Employment Law Daily Sweeping ‘don’t talk about K9 unit’ mandate was prior restraint on troopers’ free speech
Thursday, August 24, 2017

Sweeping ‘don’t talk about K9 unit’ mandate was prior restraint on troopers’ free speech

By Lisa Milam-Perez, J.D.

A highway patrol major’s directive barring troopers in the K9 unit from discussing the K9 drug interdiction program with any outside entities was an unlawful prior restraint on the troopers’ speech, the Ninth Circuit held. Applying the Pickering framework (noting that, yes, this analysis also applies in the prior restraint context), the appeals court found the major’s sweeping edict barred speech that went beyond the trooper’s official duties and interfered with the officers right to speak as a citizen on a matter of public concern. “We make clear today,” the Ninth Circuit wrote, “that a public employer generally may not subject all employee speech regarding a particular government program—whether fact or opinion, and whether liable to disrupt the workplace or not—to a blanket ban.” The appeals court affirmed a district court order denying qualified immunity to the highway patrol major, and awarding partial summary judgment to the K9 officer on the merits of his First Amendment claim (Moonin v. Tice, August 22, 2017, Berzon, M.).

Prior restraint. Amidst an ongoing dispute over management of the Nevada highway patrol’s canine (K9) drug detection unit, the major sent an email mandating that officers were not to discuss the program with any entity or persons outside the department, upon penalty of discipline. The officers contended there were operational problems with the K9 program and that other highway patrol officers were looking to undermine the program’s effectiveness; the major’s email edict was an attempt to prevent the K9 officers from voicing these concerns to the public—especially “Friends for K9,” a private group that was “‘intentionally meddling into how the unit was run,’” according to the major. It was appropriate to forbid the K9 officers from having contact with the group, the major said, to eliminate its undue influence.

First Amendment claim. One of the K9 officers sued, contending that the prohibition violated his free speech rights, and the district court denied qualified immunity to the major, concluding that a reasonable official would know that such a mandate was an impermissible prior restraint and a violation of government employees’ established constitutional rights. The lower court also granted partial summary judgment to the K9 officer on the merits, which turned on the same factual and legal issues as the qualified immunity question. The appeals court affirmed that the announced policy violated the First Amendment.

Beyond official speech. The challenged policy did more than prohibit speech made pursuant to the troopers’ official duties; absent any qualifiers as to precisely what specific types of information or opinions were barred, it was broad enough to encompass their protected speech as private citizens. In the email, the major specifically exempted from his mandate any speech to allied law-enforcement agencies, which suggested to the appeals court that, “to the extent the policy is targeted at all, it is targeted at speech not made pursuant to the affected troopers’ official duties.” Rather, it restricted the troopers from expressing their opinions about the K9 program as citizens, and it also reached potential whistleblower complaints. While the major contended that it was part of the trooper’s official duties to report misconduct internally, the email also forbid speech about many topics aside from misconduct, such as disagreements about K9 training protocols, as one example.

Also, the policy applied not only to speech to the media, but also to speech directed to community groups, legislators, public officials, and even friends and family. In fact, the stated purpose of the edict was to cut off contact between the troopers and the community group that had apparently vexed the major. Consequently, the policy barred speech well outside the troopers’ official duties, even if speech within those duties was also covered.

Matter of public concern. Moreover, the policy restricted speech on matters of public concern, and thus satisfied the additional element of the Pickering test. The trooper said that his intended speech proposed to address the highway patrol’s misuse of funds, the “sabotage” of the K-9 program, and the promotion of unconstitutional searches—all of which were within the public interest, and all of which were foreclosed by the overbroad restriction. Disputes over the K9 program’s management garnered media attention, in fact, reinforcing that the content of the trooper’s intended speech addressed matters of public interest.

Highway patrol’s legitimate interest. Balancing the troopers’ speech rights against the highway patrol’s need to promote efficiency of public services, the appeals court pointed out that the public employer’s burden is greater in prior restraint cases—which affect an entire group of employees—than in cases where individual employees are disciplined after the fact for their arguably protected speech. Here, the major asserted three rationales for his edict: (1) protecting sensitive law enforcement information related to drug interdiction; (2) controlling official communications about the K9 program, and (3) “ensuring effective operation of the agency without disruption” by non-law-enforcement groups.” The first two were well and good, but the appeals court was skeptical about the third rationale—which appeared to be the primary impetus for issuing the policy.

The major cited concerns that “private interest groups” had undue influence on law enforcement policy, which had the potential to disrupt operations, result in unethical practices, and evince favored treatment towards these organizations. However, he offered no evidence of such disruption, past or possibly in the future. The major said he sent the email because the department had “‘issues with questions coming from the legislature,’ governor’s office, and others with ‘incomplete understandings of” what was happening in the department.” The outside group was “continually” trying to exert its influence to staff in the governor’s office, and it was no longer welcome, he said.

However, he offered no specific evidence of such improper interference, or of how the outside group had achieved the “meddling” he spoke of. “Although it could be true that police departments would operate more efficiently absent inquiry into their practices by the public and the legislature, efficiency grounded in the avoidance of accountability is not, in a democracy, a supervening value,” the Ninth Circuit wrote. “Avoiding accountability by reason of persuasive speech to other governmental officials and the public is not an interest that can justify curtailing officers’ speech as citizens on matters of public concern.”

No rational relationship. Even if these interests, as enunciated, were legitimate, they did not support the expansive policy imposed here. The sweeping edict barred the troopers from “all communication with ANY non-departmental and non-law enforcement entity or persons regarding the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect logistics relating to these programs.” This broad restriction did not bear a “close and rational relationship” to the highway patrol’s legitimate government interests. The policy did not distinguish between speech that might reasonably disrupt departmental operations from speech that would clearly not. It was not tailored to address the release of information or records that would undermine the interests cited.

And it restricted the officers’ speech as broadly as the content of the speech itself: The troopers were barred from communicating “under any circumstances, with or without prior notice or approval.” The policy left the extra-departmental communications entirely to the discretion of the commander to determine which message was “appropriate,” the court observed, adding that “[s]uch unbounded discretion as to substance raises the specter of arbitrary or viewpoint discriminatory enforcement.”

Clearly established right. Finally, it was clearly established in 2011, when the email edict was sent out, that such a broad restriction on employee speech ran afoul of the First Amendment. More specifically, it was “abundantly clear” that such “ex ante restrictions on employee speech are more constitutionally problematic than after-the-fact decisions to punish a particular employee for his speech,” the appeals court wrote. The appeals court surveyed the controlling and persuasive caselaw regarding the three categories of workplace speech regulations. Whether qualified immunity attached would have been a tougher call if the policy in question merely (1) mandated employer notice or (2) required supervisor preapproval before speaking, as these have survived scrutiny in some cases, if sufficiently tailored to government interests.

But the policy challenged here was a category 3, the most severe of speech restrictions. It barred “any and all discussion of certain topics with the public.” As Supreme Court and Ninth Circuit precedent had “emphatically signaled” by that time, so broad a restriction on employee speech, without a countervailing showing that substantial disruption to the government employer would otherwise occur, could not survive First Amendment scrutiny. Therefore, the major was not entitled to qualified immunity.

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