Complaint About Internal Investigation Does Not Amount To Protected Speech

Bert Nederhiser was a sergeant for the Portland, Oregon Police Bureau. Nederhiser was involved in an incident in which he used his firearm on a crime suspect who was attempting to elude police. Of numerous officers at the scene, Nederhiser was the only one present to use deadly force.

Nederhiser’s commander reviewed the criminal investigation of the incident and issued a report in which he concluded that although Nederhiser’s decision to fire his gun in the crowded hallway of a hotel was legally acceptable, it was not a good one because “the risk to other officers posed by Nederhiser’s lethal fire outweighed the immediate threat presented by the suspect.”

The commander’s report eventually became the basis for a recommendation that Nederhiser be terminated. After a pre-disciplinary hearing, the Police Chief elected to demote rather than terminate Nederhiser.

During the course of the disciplinary proceedings, Nederhiser sent a letter to the captain of the Bureau’s personnel division alleging that internal affairs investigators altered or mischaracterized testimony in an effort to justify the decision to fire him. After he was demoted, Nederhiser filed a federal court lawsuit alleging that his discipline was in retaliation for sending the letter concerning the internal affairs process.

A federal court dismissed Nederhiser’s lawsuit. The Court found that for speech to be protected by the First Amendment, the speech must address a matter of public concern. The Court was unconvinced that Nederhiser’s letter did so.

The Court ruled that “the contents of the letter cannot be characterized as a matter of public concern. Nederiser identifies only problems related to the investigation into his conduct, and references no broader purpose. The statement that sums up the contents of the letter is Nederhiser’s summary that ‘potentially negative testimony was kept, and tremendous amounts of testimony that would have assisted me in my exoneration was deleted.’ This is not the kind of speech that is constitutionally protected because it deals solely with matters that affected only Nederhiser and how the investigation into his conduct should have proceeded.”

Nederhiser v. Foxworth, 2007 WL 869710 (D.Or. 2007).

This article appears in the May 2007 issue