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

On September 5^th 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.

Court Finds Note in "Evaluation Log" Not Punitive Action Under POBR

     In an unpublished decision, the Court of Appeal held a note in an “evaluation log" is not a “punitive action” within the meaning of POBR.  Scott Kansaku v. City of Hermosa Beach et al. started after an IA investigation into citizen complaint.  After the investigation, the local police chief decided to enter a note into the officer’s evaluation log about the incident.  The officer then requested an administrative appeal and the department denied the request.  The officer filed a claim in superior court alleging the city violated POBR by denying him the administrative appeal and not allowing him access to the evaluation log.

     The Court found the city’s action of entering the comment in the evaluation log did not constitute a punitive action under Government Code section 3304. The Court stated there was no discipline imposed nor was there a written warning that future discipline would occur if the behavior continued.  Rather, the court viewed the comment as a reminder when it came time for the officer’s performance review.  The department claimed supervisors use log notes assist to complete employees’ annual performance reviews and to facilitate communication between supervisors and subordinates.  Indeed, the court stressed there was no evidence the evaluation log was used for any purpose other than preparing performance evaluations.  The court also decided the officer did not show sufficient facts to prove he was denied access to the comments because he signed a document indicated he knew the charge was sustained.

Court of Appeal Upholds Police Officer's Termination

In an unpublished opinion, Lake v. City of Hercules (January 26, 2012) 2012 WL 243203, the Court of Appeal upheld a police officer's termination even though the city failed to call a key witness against her.

The plaintiff, a police officer with the City of Hercules, was assigned to an interagency narcotics task force. She told the Chief of Police she needed an assault rifle as part of those responsibilities.   However, the Chief believed she had lied to him to obtain his approval for the purchase of the rifle and she was terminated for dishonesty. The employee appealed the determination to superior court.

At trial, the officer claimed she was denied a fair administrative hearing since the City failed to call its main investigator as a witness. However, the Court found the City was not required to call the investigator as it did not rely solely on the report to prove its case.  As a result, the Court found sufficient evidence to show the employee was dishonest and upheld the termination.

Court of Appeal Finds Police Chief's Termination Violated POBR

In Robinson v. City of Chowchilla, (5th DCA F059608) December 23, 2011, 2011 WL 6450602, the Court of Appeal held the city violated POBR when it terminated Robinson, the city's police chief, without the requisite notice, statement of reasons, and opportunity for an administrative appeal. Following termination Robinson filed a petition for a writ of mandate claiming violations of POBR. POBR has special provisions for chiefs of police. Specifically, Government Code section 3304(c) provides:

“No chief of police may be removed by a public agency, or appointing authority, without providing the chief of police with written notice and the reason or reasons therefor and an opportunity for administrative appeal. For purposes of this subdivision, the removal of a chief of police by a public agency or appointing authority, for the purpose of implementing the goals or policies, or both, of the public agency or appointing authority, for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons. Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.”

The City claimed the notice and appeal provisions apply only if a police chief has a protected property or liberty interest. The Court of Appeal, however, rejected this argument, finding the last sentence of the subsection merely clarified that no new property interest was being created, but has no effect on procedural protections set forth elsewhere in the subdivision.

The Court also held the City removed Robinson from office, thereby violating POBR, when it forced Robinson to leave his physical office, took the authority of police chief away from him, and gave both the physical office and the authority of police chief to someone else, irrespective of when it stopped paying him.