On April 27, 2017, Cleveland Police Officer Sean Gorman received a call to go to a Cleveland strip club. He texted Officer Aaron Petitt to ask for help. The following exchange of messages ensued: “Gorman: Stop down to hustler apparently there are some middle eastern types giving people a hard time we are in route.Petitt: Packing up. Be there soon.Gorman: Take your time.Gorman: Sorry for bothering you SirPetitt: Never…
To be elected county sheriff in California, a person must meet certain law enforcement experience and education requirements set forth in the state’s government code. In 2018, local business owner Bruce Boyer filed a candidate application to be placed on the ballot for Ventura County Sheriff in an upcoming primary election, Boyer did not have the experience required by the statute. When the county clerk refused to place his…
On January 4, 2012, four members of the Hillview, Kentucky Police Department – James Barrow, Leo Cook, Police Chief Glenn Caple and Kenneth Straughn – went to the home of Mayor James Eadens after Eadens reported suspicious activity on his property. Eadens was not home when the officers arrived, but his son Allen was there. While looking around the yard, Straughn found a backpack tucked inside a tire behind…
Dr. Nancy King worked under contract for Polk County, Florida and for fifteen years was the primary person responsible for determining whether firefighter applicants were medically qualified. Ordinarily, King would rely on a national standard known as NFPA 1582 to determine if the candidate was capable of performing the tasks of a firefighter. She would then make a recommendation to the County. King’s lawsuit revolved around one applicant, “J,”…
Tamela Muir, Bert Muir, and Ben Boswell worked for the Decatur County Sheriff’s Office (DCSO) in Iowa. Tamela began working for the DCSO in November 1996 as a jailer and dispatcher. Her employment was at-will. Bert started working for the DCSO on March 19, 1998, when he was elected Sheriff. He hired Boswell as a Deputy Sheriff in September 2001. Tamela and Bert were married in January 2008, and…
With the Supreme Court’s 2014 decision in Lane v. Franks, some believed that a firm rule had been established that the off-duty testimony in court by a public employee was absolutely constitutionally protected by the First Amendment, and could not be the basis for discipline. A recent decision from the federal Sixth Circuit Court of Appeals shows that the lower courts are not giving such an expansive reading to…
Jonathan Sprague served as a firefighter, and eventually as a captain, for the Spokane Valley Fire Department (SVFD) in Washington. During his employment, Sprague and other SVFD employees formed the Spokane County Christian Firefighter Fellowship. Sprague created a list of work email addresses for 46 firefighters that he believed were interested in the Fellowship’s activities. Sprague began using SVFD’s email system to send emails about the Fellowship’s activities. SVFD’s…
Scottie Bagi and Gary Vojtush are firefighters and medics for the City of Parma, Ohio. The Department maintains a Tactical Emergency Medical Specialist (TEMS) unit consisting of specially trained firefighter medics who provide emergency medical support to the city police department’s SWAT team in high-risk situations. In the event of an injury, TEMS unit members treat the police first, then innocent bystanders, then criminals. In 2011, Bagi drafted a…
As far as the public sector workplace is concerned, Garcetti v. Ceballos, 547 U.S. 410 (2006) is without doubt the most impactful constitutional law case in the last several decades. In Garcetti, the Supreme Court changed years of jurisprudence by holding that if a public employee engages in speech arising out of his/her job, the speech has no free speech protections. Hundreds of lower court opinions have followed in…
Firma Helget worked for the City of Hays, Kansas, as the administrative secretary for the Hays Police Department. One of Helget’s official duties was to act as the Department’s purchasing agent. In November 2010, she prepared a list of officers who were due new ballistic vests in the upcoming year. Helget presented the list to then-Assistant Police Chief Philip Hartsfield, who instructed her to remove Officer Blaine Dryden from…
Glen Naghtin was a firefighter for the Montague, Michigan Fire Department. Two brothers, Donald and Dennis Roesler, also worked for the Department. Donald was a unit captain and Dennis was the Fire Chief. In 2009, the Fire District’s Board authorized the construction of a new fire station. After construction had commenced, Donald Roesler began expressing concerns about the structure, including numerous fire-code violations and deviations from the station’s planned…
Herbert Liverman and Vance Richards were veteran police officers for the City of Petersburg, Virginia. In April 2013, the Police Chief issued a general order revising the Department’s social networking policy. The preface to the revised policy prohibited in sweeping terms the dissemination of any information “that would tend to discredit or reflect unfavorably upon the Department or any other City of Petersburg Department or its employees.” The central…
The Kane County, Illinois Sheriff’s Office hired Steven Yahnke in 1986, and he worked as a deputy sheriff for more than 20 years, eventually holding the rank of sergeant. The position of sheriff is an elected post in Kane County, and in 2006, then-Sheriff Kenneth Ramsey opted to retire rather than run for reelection. Deputy Sheriff Patrick Perez decided to run for the post, and Yahnke also contemplated entering…
Under the rule in Garcetti v. Ceballos, 547 U.S. 410 (2006), the First Amendment only protects the speech of public employees if they “speak as a citizen on a matter of public concern.” In a union environment, there is little question but that a no-confidence vote on the performance of a chief is protected speech, and is a matter of public concern. However, a very different result can be…
In 2005, Jeffrey Heffernan was a police officer in Paterson, New Jersey. He worked in the office of the Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed both Chief Wittig and a subordinate who directly supervised Heffernan to their current positions. Heffernan was a good friend of Spagnola’s. During the campaign, Heffernan’s mother,…
Some public sector employers have so-called “resign to hold office” rules. Indiana, for example, has a statute that prohibits individuals from simultaneously holding elected office and being employed in the same unit of government. These rules prohibit law enforcement officers and firefighters from successfully running for public office and continuing to hold their jobs as employees. “Resign to hold office” rules have been consistently upheld as constitutional in spite…
NOTE: The following case was decided just prior to Lane v. Franks, discussed on page 5 of this newsletter. It emphasizes the constitutional protection given to truthful testimony. Jeffrey Winn was a commander for the New Orleans Police Department. After he testified for the defense in the trial of fellow police officers accused of murdering Henry Glover and burning his body, the Department fired Winn. Winn sued, claiming his…
No rules of constitutional law arising out of the public sector workplace have been as impacted by a Supreme Court decision as the free speech rights of public employees were by the Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,…
Some employers have had a practice of ordering employees to produce personal cell phones during an internal affairs investigation. Often, this occurs in the course of an investigation into off-duty conduct, and may or may not include misconduct allegations pertaining directly to the employee’s phone. The Supreme Court’s June 2014 decision in Riley v. California will likely greatly change the legal landscape in the area. Riley was a criminal…
A fairly little known aspect of the First Amendment is known as “freedom of association.” This freedom protects an individual’s right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural purposes, even if the association is with an unpopular organization. In the past, courts have considered how freedom of association applies to law enforcement officers who were members of groups…
By Anil Karia Maria Gresham was employed by the City of Atlanta as a police officer. She maintained a Facebook page, set to “private,” that was available for viewing by a number of her “friends,” who could share her posts more widely. Gresham made critical comments on her Facebook page about a fellow Atlanta officer for allegedly unethically interfering with Gresham’s investigation of a person she had arrested for…
Christopher Burns is employed as a detective by the Connecticut Department of Public Safety (DPS). In the summer of 2008, DPS requested DNA samples from some employees. In response, the Connecticut State Police Union issued a memorandum stating that the Union’s position was that its members “not volunteer to provide a DNA sample to the agency.” On January 28, 2009, Burns had several conversations regarding his concerns about the…
B.J. Roberts is the Sheriff of the City of Hampton, Virginia. The Hampton City Police Department has primary responsibility for law enforcement in Hampton. However, the Sheriff’s Office maintains all city correctional facilities, secures the city’s courts, and serves civil and criminal warrants. Roberts was up for re-election in November 2009, having served as Sheriff for the prior 17 years. Jim Adams announced in early 2009 that he would…
There’s little question that the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) brought about a revolution in First Amendment law. Under Garcetti, no First Amendment free speech violation occurs if an employer retaliates against an employee for making a truthful statement as part of the employee’s job. So it was that there was a bit of an Alice In Wonderland air to a recent decision…
Many “retaliation” cases follow the same general structure. First, the employee must present a prima facie case by showing that (1) he engaged in an activity protected by the First Amendment, (2) he suffered an adverse employment action, and (3) the protected conduct was a “substantial or motivating factor” in the employer’s decision to take the adverse employment action. The employer can rebut the employee’s prima facie showing by…
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