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Police Officer Was
Neither Terminated in Violation of Public Policy Nor in Violation
of the First Amendment Because His Lurid Book Severely Impaired
His Ability to Perform Essential Duties and Caused Disruption
within the Police Department.
In a federal court
jury trial handled by Melanie Poturica and
Mark
Meyerhoff of our Los Angeles office, judgment was entered on
behalf of a City and the City’s Chief of Police in a case in which
a Police Officer filed an action for (1) wrongful termination in
violation of public policy and (2) violation of his First
Amendment rights, after the City terminated the officer in July
2000, for authoring, publishing and selling a book to the general
public. The Officer claimed that the termination violated his
First Amendment rights because he was discharged for revealing
alleged unlawful, immoral and unprofessional conduct within the
City’s Police Department. He also claimed that his termination was
in violation of public policy because he was terminated for
writing a book which uncovered alleged sexual harassment within
the Department and the Department’s alleged preferential treatment
of female and gay employees.
The City contended the Officer was terminated for engaging in
speech which was not protected by the First Amendment and which,
in any event, caused disruption in the Department. Specifically,
the City argued that the Officer was terminated for engaging in
speech consisting of offensive comments about past and present
Department employees, including slurs aimed at women, homosexuals
and certain ethnic groups, as well as speech which invaded the
privacy, and personally attacked, several of the Officer’s former
and current superiors and co-workers. The City also argued that
the alleged claims made in the book were false, though the issue
of truth or falsity was not at issue at trial.
Prior to trial, the City attempted to dispose of the action on
summary judgment. The City argued that the Officer was terminated
for speech which was not a matter of public concern and thus had
no protection under the First Amendment. Speech is a matter of
public concern when it allows the public to make informed
decisions about their government. While the Court agreed that
portions of the book did not address matters of public concern,
the Court determined that the book – taken as a whole – did
address a matter of public interest and could, as a matter of law,
be protected by the First Amendment. The City also sought summary
judgment on the grounds that even if the book were a matter of
public concern, the disruption caused by the book outweighed any
First Amendment protection which should be afforded to the book.
Among other things, the City asserted that the book disrupted
co-worker relations within the Department, violated City and
Department policies, impaired the Officer’s ability to perform his
duties and affected the ability of the Officer’s superiors to
trust the Officer. The Court found that because factual disputes
existed concerning the balancing of the Officer’s right to free
speech against the City’s right to operate an efficient and
effective Police Department, the matter could not be determined by
summary judgment. Thus the case proceeded to a jury trial.
The jury returned a verdict in favor of the City on the Officer’s
claim for wrongful termination in violation of public policy. As
for the Officer’s First Amendment claim, the jury was requested to
answer certain factual questions concerning the effect of the book
on the Department and submit its findings to the Court. The Court
then considered the jury’s findings and in deciding whether the
City violated the Officer’s First Amendment rights. Prior to the
end of trial, the City filed briefs requesting the Court to
determine that, based on the evidence presented at trial, judgment
in favor of the City should be granted as a matter of law. The
City also filed a brief requesting that, based upon the jury’s
factual findings, the Court should decide that the disruption
caused by the book outweighed the officer’s First Amendment rights
to write the book.
On April 28, 2004, the Court issued judgment for the City on both
of the Officer’s claims and awarded costs to the City.
As for the Officer’s claim for wrongful termination in violation
of public policy, the Court affirmed the jury’s award in favor of
the City, and, in addition, ruled for the City as a matter of law.
First, the Court agreed with the City that the officer’s ability
to serve as a testifying officer in court was severely impaired as
a result of the book. Specifically, the Court agreed that the
Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963) would
require the City to disclose to a criminal defendant evidence that
is favorable to the defense and material to guilt or punishment.
The Court further determined that the book contained statements
that exhibit the Officer’s bias against gays, women and members of
certain ethnic groups, and that the City would be required to make
defense lawyers aware of such statements in the book. For this
reason, the Court determined that the Officer’s termination was
lawful since the book interfered with the Officer’s ability to
perform his duties effectively (i.e., testify effectively
in court).
The Court also determined as a matter of law that the disruption
caused by the book outweighed the Officer’s First Amendment
rights. The Court considered the jury’s factual determinations,
which concluded that the book affected co-worker relations and
undermined the trust and confidence which the Officer’s superiors
had in him. In addition, the Court held that portions of the book
violated several City and Department policies requiring officers
to show respect for each other. Finally, the Court ruled as a
matter of law that the effect of the book upon the close
relationships which exist in a police department justified the
City’s decision to dismiss the officer from his position.
Finally, the Court found that the Police Chief was entitled to
qualified immunity in his individual capacity as to the Officer’s
First Amendment claim. The Court’s decision was based upon its
determination that the Officer’s First Amendment rights were not
violated. In addition, the Court decided that it was reasonable
for the Police Chief to conclude that the Officer’s speech
warranted termination and that the Police Chief did not violate
“clearly established” law. |
