First Amendment Not Lost Due to Public Employment

Most police departments have policies concerning officers making comments via social media that reflect negatively on the department. These policies were not only generally designed to prevent officers from making offensive comments concerning the public they come in contact with professionally, but are also used to prevent publicly criticizing higher ups as well. Violations of these social media policies have always been the quickest way to desk duty, demotion or worse – officers were simply told their First Amendment rights stopped when they put on a badge. But now at least one court has stated otherwise, and administrators are wondering where it will lead next.

When the Fourth Circuit Court of Appeals heard arguments in Liverman & Richards v. City of Petersburg, it was assumed by many that the two officers involved were fighting an uphill battle. You see both Liverman & Richards were veteran officers with the Petersburg Police Department and well aware of an internal policy prohibiting employees from disseminating information ‘that would tend to discredit or reflect unfavorably upon the department” when they made the following posts to a Facebook page:

Sitting here reading posts referencing rookie cops becoming instructors. Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it take at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps enve longer to acquire the knowledge to teach other officers. But in today’s world of instant gratification and political correctness we have rookies in specialty units, working as field training officer’s and even as instructors. Becoming a master of your trade is essential, not only does your life depnd on it but more importantly the lives of others. Leadership is first learning, knowing and then doing. (Liverman, 06/17/2013)

Well said bro, I agree 110%…Not to mention you are seeing more and more younger Officers being promoted in a Supervisor roll. It’s disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience…AND what comes with experience are “experiences” that “they” can pass around to Rookies and younger less experienced Officers. Perfect example, and you know who I’m talking about…. How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 ½ yrs experience in the street? Of less as a matter of fact. It’s a Law Suit waiting to happen. And you know who will be responsible for that Law Suit? A Police Vet, who know tried telling and warn the admin for promoting the you Rookie who was too inexperienced for that roll to begin with. Im with ya bro..smh. (Richards, 06/17/2013)

Once the chain of command became aware of the comments, as well as several follow up comments or responses to other post in the thread, both officers received oral reprimands and 6 months of probation. Several weeks later, the Chief updated department promotion requirements, making officers on probation ineligible. Subsequently, both Liverman and Richard were prevented from applying for open sergeant positions and challenged the earlier discipline.

Over the course of the next several weeks, both officers were the subject of numerous internal investigations, and Liverman resigned prior to being served with a termination notice. Both officers then filed complaints in Federal Court challenging the social media policy, the numerous investigations and Liverman’s termination as violations of their First Amendment rights.

In December 2016, the Fourth Circuit Court of Appeals found in favor of both officers, finding the Department’s social media policy overly broad. This was a deviation from most previous decisions, which generally found in favor of the employing government agency.

No one doubts the need for good order and discipline, nor the fact that unfettered criticism may lead to a breakdown of such order. However, departments, at least in the Fourth District, must now weigh how they will achieve this without, at the same time, restricting an employee’s right to express their personal opinion.

Of course, while the administrators are trying to figure out how they will do this, officers should not take this as permission to say what they wish and damn the bosses. One of the key components of this case, and the primary reason Liverman and Richards were successful in their suits, is the fact that they were off duty when the comments were made. Nothing in this case protects comments made while on duty or which divulge privileged information.

While this is worked, both sides should think twice before responding to social media comments – either by pushing the send button or by following up with discipline.

Disclaimer: The content in this article is the opinion of the writer and does not necessarily reflect the policies or opinions of US Patriot Tactical.

Tom Burrell

Tom enlisted in the US Marine Corps Reserves in 1987. Following service in Desert Storm, he transitioned to active duty with the US Coast Guard. In 1997 he left the USCG to pursue a position in conservation & maritime law enforcement. Tom is currently a Captain and he oversees several programs, including his agency investigation unit. He is also a training instructor in several areas including firearms, defensive tactics and first aid/CPR. In 2006 Tom received his Associate’s Degree in Criminal Justice from Harrisburg Area Community College and in 2010 a Bachelor’s Degree from Penn State University.
Tom Burrell
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