First Amendment Protected Police Officer’s Facebook Posting

By Jeffrey Rhodes Nov 2, 2016

A police officer who posted on Facebook in support of six fellow officers indicted on charges in the shooting of two unarmed suspects prevailed on his First Amendment retaliation claim, the U.S. District Court for the Northern District of Ohio ruled.

On Nov. 29, 2012, more than 100 Cleveland police officers were involved in a high-speed pursuit of a suspect vehicle through the streets of East Cleveland. The chase came to an end when the officers fired upon and killed the two unarmed occupants of the vehicle. On May 30, 2014, the Cuyahoga County prosecutor announced that a grand jury had indicted one officer on two counts of manslaughter and five other officers on misdemeanor charges. The indictments were highly publicized in local and national media.

Johnny Hamm is a sergeant and officer-in-charge of the policy unit in the Cleveland Police Department. On June 1, 2014, while off-duty and using his home computer, Hamm commented on the indictments, discussed the surrounding circumstances and expressed support for his fellow officers on Facebook. His Facebook profile picture was a police emblem. A week later, also while on his own time and on his personal computer, Hamm posted that "Open and honest communication is the only way to move forward and progress as a division, city and community."

Hamm commented that the victims are the officers and society; that if he were working, he would be in the fray somewhere; that the pursuit was based on approved past practice; and that the officers should have their own attorneys to look out for their individual interests over that of the "blue brotherhood."

For these postings, Cleveland's chief of police, Calvin Williams, initiated an investigation of Hamm's conduct.

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The inspection unit investigated Hamm's Facebook posts to determine whether he violated any departmental policies. The investigation concluded that Hamm's initial June 1, 2014, post did not violate any policies, but his June 8, 2014, post violated division policies. These policies prohibit any communication that impairs working relationships within the division for which loyalty and confidentiality are important, impairs discipline or harmony among co-workers, or reasonably tends to diminish the esteem of the division or its staff in the eyes of the public.

Following a hearing on Sept. 15, 2014, Hamm was found guilty of all the charges against him and suspended for 10 days without pay.

On Dec. 11, 2014, a Cleveland police commander requested that Hamm serve as acting commander of the Bureau Support Services while the commander was on vacation. The request was approved through the normal chain of command, but Deputy Chief Joellen O'Neill rescinded that approval.

Hamm brought suit under 42 U.S.C. §1983 alleging that the chief of police retaliated against him for engaging in constitutionally protected expression in violation of his rights secured by the First and 14th amendments of the U.S. Constitution and the Ohio Constitution. Hamm also claimed that the defendants violated his due process rights secured by the 14th Amendment to the U.S. Constitution and the Ohio Constitution by denying him a meaningful pre-deprivation hearing. Hamm sought a declaratory judgment and injunctive relief against the department's actions.

Both parties brought motions for summary judgment to have parts of the claim either validated by the court or dismissed before trial. The court granted Hamm's motion for summary judgment on his First Amendment retaliation claim, finding that Hamm was speaking as a citizen when he made the second Facebook post. Because his post involved a matter of public concern, it was entitled to First Amendment protection. In balancing Hamm's First Amendment rights against the legitimate disciplinary interests of the police department, the court found that Hamm's Facebook post did not impair discipline by superiors or harmony among co-workers, and therefore Hamm should not have been disciplined for the post.

However, the court could not find that Hamm proved that his denial of a temporary promotion to acting commander happened because of the Facebook post and thus ruled that a trial was necessary on that issue. The court granted summary judgment to the chief of police against Hamm on his due process claim and ruled that the injunctive relief claim would have to await the outcome of the trial.

Hamm v. Williams, N.D. Ohio, Case No. 1:15CV273 (Sept. 29, 2016).

Professional Pointer: Employees of public employers, including police officers, are protected from discipline for expressing opinions as citizens on matters of public concern. That speech can be disciplined only if it impairs the functioning of the state employer in some tangible way. Public employers should refrain from disciplining employees for speech unless provably harmful to the employer or the public.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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