Officer’s Group Text Lawsuits Survives Motion To Dismiss

Police officers in the St. Peters Police Department in Missouri created a text messaging group to update each other about local Black Lives Matter (BLM) protests. Although the group text was intended for official purposes, officers also shared unrelated content. Officer Brian Bresnahan joined the group.

Bresnahan sent the group a video from an animated sitcom called Paradise PD. The video showed a black police officer who accidentally shot himself, with a media headline stating, “Another innocent black man shot by a cop.” According to Bresnahan, the video was satire and a parody of the BLM protests. Bresnahan claimed that he shared the video because he was critical of the protests.

Another officer in the group complained. The next morning, the police chief berated Bresnahan, ordered him to resign, and told him that if he refused, the chief would open an investigation and recommend to the city administrator that Bresnahan be fired. Bresnahan resigned and sued the City, contending that he was retaliated against for exercising his First Amendment right to free speech.

The federal Eighth Circuit Court of Appeals rejected the City’s attempt to have Bresnahan’s lawsuit dismissed. The Court wrote that “we first address whether Bresnahan acted as a private citizen or a public employee when he sent the video. If Bresnahan was acting as a private citizen, his speech may be protected by the First Amendment. If instead he was acting as a public employee, his speech is not protected, and the inquiry ends. For Bresnahan to prevail, we must conclude that his speech was not made pursuant to his official duties.

“Although Bresnahan intended to share the video to criticize BLM protests, his speech was not made pursuant to his official duties. Based on the allegations in the complaint, the group text was used to send both work-related and unrelated mes­sages, and Bresnahan’s video was such an unrelated message. Because Bresnahan’s role in the group text was to share and respond to information about local BLM protests, and not to share his personal views on BLM, Bresnahan has alleged that he was acting as a private citizen when he sent the video.

“We next turn to whether Bresnahan’s speech involved a matter of public concern.

Speech involves a matter of public concern when it relates to any matter of politi­cal, social, or other concern to the community or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.

We must evaluate the content, form, and context of Bresnahan’s speech.

“First, the content of the video suggests that Bresnahan’s speech involved a matter of public concern. Although the video does not expressly mention BLM, it does reference a police officer shooting a black man. It is widely known that a central goal of BLM is to stop police brutality. The emphasis of a police officer shooting yet ‘another’ black man appears to be an acknowledgement of BLM’s self-proclaimed mission.

“At a broader level, the video also appears to criticize how the media char­acterizes police shootings of black men. In the video, the media treats a police officer shooting himself as an example of an ‘in­nocent black man shot by a cop.’ Because speech criticizing the media’s coverage of a particular subject qualifies as a matter of public concern, we find that, when taken as a whole, the video’s content supports a finding that Bresnahan’s speech involved a matter of public concern.

“Next, we consider that Bresnahan shared the video to his coworkers in a private group text. Generally, speech shared with coworkers, as opposed to the press or public, weighs against a finding that the speech involved a mat­ter of public concern. But this is not a bright-line rule. The inquiry is highly fact specific. Here, the fact that Bresnahan’s coworkers were police officers cannot be overlooked. These officers regularly communicated about local protests, and were, by occupation, a focal point of the BLM movement.

“Finally, we evaluate context. At the time Bresnahan sent the video, BLM protests were the subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. Considering the content, form, and context of the speech, Bresnahan alleged that his speech involved a matter of public concern. Our ruling today does not mean that Bresnahan will ultimately prevail, as the district court may later conclude that the City had adequate justification for acting as it did. We leave that determination to the district court in the first instance.”

Bresnahan v. City of St. Peters, 2023 WL 310208 (8th Cir. 2023).

This article appears in the April 2023 issue of our monthly newsletter, Public Safety Labor News.

Also in the April 2023 issue:

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  • Michigan Law Prohibiting Vaccine Mandates Does Not Apply To City Police
  • Paid Union Leave Legal In Texas
  • No Need For Remand Although Not All Charges Sustained
  • No Privacy Interest In Online Videos
  • Firefighter’s Chief-Father Can Consent To Laptop Search
  • Officer Loses Vaccination DFR Claim
  • ‘Me Too’ Issues Must Be Arbitrated
  • Firefighters Reinstated After Unlawful Retaliation For Filing Grievances
  • Back Pay On Grievance Settlement Includes Missed Overtime
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