FEDERAL APPEALS COURT UPHOLDS OFFICER’S FIRST AMENDMENT RIGHT

GREGG ADAM AND
MATTHEW TAYLOR
Partner, Associate
Messing Adam & Jasmine LLP

In recent years, it is hard to recall many published court opinions that have protected police officers’ — or, for that matter, any public employee’s — right to post social or political commentary on social media. Almost every decision, it seemed, upheld the right of public agencies to discipline their employees for posted speech that the agency deemed harmful to the larger interests of the agency.
It was, therefore, something of a breath of fresh air when, in a January 12, 2021, decision called Moser v. Las Vegas Metro Police Department, No. 19-16511 (9th Cir., Jan. 12, 2021), the Ninth Circuit Court of Appeals upheld the First Amendment right of a police officer to post his own commentary about the job on social media while off duty. Though this ruling represents a win for public employees against governmental employers’ encroachment on employees’ free speech, it is too early to tell whether it will significantly alter the landscape of First Amendment protections in public sector employment. It simply leaves open too many unanswered questions about its precedential effect and how it can be applied to different sets of facts.
The facts underlying the case began in 2015 when an assailant shot a Las Vegas Metro police officer. A few days later, the suspect was apprehended. The plaintiff in the case, Charles Moser, a sniper on Metro’s SWAT team and a former Navy SEAL, was present at neither the shooting nor the suspect’s arrest. Learning about the arrest after the fact, he made the following comment in a Facebook post while off duty: “Thanks to a Former Action Guy (FAG) and his team we caught [the assailant] … It’s a shame he didn’t have a few holes in him …” Sabatini v. Las Vegas Metro Police Department (D. Nev. 2019) 369 F. Supp. 3d 1066 (the name of the trial court case refers to Moser’s co-plaintiff, John Sabatini, who did not appeal the decision of the trial court). Next to Moser’s name above the post was his profile picture, which at the time was a cartoon of an angry-looking soldier with a helmet and rifle and the word “sniper” written across his chest. Id. Moser later explained that the term “Former Action Guy” was a nickname that his friend had given himself after he voluntarily transferred from the SWAT team to his current unit. Id.
An anonymous complaint was filed about the post, which prompted an internal affairs investigation. During his internal affairs interview, Moser stated that he had been upset about the shooting and realized after the fact that his post was “completely inappropriate” and that he “shouldn’t have ever said that.” Id. He further explained that he intended to express his frustration that the suspect had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defend himself.” Moser, supra, No. 19-16511 at 7. He also said that he had removed that comment by the time of this interview. Id. The investigator found that “[t]hough Officer Moser was expressing himself as a private citizen, [his Facebook post] would negatively impact or tend to negatively impact the Department’s ability to serve the public and would impede the performance of Officer Moser’s duties as a sniper in SWAT.” Id. Concluding that Moser’s Facebook comment showed he had become “a little callous to killing,” members of the Department’s command staff imposed discipline by transferring Moser out of SWAT and back to patrol. Id.
His administrative grievances being denied, Moser sued in federal district court, arguing that his disciplinary transfer was an unconstitutional retaliation for his protected speech. Both parties moved for summary judgment. In other words, both sides requested that the court issue a decision without holding a trial to determine the facts. Typically, the motion must show that no genuine issue of material fact exists and that the opposing party loses on the claim as a matter of law even if all its allegations are accepted as true.
The trial court denied Moser’s motion and granted the Department’s motion ruling that Moser’s discipline was justified under the Pickering balancing test used by courts to assess First Amendment rights for governmental employees. Under this test, which is named after the U.S. Supreme Court decision that first applied the test, Pickering v. Board of Education (1968) 391 U.S. 563, a court must first determine whether the employee showed that (1) he spoke on a matter of public concern; (2) he spoke as a private citizen rather than a public employee; and (3) he suffered an adverse employment action as a result of the speech. If the employee overcomes these hurdles, then the employer must demonstrate that its interest in preventing disruption in the workplace from the speech outweighs the employee’s First Amendment right to free speech.
Moser appealed this decision to the Ninth Circuit. As in most appeals, only a subset of the full Ninth Circuit, comprising of three judges, reviewed the lower court’s ruling. In a split decision of 2 to 1, the Ninth Circuit reversed the trial court based on the following findings. There were no factual disputes over the three Pickering factors stated above. The parties agreed that the Facebook post touched on a matter of public concern, that Moser spoke as a private citizen, and that he was disciplined because of his speech. Yet, the trial court left unresolved two factual disputes, which precluded it from assessing whether the government employer’s interest outweighed the employee’s First Amendment rights. The first concerned the objective meaning of Moser’s speech in the Facebook post. Was it, as Moser contended, “a hyperbolic political statement lamenting police officers being struck down in the line of duty,” or as interpreted by Las Vegas Metro, “a call for unlawful violence against suspects?” According to the Ninth Circuit, the trial court’s findings failed to adequately address this question leaving the meaning of Moser’s comment ambiguous.
The second unresolved factual issue was whether Moser’s comment would have likely caused disruption in the police department. The Ninth Circuit found that there was insufficient evidence showing the likelihood of such disruption. There was no media coverage of the comment, nor any evidence that anyone besides the anonymous tipster was aware of it. It was unlikely that the public would have even known that Moser was a sniper on the SWAT team since his Facebook profile did not discuss his employment. Also, there was only a small chance that the public would have seen the Facebook comment altogether since Moser deleted it within months of its posting. Furthermore, Las Vegas Metro provided no evidence to support its claim that the comment would expose it to future legal liability. In its court filings, the Department speculated that if Moser were to shoot someone in the future, a lawsuit would result, and his comment would likely sway a jury to hold the Department liable. However, as the Ninth Circuit pointed out, this speculation was unsupported by any legal authority. Las Vegas Metro “cited no case in which such a long chain of speculative inferences tipped the Pickering balancing test in the government’s favor.”
Because of this ambiguity, the Ninth Circuit remanded the case to the trial court, which will lead to further analysis from that court and likely more fact-finding through a full trial.
Now that the Ninth Circuit’s decision is the law in California, it would be prudent for state and local governmental employers facing a similar issue to make sure that they can meet the higher burden set by the Ninth Circuit, i.e., produce sufficient evidence that shows an employee’s speech has or will disrupt the workplace. Yet, for the reasons discussed below, the Ninth Circuit’s decision here may not ultimately provide greater protections for employees’ speech than the erstwhile status quo. 
First, Las Vegas Metro may request a rehearing of the case by a larger panel of judges at the Ninth Circuit. The full panel could overrule the three-judge panel that decided the case if they were to arrive at similar conclusions as the dissenting judge on the three-judge panel, Judge Berzon. She stated that Moser waived any argument about the meaning of his Facebook comment because, as he asserted in his motion, his Facebook comment was meant to express his regret that “the Officer who was shot did not get off any defensive shots in connection with his being ambushed.” Based on this, Judge Berzon stated that Moser’s post was not “objectively ambiguous” as determined by the majority’s opinion. She further concluded that “[v]iewing Moser’s statement as reasonably understood to sanction the use of unnecessary force, Metro had good reason to conclude that harboring and communicating that view was a serious impediment to performance of the duties of a SWAT officer.” As such, per applicable judicial precedent regarding First Amendment issues in the public sector workplace, courts must give “substantial weight” to an employer’s “reasonable predictions” of disruption as a result of an employee’s speech.
Second, the facts of Moser’s case are relatively unique and thus may not be applicable to other fact patterns. In the past several years, there have been many instances where police officers’ texts, social media posts or other communications have been made public, and as a result, have drawn significant negative attention. Thus, in other fact patterns, unlike those in Moser’s case, it may be relatively easy for police departments to provide a record that shows past disruption in the workplace or even the potential for future disruption. Accordingly, the evidentiary bar set by the Ninth Circuit, in this case, may prove to be quite low.
Third, even if this ruling stands, it is unlikely to deter police departments from disciplining officers over controversial statements given the current political climate. As Judge Berzon stated, “I do not for a minute doubt that protecting the First Amendment right of public employees to contribute to the public dialogue on issues of public importance is of critical importance … But we are living in a time when, driven by public concern, police departments nationwide are engaged in self-examination concerning how best to curb the use of excessive force by police officers as they carry out law enforcement’s critical role.” Thus, while the Moser decision may give employees a higher chance of success in overturning their discipline if and when they finally fight their employer in court, this may bring little comfort for most who want to avoid disciplinary charges and the administrative grievance process.
The takeaway from this decision is that although the Ninth Circuit put a brake on what it determined to be an employer’s “swift justice” over a “careless comment,” it is not clear what the road ahead will be for other officers whose public comments are found to be offensive by their departments or members of the public. The best course of action for PORAC members should therefore be to continue to avoid public commentary about their jobs, especially use-of-force situations.

About the Authors
Gregg Adam is a partner with the law firm Messing Adam & Jasmine LLP. Gregg has worked with peace officer associations for over 20 years. He is a founding partner of the firm, which predominately represents public sector unions and their members in labor relations. Gregg and his partners and the attorneys at Messing Adam & Jasmine LLP are PORAC-LDF panel attorneys. Matthew Taylor is an associate at Messing Adam & Jasmine LLP. He specializes in public sector labor law representing police officers, firefighters and other public employees in disciplinary and termination proceedings, arbitrations, civil litigation and collective bargaining. In addition to his legal experience, Matthew draws from his background in law enforcement and investigations. He served as a police officer in NYPD’s 67th Precinct in East Flatbush, Brooklyn. He was also an investigator for the City of New York and a legal intern at the U.S. Attorney’s Office in D.C.