Everyone on the panel -- Judge Alarcon (who authors the opinion), Judge Milan Smith, and Judge Hurwitz -- is on board for this one. So why am I really troubled by it?
The Ninth Circuit holds that an employer can permissibly retaliate against a police officer for engaging in speech designed to protect citizens. Which -- according to the unanimous verdict below -- is exactly what transpired here. But the opinion concludes that, as a matter of law, the Eugene Police Department was able to get away with it.
Why? It's not because the police officer's speech was unconnected with a matter of public interest. For it indisputably was. Brian Hagan was a K-9 officer occasionally deployed with the Eugene SWAT team, and he started complaining when -- wait for it -- the SWAT team would repeatedly accidentally shoot people. One dude accidentally shot another SWAT team sniper. Another accidentally discharged his weapon when he was pulling the pin on a grenade (!). Another SWAT team member shot yet another officer when he was climbing over a fence. Another SWAT guy accidentally fired his weapon during the execution of a search warrant in a residential neighborhood.
Do we care that the SWAT team doesn't seem to know how to stop shooting innocent people? You'd think so, right? Surely that's a matter of public concern. For the people shot. For the taxpayers who have to pay for their care. For everyone.
But when Officer Hagan raises these issues, the police department was pissed that he was the "spokesperson for the majority of the complaints," and (the jury found) retaliated against him by faking performance issues to transfer him from the K-9 unit and put him on patrol.
So why does the Ninth Circuit say that's entirely okay?
Because, Judge Alarcon holds, the police department "required" its officers to speak out about public safety issues. Because the Eugene Police Department's employee manual said that employees are "responsible for reporting accidents, faulty equipment, unsafe practices of fellow employees, and/or unsafe conditions of work areas to their supervisors,” Office Hagan's speech was now "part of his job," and hence (at least in the Ninth Circuit's view" no longer a matter of public concern. It's now not protected First Amendment speech. So we can demote you, fire you, or do whatever else you'd like when you raise these issues.
Does this strike anyone else as a profoundly deleterious principle?
Look, it's not that I don't understand the complexity of the underlying First Amendment issue, or the practical difficulty of drawing lines. We don't want to call every word that a government employee utters the exercise of First Amendment speech. If the press secretary for the Governor gets up at a press conference and starts insulting his boss, saying how the Governor sucks, I get it, we can fire the guy. Yeah, he's got the ability to express his opinions. Just like every other citizen. But when the speech interferes with his work -- when his entire job is to make a person look good -- the employee's free speech rights get subordinated. I get that.
For that reason, I understand the need to distinguish between "work-related" speech, on the one hand, and other types of speech. Something that's not always easy.
But when a police officer is talking about other officers shooting innocent people, I hardly think that no longer entails protected speech about a matter of public concern merely because the employer has (smartly) put in its employee manual that it's part of the officer's job to tell his supervisor about such conduct. Imagine, for example, that Officer Hagan found out that the department had begun summarily executing drivers caught speeding, and started complaining about it -- perhaps threatening to go to the press if it didn't stop. But his supervisors enjoyed the sport shooting of motorists, so retaliated against Hagan by firing him. Surely that's not permissible, right? Yet under the Ninth Circuit's holding, it would be. As a matter of law, no less. The speech involved something related to work, and the department's employee manual almost surely would contain instructions requiring employees to report this stuff. Ergo no rights. Let the games continue! All those who oppose shall be demoted! Sounds like a wonderful principle of constitutional law.
It seems to me that we should be more protective of matters of public concern. Particularly when, as here, the matters are really, really important. Yes, that requires drawing lines. Some of which will be drawn by jurors.
But I'm not entirely bummed by that. Jurors represent the community. If they think an employee is dealing with purely internal matters, they can decide the speech isn't really important. Or, in an appropriate case, when the judge thinks that this is clearly just complaining about part of one's normal job, the case can be bounced at summary judgment.
But when an officer complains about the SWAT team accidentally shooting people left and right, and when a jury decides that the department retaliated against the officer who had the temerity to challenge the "thin blue line" that might be casually indifferent to this practice, I'm hard pressed to see how this is okay. How this is not retaliation against speech that relates to a central public concern. How we're better off if there's no right to speak up when innocent people are being shot.
But I'm clearly an outlier. Since nothing in the opinion seems to express any concern in the slightest about the result reached -- as well as the legal reasoning -- articulated herein.
