About Us  |  About Cheetah®  |  Contact Us

Fact issues as to whether SWAT team sniper’s Facebook post advocated unlawful violence support revival of First Amendment claim

By Kathleen Kapusta, J.D.

The appeals court also found a fact issue as to whether the officer’s comment would have likely caused disruption in the police department.

Whether a SWAT sniper’s off-duty Facebook comment that it was a “shame” a suspect who had shot a police officer did not have any “holes’ in him was “a hyperbolic political statement lamenting police officers being struck down in the line of duty—or a call for unlawful violence against suspects,” was a fact issue, the Ninth Circuit ruled, and thus the court below erred in granting summary judgment against the demoted officer’s First Amendment claim. Similarly, said the court, a fact issue also existed over whether his comment would have likely caused disruption in the police department. Although the court was “mindful that our society is in a self-reflective moment about excessive force and abuse of power by those who have taken an oath to protect all citizens equally and uphold the Constitution, it found the district court did not adequately address the objective meaning of the officer’s Facebook comment in its Pickering analysis to weigh his First Amendment right against the government’s interest in workforce discipline. Judge Berzon dissented (Moser v. Las Vegas Metropolitan Police Department, January 12, 2012, Lee, K.).

Facebook post. The former Navy Seal joined the Las Vegas Metropolitan Police Department (Metro) in 2000, becoming a SWAT member six years later. When, in 2015, someone shot a Metro police officer, he commented on a friend’s Facebook post that “it’s a shame [the suspect] didn’t have a few holes in him.” Alerted to the comment by an anonymous tipster, Metro launched an investigation. Although the officer admitted his comment was “completely inappropriate,” he claimed he intended to express his frustration that the suspect had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defend himself.”

Transferred. Finding that the officer’s comment showed he had become “a little callous to killing,” Metro transferred him out of SWAT and put him back on patrol. He subsequently sued, alleging that his disciplinary transfer was unconstitutional retaliation for his protected speech. Granting summary judgment to Metro, the district court held that its disciplinary action was justified under the Pickering balancing test for speech by government employees.

Pickering factors. On appeal, the Ninth Circuit noted the parties did not dispute that the comment addressed an issue of public concern, that the officer spoke as a private citizen, or that Metro transferred him because of his speech. At issue, however, was whether the government had adequate justification to treat him differently than members of the public.

Differing interpretations. Although the court noted that it needed to analyze the officer’s speech in weighing his First Amendment rights against the government’s interest in efficiency, it pointed out that the parties did not agree on the objective meaning of his statement. Metro argued that his comment advocated unlawful use of deadly force, an argument the district court appeared to accept in holding that his comment was not at the “core” of his First Amendment protection.

The officer, however, contended that rather than advocating unlawful violence, he expressed frustration at the perils of police officers being struck down in the line of duty. “Put another way,” said the court, his “comment touches on an important public policy issue that falls within his personal experience.” And although his comment was still inflammatory, under Supreme Court precedent, “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Observing that his statement could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty, the court found a fact issue regarding the statement’s meaning and thus the district court erred in failing to resolve this factual dispute.

Interest in government efficiency. Turning to Metro’s interest in efficiency and employee discipline, the court found a factual dispute as to whether Metro provided any evidence of predicted disruption. The record, said the court, did not support Metro’s contention that the officer’s comment would have caused disruption. Not only was there no media coverage of the comment, there was no evidence anyone other than the anonymous tipster even saw it. Further, the court observed, most people would not have known the officer was a SWAT sniper as nothing in his Facebook profile confirmed that. And that he deleted the comment two months after it was posted made the chance the public would have seen it less likely.

Future liability. Nor was there any evidence to support Metro’s claim that the comment would expose it to future legal liability. Although Metro argued that if the officer were to shoot someone in the future, the shooting would lead to a lawsuit, his deleted Facebook comment would be discovered, the trial judge would admit the comment as evidence, and the jury would rely on it to find Metro liable, it “cited no case in which such a long chain of speculative inferences tipped the Pickering balancing test in the government’s favor.” Accordingly, the court found that Metro failed to show its interests in workplace efficiency outweighed the officer’s First Amendment interests. Thus, the court reversed and remanded to the court below.

Dissent. Dissenting, Judge Berzon argued that the officer “conceded to the district court, more than once, that there was no genuine issue of material fact about the meaning of his comment” and thus he waived any argument about its meaning. Finding Metro’s interpretation of the statement far more reasonable than the officer’s proffered alternative, Judge Berzon would have affirmed the district court’s judgment.

“Protecting the First Amendment right of public employees to contribute to the public dialogue on issues of public importance is of critical importance to our ongoing experiment in self-government,” Berzon noted. She also pointed out that “we are living in a time when, driven by public concern, police departments nationwide are engaged in self-examination concerning how best to curb the use of excessive force by police officers as they carry out law enforcement’s critical role. Tying the hands of those departments in making personnel decisions based on reasonable evaluations of those officers’ ability to make measured judgments about the use of force—especially where, as here, the decision concerns an elite officer entrusted with high-caliber weapons and particularly dangerous assignments—can only stand in the way of these efforts.”