Herbert Liverman v. City of Petersburg
844 F.3d 400
| 4th Cir. | 2016Background
- Two veteran Petersburg police officers (Liverman and Richards) posted and commented on Facebook criticizing promotion of inexperienced officers; many commenters were current or former department officers.
- Chief Dixon promulgated a revised social networking policy prohibiting “negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers” and warned violations could lead to discipline.
- Dixon disciplined both officers (oral reprimand and six months’ probation) citing the Negative Comments Provision; later they were made ineligible for promotion while on probation.
- Officers sued under 42 U.S.C. § 1983 claiming the policy and the disciplinary actions violated the First Amendment; they also alleged subsequent retaliatory investigations and sought municipal liability against the City.
- District court granted summary judgment to Liverman on the policy claim but found qualified immunity for Dixon; denied Richards relief and rejected retaliation and municipal-liability claims; the officers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of social networking policy (overbreadth) | Policy bans speech on Dept. operations and supervisors, chilling matters of public concern | Policy necessary to prevent workforce disruption and preserve discipline and community trust | Policy is unconstitutionally overbroad; it chills speech on matters of public concern and cannot stand (affirmed for Liverman, reversed for Richards) |
| Discipline under policy (Pickering/Connick balance) | Facebook posts addressed public concerns about promotions/training and were protected; discipline violated First Amendment | Comments were personal grievances likely to disrupt work | Officers’ combined posts were matters of public concern; discipline was unconstitutional |
| Qualified immunity for Chief Dixon | N/A (plaintiffs argue violation occurred) | Dixon argues policy enforcement was reasonable in a gray area | No qualified immunity: unlawfulness was clearly established given the policy’s sweeping prior restraint on protected speech |
| Retaliation for filing suit | Investigations after suit were retaliatory | Investigations were based on independent, nonpretextual complaints and legitimate evidence | Retaliation claims fail; investigations had independent bases and plaintiff offered no evidence of pretext |
| Municipal liability (Monell) | City liable for adopting/enforcing unconstitutional policy | City argues Dixon lacked final policymaking authority; district court dismissed municipal liability | Remanded: district court must determine whether Dixon had final policymaking authority to bind the City; if so, City may be liable |
Key Cases Cited
- Pickering v. Bd. of Educ., 391 U.S. 563 (balancing public-employee speech against government employer interests)
- Connick v. Myers, 461 U.S. 138 (speech is protected only if it involves a matter of public concern; consider content, form, context)
- Garcetti v. Ceballos, 547 U.S. 410 (clarifies limits on public-employee speech made pursuant to official duties)
- United States v. Nat’l Treasury Employees Union, 513 U.S. 454 (government regulation of employee speech as prior restraint requires stronger justification)
- Borough of Duryea v. Guarnieri, 564 U.S. 379 (distinguishing speech and petition rights in public-employee context)
- Waters v. Churchill, 511 U.S. 661 (government employees may have informed perspectives on agency problems)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (government cannot prohibit speech based on viewpoint)
- Bland v. Roberts, 730 F.3d 368 (4th Cir.) (Facebook and social media can be public forum for speech)
- Maciariello v. Sumner, 973 F.2d 295 (4th Cir.) (greater deference to police management but not unlimited)
- Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (municipal liability for constitutional violations caused by official policy)
- Ashcroft v. al–Kidd, 563 U.S. 731 (qualified immunity requires that unlawfulness be clearly established)
- Brooks v. Arthur, 685 F.3d 367 (4th Cir.) (speech implicating public welfare can be protected)