No Free Speech Violation Posed By Ban On Releasing PD Materials While Criminal Investigation Active

The contentious relationship between Washington D.C. Police Chief Cathy Lanier and the District of Columbia Fraternal Order of Police (FOP) has produced yet another significant court decision. The latest case involved Kristopher Baumann, who, pursuant to the contract between D.C. and the FOP, is assigned full-time to act as the Chairman of the FOP.

On Saturday, May 30, 2009, the Department’s Emergency Response Team (ERT) responded to an incident in which a suspect barricaded himself inside a residence. During the standoff, the following radio exchange, excerpted in relevant part, took place between members of the ERT:

08:31: Command to Alpha One, be advised I’m being ordered to give you the go to deploy gas. Copy?

08:49: Alpha One to ERT Two, if you deploy that gas and we are not prepared for that, we are not prepared to [inaudible] just yet, please stand by for just five more minutes.

09:00: [ERT Two] Copy, I just need communication from you because I’m getting, ah, issues down here. I just need you to keep me informed so I can inform them because, I’m getting – pressured.

09:13: [Alpha One] I understand ERT Two, ’cause I’m trying to put a couple of things in place here. If you can give me a couple of minutes, I’ll be happy to brief you.

09:40: Alpha One to ERT Two, would you let command know that we have been in contact with him again, and if they will please just give us a couple of minutes, I’m gonna try to resolve this…

09:50: [ERT Two]…I’ll advise.

10:17: [Delta One replies to Charlie One]…also can you advise ERT One, Two, the Command and the Chief they’re in a, ah, bad situation. I can see ‘em from the front door here. So, if anything happens, they’re in the line of fire.

10:37: [Charlie One] I’ll tell them to move out of the way…

The incident was resolved shortly thereafter without deploying tear gas, and the Department started a criminal investigation into the incident.

The following Monday, ERT members voiced safety concerns to Baumann as a result of “someone outside of ERT interfering with a barricade scene.” Baumann listened to the radio transmissions during the incident and released a portion of the recording to the media.

The Chief disciplined Baumann for releasing the recording, finding that he violated a Department rule prohibiting the release of Department materials while a criminal investigation was pending. Baumann challenged the discipline on the ground that the release of the recording was protected by the free speech guarantees of the First Amendment. A federal trial court rejected Baumann’s lawsuit.

The Court acknowledged that the transmissions were a matter of public interest. However, the Court concluded that “while Baumann’s First Amendment interest in opining about Police Department policy and procedures is strong, his interest is not significantly burdened by the General Order. The parts of the General Order at issue prohibit the release to the public of a defined and narrow set of protected information; specifically, confidential information that may jeopardize the successful conclusion of an investigation. The rule does not prevent Baumann or any other officer from offering his or her personal views about Department policy generally or the handling of the May 30, 2009, barricade situation. Indeed, the General Order does not prevent Baumann from opining to the media that after reviewing the recording he thought the Department did not follow the proper procedures in handling the barricade situation.

“Under the General Order, officers are only limited from releasing confidential information, and only if it may jeopardize the successful conclusion of an investigation. Once an investigation is complete, confidential information pertaining to that investigation, such as the information contained in the recording at issue, is no longer restricted by the rule.

“The interests the Department seeks to protect by employing the General Order to limit the disclosure of information, like that released by Baumann, are real and not conjectural. Baumann released a recording to the media that contained information central to two separate ongoing criminal investigations and an ongoing internal investigation into Departmental practices. In reviewing the recording before releasing it to the union, the Department had determined that it should be for internal investigation purposes only and not released to the public. The Court can reasonably infer, especially in light of the police department’s strong interest in confidentiality and discipline, that releasing the recording to the media just as the MPD was beginning to gather information to conduct these investigations, was disruptive to the MPD’s ability to effectively handle these investigations.”

Baumann v. District of Columbia, 2013 WL 5781713 (D. D.C. 2013).