Labor & Employment Law Daily No First Amendment claim for EMS captain fired after Facebook posts about Tamir Rice
Wednesday, August 28, 2019

No First Amendment claim for EMS captain fired after Facebook posts about Tamir Rice

By Kathleen Kapusta, J.D.

Though the posts touched on Tamir Rice and his tragic death, the court found they did nothing other than promote the author’s distasteful private interests involving a desire to kill a 12-year-old boy.

Two posts that appeared on the personal Facebook account of a City of Cleveland EMS captain regarding the fatal police shooting of Tamir Rice, including “I am upset I did not get the chance to kill the little criminal f****r,” were not protected free speech, a federal court in Ohio ruled, finding it “unimaginable that Facebook posts detailing the author’s desire to kill a twelve-year-old boy and his joy that he is already dead are a matter of public concern.” Although the court granted summary judgment to the city on the employee’s First Amendment claim, it sided with the employee in finding the city’s social media policy unconstitutionally overbroad. While it permanently enjoined the city from enforcing the policy as written, it denied the employee’s request for reinstatement. Nor could the employee advance his failure to train claim (Marquardt v. Carlton, August 23, 2019, Oliver, S., Jr.).

The posts. Two years after the shooting of Tamir Rice, two Facebook posts appeared on the employee’s personal account. In the first, in addition to writing that he was upset he did not get the chance to kill the boy, the author wrote “Let me be the first on record to have the balls to say Tamir Rice should have been shot and I am glad he is dead.” The second post stated “How would you feel if you were walking in the park and some ghetto rat pointed a gun in your face? Would you look to him as a hero? Cleveland sees this felony hood rat as a hero.”

Fired. The employee denied authoring the posts, claiming that once he was alerted to them, he immediately deleted them. He not only apologized on Facebook, writing “I do not believe or stand for what was written,” he reported them to the EMS commissioner, who had also been altered to the posts by other EMS employees as well. After an investigation, the employee was fired for violating numerous rules and regulations, including the city’s social media policy.

He subsequently sued, arguing that even if he had written the posts (he maintained that he did not), they were protected by the First Amendment; the city’s rules and regulations were unconstitutionally overbroad; he suffered irreparable harm was entitled to injunctive relief; and the city negligently trained the commissioner as to employees’ First Amendment rights.

Matter of public concern. Although the employee argued the city retaliated against him for engaging in protected speech, his Facebook posts, said the court, did not involve matters of public concern. Looking to the content, form, and contexts of the posts, the court found they contained no socially or politically relevant message. Further, his references to “I” and “me” in the posts—he used them six times in three sentences—showed this was a personal grievance and the posts were written to further his own private interests.

While there was public interest in the shooting itself and how the city has responded to it in the years since, the employee failed to adequately address the content, form, and context of the posts as they relate to such a public concern. The employee’s communicative purpose was not to discuss public safety, law enforcement, government operations, gun reform, police brutality, or any other public matter but was instead “to express personal joy that Tamir Rice is dead and to voice his disappointment that he was not the one to pull the trigger,” the court observed, granting the city’s motion for summary judgment and denying the employee’s.

Social media policy. Turning to the employee’s assertion that the city’s social media policy was unconstitutionally overbroad, the court pointed out that the overbreadth doctrine allows parties not yet affected by a statute to bring actions under the First Amendment based on a belief that a certain statute is so broad that it threatens to “chill” the exercise of free speech and expression. Noting that EMS commander testified she would consider “anything that is negative anything that has a negative impact” as a violation of the policy, the court found this could include speech that references matters of public concern and therefore it reached a substantial amount of protected speech.

Assuming that EMS was concerned that harmful social media use could threaten cohesion among unit employees and undermine efforts to gain the public’s trust in the communities in which they serve, this justification was not sufficient to allow for the promulgation of a such a broad policy. “Because the Social Media Policy would prevent employees from speaking up about issues within EMS or the City of Cleveland, the public is at a disadvantage in being able to hold the government accountable for its practices,” said the court.

Subjective. Further, even assuming the city provided sufficient evidence of actual disruption by the employee, this would not justify the policy. Because his speech was not constitutionally protected as a matter of public concern, the city could not use his Facebook posts as a justification for the policy’s broadness. In addition, the commander’s power under the policy to decide what is harmful and inappropriate was entirely subjective and threatened arbitrary application of the policy.

Injunctive relief denied. Although the court enjoined the city from enforcing the policy as written, the employee was not entitled to recover on this claim as his speech was not protected as a matter of public concern. Accordingly, it denied his request for injunctive relief, including for reinstatement.

Failure to adequately train. Turning to the employee’s Section 1983 claim against the city for failure to adequately train EMS staff and the commissioner on First Amendment rights, the court found the First and Fourteenth Amendments did not protect the employee’s posts and thus he did suffer any harm from the alleged failure.

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