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Speech and the public employee.

The U.S. Supreme Court long has recognized that individuals do not relinquish their constitutional rights by entering into public service. However, the contours of these constitutional protections are interpreted in a manner to safeguard important governmental interests. Clearly, the government as employer has more authority than the government as sovereign. With regard to speech and expressive conduct engaged in by public employees, the proper formulation under the First Amendment historically has been to apply a balancing test: balancing the interests of a public employee as a citizen in commenting on matters of public concern against the interests of the government as an employer.

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The analytical framework began to take shape in the late 1960s. In case law covering this time period, the Supreme Court established a four-part inquiry to determine whether a public employee's First Amendment rights were violated. The inquiry examines 1) whether the speech touched on a matter of public concern; 2) if so, whether the employee's interests in the speech outweigh the employer's interest in promoting efficient operations; 3) whether the speech played a substantial role in the adverse employment action; and 4) whether the government can show by a preponderance of the evidence that it would have taken the same employment action in the absence of the protected speech. (1) The first two parts of this inquiry are questions of law for the judiciary to consider when evaluating whether the speech is protected under the First Amendment. (2) The final two considerations arc questions of fact "designed to determine whether a retaliatory motive was the cause of the challenged employment decision." (3)

The purpose of this article is to examine recent judicial activity interpreting and clarifying the first two prongs of the four-prong inquiry. The article discusses recent Supreme Court cases clarifying what constitutes public concern for purposes of assessing First Amendment protection, as well as the impact of speaking as an employee in the performance of official duties as opposed to speaking as a private citizen. In addition, the article explores the relative interests that are assessed when determining the scope of First Amendment protection.

First Prong: Public Concern

For speech by a government employee to possibly qualify for First Amendment protection, the Supreme Court in Connick v. Myers (4) set forth an initial threshold requirement that the speech must touch on a matter of public concern. Specific guidance on what amounted to public concern was not provided. However, the Supreme Court directed that the public concern analysis requires an examination of the content, form, and context of the speech, with content being the most important consideration. (5) Connick involved an assistant district attorney who, unhappy with a decision by management to transfer her, prepared a questionnaire and circulated it within the office. The questionnaire solicited coworkers' views on office morale, work assignments, the need for a grievance committee, confidence in management, and whether employees felt pressured to work on political campaigns. The Supreme Court concluded that only one question possibly touched on a matter of public concern. The remaining questions related to internal workplace grievances, and, thus, the questionnaire was not protected by the First Amendment. (6) The Supreme Court commented that this threshold inquiry is critical given "government offices could not function if every employment decision became a constitutional matter." (7)

The Supreme Court later recognized that the boundaries of the public concern test were not well-defined and offered clarification in City of San Diego v. Roe, (8) in which a police officer with the San Diego Police Department (SDPD) was terminated after his employer discovered that he was selling homemade, sexually explicit videos and other police paraphernalia on an online Web site. The SDPD ordered the officer to "cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the Internet, U.S. mail, commercial vendors or distributors, or any other medium available to the public." (9) TThe officer removed some of the items for sale from the Web site but retained his seller profile, which included information about the videos he posted for sale as well as their prices. Based on his refusal to remove the items from the Web site, the SDPD terminated the officer. The discharged officer brought suit in federal court pursuant to Title 42, US. Code, Section 1983, arguing that his termination violated his rights to free speech and expression as guaranteed by the First and Fourteenth Amendments to the Constitution. The district court ruled in favor of the city, concluding that the officer's conduct did not amount to speech on a matter of public concern. The officer appealed this ruling. (10)

The Ninth Circuit Court of Appeals agreed with the discharged officer, concluding that his conduct fell within the contours of speech on a matter of public concern and, given it was off duty and unrelated to employment, deserved First Amendment protection." As stated by the court, "[the officer's] expressive activities--as crude as they may appear-were directed at a 'segment of the general public' and did not have 'any relevance to [his] employment." (12) Once it concluded that the officer's expressive activities touched on a matter of public concern, it remanded the case for further consideration under the Pickering balancing test, directing the lower court to weigh the interests of the department in restricting the expressive conduct at issue and the officer's interests in engaging in the expressive activities. (13) The city of San Diego appealed the ruling on the issue of public concern to the U.S. Supreme Court.

The Supreme Court acknowledged that while "the boundaries of the public concern test are not well-defined," (14) Connick directs the Court to consider the "content, form, and context of a given statement" when assessing whether speech touches on a matter of public concern. (15) The Court further elaborated that public concern involves "something of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of the publication." (16) Applying these principles to the expressive conduct engaged in by the officer in Roe, the Court stated, "there is no difficulty in concluding that [the officer's] expression does not qualify as a matter of public concern under any view of the public concern test." (17)

Starting with Connick and extending through Roe, the Supreme Court has narrowed the type of speech and expressive conduct requiring further judicial scrutiny under the First Amendment. (18) This interpretation of the contours of the First Amendment continued when the Court addressed the distinction of speech made pursuant to official duties as opposed to speaking out as a citizen.

Further Clarification of Public Concern: Statements Made Pursuant to Official Duties

The Supreme Court recently clarified that speech on a matter of public concern does not include speech made pursuant to the employee's official duties. Prior to 2006, courts took differing views regarding the extent to which speech that was related to the employees' official duties could be protected under the First Amendment. (19) The Supreme Court provided clarification regarding this issue in the case of Garcetti v. Ceballos. (20) In Garcetti, Richard Ceballos, a supervising deputy district attorney assigned as a calendar attorney, drafted a memorandum regarding a pending criminal case in which he expressed concern that there were inaccuracies in an affidavit used to obtain a search warrant in the case. These allegations were conveyed to Ceballos by a defense attorney. Ceballos also expressed his concerns to his supervisors and prepared a memorandum recommending dismissal of the criminal case. The District Attorney's Office proceeded with the case. A hearing occurred before a judge to address the matter of the search warrant during which Ceballos testified for the defense. The trial court judge rejected the motion to dismiss the warrant.

Subsequently, Ceballos claimed that he was retaliated against when he was reassigned to another office as a trial attorney and denied a promotion in violation of his right to speech under the First Amendment. The District Attorney's Office denied any violation of the Constitution as Ceballos' memorandum setting forth his concerns was written pursuant to his official duties. The district court judge agreed and dismissed his lawsuit. The case was appealed to the Ninth Circuit Court of Appeals, which held that Ceballos' written memorandum was clearly speech on a matter of public concern. (21)

On appeal, the Supreme Court rejected the Ninth Circuit's analysis and held

[W]hen public employees make statements pursuant to their official duties, the employees arc not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (22) In reaching this conclusion, the Supreme Court described the critical consideration as the fact that Ceballos' statements were made pursuant to his official duties and not that they were made within the context of his employment, rather than publically, nor that they concerned that subject matter of his employment. The Supreme Court stated, "Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings." (23) As stated by the Supreme Court

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Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe on any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned. (24) In post-Garcetti cases, courts have focused extensively on whether the employee was speaking pursuant to his official duties and have, in a majority of cases, concluded that the First Amendment does not offer protection for a large range of expressive activities related to one's employment. For example, in Spieglu v. Hull (25) a corrections officer alleged retaliation in violation of the First Amendment after she was reassigned following her reporting of suspicious conduct and a possible breach of prison security by other officers. Initially, and pre-Garcetti, the Court of Appeals for the Seventh Circuit held that her speech touched on a matter of public concern and remanded the case for trial. (26) A jury found in favor of the officer and awarded her several hundred thousand dollars. The defendants appealed. Following the appeal, Garcetti was decided. On appeal, the court applied Garcetti and held that the officer was not speaking as a citizen "but as a correctional officer charged with the duty to ensure the prison's safety. Accordingly, the First Amendment does not insulate her statements from employer discipline and the judgment in her favor must be vacated." (27)

Other courts interpreting Garcetti also have used a broad net to bring speech within an employee's duties. For example, in Vose v. Klimment, (28) Ronald Vose, a sergeant in charge of narcotics, resigned in the face of adverse action taken against him by his department when he voiced concerns to upper management about wrongdoing on the part of investigators assigned to a multiagency major case squad. He was concerned initially with how the activities of the major case squad might impact drug investigations under his supervision. Vose was told at some point to "get along" or transfer to the patrol unit. (29) He alleged that his subsequent resignation in the face of a demotion was in violation of his rights under the First Amendment. The court concluded that his speech fell within the scope of Garcetti, disagreeing with his argument that his role as a supervisor of a narcotics unit did not include investigating potential misconduct by officers in another unit and, thus, he argued, he spoke out as a citizen. As stated by the court

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Vose may have gone above and beyond his routine duties by investigating and reporting suspected misconduct in another police unit, but that does not mean that he spoke as a citizen and not as a public employee. (30)

Voses' speech, while going beyond his routine or daily job duties, was not beyond his official duties as a sergeant in charge of the narcotics unit to ensure the proper operation of the narcotics program. The court concluded by stating, "[W]e find that Vose's speech, albeit an honorable attempt to correct alleged wrongdoing, was not protected by the First Amendment." (31)

In another case, a jury had found in favor of a plaintiff-police officer and awarded him compensatory and punitive damages after it concluded that his employer, the Illinois State Police, retaliated against him in violation of his First Amendment rights. On appeal, the court overturned the jury verdict after it concluded that based on Garcetti, the officer's speech was made pursuant to his official duties and not as a citizen. (32) In this case, allegations that individuals convicted of a murder may have been wrongly convicted while the actual offender remained at large were investigated. The officer behind this investigation expressed concern that the coverup of this matter was politically motivated. He conveyed his concerns to his supervisors, who directed him to discontinue the murder investigation. The officer then complained to the Department of Internal Investigations, which, after reviewing the matter, decided to take no action. As a result of the fallout from the officer's allegations, his agency decided to transfer him to another position, which he claimed was in retaliation for speaking out regarding the case and its handling. A jury found in his favor and awarded him over half a million dollars. (33) On appeal, the court agreed with the defendants that Garcetti was controlling and overturned the jury verdict. The court concluded that the officer was speaking pursuant to his official duties and not as a citizen and, thus, his speech fell outside the protections of the First Amendment.

In contrast is the speech in Freitag v. California Department of Corrections. (34) In this case, a female corrections officer sued her employer after she wrote a letter to the director of the California Department of Corrections and Rehabilitation complaining of a hostile work environment created by inmate sexual conduct directed at female corrections officers and subsequent retaliation against her after she spoke out regarding this conduct. A jury found in her favor regarding the sexual harassment claim, but the case was remanded in light of the Supreme Court's decision in Garcetti. (35) On remand, the Ninth Circuit concluded that her speech did not owe itself to her official duties, even though the letter may have had some official consequences and the conduct she complained of occurred at her workplace. (36)

The impact of Garcetti has been to enable employers to retain control over speech that "owes its existence to a public employee's professional responsibilities" (37) and to avoid "displacement of managerial discretion by judicial supervision." (38) While rejecting the notion "that the First Amendment shields from discipline the expressions employees make pursuant to their official duties" (39) the Court in Garcetti was careful to note the important role of legislative enactments in the form of whistleblower statutes or labor code provisions to offer protection for employees who wish to expose governmental inefficiency and misconduct. (40)

If the employee is deemed to be speaking as a citizen on matters of public concern--in other words, the threshold tests established under Connick, Roe, and Garcetti are met--the second prong of the Supreme Court's test requires a balancing of interests to determine whether the First Amendment shields the speech from retaliatory action.

Second Prong: Balancing of Interests

Recognizing that the effectiveness of government entities may be seriously undermined by unrestrained declarations on the part of employees, the Supreme Court held in Pickering v. Board of Education, (41) that the First Amendment requires a balancing of the interests of the government in promoting efficiency of operations with the interest of the employee as a citizen in commenting on matters of public concern. Relevant considerations often include whether the speech impairs close working relationships for which loyalty and confidentiality are important or whether it impedes the performance of duties or impairs discipline or harmony among coworkers. (42) When conducting this balancing test, the courts generally recognize the heightened interests of a law enforcement employer in maintaining discipline and harmony in the workplace and fostering a positive relationship with other agencies and the public. (43) Furthermore, in assessing the impact the speech may have on government operations, the employer does not have to wait to take action only upon a finding of actual harm but may act in the face of reasonable predictions of disruption. (44) As stated by the Supreme Court

[W]e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action. (45)

In Locurto v. Giuliani, (46) former New York City police officers and firefighters sued to get their jobs back after they were fired for participating in a Labor Day parade by riding on a float degrading of African-Americans. Officials in New York City, including the police commissioner, learned of the participation of these city employees in the parade after extensive media coverage of the event described the racially insensitive nature of the float and the role of police officers and firefighters in its creation and operation during the parade. (47) Shortly after the parade, Mayor Giuliani stated, "I've spoken to Commissioners Safir and Von Essen and we all agree that any police officer, firefighter or other city employee involved in this disgusting display of racism should be removed from positions of responsibility immediately... They will be fired." (48) The employees, including the officers, were subsequently terminated. The discharged employees sued, claiming their termination violated the First Amendment as they were engaged in off-duty, protected activity. The district court agreed with the officers, ruling that their expressive conduct touched on a matter of public concern given it was intended to send a message to the community about racial integration and the city failed to establish the potential disruption of their conduct to the agency's mission. (49) The court ordered the city to reinstate the officers and to provide back pay. The city appealed the district court's ruling.

On appeal, the Second Circuit Court of Appeals overturned the lower court's determination, holding that assuming the participation in the parade touched on a matter of public concern, the First Amendment offered no protection to the discharged employees as the interest of the city in restricting this type of expressive conduct outweighed the interests of the employees in its expression. (50) In reaching its decision, the court relied on Pappas v. Giuliani, (51)upholding the termination of a police officer after it was discovered that he was anonymously disseminating racially offensive and bigoted materials from his home in response to solicitations from charitable organizations. The court in Pappas did not address the issue of whether the officer's activities touched on a matter of public concern, choosing instead to focus on the potential disruption to departmental operations his activities presented.(52) The court concluded that the capacity for the officer's activities to severely damage the department was immense, stating

The effectiveness of a city's police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias. ... If the police department treats a segment of the population of any race, religion, gender, national origin, or sexual preference, etc., with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. Members of the minority will be less likely to report crimes, to offer testimony as witnesses, and to rely on the police for their protection. When the police make arrests in that community, its members are likely to assume that the arrests are a product of bias, rather than well-founded, protective law enforcement. And the department's ability to recruit and train personnel from that community will be damaged. (53)

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The court in Locurto, quoting the above passage, similarly concluded that the First Amendment did not require the city to subordinate its interests, concluding that "the defendant's interest in maintaining a relationship of trust between the police and the fire departments and the communities they serve outweighed the plaintiffs' expressive interests in this case." (54)

Recap: Application of Public Concern and Balancing of Interests

The case of Nixon v. City of Houston (55) illustrates the application of the initial threshold requirement of public concern and the Garcetti determination, as well as the balancing of interests that occurs once the initial public concern inquiry is satisfied in favor of the employee. In this case, Thomas Nixon, a former Houston police officer, sued the police department and the officials responsible for his suspension and termination, alleging he was retaliated against for making various statements during media interviews and publications he authored. For approximately 2 years, Nixon wrote columns for a local Houston periodical. In these articles, he identified himself as a police officer and often made caustic and derogatory comments about certain groups of citizens, including minorities, women, and the homeless. Following an investigation into the matter, he received a 15-day suspension without pay. (56) As a result of another incident in 2006, Nixon was fired. This incident involved a highly publicized police pursuit in which Nixon proceeded to the scene, even though he was ordered not to. Once at the scene, Nixon spoke to the media, criticizing the police department's decision to disengage the pursuit and stating that he was "embarrassed to be a police officer." (57) The next day, be continued his attack on the police department by calling into various radio talk shows and by giving a television interview. In response to his actions, the Houston Police Department terminated Nixon's employment.

Nixon sued, alleging his suspension and termination were in retaliation for protected First Amendment activities. Summary judgment was entered for the defendants, which Nixon appealed to the Fifth Circuit Court of Appeals. Applying Garcetti, the court stated that a "a formal job description is not dispositive ... nor is speaking on the subject matter of one's employment." (58) However, "[a]ctivities undertaken in the course of performing one's job are activities pursuant to official duties." (59) Based on this description, the court concluded that Nixon's statements to the media at the scene of the crash were made pursuant to his official duties and during the course of his employment. The court noted that Nixon spoke in uniform, while on duty, and made an effort to obtain approval to address the media. The court stated

The fact that Nixon's statement was unauthorized by HPD and that speaking to the press was not part of his regular job duties is not dispositive. Nixon's statement was made while performing his job, and the fact that Nixon performed his job incorrectly, in an unauthorized manner, or in contravention to the wishes of his superiors does not convert his statement at the accident scene into protected citizen speech. (60)

The court then considered the statements he made the next day to the media and concluded that while they may appear to be more like citizen speech given they were made off duty, they actually were an extension of the statements he made while performing official duties and, thus, not protected." The court went on to add that even if these statements were not controlled by Garcetti, they would nonetheless be outside the scope of First Amendment protection. Speaking out to the media in this manner severely undermined the substantial interests of the government in providing efficient services and as stated by the court

[I]t is entirely reasonable for HPD to predict that such insubordination and likely acts of future insubordination would harm HPD's ability to maintain discipline and order in the department, morale within the department, and close working relationships between Nixon, his fellow officers, and his supervisors. (62) With respect to his authorship of the controversial articles, the court concluded that it did not have to resolve whether Nixon was commenting as a citizen or engaged in the performance of his official duties when he took part in these activities as the balancing of interests weighed heavily in favor of the HPD, and, thus, the articles were unprotected by the First Amendment. (63) The articles contained offensive and insensitive comments regarding various segments of the population, and it was reasonable for the HPD to conclude that such comments would harm relationships within and outside the department. To hold otherwise would be to undermine HPD's mission, and "HPD must be able to prohibit such speech if it is to perform its function and maintain its professionalism." (64)

Conclusion

The precise contours of the First Amendment relative to speech by public servants is not easily described. However, recent judicial guidance allows for some generalizations. For speech to garner First Amendment protection and, thus, be protected from retaliation, the speech must be made as a citizen, as opposed to owing itself to the performance of official duties, and must address a matter of public concern. If this foundation is set, the First Amendment will offer protection only if the interests of the employee in engaging in the expressive activity outweigh the substantial interests in maintaining efficiency of operations of a law enforcement employer.

Endnotes

(1) Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968); Mt. Healthy City School District v. Doyle. 429 U.S. 274 (1977); Rankin v. McPherson, 483 U.S. 378 (1987); Thomsen v. Romeis, 198 F.3d 1022 (7th Cir. 2000) (officer demonstrated that his speech was protected but failed to show that the adverse action taken against him was motivated by his speech).

(2) See City Of San Diego v. Roe. 125 S. Ct. 521 (2004) (per curiam); Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554(11th Cir. 1995).

(3) Battle v. Board of Regents, 468 F.3d 755 (11th Cir. 2006).

(4) 46l U.S. 138(1983).

(5) Id at 146-147.

(6) Id. at 141.

(7) Connick at 143

(8) 125 S. Ct. 521 (2004).

(9) Id at 523, quoting Roe v. City of San Diego. 356 F.3d 1108, 1111 (9th Cir. 2004).

(10) 356 F.3d 1108 (9th Cir. 2004).

(11) Id.

(12) Id. at 1113. quoting U.S. v. National Treasury Employees Union, 513 U.S. 454, 465 (1995).

(13) Id. at 1 122. citing Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968).

(14) 125 S. Ct. at 525.

(15) Id.

(16) Id. The Court referred to its prior decisions involving a common law action alleging an invasion of privacy for guidance on what constitutes a matter of public concern. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Time. Inc. v. Hill, 385 U.S. 374 (1967).

(17) Id. at 526.

(18) See Thaeter V. Palm Beach County Sheriffs Office, 449 F.3d 1342 (11th Cir. 2006); Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995); Murray v. Gardner, 741 F2d 434 (D.C. Cir. 1984) (FBI agent's criticism of furlough plan at an all-employee conference was "an example of the quintessential employee beef" that is not a matter of public concern); Smith v. Fruinn, 28 F.3d 646 (7th Cir. 1994); Hasty v. Gladstone, 247 F.3d 723 (8th Cir. 2001); Hankard v. Town of Avon, 126 F.3d 418 (2nd Cir. 1997).

(19) See Garcetti v. Cehcdlos, 361 F.3d 1168 (9th Cir. 2006); Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000); Buazard v. Meridith, 172 F3d 546 (8th Cir. 1999); Bradshaw v. Plttsburgh Independent School District, 207 F.3d 814 (5th Cir. 2000); Cromer v. Brown, 88 F3d 1315 (4th Cir. 1996).

(20) 126 S. Ct. 1951 (2006).

(21) 361 F.3d 1168 (9th Cir. 2006).

(22)Id at 1960.

(23) Id.

(24) Id.

(25) 481 F3d 961 (7th Cir. 2007), cert, denied. 128 S. Ct 441 (2007).

(26) Spiegla v. Hull. 371 F3d 928 (7th Cir. 2004).

(27) 481 F.3d at 962.

(28) 506 F.3d 565 (7th Cir. 2007).

(29) Id. at 569.

(30) Id. at 570.

(31) Id. at 572.

(32) Callahan v. Fermon. 2008 WL 2096777, _ F.3d _ (7th Cir. 2008).

(33) Id. at _. The jury awarded the officer $210,000 in compensatory damages and $276,700 in punitive damages with respect to one defendant and $195,600 with respect to the other. The district court judge accepted the verdict but reduced the punitive damages to $100,000 and $50,000, respectively.

(34) Slip op. 2008 WL 1734181 (9th Cir. 2008). On remand from Freitag v. Avers, 468 F.3d 528 (9th Cir. 2006).

(35) 468 F.3d 528 (9th Cir. 2006).

(36) 2008WL 1734181 (9th Cir 2008).

(37) GarcellitX 1960.

(38) Garcetti at 1961. See edso Hayms v. City of Circleville, 474 F3d 357 (6th Cir. 2007). cert, denied _ S. Ct. _, 2007 WL 2692992 (officer who administered canine program was speaking pursuant to his official duties when he sent a letter to the chief criticizing cutbacks in canine training program); Mills V City of Evansville, 452 F3d 646 (7th Cir. 2006) (sergeant disciplined for speaking out against cutback to crime prevention program was not speaking as a citizen but was speaking pursuant to her official duties); Morales v. Jones. 494 F.3d 590 (7th Cir. 2007), art, denied _ S. Ct._, 2008 WL 59,370; Andrew v. Clark. 472 F.Supp.2d 659 (D.Md. 2007) (commander's dissemination of written memorandum to the media initially prepared for his agency describing his concerns regarding the handling of a barricade situation did not change the fact that he was speaking pursuant to his official duties).

(39) Id.

(40) Id. at 1962. See also, Sigsworth v. City of Aurora, 487 F3d 506, 511 (7th Cir. 2007) ("even employees who face retaliation for speech connected to a job duty may be entitled to protection under their state whistleblower statutes").

(41) Pickering v. Board of Education, 391 U.S. 563(1968).

(42) Rankin v McPherson. 483 U.S. 378 (1978).

(43) See generally Weicherding v. Riegel, 160 F.3d 1139 (7th Cir. 1998): Tindle v. Caudell, 56 F3d 966, 971 (8th Cir. 1995) ("Because police departments function as paramilitary organizations charged with maintaining public safety and order, they are given more latitude in their decisions regarding discipline and personnel regulations than an ordinary government employer."); Koch v. City of Hutchinson, 847 F.2d 1436 (10th Cir. 1988); Locurto v. Giuliani. 447 F.3d 159 (2nd Cir. 2006); Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996).

(44) Nixon v. City of Houston, 511 F.3d 494, FN 8 (5th Cir. 2007) ("a government employer need not produce evidence of actual harm or disruption of governmental operations"); Weaver v. Chavez, 458 F.3d 1096 (10th Cir. 2006); Hell v. Santoro, 147 F.3d 103 (2nd Cir. 1998).

(45) Connick at 152.

(46) 447 F.3d 159 (2nd Cir. 2006).

(47) Id.at 164-165.

(48) Id. at 165, quoting David W. Chen, "Officers and Firemen Wore Blackface on Float, Officials Say," N.Y. Times, Sept. 11, 1998.

(49) Locurto v. Giuliani. 269 F.Supp. 368 (S.D.N.Y. 2003).

(50) Locurto v. Giuliani. 447 F.3d 159 (2nd Cir. 2006).

(51) 290 F.3d 143 (2nd Cir. 2002).

(52) Id. at 146.

(53) Id.at 146-147.

(54) Id. at 178. See also Eaton v. Harsha, 505 F.Supp. 948 (D.Kan. 2007) (Police department's interest in maintaining efficient and effective operations outweighed the First Amendment interests of police officers in expressing their opinion that the city showed favortism to African-Americans. The statements could reasonably lead to disharmony in the workplace and a lack of trust on the part of the community and questioned the ability of management to effectively lead).

(55) 511 F.3d 494 (5th Cir. 2007).

(56) Id. at 496.

(57) Id. at 497.

(58) Id. at 497-498, quoting Williams v. Dallas Independent School District, 480 F.3d 689. 692 (5th Cir. 2007).

(59) Id., quoting Williams at 692.

(60) Id. at 498-499.

(61) Id.

(62) Id. at 499.

(63) Id. at 500.

(64) Id

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

RELATED ARTICLE: The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face each challenge freely and unselfishly while answering the call to duty. in certain instances, their actions warrant special attention from their respective departments. The Bulletin also wants to recognize those situations that transcend the normal rigors of the law enforcement profession.

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Officer Lauren Kaspar of the Willowbrook, Illinois, Police Department received a call to assist a citizen in finding her dog in the vicinity of a large pond. Upon the officer's arrival, she was advised by two individuals that they heard a woman's voice calling for help. Officer Kaspar began searching for and calling out to the victim. She found the woman in the icy pond. Officer Kaspar called Officers Timothy Kobler and Robert Schaller for assistance. The officers threw a rope with a flotation device to the woman, but she could not hold on. Officer Kaspar then secured a rope around her body, and the three officers proceeded onto the ice. Officers Kobler and Schaller held onto the rope and Officer Kaspar's duty belt while she laid down on the ice, reached into the frigid water, and pulled the victim out. Officers Kobler and Schaller then helped Officer Kaspar and the woman to safety. Fire protection authorities transported the victim to a local hospital, where she was placed in intensive care. Her dog also was removed from the icy water and taken to safety.

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Early one morning, Officer Ted Davis of the Cuyahoga Falls, Ohio, Police Department responded to a house fire. He arrived before the fire department, and a passerby told him that people remained inside. Immediately, Officer Davis entered through the front door, advised the male occupant that his house was on fire, and encouraged him to leave the residence. The man advised Officer Davis that his wife and two children still were upstairs in their bedrooms. Immediately, Officer Davis helped the remaining family members, who were unaware of the fire, exit the home. As a result of Officer Davis' actions, everyone was safely evacuated, and no one was injured.

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Nominations for the Bulletin Notes should be based on either the rescue of one or more citizens or arrest(s) made at unusual risk to an officer's safety. Submissions should include a short write-up (maximum of 250 words), a separate photograph of each nominee, and a letter from the department's ranking officer endorsing the nomination. Submissions should be sent to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Law Enforcement Communication Unit, Hall of Honor, Quantico, VA 22135.

By LISA BAKER, J.D.
COPYRIGHT 2008 Federal Bureau of Investigation
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2008 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Legal Digest
Author:Baker, Lisa
Publication:The FBI Law Enforcement Bulletin
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Date:Aug 1, 2008
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COURT HEARS FREE-SPEECH ISSUE.
The U.S. Supreme Court announces new rule for First Amendment free speech cases: public employee whistle-blowers need not apply.
Anti-abortion tactics made 35-foot buffer zone essential.

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