Highway Patrol’s Overbroad Policies Violate Free Speech Rights

In 2011, Nevada Highway Patrol Major Kevin Tice sent an email to the members of the Patrol’s Canine Drug Interdiction Program. The email established a new policy on public comments about the Program, and provided:

“As we reengage in K9 and interdiction program oversight at the regional command level, it is important to ensure appropriate flow of communication. It is critical that we identify and resolve issues and inconsistencies that have developed since the current program’s inception. Effective immediately, except for allied law enforcement agencies and High Intensity Drug Trafficking Area representatives, there will be NO direct contact between K9 handlers, or line employees, with ANY non-departmental and non-law enforcement entity or persons for the purpose of discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect logistics therein.”

Tice’s email was sparked by concerns arising from, in the words of one of Tice’s superiors, “questions coming from the legislature and from governor’s offices and from different sources with incomplete understandings of what’s going on.” Tice later explained that the policy’s intent “was to forbid direct contact with ‘Friends for K9’ representatives by the K9 and interdiction employees.” Tice described Friends for K9 as a private organization that was “intentionally meddling into how the unit was run.”

A group of canine officers sued, contending that the policy violated their free speech rights under the First Amendment. The case eventually wound up in the federal Ninth Circuit Court of Appeals.

The Court found that the policy was unconstitutionally “overbroad” in that it regulated both speech that could be controlled by the Patrol as well as speech protected by the First Amendment. As the Court described it, “although the First Amendment protects some expressions related to a speaker’s job, when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Accordingly, if Tice’s policy applies only to speech made pursuant to troopers’ official duties, our analysis is at an end. However, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. As the Supreme Court has emphasized, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee – rather than citizen – speech.

“Even if some speech implicated by Tice’s email edict might fall within the troopers’ official duties, much of the potentially affected speech does not. Tice’s policy, drafted very broadly, could reasonably be understood to forbid, on penalty of employment discipline, speech made by K9 troopers in their capacities as citizens.

“On a straightforward reading of the sweeping language in the email, it is not confined to official agency business nor to information that would harm pending investigations or expose sources and methods. The policy as enunciated encompasses employees’ opinions about the program. It also reaches legitimate whistleblower complaints about the program.

“And, although the policy affects only speech relating to the K9 or drug interdiction programs, we may not assume that the troopers speak as employees rather than citizens on every occasion in which they discuss information learned or opinions developed while on the job. Speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. Absent any qualification regarding what types of information or opinions regarding the K9 program are subject to the policy, we cannot say that Tice’s edict affects only speech made pursuant to the affected troopers’ official duties.

“Further, the policy included in Tice’s email seemingly applies not only to speech intended for the media but also to speech directed to community groups, to city and state legislators, to state and federal officials, and even to family members and friends. Communication with individuals or entities outside of an employee’s chain of command is unlikely to be pursuant to the employee’s official duties. Indeed, curtailing contact with a particular community group was Tice’s stated intention in sending the email. That Tice’s email specifically exempts speech to allied law-enforcement agencies and High Intensity Drug Trafficking Area program representatives from the prohibition on direct contact suggests that, to the extent the policy is targeted at all, it is targeted at speech not made pursuant to the affected troopers’ official duties.

“We also have little difficulty concluding that the policy announced in Tice’s email reaches speech on matters of public concern. The policy is not limited to ‘direct or indirect logistics’ relating to the K9 program, which Tice identifies in his email as a subset of all speech affected by the policy. Nor is it limited to speech concerning internal personnel disputes. The troopers silenced by Tice’s policy, members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of their government employer should be spent. The troopers’ freedom to offer their informed opinions about the direction of the K9 program on their own time, as concerned citizens, is a prerogative that the First Amendment protects but that Tice’s edict forbids.”

Moonin v. Tice, 2017 WL 3598083 (9th Cir. 2017).