Last spring, Norfolk Police Lt. William Kelly, a 19-year veteran, donated $ 25 to a Kyle Rittenhouse legal defense crowdfunding website. Rittenhouse has been accused of killing two people and injuring a third with an AR-15 he carried during racist protests in Wisconsin following the police shooting of Jacob Blake, a black man. Rittenhouse is white.
Kelly wanted the donation to be anonymous, but a data breach shared with reporters linked it to her official email. In addition to her donation, Kelly posted, “God bless you. Thank you for your courage. Keep your head up. You haven’t done anything wrong. Every base police officer supports you. Do not be put off by the actions of the political class of law enforcement leaders.
Kelly was transferred on patrol and then put on administrative leave. An investigation concluded that his actions violated city and department policies and he was fired. He filed a grievance challenging each of the policy violations and making his own allegations, including that his dismissal violated his right to free speech. This article deals with the First Amendment claim.
I wrote about the United States Supreme Court’s three-part test to determine when public employees’ speech is protected. Kelly’s attorney acknowledged this test in his grievance by claiming Kelly’s online speech:
- Was done as a “private citizen” (rather than as a public employee);
- It was a matter of “public interest”;
- And his interest in speech outweighed any interest in the ministry in regulating his speech.
In the hopes of helping other officers avoid Lieutenant Kelly’s situation, let’s discuss his case.
City claimed that when Kelly posted “Every Base Police Officer Supports You,” from his official email without any disclaimer he was speaking in a private capacity, he gave the impression that he represented, gave opinions or otherwise spoke on behalf of the city.
In Graziosi v. City of Greenville (2015), the city argued that Graziosi spoke as a public employee because she invoked her status as a police officer by using words such as “we” and “our” to identify herself as a police officer. The Supreme Court of the United States in Lane v. Franks (2014) stated that the crucial question was whether the speech itself normally fell within the functions of an employee, and not whether it was simply related to those functions.
Because Graziosi’s statements did not fall within the ordinary scope of his duties, the Fifth Circuit ruled that they were made as a private citizen. The same goes for Lieutenant Kelly, he seems to meet this criterion.
The courts have not provided clear guidance as to when the speech relates to “public concern”.
The United States Supreme Court stated in Connick vs. Myers (1983) that matters of public interest are those which relate to “the political, social or other concerns of the community”. Factors to consider include the content, form and context of the speech, as well as the manner, time and location of the performance. The speaker’s motive alone is not decisive but may be a relevant factor.
In Connick, the court ruled that the rhetoric about the effective functioning of government was not a public concern because the context revealed that it was largely a personal grievance. But in Rankin v. Mcpherson (1987) Employee statement to colleague about President Reagan’s assassination attempt that “ if they take it back I hope they get it ” passed the test because the speech was in the context of a discussion on the president’s strategies.
Kelly has a colourable argument, her speech was about a “public concern” – the prosecution of an accused in the high-profile homicides of two and the injuries of a third as victims protested the use of lethal force by police in the shooting of a black man. He must still respect the third part so that his speech is protected.
The balancing act
In her grievance, Kelly argued, “The Town of Norfolk had no legitimate interest in terminating me because I engaged in this speech and, to the extent that it had an interest in regulating this speech, that interest was insufficient to justify dismissal. “
Kelly’s own statements undermine her argument. When Kelly was transferred to the patrol, he told the media: “I was told they have to watch the department. I did not object to being transferred – I understand that public perception is very important to the department. 21st century and public trust is very important. “
Public perception and trust was a major concern for the city. The Town Manager said: “His blatant comments erode the trust between the Norfolk Police Department and those they have sworn to serve. The Town of Norfolk has a standard of behavior for all employees, and we will uphold it. responsible staff. “
The police chief said: “A police service cannot do its job when the public loses confidence in those whose duty it is to serve and protect them. We don’t want an individual officer’s perceptions to undermine the relationship between the Norfolk Police Department and the community. ”
Kelly argued that he wanted his donation and comments to be anonymous. As indicated above, the speaker’s motive is not critical. Kelly’s donation and statements did not remain anonymous – a risk he took while posting online, as evidenced by other headlines on hacked or investigated websites. The department must respond to Kelly’s actions to maintain public confidence.
Kelly thanked, congratulated and donated to a defendant against whom there was probable ground for indictment of two homicides and injuries during a racist protest against the use of lethal force by police. He said he was speaking on behalf of all the officers on the base. The concerns of the City Manager and the Chief over the public’s perception of whether Kelly could be trusted to protect and serve all citizens of a diverse community equally and fairly are compelling given the core mission of the department.
Two cases highlight the difficulty for an agent to respect this third aspect. In Graziosi, The Fifth Circuit found that the interest of the police service in preserving loyalty and the close working relationship within the service outweighed Graziosi’s individual interest. Citing another Fifth Circuit case, the court added: “Because” the police services operate as paramilitary organizations tasked with maintaining public security and order, they have more leeway in their decisions regarding discipline and personnel regulations than an ordinary government employer. “
Kelly’s post pitted rank and file officers against police officials. In Nixon, the court also found that the city’s interest in promoting and maintaining trust in the department outweighed the individual agent’s interest in his speech. This public trust was important, the court noted, because “the HPD often relies on members of the public to provide critical information, serve as witnesses, respect law enforcement authorities and provide support. financial ”.
Do you really want to experience what Lieutenant Kelly is going through? The Internet is a BIG bulletin board in the sky readable by anyone with an Internet connection. Be realistic about anonymity. Do you know how easy it is to trace an IP address?
Communities are diverse. Citizens have varying interactions and perceptions of their police officers. The police must be seen to protect and serve all, without bias, to maintain public trust. Without it, the work of the police is much more dangerous.
Please think before you “click”.
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