‘Quintessential Employee Beef’ Not Protected By First Amendment

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…

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No First Amendment Protection For Safety Complaint Made Through Chain Of Command

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…

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Chief’s Secretary’s Affidavit Not Protected Speech

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…

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Firefighter Loses Job Over Family Dispute Between Supervisors

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…

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Social Networking Policy Violates Free Speech Rights

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…

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Intention To Run Against Sheriff Protected By First Amendment

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…

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No-Confidence Votes A Risky Proposition In Non-Union States

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…

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Supreme Court Reinstates Officer’s Free Speech Lawsuit

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,…

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‘Resign To Hold Office’ Rule Upheld

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…

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New Orleans Loses Attempt To Dismiss Controversial Katrina Case

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…

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Supreme Court Reels In Garcetti Rule

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,…

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Cell Phone Searches After The Supreme Court’s Riley Decision

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…

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Membership In Motorcycle Club Can Be Constitutionally Protected

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…

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No First Amendment Violation In Facebook Case

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…

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Opposition To DNA Testing Of Detectives Constitutionally Protected

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…

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Facebook ‘Like’ Is Protected Speech

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…

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The Strange World Of First Amendment Law Under Garcetti

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…

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Minnesota Deputies’ Case Shows The Evidence Necessary For A ‘Pretext’ Claim

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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Firefighter’s Involvement In Staffing Initiative Protected By First Amendment

Ben Upton was a firefighter for the City of Royal Oak, Michigan. Upton became president of the firefighters’ association in 1996, an office he held until the City terminated his employment. In the face of the City’s considering substantially reducing firefighter personnel, Upton and the firefighters petitioned in the spring and summer of 2004 to place the manning initiative on the November 2004 ballot. The initiative caused discord between…

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Statements To FBI In Criminal Case Not Protected By First Amendment

Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the free speech guarantees of the First Amendment provide no protection to public employees who make statements as part of their jobs. The Garcetti decision has a broad swath, and applies to a wide variety of statements public safety employees make as part of their job. Robert Watts is an officer employed by the City of…

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Freedom Of Association Does Not Cover Friends

David Lord was a corrections officer for Erie County, Pennsylvania. In 2005, Lord met Teo Underhill and the two moved into an apartment together. On January 1, 2006, while the two were sharing an apartment, Underhill was arrested. He was later released into Lord’s custody pending trial. Following a jury trial, Underhill was found guilty of misdemeanor simple assault and disorderly conduct. He was sentenced to 48 hours in…

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First Amendment Protects Speech, Not ‘Mere Candidacy’ For Public Office

Brian Keating is a deputy for the Wayne County, Michigan Sheriff’s Department. In 2006, Keating ran for sheriff against Warren Evans. During the election, Keating was transferred from his road patrol position to one in the County jail. When Keating was informed of his transfer, he became very upset and announced his resignation. Keating later calmed down and reported for his new job at the jail, but he was…

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Probationary Officer’s Refusal To Retract Truthful Report Is Protected Free Speech

Jason Jackler was a probationary police officer in Middletown, New York. On January 5, 2006, Jackler was dispatched to a “Mobil on the Run” convenience store in Middletown to assist MPD Sergeant Gregory Metakes in the arrest and transportation of one Zachary T. Jones. When Jackler arrived, Jones was handcuffed with his hands behind his back. Jackler opened the rear driver-side door of his patrol car and Metakes placed…

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Union’s Contract With Telemarketer Not Protected By The First Amendment

Local 4053 of the International Association of Fire Fighters, which represents firefighters in Maryville, Tennessee, contracted with FireCo, LLC, a telemarketing company, to assist in raising funds by selling tickets to an oldies benefit concert. Michael Doherty and Alan Holmes, the president and treasurer of Local 4053, signed the FireCo contract. Shortly after the telephone sales calls began, the City began receiving complaints from its citizens regarding the calls….

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Internal Affairs Investigation Not Protected By First Amendment

Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees have no free speech right when they “make statements pursuant to their official duties.” In other words, the Constitution provides no protection to an employee for speech that is part of the job, and the employer is constitutionally free to discipline the employee for the speech, even if the speech is truthful. A lawsuit…

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