Herbert E. Liverman v. City of Petersburg
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 3:14-cv-00139-JRS. [999987623]. [15-2207]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2207
HERBERT E. LIVERMAN; VANCE R. RICHARDS,
Plaintiffs - Appellants,
v.
CITY OF PETERSBURG; JOHN I. DIXON, III, both individually
and in his capacity as the Chief of Police for the City of
Petersburg Bureau of Police,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:14-cv-00139-JRS)
Argued:
October 27, 2016
Decided:
December 15, 2016
Before WILKINSON and TRAXLER, Circuit Judges, and Bruce
HENDRICKS, United States District Judge for the District
South Carolina, sitting by designation.
H.
of
Affirmed in part, reversed in part, and remanded by published
opinion.
Judge Wilkinson wrote the opinion, in which Judge
Traxler and Judge Hendricks joined.
ARGUED: Andrew Thomas Bodoh, THOMAS H. ROBERTS & ASSOCIATES, PC,
Richmond, Virginia, for Appellants.
Leslie A. Winneberger,
BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia,
for Appellees.
ON BRIEF: William F. Etherington, BEALE,
DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for
Appellees.
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WILKINSON, Circuit Judge:
Two
police
officers
challenge
disciplinary
actions
for
violations of their Department’s social networking policy. The
district court denied relief on most of their claims. While we
are sensitive to the Department’s need for discipline throughout
the
chain
of
command,
the
policy
here
and
the
disciplinary
actions taken pursuant to it would, if upheld, lead to an utter
lack
of
transparency
in
law
enforcement
operations
that
the
First Amendment cannot countenance. For the reasons that follow,
we
affirm
in
part,
reverse
in
part
and
remand
for
further
proceedings.
I.
The
pertinent
Plaintiffs
facts
Herbert
in
Liverman
this
and
case
Vance
are
not
Richards
in
dispute.
were
veteran
police officers in the City of Petersburg’s Police Department.
Both served as field officers under Chief John Dixon, who led
the Department. Dixon in turn served under the general direction
of the City Manager.
In April 2013, Chief Dixon issued a general order revising
the Department’s social networking policy. That policy governs
officers’
use
of
social
media
platforms.
The
preface
to
the
revised policy prohibits in sweeping terms the dissemination of
any
information
unfavorably
upon
“that
the
would
tend
[Department]
2
to
or
discredit
any
or
other
reflect
City
of
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Petersburg Department or its employees.” J.A. 161. The central
provision of the policy, which we will refer to as the Negative
Comments Provision, states:
Negative comments on the internal operations of the
Bureau, or specific conduct of supervisors or peers
that impacts the public’s perception of the department
is not protected by the First Amendment free speech
clause, in accordance with established case law.
J.A. 162. Another provision, which we label the Public Concern
Provision, specifies:
Officers may comment on issues of general or public
concern (as opposed to personal grievances) so long as
the comments do not disrupt the workforce, interfere
with important working relationships or efficient work
flow, or undermine public confidence in the officer.
The instances must be judged on a case-by-case basis.
Id. The policy nonetheless “strongly discourages employees from
posting information regarding off-duty activities” and provides
that violations will be forwarded to the Chief of Police for
“appropriate disciplinary action.” J.A. 163.
This
case
concerns
the
Department’s
application
of
the
social networking policy to the following conversation between
Liverman and Richards. While off-duty on June 17, 2013, Liverman
posted a message to his Facebook page:
Sitting here reading posts referencing rookie cops
becoming instructors. Give me a freaking break, over
15 years of data collected by the FBI in reference to
assaults on officers and officer deaths shows that on
average it takes at least 5 years for an officer to
acquire the necessary skill set to know the job and
perhaps even longer to acquire the knowledge to teach
other officers. But in todays world of instant
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gratification
and
political
correctness
we
have
rookies in specialty units, working as field training
officer’s and even as instructors. Becoming a master
of your trade is essential, not only does your life
depend on it but more importantly the lives of others.
Leadership is first learning, knowing and then doing.
J.A. 398. More than thirty people “liked” or commented on this
post. Richards, also off-duty at the time, commented as follows:
Well said bro, I agree 110%... Not to mention you are
seeing more and more younger Officers being promoted
in a Supervisor/ or roll. It’s disgusting and makes me
sick to my stomach DAILY. LEO Supervisors should be
promoted
by
experience...
And
what
comes
with
experience are “experiences” that “they” can pass
around to the Rookies and younger less experienced
Officers. Perfect example, and you know who I’m
talking about..... How can ANYONE look up, or give
respect to a SGT in Patrol with ONLY 1 1/2yrs
experience in the street? Or less as a matter of fact.
It’s a Law Suit waiting to happen. And you know who
will be responsible for that Law Suit? A Police Vet,
who knew tried telling and warn the admin for
promoting the young Rookie who was too inexperienced
for that roll to begin with. Im with ya bro....smh *
J.A. 399. Later that day, Liverman responded to Richards with a
comment of his own:
There used to be a time when you had to earn a
promotion or a spot in a specialty unit...but now it
seems as though anything goes and beyond officer
safety and questions of liability, these positions
have been “devalued”...and when something has no
value, well it is worthless.
Id. Richards then replied:
Your right..... The next 4yrs can’t get here fast
enough... From what I’ve been seeing I don’t think I
can last though. You know the old “but true” saying
*
“Smh” is an acronym for “shaking my head.”
4
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is....
Your
Agency
is
only
as
good
as
it’s
Leader(s)... It’s hard to “lead by example” when there
isn’t one....smh
J.A. 400.
Among
those
who
liked
or
commented
on
the
Facebook
postings, most were current or former Department officers. Two
sergeants, Liverman’s and Richards’s supervisors, learned of the
exchange and notified Chief Dixon of the issue. Dixon determined
that the statements violated the Department’s social networking
policy and instructed the sergeants to discipline the officers.
In the disciplinary action forms, the Department stated that
Liverman’s
follow-up
comment
and
both
of
Richards’s
comments
violated the Negative Comments Provision. They each received an
oral reprimand and six months’ probation, but were advised that
such
discipline
would
not
affect
their
eligibility
for
promotion. Both the City Manager and Human Resources Director
signed the personnel action forms indicating their probationary
status.
Several
weeks
qualifications
later,
for
however,
promotion.
Chief
The
new
Dixon
altered
protocol
the
expressly
excluded any officers on probation from participating in the
promotion
applied
process.
for
open
Accordingly,
sergeant
when
positions,
Liverman
the
and
Richards
Department
notified
them that they were ineligible to sit for the promotional exam.
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On
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October
1,
2013,
the
City
that
informing
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the
two
they
officers
intended
sent
to
a
letter
challenge
the
disciplinary actions. Shortly thereafter, Liverman and Richards
were the subject of several complaints and investigations within
the Department. Based on the findings, Chief Dixon decided to
fire Liverman, but Liverman resigned before receiving notice of
his termination.
On March 5, 2014, Liverman and Richards filed a six-count
complaint
in
federal
district
court
under
42
U.S.C.
§ 1983,
seeking damages and other relief against Chief Dixon and the
City
for
officers
their
various
claimed
free
violations
that
speech
the
rights
of
the
social
in
First
Amendment.
networking
Counts
One
policy
The
two
infringed
(Liverman)
and
Two
(Richards). Liverman and Richards also challenged the adverse
disciplinary
actions
taken
pursuant
to
the
policy
in
Counts
Three and Four, respectively. Finally, they alleged in Counts
Five
and
Six
that
the
Department
instituted
subsequent
investigations against them in retaliation for proceeding with
the instant suit.
The district court granted Liverman summary judgment on his
claim that the social networking policy infringed his right to
free speech, but nonetheless found that Chief Dixon was entitled
to
qualified
immunity
because
the
policy
fell
within
a
gray
zone. On Liverman’s challenge to the disciplinary action, the
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found
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that
qualified
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immunity
again
shielded
Dixon’s
decision because the contours of protected speech in this area
were not clearly established. The district court next denied
relief
on
Richards’s
challenges
to
the
policy
and
the
discipline, holding that Richards’s speech was purely personal
and thus not protected by the First Amendment. For both of their
retaliation
internal
claims,
the
investigations
court
concluded
were
not
that
the
retaliatory.
subsequent
This
appeal
followed.
II.
The legal framework governing public employee speech claims
is
well
known.
Public
employees
may
not
“be
compelled
to
relinquish the First Amendment rights they would otherwise enjoy
as citizens to comment on matters of public interest.” Pickering
v.
Bd.
of
Educ., 391
U.S.
563,
568
(1968).
Underlying
this
principle is the recognition that “public employees are often
the members of the community who are likely to have informed
opinions as to the operations of their public employers.” City
of
San
Diego
Nonetheless,
v.
a
Roe,
citizen
543
who
U.S.
77,
accepts
82
(2004)
public
(per
curiam).
employment
“must
accept certain limitations on his or her freedom.” Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006). Government employers enjoy
considerable
discretion
to
manage
their
operations,
and
the
First Amendment “does not require a public office to be run as a
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roundtable
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for
employee
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complaints
over
internal
office
affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983).
Courts
whether
begin
the
the
First
Amendment
at
issue
relates
speech
concern. See Pickering, 391
U.S.
at
inquiry
to
by
assessing
matter
of
public
If
568.
a
speech
is
purely
personal, it is not protected and the inquiry is at an end. If,
however, the speech is of public concern, courts must balance
“the interests of the [employee], as a citizen, in commenting
upon matters of public concern and the interest of the State, as
an employer, in promoting the efficiency of the public services
it performs through its employees.” Id.; see also Connick, 461
U.S. at 142.
Against
Amendment
policy
and
this
backdrop,
challenges
the
to
we
the
subsequent
turn
to
the
Department’s
disciplinary
officers’
social
actions
First
networking
taken
against
them.
A.
The district court granted summary judgment to Liverman on
his
challenge
to
the
social
networking
policy,
but
denied
Richards’s parallel claim on the grounds that his speech was not
protected by the First Amendment. We hold that the Department’s
social
networking
policy
is
unconstitutionally
overbroad
and,
for the following reasons, award judgment to Richards on his
claim as well.
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regulations
on
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social
media
use
may
appear
to
present novel issues, we agree with the district court that such
questions are amenable to the traditional analysis set forth in
Connick
and
Pickering.
social
media
fit
Indeed,
comfortably
the
particular
within
the
attributes
existing
of
balancing
inquiry: A social media platform amplifies the distribution of
the speaker’s message — which favors the employee’s free speech
interests
—
but
also
increases
the
potential,
in
some
cases
exponentially, for departmental disruption, thereby favoring the
employer’s interest in efficiency. What matters to the First
Amendment analysis is not only the medium of the speech, but the
scope and content of the restriction.
Here we deal with a broad social networking policy setting
forth the parameters of public employee speech. In United States
v.
Nat’l
(1995), the
Treasury
Supreme
apply Pickering when
regulation
Employees
(as
Court
a
opposed
Union
addressed
generally
to
(NTEU),
a
how
applicable
post-hoc
513
U.S.
courts
should
statute
disciplinary
454
or
action)
operates as a prior restraint on speech. NTEU involved a statute
that
prohibited
federal
employees
from
accepting
any
compensation for giving speeches or writing articles, even when
the topic was unrelated to the employee’s official duties. See
id. at 457. Emphasizing that the honoraria ban impeded a “broad
category of expression” and “chills potential speech before it
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happens,”
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the
Court
held
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that
“the
Government’s
burden
is
greater with respect to this statutory restriction on expression
than with respect to [the] isolated disciplinary action[s]” in
Pickering and its progeny. Id. at 467, 468. Accordingly, “[t]he
Government
must
show
that
the
interests
of
both
potential
audiences and a vast group of present and future employees in a
broad range of present and future expression are outweighed by
that expression’s ‘necessary impact on the actual operation’ of
the
Government.”
Id.
at
468
(quoting
Pickering,
391
U.S.
at
571). Further, the government “must demonstrate that the recited
harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material
way.” Id. at 475.
The
threshold
Department’s
question
policy
in
regulates
this
officers’
case
is
rights
whether
to
the
speak
on
matters of public concern. There can be no doubt that it does:
the restraint is a virtual blanket prohibition on all speech
critical of the government employer. The explicit terms of the
Negative
Comments
Provision
prevent
plaintiffs
and
any
other
officer from making unfavorable comments on the operations and
policies of the Department, arguably the “paradigmatic” matter
of public concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir.
1995); see also Roe, 543 U.S. at 80.
10
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Weighing
Pickering/NTEU
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the
competing
balance,
we
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interests
on
begin
noting
by
either
side
the
of
the
astonishing
breadth of the social networking policy’s language. The policy
seeks to prohibit the dissemination of any information on social
media “that would tend to discredit or reflect unfavorably upon
the
[Department].”
Comments
J.A.
Provision
161.
In
proscribes
particular,
“[n]egative
the
Negative
comments
on
the
internal operations of the Bureau” — which could be just about
anything — or on the “specific conduct of supervisors or peers”
— which, again, could be just about anything. J.A. 162.
The interests of “present and future employees” and their
“potential audiences” in such speech is manifestly significant.
See NTEU, 513 U.S. at 468. We do not, of course, discount the
capacity of social media to amplify expressions of rancor and
vitriol,
with
relationships
sites
like
all
its
that
potential
Connick
Facebook
have
disruption
condemned.
also
emerged
But
as
of
social
a
hub
workplace
networking
for
sharing
information and opinions with one’s larger community. And the
speech prohibited by the policy might affect the public interest
in
any
number
enforcing
the
of
law
ways,
in
an
including
effective
whether
and
the
Department
diligent
manner,
is
or
whether it is doing so in a way that is just and evenhanded to
all concerned. The Department’s law enforcement policies could
well become a matter of constructive public debate and dialogue
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between law enforcement officers and those whose safety they are
sworn to protect. After all, “[g]overnment employees are often
in the best position to know what ails the agencies for which
they
work.”
Waters
v.
Churchill,
511
U.S.
661,
674
(1994)
(plurality opinion). But this policy will cut short all of that.
To repeat, it squashes speech on matters of public import at the
very outset.
Because
the
unmistakably
Department’s
imposes
a
social
significant
networking
burden
on
policy
expressive
activity, we next consider whether the Department has adequately
established
“real,
not
merely
conjectural”
harms
to
its
operations. See NTEU, 513 U.S. at 475. Chief Dixon’s primary
contention
is
that
divisive
social
media
use
undermines
the
Department’s interests in maintaining camaraderie among patrol
officers and building community trust. These are, to be sure,
legitimate
interests.
“When
close
working
relationships
are
essential to fulfilling public responsibilities, a wide degree
of
deference
to
the
employer’s
judgment
is
appropriate.”
Connick, 461 U.S. at 151-52. And such deference applies with
special
force
“paramilitary
—
to
police
discipline
departments
is
demanded,
because
and
they
freedom
must
are
be
correspondingly denied.” Maciariello v. Sumner, 973 F.2d 295,
300 (4th Cir. 1992).
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Here, however, the Department fails to satisfy its burden
of demonstrating actual disruption to its mission. Apart from
generalized
allegations
of
budding
“divisiveness”
and
claims
that some “patrol officers sought [shift] transfers,” J.A. 502,
Chief Dixon presented no evidence of any material disruption
arising from plaintiffs’ — or any other officer’s — comments on
social media. We do not deny that officers’ social media use
might
present
particularly
some
potential
the
given
for
audience
broad
division
within
on
the
Facebook.
ranks,
But
the
speculative ills targeted by the social networking policy are
not
sufficient
officers’
to
freedom
justify
to
debate
such
sweeping
matters
of
restrictions
public
concern.
on
See
Connick, 461 U.S. at 152; McVey v. Stacy, 157 F.3d 271, 279 (4th
Cir. 1998) (Murnaghan, J., concurring in part and concurring in
the judgment) (“A stronger showing of public interest in the
speech requires a concomitantly stronger showing of governmentemployer interest to overcome it.”).
Defendants’ fallback argument is that, even if the Negative
Comments
Provision
Provision
itself
significantly
is
overbroad,
narrows
the
the
reach
Public
of
the
Concern
social
networking policy. This second provision, which permits comments
on “issues of general or public concern . . . so long as the
comments do not disrupt the workforce,” J.A. 162, is ostensibly
more
aligned
with
the
case-by-case
13
analysis
of
Connick
and
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Pickering. But the milder language in a single provision does
not
salvage
the
unacceptable
overbreadth
of
the
social
networking policy taken as a whole. Indeed, the Public Concern
Provision does not purport to nullify or otherwise supersede the
blanket censorship endorsed by the Negative Comments Provision.
If
the
Department
wishes
to
pursue
a
narrower
social
media
policy, then it can craft a regulation that does not have the
chilling effects on speech that the Supreme Court deplored. We
cannot,
however,
allow
the
current
policy
to
survive
as
a
management and disciplinary mechanism.
B.
Plaintiffs next assert that the district court erred in
dismissing
their
challenges
to
the
Department’s
disciplinary
actions. We agree. In fact, the facial overbreadth of the social
networking policy is borne out by the disciplinary actions taken
pursuant to it.
When evaluating an ex post disciplinary action, rather than
an ex ante restraint on speech, the nature of our review is
narrower than
the
analysis
under
NTEU.
In
this
context,
our
court has adopted the traditional Connick/Pickering three-part
test
to
First
determine
Amendment
whether
challenge
a
public
to
an
employee
adverse
has
sustained
employment
a
action.
First, we determine whether the employee spoke as a citizen on a
matter
of
public
concern.
Second,
14
we
evaluate
whether
the
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employee’s interest in First Amendment expression outweighs the
employer’s interest in the efficient operation of the workplace.
And
finally,
we
decide
whether
the
protected
speech
was
a
substantial factor in the employer’s decision to take adverse
employment action. McVey, 157 F.3d at 277-78.
The
first
inquiry,
once
again,
is
whether
Liverman
and
Richards spoke on matters of public concern. “Speech involves a
matter of public concern when it involves an issue of social,
political,
or
of Elizabeth
other
interest
City, 388
F.3d
to
a
440,
community.” Kirby
446
(4th
Cir.
v.
City
2004).
In
resolving this question, the Supreme Court has directed courts
to
examine
the
“content,
form,
and
context
of
a
given
statement.” Connick, 461 U.S. at 147-48. Although defendants are
certainly correct that “personal complaints and grievances about
conditions of employment” are not matters of public concern,
Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007), they
misconstrue the thrust of Liverman’s and Richards’s comments.
The
form
and
context
of
the
comments
indicate
that
plaintiffs did in fact speak on an issue of public concern.
Regarding the form of speech, we find it significant that the
officers chose Facebook as the forum for their communication. As
our
colleague
Judge
Traxler
has
recognized,
Facebook
is
a
dynamic medium through which users can interact and share news
stories or opinions with members of their community. See Bland
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Roberts,
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730
F.3d
368,
Pg: 16 of 27
385
(4th
Cir.
2013).
Similar
to
writing a letter to a local newspaper, see Pickering, 391 U.S.
at 569-70, publicly posting on social media suggests an intent
to
“communicate
to
the
public
or
to
advance
a
political
or
social point of view beyond the employment context,” Borough of
Duryea v. Guarnieri, 131 S. Ct. 2488, 2501 (2011). Further, the
officers’
referencing
Facebook
comments
rookie
cops
were
prompted
becoming
by
other
instructors.”
“posts
J.A.
398.
Accordingly, the context of the speech buttresses our conclusion
that
Liverman
grievances
and
but
Richards
rather
were
were
not
joining
an
simply
airing
ongoing
personal
public
debate
about the propriety of elevating inexperienced police officers
to supervisory roles.
The content of the Facebook comments further confirms that
they
dealt
with
issues
of
public
import.
Defendants
seek
to
carve up the Facebook colloquy and assert that Liverman’s and
Richards’s comments should be considered separately. Yet this
court
has
previously
rejected
attempts
to
“divide[]
[speech]
into discrete components to conduct a constitutional analysis on
each.” Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 157
(4th Cir. 1992). Because we do not have “license to ignore the
portions” of the communication that touch on a matter of public
concern, we must view the statements “as a single expression of
speech to be considered in its entirety.” Campbell, 483 F.3d at
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267. This approach is consistent with the typical experience on
social
media,
where
users
engage
in
interactive
discussions
through a series of posts and comments. Liverman’s initial post
invited
others
responded,
to
and
Department’s
pick
they
up
began
promotion
on
a
his
observations;
public
policies.
Their
Richards
dialogue
about
the
comments,
therefore,
should be read in conjunction as part of a single conversation
on the qualifications of instructors and the increasing number
of rookies thrust into teaching roles.
Taken
together,
plaintiffs’
statements
stand
in
stark
contrast to the sort of “individualized concerns” this court has
characterized as personal grievances. See Brooks v. Arthur, 685
F.3d 367, 374 (4th Cir. 2012). Each veteran officer grounded his
statements
in
specialized
knowledge
and
expressed
a
general
“concern about the inability of the [Department] to carry out
its vital public mission effectively.” Cromer v. Brown, 88 F.3d
1315, 1325-26 (4th Cir. 1996). Liverman’s initial post cited an
FBI
study
that
underscored
the
danger
of
promoting
green
officers, and his subsequent comment noted the implications for
“officer
safety
and
questions
of
liability.”
J.A.
398-99.
Notwithstanding his more colloquial tone, Richards touched on
the same issues of public import in his responses. First, he
agreed
with
Liverman’s
observations
and
echoed
the
concerns
about “more and more younger Officers being promoted.” J.A. 399.
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Then he turned to the issue of skill development raised by the
FBI study and concluded that “LEO Supervisors should be promoted
by
experience”
and
the
“Agency
is
only
as
good
as
it’s
Leader(s).” J.A. 399-400.
Whether plaintiffs were correct or not in their views is
not
the
personal
issue.
The
import.
We
matter
thus
they
addressed
have
no
was
trouble
of
more
finding
than
that
plaintiffs’ Facebook comments, which addressed risks posed by
the
Department’s
inexperienced
supervisors,
raised
issues
of
public concern. See, e.g., Brooks, 685 F.3d at 375 (explaining
that when an employer’s practice “crosses a line to the point
that imperils the public welfare . . . then the public would
rightly be concerned about the matter”); Goldstein v. Chestnut
Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000)
(holding that firefighter’s complaints about inadequate training
and unsafe procedures during emergency calls were matters of
public concern).
The
second
and
third
prongs
of
the
Connick/Pickering
inquiry are not in genuine dispute. Serious concerns regarding
officer training and supervision are weighty matters that must
be offset by an equally substantial workplace disruption. Chief
Dixon
failed
to
establish
a
reasonable
apprehension
that
plaintiffs’ social media comments would meaningfully impair the
efficiency of the workplace. See Maciariello, 973 F.2d at 300.
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Finally, defendants do not seriously dispute that plaintiffs’
Facebook comments were a substantial factor in the decision to
discipline them — indeed, both disciplinary action forms cited
violations of the Negative Comments Provision as the sole basis
for the oral reprimand and probation. J.A. 427-28.
In light of the First Amendment protection accorded to the
officers’ posts, we conclude that the discipline they received
pursuant to the social networking policy was unconstitutional.
C.
In the alternative, Dixon contends that the Department’s
decisions
to
adopt
the
social
networking
policy
and
take
disciplinary action pursuant to the Negative Comments Provision
are entitled to qualified immunity. The doctrine of qualified
immunity shields government officials “who commit constitutional
violations but who, in light of clearly established law, could
reasonably believe that their actions were lawful.” Henry v.
Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
Having
Amendment
found
rights,
that
we
Dixon
must
violated
consider
the
whether
officers’
such
First
rights
were
“clearly established” at the time of the events at issue. “We do
not require a case directly on point” in order to conclude that
the law was clearly established, “but existing precedent must
have
placed
the
statutory
or
constitutional
question
debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2083 (2011).
19
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Dixon first argues that he acted reasonably in adopting the
social networking policy because the policy purported to track
the
subtle
officials
balancing
“are
not
calculus
liable
in
for
Pickering.
bad
guesses
We
in
agree
gray
that
areas,”
Maciariello, 973 F.2d at 298, and “do not expect [police chiefs]
to be judges and to have the training to sort through every
intricacy of case law.” Bland, 730 F.3d at 393. But this case
does not involve gray areas: the right against such a sweeping
prior restraint on speech was clearly established and then some.
Indeed, it is axiomatic that the government may not ban speech
on
the
ground
that
it
expresses
an
objecting
viewpoint.
See
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Accordingly,
there can be no doubt that prohibiting any “[n]egative comments
on the internal operations of the Bureau, or specific conduct of
supervisors or peers” — even comments of great public concern —
violates the First Amendment. J.A. 162.
Dixon
also
asserts
that
the
disciplinary
actions
taken
pursuant to the policy were reasonable in light of the vague
boundaries distinguishing public and private speech. Given the
patent
unconstitutionality
of
the
social
networking
policy,
however, efforts to enforce the policy are similarly suspect.
After
all,
legitimate
the
speech
core
and,
of
as
the
policy
detailed
was
above,
a
prohibition
we
have
on
little
difficulty locating the officers’ speech within this protected
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sphere.
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Plaintiffs
Department’s
raised
training
Pg: 21 of 27
serious
programs
concerns
and
the
promotion
the
regarding
of
inexperienced supervisors, both of which are matters of public
concern. As this court has held time and again, it was clearly
established
law
that
such
speech
is
protected
by
the
First
Amendment. See, e.g., Brooks, 685 F.3d at 375; Goldstein, 218
F.3d at 353.
We
ranks.
appreciate
See
the
need
Maciariello,
for
973
order
F.2d
and
300
at
discipline
in
(recognizing
the
that
“greater latitude is afforded to police department officials in
dealing
with
dissension”).
At
the
same
time,
we
cannot
countenance an arm of government with such enormous powers being
removed to this extent from public scrutiny. This is not an allor-nothing matter; there is a balance to be struck. But the
Department’s
actions
social
taken
to
networking
enforce
it,
policy,
lean
too
and
the
far
to
disciplinary
one
side.
We
therefore hold that Chief Dixon is not entitled to qualified
immunity.
III.
Finally,
plaintiffs
argue
that
Dixon
retaliated
against
them for filing their First Amendment suit. We agree with the
district court that their retaliation claims are without merit.
Plaintiffs
argue
that
the
retaliation
took
the
form
of
investigating their conduct on the force. We cannot conclude,
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however, that plaintiffs have raised an issue of triable fact
that the investigations were pretextual. See McVey, 157 F.3d at
277-78.
There
were
independent
bases
for
each
investigation.
Liverman was investigated twice. In notifying the City of his
First
Amendment
claims,
Liverman
requested
a
wide
range
of
personnel records. While searching for responsive documents, the
Department discovered that Liverman had sent sexually explicit
emails
to
a
investigation
female
for
officer.
sexual
The
Department
harassment,
during
launched
which
an
Liverman
admitted to engaging in sexual misconduct on Department property
and while on duty. Additionally, Liverman was investigated for
an incident in which he ignored Chief Dixon’s orders and failed
to maintain his duty post as directed.
Richards was also investigated twice. Both inquiries were
opened as a result of complaints initiated not by Chief Dixon
but by his fellow officers. The first complaint related to a
report
Richards
officer’s
spouse.
allegedly
The
made
Department
to
the
media
concluded
the
about
another
investigation
within one week, after Richards demonstrated his innocence. The
second
complaint
arose
from
his
involvement
with
the
Department’s Shop with a Cop program. Once again, the Department
determined that the allegations were unfounded.
Apart from generalized assertions regarding the existence
of the investigations, plaintiffs fail to offer any evidence
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that the investigations were retaliatory. Far from groundless
“fishing expeditions,” Appellants’ Br. at 34, each arose from
discrete
reason
allegations
to
of
question
misconduct.
the
Without
legitimacy
of
more,
the
we
see
no
Department’s
investigations. After all, simply filing a Pickering claim does
not confer indefinite immunity on employees or insulate them
from
subsequent
misconduct.
investigation
Granting
relief
and
on
discipline
plaintiffs’
for
unrelated
retaliation
claims
would handcuff the Department by forcing inaction even where
there is police behavior that warrants close review. Speech is
one
thing;
misconduct
something
else.
There
are
countless
unobjectionable reasons why a police department might want to
investigate
work,
an
tardiness,
officer’s
performance,
insubordination,
including
illegal
absence
activity,
and
from
basic
failure to carry out one’s duties in a competent and impartial
fashion. The garden-variety investigations into Liverman’s and
Richards’s conduct were no different, and we therefore reject
their claims of retaliation.
IV.
The City argues that Liverman and Richards have failed to
establish
municipal
liability.
The
district
court
agreed.
We
remand on this question to give the district court a chance to
assess under the appropriate standard municipal liability for
establishing the policy under which plaintiffs were disciplined.
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Under Section 1983, a local government may be held liable
for injuries suffered due to the “execution of a government’s
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy.”
Monell
v.
(1978).
Municipal
Dep’t
of
Soc.
liability
Servs.,
436
“attaches
U.S.
only
658,
where
694
the
decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered.” Pembaur v. City of
Cincinnati,
475
U.S.
469,
481
(1986).
Whether
an
entity
possesses the requisite authority is a question of state law.
Id. at 483.
Here, the district court concluded that the City was not
liable with respect to any of plaintiffs’ claims. The court’s
holding rested on a city ordinance providing that the Chief of
Police “serve[s] at the pleasure of the city manager” and is
“under the direction and control of the city manager.” Liverman
v. City of Petersburg, 106 F. Supp. 3d 744, 769 (E.D. Va. 2015).
Because
Dixon
does
not
have
the
final
say
over
Department
matters, the court indicated, plaintiffs failed to show that
Chief Dixon “possesses the final authority required to establish
municipal liability.” Id.
This
analysis
misapprehends
the
nature
of
the
requisite
authority. We deal here not merely with an individual employment
decision, see Crowley v. Prince George’s Cty., 890 F.2d 683, 687
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(4th Cir. 1989), but a broad policy setting forth all the ground
rules for employee speech. An entity has “final” authority to
set this sort of policy when no further action is needed for the
policy to take effect. The Supreme Court has expressly noted
that
“[a]uthority
delegated
by
an
to
make
official
municipal
who
policy
possesses
.
such
.
.
may
be
authority”
to
another official. Pembaur, 475 U.S. at 483. Here the fact that
Dixon
serves
“under
the
direction
and
control
of
the
city
manager” does not necessarily establish that he lacked final
authority
to
promulgate
the
policy
whose
validity
has
been
successfully challenged herein. We must therefore remand to the
district court to undertake a more particularized inquiry into
whether Chief Dixon possessed final authority to set policies on
the parameters of speech on the part of those law enforcement
officers under his command. If so, the City may also be held
liable for the injuries that were caused by the applications of
that policy.
V.
Running
a
police
department
is
hard
work.
Its
mission
requires capable top-down leadership and a cohesion and esprit
on the part of the officers under the chief’s command. And yet
the
difficulty
of
the
task
and
the
need
for
appropriate
disciplinary measures to perform it still does not allow police
departments
to
wall
themselves
25
off
from
public
scrutiny
and
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debate. That is what happened here. The sensitivity of all the
well-known
issues
that
surround
every
police
department
make
such lack of transparency an unhealthy state of affairs. The
advent of social media does not provide cover for the airing of
purely personal grievances, but neither can it provide a pretext
for shutting off meaningful discussion of larger public issues
in this new public sphere.
To
recapitulate:
We
hold
that
the
Department’s
social
networking policy was unconstitutional and that the disciplinary
measures taken against plaintiffs pursuant to that policy were
likewise
impermissible.
The
patent
overbreadth
of
the
policy
negates Chief Dixon’s qualified immunity defense. We find no
merit,
however,
involved
in
plaintiffs’
investigations
independent
of
any
for
issues
of
retaliation
alleged
free
claims,
police
speech.
As
which
misconduct
to
municipal
liability, we remand for further proceedings in accordance with
the foregoing directions. Remedial issues are also best left for
remand,
although
in
light
of
all
that
has
transpired,
reinstatement is not an equitable option. The calculation of
attorneys’
fees
must
of
course
proceedings on remand.
26
await
the
conclusion
of
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The judgment of the district court is accordingly affirmed
in part, reversed in part, and remanded for further proceedings
consistent with this decision.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
27
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