Ninth Circuit Addresses How First Amendment Rights Impact An Agency’s Ability To Discipline A Law Enforcement Officer For A Social Media Post

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Feb 25, 2021

In 2015, an individual shot a police officer with the Las Vegas Metropolitan Police Department (Department).  Department officers later found and arrested that suspect.  Upon seeing news of the suspect’s capture, Charles Moser, a SWAT sniper with the Department, commented the following on a friend’s Facebook post about the shooting: “It’s a shame he [the suspect] didn’t have a few holes in him[.]”  Moser made the comment through his personal Facebook profile while off-duty at home.

An anonymous tip notified the Department of Moser’s comment, prompting an internal investigation wherein Moser admitted his comment was inappropriate but explained that he was expressing frustration that the suspect ambushed and shot one of the Department’s officers.  Moser also removed the comment from social media approximately three months after posting it.  Based on the investigation’s findings, Moser was transferred out of SWAT and placed back on patrol out of concern that his comment indicated he had become “a little callous to killing.”  Upon his dismissal from the SWAT team, Moser sued the Department, alleging violation of his free speech right under the First Amendment.

The district court granted summary judgment for the Department, holding that the government’s interest in employee discipline outweighed Moser’s First Amendment right under the applicable balancing test for a speech by government employees.  Moser appealed, and the Ninth Circuit reversed the district court’s grant of summary judgment.

The Ninth Circuit first identified the framework for considering the First Amendment rights of government employees.  An employee must first establish: (i) he spoke on a matter of public concern; (ii) he spoke as a private citizen rather than a public employee; and (iii) the relevant speech was a substantial or motivating factor in the adverse employment action.  Once this is established, the burden then shifts to the government to show that it:  (iv) had an adequate justification for treating the employee differently than other members of the general public; or (v) it would have taken the adverse employment action even absent the protected speech.  If the employer cannot meet this burden, then the employee’s speech is protected under the First Amendment.

On appeal, Moser and the Department only disputed the fourth factor of this test, which requires courts to balance the First Amendment rights of the employee against the government’s administrative interest in avoiding disruption and maintaining workforce discipline.  As part of this balancing test, the Ninth Circuit noted that courts may consider the content of a government employee’s speech to determine how much weight to give the employee’s free speech interests.  However, the Ninth Circuit held that it could not balance Moser’s First Amendment interests against the Department’s administrative interests due to two factual disputes.

First, the Ninth Circuit held a factual dispute existed as to the meaning of Moser’s Facebook comment.  The Department alleged Moser’s comment objectively advocated for unlawful violence by law enforcement, and therefore, is not at the core of First Amendment protection.  In contrast, Moser contended that his comment merely expressed frustration at the dangers law enforcement officers face in the line of duty, which should receive higher First Amendment protection.

Second, the Ninth Circuit held another factual dispute existed regarding whether Moser’s Facebook comment would cause disruption to the Department.  The Ninth Circuit noted that the Department failed to provide enough evidence to support its prediction that the comment would cause disruption in the workplace because there was no evidence that anyone knew about the post other than the individual who anonymously notified the Department of the comment.  The Court also noted that there was little chance the public would have seen the comment because Moser deleted it.

Based on these two factual disputes, the Ninth Circuit held that the district court erred in granting summary judgment to the Department and remanded the case to the district court.

Moser v. Las Vegas Metropolitan Police Department, 984 F.3d 900 (9th Cir. Jan. 12, 2021)


This case illustrates how agencies must carefully analyze potential free speech protections under the First Amendment before disciplining an employee for controversial statements on a personal social media account.  LCW attorneys specialize in advising public agencies regarding the scope and application of the First Amendment to public employment.

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