Wednesday, September 19, 2018

Ninth Circuit: The First Amendment Forbids City From Prohibiting Police Officers From Criticizing Police Department Or City

On September 5th 2018, the Ninth Circuit found that a “Last Chance Agreement” restricting an employee’s negative comments about the police department, the city, or its employees, was an unconstitutional restraint on free speech.

In Barone v. City ofSpringfield, a victim advocate and a police department liaison to the city’s minority communities was investigated for two incidents. The first incident involved a tour during which students took photographs in restricted areas. The second incident involved a message left with dispatchers about a potential crime. After the investigation, the Officer was suspended for four weeks and placed on administrative leave. In order to return to work, she was presented with a mandatory Last Chance Agreement (“LCA”).  She refused to sign it “because it prohibited her from reporting on racial profiling and discrimination.”

After her refusal, the police chief provided her with an amended LCA. The amended agreement barred her from saying or writing anything negative about the department, the city, or their employees—although she could report complaints involving discrimination or profiling by the department. The amended LCA also said she would remain subject to a generally applicable order that barred her from publicly criticizing or ridiculing the department. She refused to sign this agreement as well and was subsequently terminated. She filed suit alleging, among other things, that the LCA violated her First Amendment rights.

The Ninth Circuit agreed that the amended LCA violated her constitutional rights. The Court specifically found that the Department’s concerns about potential disruptive speech were unconvincing. The Court concluded that the city needed evidence of past disruption or evidence that the anticipated harm is “real, not merely conjectural.” Without such evidence, the LCA unconstitutionally restrained Barone’s speech as a private citizen on matters of public concern.