Police Officer’s Right to Free Speech

While the First Amendment to the U.S. Constitution guarantees your right to free speech, that right is not unlimited when you exercise the right as a police officer. As a police officer, your right to speak, even on matters of public concern, is only protected when the value of the speech outweighs the interest of the police department to maintain efficiency, morale and discipline. Below is a summary of some court decisions that have an affect on a police officer’s right to free speech. (Also see page 1 of the ICOPs Bulletin, October 2008.)

ADKINS V. MILLER (West Virginia, 1992) — A state law provided that sheriff’s deputies were only employed during the term of the sheriff. When a new sheriff was elected in Boone County, Adkins and other employees of the former sheriff reported to work and were told to leave. They sued, charging their dismissal had violated their First Amendment rights of free speech and association. The appeals court ruled that the U.S. Supreme Court had addressed this issue numerous times and that dismissals of employees for political patronage reasons is illegal unless those employees hold confidential or policy-making positions. Further, the court noted that no state can codify such political patronage as the West Virginia law did, because it inhibits the freedom of speech protected by the First Amendment. The appeals court sent the case back to the lower court to determine if the employees were appropriately terminated or should be reinstated.

ANGLE V. DOW (Alabama, 1993) — Angle was a police officer who, after stopping two undercover officers while he was on routine patrol, wrote a satirical memo about the incident including the license plate number and type of vehicle driven by the undercover officers. Also in the memo were critical comments regarding the undercover operation. After jokingly sharing the memo with several officers, Angle tossed the memo in a trash can which someone retrieved and posted on the bulletin board. Subsequently, Angle was charged with compromising the safety of the undercover officers and fired. The county personnel board upheld his firing. Angle then sued, claiming his right to free speech had been violated. The court dismissed the case, noting that law enforcement employees are subject to greater First Amendment restraints than other citizens since weight had to be given to the necessity of maintaining a close working relationship in a quasi-military organization. The court said that in balancing the free speech interests of police officers with the need of their employers, police officers need not suffer a watered-down version of their constitutional rights, but the state’s interest in maintaining its police force can be compelling. The court noted that it could not substitute its judgment for that of the P.D. when evidence demonstrated either that someone’s speech caused an actual disruption of the police operation or a reasonable likelihood of leading to such disruption. The court also found that Angle’s speech was not a matter of public concern since Angle had never attempted to address the matter in a public forum. Therefore, the issue was one of personal interest and his speech was not protected.

BOTCHIE V. O’DOWD (South Carolina, 1993) — Botchie and O’Dowd both attempted to be appointed interim sheriff after the death of the incumbent. O’Dowd gained the appointment and soon thereafter fired Botchie, claiming that Botchie was unable to accept his role. Botchie sued, claiming among other violations that O’Dowd had fired him as a result of his exercise of free speech. The trial court dismissed all of Botchie’s claims without trial. However, the appeals court sent the case back to the lower court to hear the free speech issue. The court found that Botchie’s speech concerned matters of both public and private concern and, as such, was subject to limited protection. Further, the appeals court found that there had been no evidence produced to demonstrate that Botchie’s speech had in any way adversely affected the morale or effectiveness of the sheriff’s department. Therefore, the case was sent back for trial.

CHICO POLICE OFFICERS’ ASSOCIATION V. CITY OF CHICO (California, 1991) — The Chico Police Officers’ Association, the exclusive bargaining agent of Chico law enforcement officers, published a newsletter expressing the members’ concerns. The “Centurion” newsletter was mailed to local newspapers and posted on a P.D. bulletin board that by agreement was reserved for posting union material. In it, an article by association president (Officer Moore) criticized the P.D. management. That same day, the police chief revoked the association’s right to use the bulletin board and, after an internal investigation, placed a written reprimand in the Moore’s personnel file, charging him with violating departmental policy. The association filed suit claiming that the city and police chief violated the association’s exercise of free speech and requested the removal of the reprimand. The courts granted the association’s motion. The appellate court stated that whether a public employer has rightfully disciplined an employee for the employee’s speech requires the court to look at the balance between the employee being able to comment upon matters of public concern, and the interests of the state, as the employer, in promoting efficiency and discipline. Moore’s comments addressed issues of public concern ? the benefits of unionization and the lack of confidence in the P.D. management. The court noted that the city had failed to demonstrate that the newsletter had done any harm to internal discipline or efficiency and, therefore, that the city’s interest did not outweigh Moore’s and the association’s interests in being able to speak freely on such matters.

EVANS V. CITY OF INDIANOLA (Mississippi, 1991) — Several police dispatchers and officers spoke out publicly about their concerns over job security, discipline, lack of trust in the P.D., tension and internal spying by off-duty police officers. They also sought to oust the police chief. Subsequently, these issues were discussed at several community meetings. The mayor and city aldermen refused to accept the chief’s resignation and instead fired the dispatchers and demoted two police officers. The employees sued on the grounds that the city had violated their First Amendment right to free speech. The court dismissed the case, noting that the employees had admitted that their concerns about job security, disciplinary matters and internal spying were not matters of public concern and their speech, therefore, was not protected by the First Amendment.

HANSEN V. SOLDENWAGNER (Florida, 1994) — Officer Hansen gave testimony during a deposition in the criminal prosecution of a former police officer and criticized the prosecution of the case, investigating officers and management of the P.D. Subsequently, the Sunrise police chief ordered an internal affairs investigation which resulted in a recommendation to terminate Hansen. The city manager reduced the action to a five-day suspension. After a grievance challenging the suspension failed, Hansen filed suit alleging that the police chief and internal affairs investigators had violated his free speech rights. The case was dismissed by the appeals court, which ruled that the act of providing testimony, itself, does not provide an absolute shield protecting anything an employee might say and that the speech must be balanced against the need of the P.D. to maintain order and discipline. To be protected, Hansen’s free speech interest must outweigh the P.D.’s interest. Hansen admitted his speech had been unprofessional and had ridiculed both fellow officers and his superiors. The court said that it was reasonable for the police chief to believe that Hansen’s speech had threatened the efficiency of the police force and, therefore, the chief’s and officers’ actions did not violate Hansen’s free speech rights.

HOWELL V. TOWN OF CAROLINA BEACH (North Carolina, 1992) — Howell was a police officer who took a leadership role in advocating the purchase of new weapons for his department. The town manager canceled the request for the new firearms. Howell then wrote a memo, which went around the P.D., outlining the inadequacies of the current weapon the P.D. was using and stating that if an officer was injured due to a weapon malfunction, the town would be held liable. The town manager called in Howell and the chief and gave both an oral reprimand. The town manager felt Howell’s behavior at the meeting was tantamount to insubordination and subsequently terminated him. Howell sued, claiming violation of his due process and free speech rights. The trial court affirmed the firings. Howell appealed. The appeals court found that Howell’s speech did relate to a matter of public concern; a malfunction of a weapon could be of danger to the public as well as to police officers. Further, the court found that the form and context of the Howell’s memo was reasonable. The court sent the issue back for trial to determine if the firing was due to the memo, which would be violative, or some other reason which the town could justify.

LACH V. LAKE COUNTY, INDIANA (Indiana, 1993) — Lieutenant Lach wrote two letters that were published in the local newspaper criticizing the current sheriff and supporting the opponent. As a result, the sheriff charged Lach with misconduct and Lach received a 20-day suspension from the county’s merit board. Upon appeal, the trial court upheld the suspension, but the appeals court overturned the suspension. The appellate court first determined that Lach was speaking on a matter of public concern and attempting to educate the public regarding candidates for public office. In fact, he was involved in an open debate and his letters responded to others printed in the newspaper. Second, the court weighed the interests of the employee speaking on matters of public issues against the interests of the employer who is responsible for running an efficient office, and it ruled that there was no proof that the efficiency of the sheriff’s office was diminished by Lach’s comments. Third, the court had to determine if the discipline was, in fact, a result of the employee’s speech. Lach was able to show that the suspension was a result of his letters and, therefore, the court ruled in the deputy’s favor.

LEONARD V. FIELDS (Virginia, 1992) — Four deputies had requested that the sheriff go before the county board of supervisors and petition the board for an increase in auto mileage reimbursement. The sheriff was reluctant to do so. The deputies, therefore, went to the board with their attorney and requested the increase. During the proceeding, one board member complained about the deputies’ appearance and stated that such an issue should have been brought by the sheriff. When the sheriff heard about the meeting, he fired the four deputies for violating the chain of command and for going before the board without his approval. The officers sued, claiming a violation of their right to free speech. The court upheld the firing on the grounds that the issue of reimbursement of auto mileage was an issue of personal concern, not one of a significant enough social, political or community concern to rise to a matter of public concern. Therefore, the speech was not protected.

LESHER V. REED (Arkansas, 1994) — Lesher worked in the canine section of the Little Rock P.D. and had donated a dog with a written agreement that he would be able to reclaim the dog if it became unfit for police work. However, after the dog bit a child, the P.D. had the dog destroyed and Lesher made several public complaints. He was then transferred out of the canine section. Lesher sued, claiming the P.D. had violated his right to free speech and retaliated against him for his complaints. The court dismissed the claim stating the employee must first show that the speech touched on a matter of public concern. The court ruled that Lesher’s complaints were personal and not protected.

MAXEY V. SMITH (Mississippi, 1993) — Police Chief Maxey had had a number of minor disagreements with the Starkville board of aldermen. Apparently questioning the chief’s ability to adequately investigate a homicide, the board hired a private investigator to reopen the case and the investigator subsequently developed a suspect. Maxey called the investigative report inaccurate and the board of aldermen placed him on administrative leave without pay. Maxey sued, requesting that he be reinstated as police chief. The court ruled that Maxey would likely be successful in establishing that his free speech rights had been violated. The court also noted that although Maxey was an at-will employee subject to dismissal for any reason, that even at-will employees cannot be fired for unlawful reasons including for exercising their First Amendment rights. The court also found that reinstating Maxey would have a positive affect on the P.D., not a detrimental one. Further, the court found that the public had an interest in protecting the rights of its fellow citizens — in this case, Maxey’s First Amendment rights.

OLADEINDE V. CITY OF BIRMINGHAM (Alabama, 1992) — Police Officer Oladeinde had spoken out against wrongdoing in the Birmingham P.D. She filed suit against the city, the mayor and police officials, claiming that they had violated her right to free speech by retaliating against her and other whistleblowers and depriving them of their property interests in their jobs. The court dismissed the property interest claim and the claim against the mayor. However, the court found evidence indicating that police officials had deprived Oladeinde of her First Amendment rights and returned the case for trial.

PLYMOUTH POLICE BROTHERHOOD V. LABOR RELATIONS COMMISSION (Massachusetts, 1994) — Using a P.D. computer, Abbott, the police union president, e-mailed a message regarding an unresolved bargaining issue and referred to the city’s bargaining team as “pigs, cheats and liars.” The message was later printed and posted on the union bulletin board in the station locker room. Subsequently, the police chief notified Abbott that he was being suspended for five days for insubordination and conduct unbecoming, even though the chief acknowledged that Abbott was addressing a bargaining issue. The union filed an unfair labor practice complaint, but the Labor Relations Commission dismissed the complaint as did the trial and appeals courts. The appeals court ruled that “an employee may not act with impunity even though he is engaged in a protected activity.” His rights must be balanced with the P.D.’s right to maintain order. The commission and courts noted that Abbott’s derogatory comments were not made in the heat of negotiations but at a later time and, therefore, they affirmed that the suspension was not a result of Abbott’s protected activity.

PRUITT V. HOWARD COUNTY SHERIFF’S DEPARTMENT (Maryland, 1993) — The Pruitts, a sergeant and a major, and other officers of the county sheriff’s department, liked playing “Hogan’s Heroes” and started using exaggerated German accents, military mannerisms and the like in front of other officers. The conduct was reported in a local newspaper and was witnessed by the sheriff. Administrative charges were filed, charging the officers with conduct unbecoming. The Pruitts were ultimately fired. They appealed and the court dismissed their appeal, ruling that for an employee’s speech to be protected, it must concern an issue of such public interest so as to outweigh any adverse affect it may have upon the interest of the employer in maintaining the public service. The Pruitts were not speaking to the department’s operation and while their joking around did not affect the operation, it did damage the department’s public image. The speech therefore was not protected by the First Amendment.

SCHNABEL V. TYLER ( Connecticut, 1993) — A gas station owner was allegedly encouraged by a police officer to complain about deficiencies in the criminal investigation of an armed robbery. Subsequently, the owner criticized the police chief at a city council meeting. Chief Schnabel then launched an internal investigation to identify the officer who had encouraged the complaint. His investigation focused on Police Officer Tyler. When Tyler refused to answer questions without his attorney present, he was suspended. The following day, Tyler returned to the chief’s office with his attorney. After first denying he had spoken to the station owner for fear of being fired, he admitted he had talked with her. Tyler filed a notice that he intended to sue the chief and the town, and he made public statements and wrote a letter to the editor critical of the chief and claiming racism in the P.D. The chief then sued Tyler for defamation. Tyler countersued, claiming free speech and equal protection violations. Tyler alleged further that the chief had continually harassed him by assigning him to clerical work, having him document a daughter’s illness for which he missed work, and having him guard an unrestrained and often violent prisoner. The appeals court affirmed the decision in favor of Tyler, finding that Tyler had proved all of his counterclaims. Further, the court found that Chief Schnabel had violated Tyler’s First Amendment rights and that the evidence had shown that the chief had retaliated against Tyler for his public criticism. The decision found that Tyler’s speech did address “important matters of public concern” and, as such, his speech was protected.

SMITH V. FRUIN (Illinois, 1994) — A Chicago detective complained to his commander about coworkers smoking in designated non-smoking areas, but nothing was done to correct the problem, and he asked his commander and other superiors for a new work location. The detective was then reassigned to investigate sex crimes. He sued the P.D. for violating his First Amendment rights by assigning him to a punishment detail. At the appellate level, the court noted that for speech to be protected, it must be on a matter of public concern. Although recognizing that second-hand smoke is a public concern, the court found that the detective’s complaint did not address changes in the overall work environment, but only in his own workplace. Therefore, because the detective was only speaking for himself, the speech was not of public concern and not protected.

STOUGH V. GALLAGHER (Florida, 1992) — Stough was an Orange County sheriff’s captain. While off-duty, he attended a number of public functions during the election campaign, spoke in support of Gallagher’s opponent, and helped raise funds for the opponent. Gallagher, upon his election as sheriff, demoted Stough to sergeant and Stough sued, claiming a violation of his right to free speech. The court noted that Stough’s speech was clearly a matter of public concern and that the manner, time and place of Stough’s speech showed that not only was the speech of public concern, but it did not affect the department’s efficiency. His statements were made off-duty in public forums and at a time when voters were seeking information on the candidates. Therefore, the court ruled that the demotion was clearly related to Stough’s protected speech, denied the sheriff’s request to dismiss and set the matter for trial.

THERRIEN V. HAMILTON (Massachusetts, 1994) — Therrien, president of the local police union, publicly criticized police policies and elected officials. During the mayoral election campaign, he was outspoken. Hamilton, upon being elected mayor, allegedly had a city attorney ask police supervisors if Therrien’s work was unsatisfactory or if he did anything worthy of getting fired. Therrien sued the mayor, claiming that the conversation between the city attorney and his supervisors had chilled his right to speak freely. The court granted the mayor a judgment based on the fact that Therrien had not been fired and was still expressing his opinions in public. Therefore, Therrien had not been deprived of his rights. The court also found that the mayor had the authority to fire Therrien if he did anything worthy of such action.