E-Alert Case Updates

Fourth Circuit Considers Employee Challenge to Police Department Social Media Policy

Herbert E. Liverman, et al. v. City of Petersburg, et al.
No. 15-2207, (United States Court of Appeals for the Fourth Circuit, December 15, 2016)
by Caroline E. Willsey, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.ca4.uscourts.gov/Opinions/Published/152207.P.pdf

In Herbert E. Liverman, et al. v. City of Petersburg, et al., No. 15-2207, the U.S. Court of Appeals for the Fourth Circuit considered a challenge brought by two (2) police officers to disciplinary actions they received for violating the City of Petersburg Police Department’s social media policy. The district court denied relief on virtually all of the police officers’ claims.

Plaintiffs Herbert Liverman and Vance Richards were police officers in the City of Petersburg Police Department. Both men served under Chief John Dixon. In April 2013, Chief Dixon issued an order revising the Police Department’s social media policy, which governed Police Department employees’ use of social media. Two (2) key provisions of the social media policy were at issue in the case. The first provision prohibited employees from posting negative comments about the internal operations of the Police Department or specific comments about the conduct of supervisors or peers (the “Negative Comments Provision”). The second provision permitted Police Department employees to comment on issues of general or public concern so long as the comments did not “disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence” (the “Public Concern Provision”).

On June 17, 2013, while off-duty, Liverman posted a lengthy message on his Facebook page lamenting “rookie cops becoming instructors.” Richards, also off-duty at the time, commented on Liverman’s Facebook post. Richards expressed his agreement with Liverman (“Well said bro, I agree 110%”) and referenced another colleague (“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 1/2yrs experience in the street?”). Later that day, Liverman responded to Richards’ comment and Richards again responded to Liverman, continuing to bemoan the ease with which young officers were promoted within the Police Department. The original post garnered over thirty (30) “likes” – most of which were by current or former Police Department officers.

Liverman and Richards’ Facebook exchange was ultimately reported to Chief Dixon, who determined that the statements violated the Police Department’s social media policy. Liverman and Richards were each orally reprimanded and given six (6) months’ probation.

Several weeks after the incident, Chief Dixon altered the Police Department qualifications for promotion. The new protocol excluded officers on probation from participating in the promotion process. Accordingly, when Liverman and Richards applied for open sergeant positions, the Police Department notified them that they were ineligible for promotion. Liverman and Richards notified the City of Petersburg on October 1, 2013, that they intended to challenge the disciplinary actions. Shortly thereafter, Liverman and Richards were the recipients of several complaints and investigations within the Police Department. Liverman resigned in 2014 upon receiving notice that he would be terminated.

On March 5, 2014, Liverman and Richards filed a complaint in federal district court against the City of Petersburg and Chief Dixon alleging violations of the First Amendment, challenging the adverse disciplinary actions taken, and alleging retaliation against them for proceeding with their lawsuit.

First, the Fourth Circuit held that the Police Department’s social media policy was unconstitutionally overbroad and accordingly awarded judgment to Richards on his claim (the district court had only awarded judgment to Liverman). If speech is purely personal, it is not protected under the First Amendment. Where speech is of public concern, courts must balance the interests of the employee, as a citizen in commenting on matters of public concern against the interests of the state, as an employer, in promoting the efficiency of its public services through its employees. Here, the critical inquiry was not the medium of the speech but the scope and content of the restriction. Because the Negative Comments Provision broadly prohibited speech critical of a government employer, the Court determined that the interests of present and future Police Department employees and their potential audiences were very significantly and adversely affected. The milder language of the Public Concern Provision was not enough to mitigate these adverse affects, as the City of Petersburg had argued. The Court went on to conclude that the Police Department failed to satisfy its burden of demonstrating any concrete, material disruption to its mission as a result of the Facebook posts.   

Second, the Fourth Circuit held that the district court dismissed Liverman and Richards’ challenges to the Police Department’s disciplinary actions in error. When evaluating an ex post disciplinary action (as opposed to an ex ante restraint on speech) the scope of the analysis is narrower. In this context, the Fourth Circuit has adopted a three (3)-part test to determine whether an employee has sustained a First Amendment challenge to an adverse employment action. First, the Court must determine whether the employee spoke as a citizen on a matter of public concern. Second, the Court must evaluate whether the employee’s interest in First Amendment expression outweighed the employer’s interest in the efficient operation of the workplace. Third, the Court must determine whether the protected speech was a substantial factor in the employer’s decision to take adverse employment action. The Court determined that the form and content of Liverman and Richards’ comments indicated that the two (2) men did in fact speak on a matter of public concern. With regard to the second prong, the Court noted that officer concerns regarding officer training and supervision are weighty matters that must be offset by an equally substantial workplace disruption – a disruption that the City of Petersburg failed to establish. Finally, the third prong was a non-issue as it was made explicitly clear by all parties that the adverse employment actions taken were in response to the Facebook comment.

Third, the Fourth Circuit affirmed the district court’s finding that Liverman and Richards’ retaliation claims were without merit. The Court was unable to conclude that Liverman and Richards raised an issue of triable fact by claiming that the investigations into their conduct on the force were pretextual, as there were independent bases for each investigation – including complaints against both men that were initiated by fellow officers, not by Chief Dixon.
Finally, the Fourth Circuit remanded the case to the district court to reassess, under the appropriate standard for municipal liability, the social media policy under which the plaintiffs were disciplined. Specifically, the Fourth Circuit instructed the lower court to determine whether Chief Dixon possessed final authority to set policies on the parameters of speech on the part of those law enforcement officers under his command. If so, the City of Petersburg may also be liable for the injuries that were caused by the application of the social media policy.