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.
