These two consolidated civil-rights suits primarily allege First Amendment free-speech claims under
Applying the well-known framework for analyzing public-employee speech stemming from Pickering v. Board of Education ,
Background
I. Metro's social-media policy
The policy at issue governs the department's official use of social media, as well as its employees' private use of social media outside of working hours.
Public employees are public servants and are entrusted with the public trust. Because of this public trust, law enforcement personnel are held to a higher standard of professionalism than private citizens. Law enforcement personnel must work hard to gain the trust and confidence of the community they serve. Department members must give thoughtful consideration to their actions to avoid damaging the reputation and trust the department has with the community.4
The policy then provides the following pertinent parameters:
2. Public employees have qualified First Amendment rights. As public employees, speech, on- or off-duty, made pursuant to official duties is not protected speech under the First Amendment and may form the basis for discipline if deemed detrimental to the efficiency of operations of the department;
3. Department members are free to express themselves as private citizens in matters of public concern to the degree that their speech does not:
a. Impair working relationships of the department for which loyalty and confidentiality are important;
b. Impede the performance of duties ;
c. Impair discipline and harmony among co-workers; or
d. Negatively impact or tend to negatively impact the department's ability to serve the public.
4. Department members will not post, transmit, or otherwise disseminate any information, documents, photos or videos, to which members have access as a result of employment , without written permission from the Sheriff, or designee;5
The policy concludes by listing several "[p]rohibitions:"
3. Department members are prohibited from speech that ridicules, maligns, disparages, or otherwise promotes discrimination against race, ethnicity, religion, sex, national origin, sexual orientation, age, disability, political affiliation, gender identity and expression[,] or other explicit class of individuals;
4. Department members are prohibited from speech or other expression that suggests the person is engaged in behavior reasonably considered to be unlawful or reckless toward public safety;
5. Engaging in prohibited speech as stated in this policy, may negatively affect the department member's credibility and impair the member's ability to perform the essential job functions. A department member's speech is a reflection of character and values. Speech that fundamentally conflicts with the department's ICARE values negatively affects both the member's ability and the department's ability to serve the community. Violations of this policy or related policies (values, conduct, etc.) in the use of social media that bring the member or the department into discredit or would tend to bring the member or the department into discredit will result in the department taking appropriate action up to and including termination.6
"ICARE" is an acronym for "Integrity, Courage, Accountability, Respect for People, and Excellence"-values that Metro identifies as its "ethical guiding principles."
II. John Sabatini
A. Facebook posts and Metro's investigation
Sabatini served for over 15 years as a corrections officer at the Clark County Detention Center (CCDC), which Metro operates. In August 2015, an individual called Metro with an anonymous complaint about posts that Sabatini made on his personal Facebook profile and that the complainant found offensive and insensitive to inmates.
Because Sabatini had not restricted access to his Facebook profile through the site's security settings, anyone was able to view the profile's content, including the
The investigator found several posts that he determined violated Metro's social-media policy. In one instance, Sabatini shared a post from a local-news outlet's Facebook page regarding an NHL player being arrested in Las Vegas.
In many of the other posts flagged by the investigator, such as the Jack Nicholson meme, Sabatini commented on CCDC or its inmates. In at least ten posts, including that meme, Sabatini referred to CCDC as "the cesspool."
The IAB investigator also flagged several posts not involving Sabatini's work that nonetheless violated the social-media policy.
The final and most recent post the investigator identified was one Sabatini shared from another Facebook page that included a close-up photo of an African American woman smiling into the camera.
Sabatini also reported during the investigation that other Facebook users had reported his account to the website several times for posting on "hot button issues" and that site had suspended his account on multiple occasions for several days at a time.
B. Metro's post-investigation proceedings
After reviewing Sabatini's Facebook posts and considering the fact that they prompted a community member to contact Metro, the investigator concluded that the posts brought "discredit" to Sabatini and "would tend to bring the department into discredit as well."
IAB submitted its report to Sabatini's superior officers, and his bureau commander issued an "adjudication of complaint."
I am recommending termination due to the serious, repeated, and egregious pattern of racial animus and bias particularly towards inmates, as well as African Americans. As well, your referencing CCDC as a cesspool and its inmates' lives as worthless exposes the Department to great scrutiny and liability incarrying out its mission. Your ability to effectively perform as a Corrections Officer, and provide services to inmates (particularly minorities) who you clearly despise is irreparably tarnished. Also, I have found that there are aggravating factors which elevate your misconduct to termination. Namely, your insubordination, and blatant, open, and public Facebook posts after you were admonished. As well, you continued to operate your Facebook in a public and irresponsible manner, even after being advised that a complaint had been lodged. You also admitted to accessing and disseminating information gained through your employment, and then posting that information to Facebook. Based on the foregoing, I am recommending that your employment be terminated. 59
After this adjudication, Metro convened a pre-termination board consisting of two Metro officers and a civilian director.
Under the terms of the collective-bargaining agreement that applies to Metro officers, Sabatini was able to appeal the termination to an independent arbitrator, who held a hearing. The arbitrator issued a written decision finding that Sabatini's Facebook posts violated Metro's social-media policy because they "negatively impact[ed] the Department's ability to serve the public" by "cast[ing] the CCDC in a bad light" and "bring[ing] discredit on" its mission.
C. Sabatini's suit and motion for a temporary restraining order
Sabatini sued Metro in April 2017, alleging First Amendment and Due Process claims under § 1983, as well as parallel claims under the Nevada Constitution.
II. Charles Moser
Moser is a former Navy SEAL sniper who joined Metro in 2000.
An anonymous complaint was filed, which prompted an IAB investigation.
IAB submitted its report to Moser's superior officers, who issued an adjudication
Moser sued Metro, Ballard, and Neville in mid-2017, alleging two separate First Amendment claims challenging both his discipline under the social-media policy and the policy's facial constitutionality.
Legal standard
Summary judgment is appropriate when the pleadings and admissible evidence "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
If the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to "set forth specific facts showing that there is a genuine issue for trial."
Discussion
Metro and both plaintiffs move for partial summary judgment. Sabatini seeks summary judgment only on his facial challenge to the social-media policy, claiming that it is an overbroad prospective restriction under the First Amendment and is
I first address the plaintiffs' discipline and then turn to the facial challenges. Because I find that Metro and its employees did not violate the plaintiffs' constitutional rights, I need not and do not address qualified immunity.
I. I grant Metro summary judgment on the First Amendment retaliation claims.
More than fifty years ago, the U.S. Supreme Court recognized in Pickering "that citizens do not surrender their First Amendment rights by accepting public employment."
The Ninth Circuit has developed a "sequential five-step" analysis for claims premised on a public employer disciplining its employee based on his speech.
A. Discipline based on violating Metro's social-media policy
Metro does not dispute most of the steps in the Pickering analysis for either plaintiff. For Sabatini's first claim, Metro argues that, under step one, his Facebook posts regarding inmates, CCDC, and African Americans did not touch on matters of public concern and are therefore not entitled to First Amendment protection. Alternatively, Metro contends that, at step four, the Pickering balance tilts in its favor for Sabatini's claim because, as a police department, it has a strong interest in maintaining public trust, which it asserts is eroded by a corrections officer demonstrating disdain for the inmates under his care and prejudice against African Americans generally. As for Moser, Metro only argues that it prevails at the step-four Pickering balance, similarly asserting that his statement about the police-shooting suspect not having "a few holes in him" erodes public trust and exposes Metro to legal lability.
1. Because at least some of Sabatini's Facebook posts commented on matters of public concern, I find that this threshold inquiry is satisfied.
Whether speech touches on a matter of public concern is a question of law.
Critically, "[t]he inappropriate or controversial character of a statement is irrelevant to the question of whether it deals with a matter of public concern. 'Debate on public issues should be uninhibited, robust, and wide-open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' "
Metro argues that "all (or at least a majority) of Sabatini's Facebook comments and posts involved his private interests and not matters of public concern."
Still, many other posts about Sabatini's work convey no discernible social or political message. For instance, the cartoon "Suicide Watch," which portrays a person being amused by a suicide attempt and references the CCDC module for suicidal inmates, appears to be merely a crass attempt at humor. Although comedy can often be a medium for commenting on matters of public concern, Sabatini offers no explanation for what message he was trying to convey through that post. Nor does he address the Full Metal Jacket meme that, combined with his comment, referred to everyone in "the cesspool" as "worthless."
And although Sabatini now attempts to editorialize some of the other memes he shared and ascribe a public-concern message to them, courts must "look to what ... employees actually said, not what they say they said after the fact."
Sabatini's posts about matters other than CCDC and its inmates pose added complexity because the Ninth Circuit has recognized that "it is not entirely clear" under Supreme Court precedent whether statements unrelated to a plaintiff's public employment must raise a matter of public concern in order to warrant First Amendment protection.
Sabatini's posts about non-workplace matters, however, included a mixture of protected and unprotected speech. Although sharing an image of President Obama being hanged conveys powerful racial undertones, his included comment is explicitly critical of the then-president, who Sabatini sarcastically refers to as "the emperor" and who Sabatini appears to conclude had an unrealistic view of his own popularity. This post thus resembles the "caustic" comment about Reagan's shooting in Rankin , which was made in the context of criticizing that president's social policies. Similarly, Sabatini's posts lambasting the Black Lives Matter movement generally and the "liberal media" for (in his view) providing skewed coverage of the indicted African American Democrat undoubtedly touch on matters of public concern-even if they, too, invoke racist connotations.
Other posts, however, advance no discernable political or social statement. Sabatini has not addressed his final post, in which he shared a third-party post referring to "the modern black [woman]" as "a clown," but this statement cannot reasonably be construed as commenting on a matter of public concern. And although Sabatini argues that his statements about Michael Brown are criticisms of a public figure that he believes is unworthy of praise,
In sum, Sabatini's many Facebook posts present a mixed bag of statements-some addressing matters of public concern and others not. Neither the Supreme Court nor the Ninth Circuit has provided guidance on how courts should proceed when only some of the public-employee's statements are protected under the First Amendment. But faced with a comparable step-one result in a case involving a firefighter violating a social-media policy, the Fourth Circuit in Grutzmacher v. Howard County pressed forward with its analysis, "weigh[ing] whatever public interest commentary [was] contained in [the plaintiff's] Facebook activity against the [fire] [d]epartment's dual interest as a provider of public service and employer of persons hired to provide that service."
2. Metro's interest in maintaining public trust in its officers and the department as a whole outweighs the plaintiffs' interest in their speech.
Under the Pickering balancing test, "the government must establish that its 'legitimate administrative interests outweigh the employee's First Amendment rights.' "
These First Amendment rights are balanced against the government's interests, which "include promoting efficiency and integrity in the discharge of official duties and maintaining proper discipline in the public service."
[W]hether a public employee's speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee's duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee's role entailed.132
On this side of the scale, courts also assess the scope of the employee's speech.
Metro does not contend that either plaintiff's Facebook posts caused actual disruptions within the police department. Rather, Metro's position throughout its internal proceedings for both officers was that their comments, if read by the broader public, would injure the community's trust in the department and thereby affect its ability to accomplish its public-safety mission. And Metro advances this same assertion on summary judgment, relying primarily on the Fourth Circuit's decision in Grutzmacher.
There, a county fire department fired the plaintiff, a first-responder supervisor,
In analogizing to the instant case, Metro focuses on the court's conclusion that the plaintiff's speech in Grutzmacher "frustrated the Department's public safety mission and threatened 'community trust' in the Department, which is 'vitally important' to its function."
Both plaintiffs here counter that Grutzmacher is distinguishable because there was evidence in the record there that the firefighter-plaintiff's comments caused actual disruptions in his department and hurt working relationships. At least one other supervisor, for instance, had to have numerous conversations with first responders about the social-media policy.
Although only briefly cited by Metro, the Ninth Circuit's decision in Dible v. City of Chandler is instructive. There, the plaintiff was a police officer who ran a website for profit featuring pictures and videos of himself, his wife, and sometimes others engaging in sexually-explicit acts.
Balancing the parties' interests,
interest ... in maintaining the effective and efficient operation of the police department is particularly strong. It would not seem to require an astute moral philosopher or a brilliant social scientist to discern the fact that [the plaintiff's] activities, when known to the public, would be "detrimental to the mission and functions of the employer." [ City of San Diego v. Roe ,, 84, 543 U.S. 77 , 125 S.Ct. 521 (2004) ]. And although the government's justification cannot be mere speculation, it is entitled to rely on "reasonable predictions of disruption." Waters v. Churchill , 160 L.Ed.2d 410 , 673, 511 U.S. 661 , 1887, 114 S.Ct. 1878 (1994) (plurality opinion). 128 L.Ed.2d 686
Police departments, and those who work for them, are engaged in a dangerous calling and have significant powers. The public expects officers to behave with a high level of propriety, and, unsurprisingly, is outraged when they do not do so. The law and their own safety demands that they be given a degree of respect, and the sleazy activities of [the plaintiff and his wife] could not help but undermine that respect. Nor is this mere speculation.160
The Ninth Circuit further supported its conclusion by quoting from Locurto v. Giuliani , the same Second Circuit decision that the Grutzmacher court drew from, stating that "police officers 'are quintessentially public servants' and 'part of their job is to safeguard the public's opinion of them.' "
Dible thus demonstrates that, although the erosion of working relationships in a place of public employment is a factor common to First Amendment retaliation claims, it is not (as the plaintiffs here suggest) a precondition to finding that the government's interests outweigh the employee's
b. Pickering balance - Sabatini
Looking first at Sabatini's side of the scale, a couple factors weigh in favor of his free-speech interests. Most importantly, the Facebook posts related to his work that also touched on matters of public concern-such as the NHL player being granted bail so quickly or the mass release of inmates-express criticisms of a portion of the criminal-justice system that Sabatini directly worked in as a corrections officer.
On the other side of the scale, Metro has a strong interest in prohibiting the type of Facebook posts that Sabatini made. It reasonably concluded that his posts related to his work-such as the many posts referring to inmates as "worthless," "dirtbags," and "turds" and CCDC as "the cesspool"-demonstrated disdain for the very people under his care as a corrections officer. And by sharing cartoons such as "Suicide Watch," which made light of inmate suicide, Sabatini demonstrated, at best, an utter lack of judgment and, at worst, a complete disregard for the lives of the suicidal inmates he was entrusted to safeguard in module 2C. Similarly, Sabatini's non-work-related posts-including sharing an image of President Obama hanging from a noose, an article on "Why Blacks are Ghetto Dwellers," and a post on how the "modern black [woman] has literally become a clown"-unquestionably exhibited racial animus.
There are also other factors that cut against Sabatini. For instance, Metro found that he acted insubordinately by telling another corrections officer about the IAB investigation despite being instructed not to discuss the matter and by continuing to post content with racial undertones after the investigation began.
When I weigh Metro's valid and significant concerns against Sabatini's moderate interest in the Facebook posts he made, I find that the Pickering balance tilts strongly in Metro's favor. Because Metro therefore did not violate Sabatini's First Amendment rights by disciplining him, I grant it summary judgment on Sabatini's first retaliation claim.
c. Pickering balance - Moser
Metro disciplined Moser over his single Facebook post, in which he commented that it was "a shame" the suspect in an officer-involved shooting "didn't have a few holes in him" once the police caught him. Metro does not challenge whether this statement touched on a matter of public concern, but at the Pickering balancing stage, I may nevertheless assess how close this comment comes to the core of the First Amendment's free-speech guarantee. Moser's comment is somewhat related to his work because it involved his colleagues catching a man suspected of shooting another officer. Nonetheless, the comment doesn't fit the normal public-concern mold because it conveys little that would help the public evaluate Metro's performance. Indeed, it is difficult to discern what message Moser was attempting to convey, especially given that he later stated that he posted the comment because he was simply upset at the moment due to how many officers had been killed in the line of duty the prior year.
On the other side of the scale, Metro also has a strong interest in prohibiting its officers from making the type of statement Moser posted on Facebook. Another of the "significant powers" that our society bestows upon the police is the ability to use deadly force to defend themselves and others. The public therefore trusts that officers will rely on deadly force only when necessary, and this concern is heightened for officers whose roles more readily call upon them to draw their weapons. This is certainly true of SWAT snipers, who, as Deputy Chief Neville explained, are the only officers in the department specifically "set up in a tactical situation and if necessary given a green light to kill someone."
Moser primarily counters that Metro hasn't provided "any deposition testimony or affidavit testimony to demonstrate a reasonable prediction of real and not imagined disruption."
Other factors also weigh against Moser. Because he posted his comment in response to a third-party's Facebook post, he did not speak in a private setting,
On balance, I find that Metro's interest in transferring Moser out of SWAT outweighed his moderate interest in the comment he posted on Facebook. I therefore grant Metro and deny Moser summary judgment on Moser's retaliation claim.
B. Because there is no evidence that Sabatini suffered an adverse employment action after he filed suit, his second retaliation claim fails.
Metro also moves for summary judgment on Sabatini's second retaliation claim, which is premised on the allegation that his bureau commander planned to reassign him "due to accusations of collusion with a coworker and this lawsuit."
Sabatini also argues that, although Metro didn't end up reassigning him, the mere threat of reassignment constituted an adverse employment action.
Sabatini's brief citation to the Ninth Circuit's decision in Antoine v. North Central Counties Consortium
* * *
In sum, I grant Metro summary judgment on both of Sabatini's First Amendment retaliation claims under counts one and three and Moser's sole retaliation claim under count one.
II. I also grant Metro summary judgment on the plaintiffs' facial challenges to its social-media policy.
Sabatini and Moser also bring two types of facial challenges to Metro's social-media policy. First, they contend that the policy is an overbroad prospective restriction on speech.
A. Metro's interest in protecting the public trust outweighs the potential employee speech that the social-media policy proscribes.
A facial challenge to a public-employer's policy that creates a prospective restriction on speech is similar to a retaliation claim, but it assesses the policy's impact on all prohibited employee speech rather than merely the plaintiff's interest in the specific speech that resulted in his discipline.
Looking first to the scope of Metro's social-media policy, because it regulates the employees' use of social media in their off hours, the policy undoubtedly reaches speech they make as private citizens. I must therefore assess whether and to what extent the types and topics of speech regulated by the policy would touch on matters of public concern. In other words, to what extent does the policy restrict speech protected under the First Amendment? Metro's policy is modeled after the Pickering framework, instructing employees that they "are free to express themselves as private citizens in matters of public concern" as long as their speech doesn't "[i]mpair working relationships," "[i]mpede the performance of duties," "[i]mpair discipline and harmony among coworkers," or "[n]egatively impact or tend to impact the department's ability to serve the public." Because the policy formulaically prohibits only the types of speech that would tilt the Pickering balance in Metro's favor, it is
Sabatini therefore addresses only one facet of the policy: its prohibition on "speech that ridicules, maligns, disparages, or otherwise promotes discrimination against race, ethnicity, religion, sex, national origin, sexual orientation, age, disability, political affiliation, gender identity and expression or other explicit class of individuals ...."
Although it is possible for the promotes-discrimination provision on its own to reach the areas of speech illustrated by Sabatini's hypotheticals, I must construe the provision in the context of the broader social-media policy and "consider whether the [policy] is 'readily susceptible' to a limiting construction that would render it constitutional."
Sabatini responds that the policy's additional language doesn't sufficiently limit its reach, relying primarily on the Fourth Circuit's decision in Liverman v. City of Petersburg. There, a police department issued a social-media policy that proscribed "dissemination of any information 'that would tend to discredit or reflect unfavorably upon the Department or any other City ... Department or its employees," and prohibited officers from making "[n]egative comments on the internal operations" of the department.
But Metro's social-media policy has a far narrower scope than the policy in Liverman , which effectively prohibited any public criticism of the department. That policy thus encroached deeply into the areas of public-employee speech that Pickering and its progeny protect. And because the limiting language in Liverman was clearly at odds with the remainder of the policy, the language unsurprisingly failed to redeem it. Metro's policy, by contrast, does not prohibit its employees from speaking on matters of department policy or actions and from thus bringing to light what "ails" the community's police force.
This brings me to Metro's justification for the policy, which I must weigh against the impact on employee speech as a whole. As discussed extensively above, Metro has a strong interest in maintaining public trust by prohibiting speech that would cause the public to question its ability to "enforce[ ] the law fairly, even-handedly, and without bias."
B. Because the plaintiffs' Facebook posts clearly violated the social-media policy, they cannot successfully argue that it is vague.
"The void for vagueness doctrine arose as an aspect of Fourteenth Amendment due process in the context of criminal statutes because it was thought unfair to punish persons for conduct which they had no notice could subject them to criminal punishment."
Because Sabatini and Moser's speech clearly violated Metro's social-media policy, their vagueness claims fail. There can be little doubt that Sabatini's posts unrelated to his work violated the social-media policy by promoting discrimination against African Americans. He nonetheless attempts to recast and sanitize his Facebook posts, arguing for instance that his comments about Black Lives Matter merely criticized a political movement and that he never explicitly called for President Obama to be lynched.
Similarly, Moser's single post about a suspect not having "a few holes in him" clearly violated the policy's proscription on posting material that would discredit the officer or the department. Although that prohibition is slightly more open-ended than the promotes-discrimination provision, a person of "ordinary common sense" would know that a comment by a SWAT sniper that is so callous and cavalier about the use of deadly force would violate the social-media policy. And Moser acknowledged after the fact that his comment was "completely inappropriate." His vagueness challenge therefore also fails.
* * *
In sum, I deny Sabatini summary judgment on his first and fifth claims for his facial challenges under the U.S. Constitution.
III. I grant Metro leave to file a motion addressing Sabatini's claims under the Nevada Constitution.
Sabatini has alleged two retaliation claims and a facial challenge under the Nevada Constitution under the same basis as his federal claims. Although Metro did not title its motion as one for partial summary judgment, it has addressed only Sabatini's federal claims. Because Nevada's constitutional guarantees largely overlap with the U.S. Constitution,
Conclusion
Accordingly, IT IS HEREBY ORDERED that:
• Charles Moser and John Sabatini's motions for partial summary judgment [ECF Nos. 38, 40] are DENIED;
• Defendants' partial motion for summary judgment [ECF No. 41] is GRANTED on all of Moser's claims and all of Sabatini's federal claims under counts one, three, and five (mislabeled as "third claim for relief"). All claims against individual defendants Devin Ballard and Patrick Neville are DISMISSED from this case;
• Metro is granted leave to file a limited summary-judgment motion on Sabatini's remaining claims under the Nevada Constitution by April 8, 2019 . Sabatini may file a response and Metro may reply within the standard summary-judgment briefing schedule;
• Good cause appearing, Metro's motion for leave to file excess pages [ECF No. 39] is GRANTED nunc pro tunc.
Notes
ECF No. 38-2 at 26 (ellipses omitted).
Pickering v. Board of Education ,
See ECF No. 42-2 at 2 ("Adherence to the department's Code of Ethics, LVMPD 1/000.02, is required in the personal use of social media");
Id. at 2.
Id. at 2-3 (emphasis added).
Id. at 3 (emphasis added).
ECF No. 40-3 at 2.
ECF No. 42-3 at 45 (complaint); id. at 20 (investigation report).
Id. at 46-50; ECF No. 43-1 at 4 (full-size screenshot of the post).
ECF No. 42-3 at 46-50; id. at 29.
Id. at 29; ECF No. 10-39 (declaration of Deputy Chief Suey).
ECF No. 42-3 at 21.
Id. (quoting complainant's email to IAB at ECF No. 42-3 at 46).
Id. at 21.
Id. at 22.
A meme is "an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media." Meme , Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/meme.
ECF No. 42-3 at 22 (citing Exhibit 4 at ECF No. 42-3 at 24).
ECF No. 42-3 at 21.
ECF No. 42-3 at 37; ECF No. 42-4 at 47-48.
ECF No. 42-3 at 26.
ECF No. 42-3 at 26.
Id. at 24-34, embedded exhibits 3, 4, 5, 6, 11, 16, 17, 19, 23, 24.
Id. at 21; ECF No. 43-1 at 29 (full-size screenshot).
ECF No. 42-3 at 30; ECF No. 42-5 at 22 (full-size screenshot).
ECF No. 42-4 at 32.
ECF No. 42-3 at 25; ECF No. 42-5 at 8 (full-size screenshot).
ECF No. 42-3 at 25. Similarly, Sabatini shared a post from a Facebook page, which included a picture of two police officers, one white and one black, who both had their palms extended with the message written on them "His life matters" and an arrow pointing at the other officer. ECF No. 42-3 at 33. Sabatini commented: "All lives matter. With the exception of sex offenders, gang bangers, and a few others." Id. ; ECF No. 43-1 at 14 (full-size screenshot).
ECF No. 42-3 at 41.
ECF No. 42-3 at 28; ECF No. 43-1 at 2 (full-size screenshot).
ECF No. 42-3 at 28-29.
Id. at 32; ECF No. 43-1 at 10 (full-size screenshot). Sabatini also shared an article addressing the rising murder rates in Baltimore, Maryland, on which he commented: "Not gonna happen. Black democrat in charge. Focus on the Ravens upcoming seasons." ECF No. 42-3 at 33; ECF No. 43-1 at 12 (full-size screenshot).
ECF No. 42-3 at 35; ECF No. 43-1 at 16, 18 (full-size screenshots).
ECF No. 42-3 at 35-36.
Id. at 29; ECF No. 43-1 at 6 (full-size screenshot).
ECF No. 42-3 at 31; ECF No. 43-1 at 8 (full-size screenshot).
ECF No. 42-3 at 31; ECF No. 42-4 at 24; ECF No. 42-1 at 15.
ECF No. 42-3 at 27; ECF No. 42-5 at 24 (full-size screenshot).
ECF No. 42-3 at 27.
Id. at 37; ECF No. 43-1 at 20 (full-size screenshot).
ECF No. 42-3 at 37.
Id. (ellipsis omitted).
Compare ECF No. 42-3 at 19 (admonished on August 27, 2015), with id. at 35-37 (posts from August 30, 2015, onwards).
ECF No. 42-3 at 41.
ECF No. 42-3 at 23; ECF No. 42-4 at 43.
ECF No. 42-4 at 44.
ECF No. 42-3 at 41-42.
Id. at 42 ("sustaining" the allegation that Sabatini violated the policy).
ECF No. 42-3 at 19, 42.
ECF No. 43-1 at 33-35. Sabatini's division commander also signed off on the adjudication. Id.; see also ECF No. 43-3 at 6 (making clear that the bureau commander authored the adjudication).
ECF No. 43-1 at 34.
ECF No. 42-2 at 46.
ECF No. 43-1 at 34-35.
ECF No. 43-2 at 2 (hearing transcript).
ECF No. 43-3 at 4 (hearing memo).
Id. at 7 (Sheriff's memo).
ECF No. 43-3 at 28-29.
Id. at 35, 60.
ECF No. 6 (first-amended complaint).
Id. at 8-9.
ECF No. 7-1 at 2 (Sabatini's declaration); ECF No. 7 (TRO motion).
ECF No. 37 at 18-22.
ECF No. 42-1 at 4.
Id. at 32 (Moser's deposition).
Id. at 31.
Id. at 32.
It is not clear whether Moser was commenting on an article posted by a news outlet on Facebook or a post by an individual's Facebook profile that included a link to the article. See ECF No. 42-1 at 32.
ECF No. 43-5 at 4 (ellipses in original) (screenshot of post).
ECF No. 42-1 at 33.
See ECF No. 38 at 3; ECF No. 43-5 at 11 (IAB investigation report).
ECF No. 43-5 at 11.
Id. at 12; ECF No. 43-5 at 23 (IAB interview); ECF No. 42-1 at 34 (Moser's deposition).
ECF No. 43-5 at 13.
Id. at 16.
ECF No. 44-1 at 25.
2:17-cv-1704-JAD-NJK at ECF No. 9.
ECF No. 26.
See Celotex Corp. v. Catrett ,
Kaiser Cement Corp. v. Fischbach & Moore, Inc. ,
Warren v. City of Carlsbad ,
Anderson v. Liberty Lobby, Inc. ,
Sonner v. Schwabe N. Am., Inc. ,
ECF No. 40.
ECF No. 38.
ECF No. 41.
Lane v. Franks ,
Moonin v. Tice ,
Lane ,
Eng v. Cooley ,
See, e.g., Barone v. City of Springfield ,
Barone ,
ECF No. 6 at 6, 9. Sabatini's complaint is not a model of clarity. Although he alleges First Amendment claims under counts one and three, and both counts challenge Metro's disciplinary actions against him, he only titles his third claim as First Amendment "retaliation."
ECF No. 9 at 2-3.
Desrochers v. City of San Bernardino ,
Eng ,
City of San Diego v. Roe ,
Rankin v. McPherson ,
ECF No. 41 at 31.
ECF No. 42-3 at 26.
ECF No. 50 at 15.
See Pool v. VanRheen ,
Desrochers ,
ECF No. 50 at 14.
Desrochers ,
Dible v. City of Chandler ,
ECF No. 50 at 17-18.
Grutzmacher v. Howard County ,
Clairmont v. Sound Mental Health ,
Eng ,
Johnson v. Multnomah County ,
Roe v. City & County of San Francisco ,
Grutzmacher ,
Liverman ,
Robinson ,
Dible ,
Tindle v. Caudell ,
See, e.g. , ECF Nos. 41 at 34, 54 at 5.
Grutzmacher ,
Grutzmacher ,
Id. at 347.
Id. (brackets in original).
Sabatini, for instance, cites to Metro's interviews with other corrections officers who stated that they were not offended by his comments and were not aware of any disruption caused. ECF No. 50 at 22-23; see also, e.g. , ECF No. 50-7 at 15 (interview with Officer Lozano). Similarly, when Deputy Chief Neville was asked at his deposition whether he could "identify any actual disruptions to the department's operations as a result of [Moser's] social media post," he answered "No." ECF No. 47 at 6 (citing ECF No. 38-5 at 15).
ECF No. 50 at 22; see also ECF No. 47 at 4.
Dible ,
The Ninth Circuit held that, at step one of the Pickering framework, the plaintiff's activities "did not contribute speech on a matter of public concern."
Id. at 928-29.
Connick ,
See Grutzmacher ,
Liverman ,
Although Metro has argued that none (or little) of Sabatini's speech touched on a matter of public concern, it has not argued in the alternative that any speech that could be deemed protected was not the but-for cause of his termination under the final Pickering step. See Robinson ,
Metro argues that, if the inmates learned of Sabatini's Facebook posts, his comments could have resulted in inmate unrest and therefore disrupted CCDC operations. ECF No. 41 at 35. But because Metro has provided no evidence showing it was likely that incarcerated individuals could discover Sabatini's posts, its argument is mere speculation and plays no role in my conclusion.
Dible ,
Locurto ,
Grutzmacher ,
ECF No. 43-1 at 34-35. Sabatini argues that Metro's discipline was a viewpoint-based First Amendment infringement because it resulted from the department disagreeing with the beliefs his posts espoused. ECF No. 50 at 22. Although Sabatini argues that such a viewpoint-based restriction carries a stronger presumption of unconstitutionality, he cites no case law importing this facet of free-speech doctrine into the framework for a retaliation claim.
Grutzmacher ,
Liverman ,
ECF No. 43-5 at 25 (IAB interview with Moser).
See Grutzmacher ,
ECF No. 44-1 at 7 (Neville's deposition). Moser counters "that even patrol officers (the position that [he] was transferred to) may have to use deadly force ...." ECF No. 47 at 7. Fair enough, but Neville's point is that, unlike other officers, SWAT snipers are specifically placed in a position to use deadly force.
See ECF No. 44-1 at 25 (Labor Board decision) ("[T]he nature of the position in SWAT is that you are held to an incredibly high standard."); ECF No. 42-3 at 8 (deposition of Metro's Director of Labor Relations) ("[I]t appears from [Moser's] comment that he's become a little callus [sic] to killing someone. And someone who's in SWAT who particularly has to shoot a lot, we want them taking that position very seriously and not taking it lightly. And writing a comment like this shows that you might not take this as seriously anymore.").
ECF No. 47 at 4 (emphasis omitted).
Dible ,
See ECF No. 44-1 at 25; ECF No. 42-3 at 8.
See Grutzmacher ,
Moser argues that his "case is indistinguishable from" the Reagan-related statement in Rankin. ECF No. 38 at 6. But as discussed above, that decision turned in part on the fact that the employee made the statement in private to a fellow employee. See supra note 171.
ECF 43-5 at 11. Moser does not deny that there was content on his Facebook profile that would have allowed readers to discern that he was a Metro officer. But he argues that IAB's conclusion on this issue, which is found in its report, is "unattributed hearsay" and that I therefore shouldn't consider it at summary judgment. ECF No. 47 at 2. But the statement was clearly being made by the IAB officer who investigated Moser and authored the report. ECF No. 3-5 at 14 (listing the investigator as "Sgt. Z. Marsh"); ECF No. 43-5 at 19 (interview with Moser by the same sergeant). And although the report itself is hearsay, the 2010 amendment to Federal Rule of Civil Procedure 56"eliminate[d] the unequivocal requirement" that evidence must be admissible in its present form in order to be considered at summary judgment. Romero v. Nev. Dep't of Corr. ,
ECF No. 43-5 at 11; ECF No. 44-1 at 7.
ECF No. 44-1 at 7.
ECF No. 47 at 7.
Tindle ,
ECF No. 7-1.
ECF No. 41 at 24 (citing ECF No. 43-5 at 2 (attendance records) ). The attendance records provided by Metro are not entirely clear. Although Sabatini was assigned to module 2C when he filed suit, the records appear to show that he also worked in other units certain days of the month. Nonetheless, Sabatini does not dispute that he was never transferred.
ECF No. 10-39 (declaration of Deputy Chief Suey).
ECF No. 50 at 26-27.
Coszalter v. City of Salem ,
Anthoine v. N. Cent. Ctys. Consortium ,
It is not clear from count one of Sabatini's complaint that he is challenging both his post-hoc discipline that resulted from violating the social-media policy and the policy itself as a prospective restriction on speech. See supra note 102. But because both he and Metro have construed count one as raising both a retaliation and a prospective-restriction challenge, and Moser has clearly raised a facial challenge, ECF No. 9 at 5, I address the prospective-restriction claims for both plaintiffs.
Metro argues that Sabatini doesn't have standing to facially challenge its social-media policy because he retired and is therefore no longer constrained by the policy. ECF No. 49 at 4-5. But because Moser unquestionably has standing and I ultimately reject the facial challenge, I need not address Sabatini's standing.
Moonin ,
Moonin ,
Barone ,
Moonin ,
Barone ,
See Erwin Chemerinsky, Constitutional Law: Principles and Policies 948 (3rd ed. 2006) (inverting the facts of Board of Airport Commissioners v. Jews for Jesus, Inc. ,
ECF No. 42-2 at 5; ECF No. 40 at 15 (Sabatini's motion for summary judgment).
ECF No. 40 at 16, 19.
Id. at 19.
ECF No. 40-4 at 12.
Kroger ,
ECF No. 49 at 16.
ECF No. 42-2 at 2, 3, 5.
Although Sabatini doesn't address Line 29 in his summary-judgment motion, he alleges in his complaint that, along with the policy, it "impose[s] a significant burden on expressive activity." ECF No. 6 at 7.
Liverman ,
Moonin ,
See, e.g., id. at 568,
Locurto ,
San Filippo v. Bongiovanni ,
Humanitarian Law Project v. U.S. Treasury Dep't ,
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc. ,
United States v. Di Pietro ,
ECF No. 55 at 21.
Sabatini also points to the fact that Metro personnel could not define the phrase "explicit class of individuals" under the promotes-discrimination provision, arguing that the department could interpret the phrase to prohibit criticism of its leadership. ECF No. 40 at 29-30. But this is mere speculation, and the fact that Sabatini clearly violated this provision by promoting racial discrimination prevents him from challenging the remainder of the policy as vague.
Sabatini mistakenly labels his fifth and sixth claims as "third" and "fourth" claim for relief.
See Univ. & Cmty. Coll. Sys. of Nev. v. Nevadans for Sound Gov't ,