Sabatini v. Las Vegas Metropolitan Police Department

Filing 64

ORDER denying 58 Motion for Reconsideration. Signed by Judge Jennifer A. Dorsey on 7/23/2019. (Copies have been distributed pursuant to the NEF - JM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 John Sabatini,
4

Plaintiff

5 v.
Case No.: 2:17-cv-01012-JAD-NJK
6 Las Vegas Metropolitan Police Department,
7

Defendant

8

Charles Moser,

9

Plaintiff

10

v.

Order Denying Plaintiff’s Motion for
Reconsideration and Entering Judgment
[ECF No. 58]

11

Devin Ballard, Patrick Neville, Las Vegas
12 Metropolitan Police Department
Defendants

13
14

Charles Moser, a former SWAT team sniper, sues the Las Vegas Metropolitan Police

15

16 Department and two of his former supervising officers (collectively Metro). He alleges that the
17 defendants violated his First Amendment rights by transferring him out of SWAT because he
18 commented on a Facebook post that it was “a shame” that a suspect apprehended after shooting a
1
19 police officer “didn’t have a few holes in him.” After analyzing Moser’s First Amendment

20 retaliation claim under the five-step, public-employee framework stemming from Pickering v.
21
22
23
1

ECF No. 38-2 at 26 (ellipses omitted).

1 Board of Education,2 I granted summary judgment in the defendants’ favor.3 Because Metro
2 didn’t challenge whether Moser’s Facebook post touched on a matter of public concern, the only
3 step at issue was the Pickering balance: whether Metro’s “legitimate administrative interests” as
4 a public employer “outweigh[ed] [Moser’s] First Amendment rights.”4 I ultimately held that
5 Metro’s interest in maintaining the public’s trust in the police—especially in SWAT snipers who
6 are specifically placed in the position to take a suspect’s life when necessary—outweighed
7 Moser’s interest in his statement.
8

Moser now moves for reconsideration. He primarily argues that I overlooked that he

9 disputes the Metro Internal Affairs Bureau’s (IAB) determination that the content on his
10 Facebook profile would have allowed readers to discern that he was a police officer.5 But
11 Moser’s original affidavit merely highlighted the lack of evidence supporting the IAB’s finding
12 and did not squarely dispute it. And though his new affidavit clarifies his position, I find that the
13 dispute is not material because, even if I disregard this fact, the Pickering balance still tilts in
14 Metro’s favor.
15
16
17
18
19
2
Pickering v. Board of Education, 391 U.S. 563 (1968); Eng v. Cooley, 552 F.3d 1062, 1070
20 (9th Cir. 2009) (“Unraveling Pickering’s tangled history reveals a sequential five-step series of
questions . . . .”).
21 3
ECF No. 56; Sabatini v. Las Vegas Metro. Police Dep’t, 369 F. Supp. 3d 1066, 1093 (D. Nev.
2019).
22
4

Eng, 552 F.3d at 1071 (quoting Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir.
23 2004)).
5

Sabatini, 369 F. Supp. 3d at 1093.
2

1

Standard of review

2

A district court “possesses the inherent procedural power to reconsider, rescind, or

3 modify an interlocutory order for cause seen by it to be sufficient,” so long as it has jurisdiction.6
4 “[M]otions for reconsideration are disfavored,” and “[a] movant must not repeat arguments
5 already presented . . . .”7 “Reconsideration is appropriate if the district court (1) is presented
6 with newly discovered evidence, (2) committed clear error or the initial decision was manifestly
7 unjust, or (3) if there is an intervening change in controlling law.”8
8

Discussion

9

At the Pickering balancing stage, I found that Metro “has a strong interest in prohibiting

10 its officers from making the type of statement Moser posted on Facebook.”9 Our society trusts
11 that the officers will use deadly force only when necessary to protect themselves and others, and
12 that concern is heightened for SWAT snipers, who “are the only officers in the department
13 specifically ‘set up in a tactical situation and if necessary given a green light to kill someone.’”10
14 So, even if Moser didn’t sincerely wish that his fellow officers shot the suspect “regardless of
15 whether the use of deadly force (or any force) was necessary,” his “cavalier and callous comment
16 conveyed a lack of awareness for the degree for trust placed in SWAT officers.”11 And although
17 Moser’s post hadn’t caused any disruptions within the department, it was reasonable for Metro to
18
19
6
City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quotation
20 and emphasis omitted).

22
23

7

LR 59-1(b).

8

21

Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

9

Sabatini, 369 F. Supp. 3d at 1092.

10

Id. (quoting ECF No. 44-1 at 7 (Deputy Chief Neville’s deposition)).

11

Id. at 1092–93.
3

1 predict that his statement, “if discovered by the public, would harm the community’s trust in its
2 police department.”12
3

I also found that other factors weighed in Metro’s favor. Namely, Moser spoke in a

4 public setting by commenting on a third-party’s Facebook post.13 “[A]nd the IAB investigator
5 determined that the content on his Facebook profile—which could be accessed by simply
6 clicking on his name above the post—would have allowed readers to discern that he was a Metro
7 officer.”14 Although Moser did not appear to dispute this conclusion, he argued that the
8 underlying evidence—the investigator’s conclusion in the IAB report—was inadmissible as
9 “unattributed hearsay.15” But I concluded that, because the IAB investigator could have been
10 called to the stand to testify about the findings stated in his report, the evidence’s substance
11 could have be presented in an admissible form at trial.16 It was also undisputed that, near the
12 time of Moser’s post, local news articles had named Moser as a SWAT sniper who had shot a
13 suspect, which I found would have increased the likelihood of anyone who read his post
14 discerning his role in Metro.17 Finally, one of Moser’s supervising officer’s expressed concern
15 that the post would have exposed Metro to additional scrutiny and potential legal liability if
16 Moser was forced to shoot a suspect in a future confrontation.18
17

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12

Id. at 1093.

13

18

Id.

14

Id.

15

Id. n.185

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Id. (“[T]he 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
22 considered at summary judgment.” (quoting Romero v. Nev. Dep’t of Corr., 673 F. App’x 641,
644 (9th Cir. 2016))).
21

23

17

Id. at 1093–94.

18

Id. at 1094.
4

1

When I weighed all of these legitimate concerns against Moser’s interest in his speech, I

2 found the Pickering balance tilted in Metro’s favor. I therefore granted Metro and denied Moser
3 summary judgment on his retaliation claim.
4

In moving for reconsideration, Moser argues that I overlooked the portion of his affidavit

5 in which he disputes the IAB report’s conclusion regarding Moser’s profession being discernable
6 from his Facebook profile.19 He asserts that the profile did not reveal that he was a Metro officer
7 or SWAT sniper and that this case is therefore analogous to the Supreme Court’s decision in
8 Rankin v. McPherson,20 the case he principally relied on in his summary-judgment briefing that I
9 concluded was distinguishable.21 Metro counters that Moser’s affidavit, rather than squarely
10 disputing the investigator’s conclusion, merely states that “no . . . evidence was ever produced in
11 connection with the IAB investigation.”22 I therefore construed and continue to construe this
12 statement as challenging the admissibility of the IAB report rather than disputing the report’s
13 relevant conclusion. Moser has, however, included a new affidavit with his reply brief, averring
14 that his Facebook profile did not reveal that he was a Metro officer.23
15

But even if I disregard the IAB report’s conclusion, I find that the Pickering balance still

16 weighs in Metro’s favor. This now-disputed fact was merely one factor that made it more likely
17 for anyone who read the post to discover that Moser was a Metro officer and thus increased the
18 likelihood that his statement would harm the public’s trust in its police department. But Moser’s
19

21
22

19

ECF No. 58 at 2–3.

20

20

Rankin v. McPherson, 483 U.S. 378 (1987).

21

Sabatini, 369 F. Supp. 3d at 1093 n.184.

22

ECF No. 47-1 at 2 ¶ 4; see also id. ¶ 6 (“When the entire file was produced, it was devoid of
any screen shots, phots, or other evidence to support the claim that my personal Facebook page
23 contained personal information identifying me as in [sic] LVMPD officer and sniper.”).
23

ECF No. 63-1 at 2 ¶ 2.
5

1 position as a SWAT sniper was still readily discoverable because it remains undisputed that local
2 news articles discussed his role in shooting a suspect not long before he made the statement on
3 Facebook. And because Moser posted his comment in response to a third party’s Facebook
4 post—as opposed to on a personal profile with privacy restrictions—he spoke in a public setting.
5

This case thus remains materially distinguishable from Rankin. There, a sheriff’s office

6 terminated an employee who, upon hearing news that President Ronald Reagan had been shot,
7 stated: “[H]e’s cutting back medicaid and food stamps. . . . [I]f they go for him again, I hope
8 they get him.”24 Finding that the Sheriff’s office’s interests didn’t outweigh the employee’s
9 interest in her speech, the Supreme Court emphasized that was no “danger that [she] had
10 discredited the office by making her statement in public.”25 The employee’s “speech took place
11 in an area to which there was ordinarily no public access; her remark was evidently made in a
12 private conversation with another employee”; no “member of the general public was present or
13 heard [her] statement”; and there [wasn’t] any evidence that employees other than [the one] who
14 worked in the room even heard the remark.”26 And not only had the remark not caused actual
15 disruptions in the office, but the evidence showed that the employee’s termination “was not
16 based on any assessment by the Constable that the remark demonstrated a character trait that
17 made respondent unfit to perform her work.”27
18

Moser emphasizes, as he did in prior briefing, that his supervisors conceded that his

19 Facebook post caused no actual disruption in his unit or the department. But a public employer’s
20 interest in terminating an employee may be based on “reasonable predictions” of workplace
21
24

22
23

Rankin, 483 U.S. at 381.

25

Id. at 389.

26

Id.

27

Id. & n.15.
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1 disruptions28 and such predictions are “entitled to substantial weight.”29 Indeed, the employer
2 need “not ‘allow events to unfold to the extent that the disruption of the office and the
3 destruction of working relationships is manifest before taking action.’”30 It was reasonable here
4 for Metro to predict that Moser’s statement, if discovered by the public and if left unchecked by
5 his supervisors, would erode public trust in the department and its SWAT unit. One of his
6 supervisors also expressed concern that the public would more extensively scrutinize any future
7 use of deadly force by Moser and increase the likelihood that both he and Metro would be sued.
8 And, unlike the employee in Rankin, the evidence here establishes that Moser’s comment led his
9 superiors to question his judgment and therefore fitness to serve as a SWAT sniper.
10

So, regardless of whether Moser identified himself as a Metro officer on his Facebook

11 page, I still find that Metro’s interests outweighed his interest in his speech. Moser’s remaining
12 arguments either recycle points he raised in his summary-judgment briefing or merely challenge
13 the weight I assigned to Metro’s interests and thus aren’t valid grounds for reconsideration. I
14 therefore deny his motion. And because Moser’s co-plaintiff, who had state-law claims pending,
15 recently stipulated to dismiss all of his remaining claims against Metro,31 there are no matters left
16 to adjudicate in this case. So, I enter judgment in favor of Metro and against Moser.
17

Conclusion

18

Accordingly, IT IS HEREBY ORDERED that Charles Moser’s motion for

19 reconsideration [ECF No. 58] is DENIED.
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28

22
23

Robinson v. York, 566 F.3d 817, 824 (9th Cir. 2009).

29

Tindle v. Caudell, 56 F.3d 966, 972 (8th Cir. 1995).

30

Id. (quoting Connick v. Myers, 461 U.S. 138, 152 (1983)).

31

ECF No. 62.
7

1

IT IS FURTHER ORDERED that the Clerk of Court is directed to ENTER JUDGMENT in

2 favor of Devin Ballard, Patrick Neville, and the Las Vegas Metropolitan Police Department and
3 against Charles Moser, and CLOSE THIS CASE.
4

Dated: July 23, 2019

5

_________________________________
U.S. District Judge Jennifer A. Dorsey

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