. Chief Kliment, 7th Circuit (2007)
You can find further details in the reported opinion, in a nutshell, Vose was a sergeant who had been with his department more than 26 years, including 13 in the narcotics unit, which he supervised.

Vose expressed concerns to his agency’s management about wrong doings by investigators in a multi-agency major case squad that might impact drug investigations under his supervision. The wrong doings included allegations that major case unit detectives were filing false or misleading affidavits with courts in seeking search warrants.

To Vose’s knowledge neither the Deputy Chief nor Chief took any actions on the above complaints or other related ones he made. Finally, Vose was told by the Chief to “get along” or face involuntary transfer to patrol.

Worried that Kliment and Rouse were going to cover up his complaints about the misconduct, Vose met with the city Mayor to discuss his concerns.

Vose was transferred to patrol and learned a command officer advised other officers that Vose's “career in [the criminal investigation division] is history” and that Vose had “burned his bridges.”

Vose felt forced to resign from the Springfield Police Department, and did so on January 19, 2006. He sued, alleging his 1st Amendment rights were violated when the Deputy Chief and Chief retaliated against him for voicing his concerns about the conduct of the major case unit detectives.

In reversing the trial court’s decision that Vose’s speech was protected, the 7th Circuit appeals court held:
“[W]e find that Vose’s speech, albeit an honorable attempt to correct alleged wrongdoing, was not protected by the First Amendment.”

That’s because, while Vose raised issues of public concern, he was not speaking as a private citizen but rather as part of his official duties as supervisor of the narcotics unit. As the Supreme Court noted in Garcetti v. Ceballos (2006):

“[W]hen 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 Supreme Court reasoned that an employer — even a government employer — doesn’t have to pay its employee to be a watchdog or investigative reporter of its operations when that’s not what the employer contracted for.

Nixon v. City of Houston (2007), 5th Circuit
This is a case in which the court found that Nixon’s articles written for a local magazine were outside his duties as a Houston Police Officer (his column hadn’t been authorized by HPD). They also addressed matters of public concern such as his police duties and activities and Department policies and activities.

Nixon was fired when it was learned that his articles also contained, according to HPD, “caustic, offensive, and disrespectful” statements regarding certain groups of citizens, including minorities, women, and the homeless. 

Nixon sued, claiming he was being retaliated against for protected speech. HPD countered that even assuming Nixon’s articles were protected, the department’s interest in maintaining public confidence is so important to its proper functioning because “HPD often relies upon members of the public to provide critical information, to serve as witnesses, to respect law enforcement authority, and to provide financial support.”

Given the wide dissemination of Nixon's articles to the Houston community and the caustic statements in some of them, HPD argued that Nixon’s articles would negatively impact the relationship between HPD and Houston citizens and generally bring “the mission of the [police department] and the professionalism of its officers into serious disrepute,” thereby harming its substantial interest in the proper performance of its functions.

The 5th Circuit court acknowledged Nixon’s substantial interest in the protected speech but on balance concluded it was outweighed by the important government interests.

For more case law, check out Speech and the Public Employee

About the author

As a state and federal prosecutor for over 10 years, Val’s trial work has been seen nationally on ABC'S PRIMETIME LIVE, Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK.

Described by Calibre Press as "the indisputable master of entertrainment," Val is now an international law enforcement trainer and writer who appears in person and on TV, radio, video productions, webcasts, newspapers, books and magazines. She has been a regular contributor to a number of law enforcement publications and has been featured in the Calibre Press Online Street Survival Newsletter, Police Chief magazine, The Law Enforcement Trainer magazine, and The Royal Canadian Mounted Police Gazette.

When she's not working, Val can be found flying her airplane with her retriever, a shotgun, a fly rod, and high aspirations. Visit Val at www.valvanbrocklin.com and contact her at info@valvanbrocklin.com.

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