SOCIAL MEDIA: LEGAL SOCIAL MEDIA: LEGAL CHALLENGES AND PITFALLSCHALLENGES AND PITFALLS

International Association of Chiefs of Police Legal Officers Section

September 29, 2012

SOCIAL MEDIASOCIAL MEDIA – SPECIAL – SPECIAL CONSIDERATIONS FOR LAW CONSIDERATIONS FOR LAW

ENFORCEMENTENFORCEMENT

SOCIAL MEDIA – HERE TO STAYSOCIAL MEDIA – HERE TO STAY ISSUE FOR THOSE OF US IN LAW ISSUE FOR THOSE OF US IN LAW

ENFORCEMENT: HOW DO WE RESPECT ENFORCEMENT: HOW DO WE RESPECT EMPLOYEES’ CONSTITUTIONAL RIGHTS EMPLOYEES’ CONSTITUTIONAL RIGHTS WHILE ENSURING THAT THEIR USE OF WHILE ENSURING THAT THEIR USE OF SOCIAL MEDIA DOES NOT ADVERSELY SOCIAL MEDIA DOES NOT ADVERSELY AFFECT DEPARTMENT OPERATIONS?AFFECT DEPARTMENT OPERATIONS?

SOCIAL MEDIASOCIAL MEDIA – SPECIAL – SPECIAL CONSIDERATIONS FOR LAW CONSIDERATIONS FOR LAW

ENFORCEMENTENFORCEMENT ““This is something that all police This is something that all police

chiefs around the country, if you are chiefs around the country, if you are not dealing with it, you better deal not dealing with it, you better deal with it.” (Mark A. Marshall, Chief of with it.” (Mark A. Marshall, Chief of Police in Smithfield, VA. – President Police in Smithfield, VA. – President of the IACP.)of the IACP.)

SOCIAL MEDIASOCIAL MEDIA – SPECIAL – SPECIAL CONSIDERATIONS FOR LAW CONSIDERATIONS FOR LAW

ENFORCEMENTENFORCEMENT GENERATIONAL ISSUES – EVOLVING STANDARDS GENERATIONAL ISSUES – EVOLVING STANDARDS

OF WHAT CONSTITUTES PRIVACY OF WHAT CONSTITUTES PRIVACY EASE OF POSTING THOUGHTS/OPINIONS ON EASE OF POSTING THOUGHTS/OPINIONS ON

SOCIAL MEDIA – THERE IS OFTEN LITTLE THOUGHT SOCIAL MEDIA – THERE IS OFTEN LITTLE THOUGHT OF POTENTIAL IMPACT OF THE “SPEECH”OF POTENTIAL IMPACT OF THE “SPEECH”

MISTAKEN PERCEPTION THAT POSTING IS MISTAKEN PERCEPTION THAT POSTING IS “PRIVATE” SPEECH – INFORMATION IS EASILY “PRIVATE” SPEECH – INFORMATION IS EASILY SHARED; PLACED IN THE PUBLIC DOMAIN. SHARED; PLACED IN THE PUBLIC DOMAIN.

RECENT EVENTS – POLITICIANS, CELEBRITIES, ETC. RECENT EVENTS – POLITICIANS, CELEBRITIES, ETC.

SOCIAL MEDIASOCIAL MEDIA – SPECIAL – SPECIAL CONSIDERATIONS FOR LAW CONSIDERATIONS FOR LAW

ENFORCEMENTENFORCEMENT Ray Shultz of the Albuquerque Police Ray Shultz of the Albuquerque Police

Department was quoted in a recent news Department was quoted in a recent news story as saying “You need to get a handle story as saying “You need to get a handle on this very quickly, because this has the on this very quickly, because this has the potential to damage the reputation of the potential to damage the reputation of the organization and also adversely affect you organization and also adversely affect you in the courtroom.” Chief Shultz added that in the courtroom.” Chief Shultz added that some social media sites are “like the some social media sites are “like the bathroom wall of 20 years ago, except now bathroom wall of 20 years ago, except now the entire world can see it.” the entire world can see it.”

EXAMPLES OF WAYS SOCIAL EXAMPLES OF WAYS SOCIAL MEDIA CAN DETRIMENTALLY MEDIA CAN DETRIMENTALLY

AFFECT A POLICE AFFECT A POLICE DEPARTMENTDEPARTMENT

I. Revelation of sensitive/restricted I. Revelation of sensitive/restricted departmental information/communications.departmental information/communications.

II. Sexually explicit communications (Both on II. Sexually explicit communications (Both on and off-duty).and off-duty).

III. Defamatory material.III. Defamatory material. IV. Derogatory communications targeted at IV. Derogatory communications targeted at

protected classes of persons.protected classes of persons. V. Communications adversely impacting judicial V. Communications adversely impacting judicial

proceedings. (proceedings. (Brady/Giglio Brady/Giglio issues) issues)

EXAMPLES OF CASES WHERE EXAMPLES OF CASES WHERE OFFICERS’ USE OF SOCIAL OFFICERS’ USE OF SOCIAL

MEDIA ADVERSELY IMPACTED MEDIA ADVERSELY IMPACTED JUDICIAL PROCEEDINGS OR JUDICIAL PROCEEDINGS OR

OTHERWISE CAST THE OTHERWISE CAST THE DEPARTMENT IN A NEGATIVE DEPARTMENT IN A NEGATIVE

LIGHTLIGHT(Or should we just call them “Facebook Horror (Or should we just call them “Facebook Horror

Stories?”)Stories?”)

PEOPLE V. WATERSPEOPLE V. WATERS, , (Kings Co. (Kings Co. NY Sup. Ct. 2009)NY Sup. Ct. 2009)

Defendant was charged with felony Defendant was charged with felony gun possession.gun possession.

Defense theory that arresting officer Defense theory that arresting officer planted the gun.planted the gun.

Police officer had a MySpace account.Police officer had a MySpace account. Near time of arrest of Defendant: Near time of arrest of Defendant:

Mood description was listed as Mood description was listed as “devious.”“devious.”

Status: “Watching Training Day” to Status: “Watching Training Day” to brush up on proper police procedure.brush up on proper police procedure.

People v. Waters, cont.People v. Waters, cont.

Officer had also posted comments online Officer had also posted comments online regarding video arrest clips:regarding video arrest clips:

““““If [officer] wanted to tune him up some, he If [officer] wanted to tune him up some, he should have delayed cuffing him;” “if you were should have delayed cuffing him;” “if you were going to hit a cuffed suspect, at least get your going to hit a cuffed suspect, at least get your money’s worth.” money’s worth.”

Defendant, on parole for burglary, was acquitted Defendant, on parole for burglary, was acquitted of the most serious charges.of the most serious charges.

Officer’s thoughts: “I’m not going to say it was the Officer’s thoughts: “I’m not going to say it was the best of things to do in retrospect.” “….stupidity on best of things to do in retrospect.” “….stupidity on the Internet is there for everyone to see for all the Internet is there for everyone to see for all times in perpetuity.”times in perpetuity.”

People v. Waters, cont.People v. Waters, cont.

When asked about the “Not Guilty” When asked about the “Not Guilty” verdict, the officer stated “I feel it’s verdict, the officer stated “I feel it’s partially my fault.” “It paints a picture of a partially my fault.” “It paints a picture of a person who could be overly aggressive. person who could be overly aggressive. You put that together, it’s reasonable You put that together, it’s reasonable doubt in anyone’s mind.” doubt in anyone’s mind.”

HOW WOULD THIS OFFICER’S HOW WOULD THIS OFFICER’S POSTING BE PERCEIVED IF HE WAS POSTING BE PERCEIVED IF HE WAS

ACCUSED OF USING EXCESSIVE ACCUSED OF USING EXCESSIVE FORCE?FORCE?

CROMER V. LEXINGTON-CROMER V. LEXINGTON-FAYETTE URBAN CO. GOVT. FAYETTE URBAN CO. GOVT.

(2009)(2009) Lexington, KY, police officer arrested singer John Lexington, KY, police officer arrested singer John

Michael Montgomery for DUI. City officials learned Michael Montgomery for DUI. City officials learned that Cromer had identified himself as a police officer that Cromer had identified himself as a police officer on his MySpace page, and had posted words and/or on his MySpace page, and had posted words and/or images that reflected discredit to him, the PD, and images that reflected discredit to him, the PD, and impaired the operation and efficiency of himself and impaired the operation and efficiency of himself and the PD. Such postings included profane language, the PD. Such postings included profane language, comments and images regarding homosexuals and comments and images regarding homosexuals and the disabled, inappropriate sexual comments, and an the disabled, inappropriate sexual comments, and an altered photograph depicting him with Montgomery. altered photograph depicting him with Montgomery. Both the trial ct. and the Ct. of Appeals upheld his Both the trial ct. and the Ct. of Appeals upheld his termination on grounds of misconduct, inefficiency, termination on grounds of misconduct, inefficiency, and insubordination. and insubordination.

ALBUQUERQUE POLICE ALBUQUERQUE POLICE SHOOTING - 2011SHOOTING - 2011

Officer shot and killed a subject following a traffic Officer shot and killed a subject following a traffic stop. stop.

Had listed his job description on his Facebook Had listed his job description on his Facebook page as “human waste disposal.”page as “human waste disposal.”

Attorney sought to obtain access to fifty-seven Attorney sought to obtain access to fifty-seven officers’ Facebook pages in order to see if they officers’ Facebook pages in order to see if they had discussed the shooting.had discussed the shooting.

Chief of AlbuquerqueChief of Albuquerque PD said he was “disgusted” PD said he was “disgusted” by the comment and that it will be part of an by the comment and that it will be part of an internal affairs investigation into the shooting.internal affairs investigation into the shooting.

ALBUQUERQUE POLICE ALBUQUERQUE POLICE SHOOTING, cont.SHOOTING, cont.

The officer involved later said that his The officer involved later said that his Facebook posting was “extremely Facebook posting was “extremely inappropriate and a lapse in judgment on inappropriate and a lapse in judgment on my part.”my part.”

Albuquerque PD subsequently developed a Albuquerque PD subsequently developed a Social Media policy for its officers. Social Media policy for its officers.

NYPD Officers Post Comments Regarding the NYPD Officers Post Comments Regarding the Annual West Indian ParadeAnnual West Indian Parade

West Indian Parade West Indian Parade Controversy, cont.Controversy, cont.

Officers maligned paradegoers on a Facebook page. Officers maligned paradegoers on a Facebook page. Some posts characterized the participants as “animals” Some posts characterized the participants as “animals” and “savages.” The Facebook page on which the and “savages.” The Facebook page on which the comments were posted was believed to be accessible to comments were posted was believed to be accessible to any user of the site, and consisted of nearly 70 printed any user of the site, and consisted of nearly 70 printed pages of material.pages of material.

Defense attorneys used the postings in an effort to Defense attorneys used the postings in an effort to discredit the courtroom testimony of an officer who had discredit the courtroom testimony of an officer who had “liked” the Facebook page. The officer in question had “liked” the Facebook page. The officer in question had arrested an individual in the hours before the parade arrested an individual in the hours before the parade started. Many of the postings were referenced during the started. Many of the postings were referenced during the trial. The defendant was subsequently acquitted. trial. The defendant was subsequently acquitted.

17 offficers have since been disciplined by the NYPD for 17 offficers have since been disciplined by the NYPD for their part in posting material to the site. their part in posting material to the site.

And the Examples Continue:And the Examples Continue:

Peoria, AZ: An officer was disciplined Peoria, AZ: An officer was disciplined after posting this photograph on his after posting this photograph on his Facebook page: Facebook page:

Facebook Posting of Obama Facebook Posting of Obama Shirt Riddled With Bullet HolesShirt Riddled With Bullet Holes

The Secret Service and the officer’s The Secret Service and the officer’s department launched inquiries after department launched inquiries after the photo was posted.the photo was posted.

The officer was demoted and The officer was demoted and suspended by the department due to suspended by the department due to his violation of its social media policy his violation of its social media policy and because he discredited the and because he discredited the department. department.

The discipline was upheld following the The discipline was upheld following the officer’s appeal of the demotion. officer’s appeal of the demotion.

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEEEMPLOYEE

AS LAW ENFORCEMENT ADMINISTRATORS, AS LAW ENFORCEMENT ADMINISTRATORS, WHAT CAN YOU DO TO EITHER PREVENT WHAT CAN YOU DO TO EITHER PREVENT SUCH SITUATIONS FROM OCCURING OR SUCH SITUATIONS FROM OCCURING OR PUNISHING THOSE WHOSE ACTIONS PUNISHING THOSE WHOSE ACTIONS VIOLATE DEPARTMENTAL POLICY?VIOLATE DEPARTMENTAL POLICY?

WHAT ARE YOUR RIGHTS TO RESTRICT WHAT ARE YOUR RIGHTS TO RESTRICT EMPLOYEES’ “SPEECH?”EMPLOYEES’ “SPEECH?”

WILL THE EMPLOYEE BE ABLE TO ARGUE WILL THE EMPLOYEE BE ABLE TO ARGUE THAT WHAT THEY SAY AND WRITE “OFF-THAT WHAT THEY SAY AND WRITE “OFF-DUTY” IS OF NO CONCERN TO THE DUTY” IS OF NO CONCERN TO THE DEPARTMENT? DEPARTMENT?

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. EMPLOYEE, cont.

WHERE DO WE START? WHERE DO WE START? AN ANALYSIS OF THE SIGNIFICANT FIRST AN ANALYSIS OF THE SIGNIFICANT FIRST

AMENDMENT CASES THAT HAVE AMENDMENT CASES THAT HAVE CONSIDERED THE RESTRICTIONS THAT CAN CONSIDERED THE RESTRICTIONS THAT CAN BE PLACED ON PUBLIC EMPLOYEES’ SPEECH. BE PLACED ON PUBLIC EMPLOYEES’ SPEECH.

THE GOOD NEWS:THE GOOD NEWS: ALTHOUGH THE USE OF ALTHOUGH THE USE OF SOCIAL MEDIA IS RELATIVELY NEW, EXISTING SOCIAL MEDIA IS RELATIVELY NEW, EXISTING LAW PROVIDES ADEQUATE GUIDANCE FOR LAW PROVIDES ADEQUATE GUIDANCE FOR PUBLIC ENTITES CONFRONTING THESE PUBLIC ENTITES CONFRONTING THESE ISSUES. LAW ENFORCEMENT AGENCIES HAVE ISSUES. LAW ENFORCEMENT AGENCIES HAVE DEALT WITH EMPLOYEE-RELATED “SPEECH” DEALT WITH EMPLOYEE-RELATED “SPEECH” ISSUE FOR MANY YEARS. ISSUE FOR MANY YEARS.

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. EMPLOYEE, cont.

First Amendment to the Constitution: First Amendment to the Constitution: “Congress shall make no law respecting “Congress shall make no law respecting an establishment of religion, or an establishment of religion, or prohibiting the free exercise thereof; prohibiting the free exercise thereof; or or abridging the freedom of speech,abridging the freedom of speech, or of the press; or the right of people or of the press; or the right of people peaceably to assemble, and to petition peaceably to assemble, and to petition the government for a redress of the government for a redress of grievance.” grievance.”

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. EMPLOYEE, cont.

Challenge for Law Enforcement Challenge for Law Enforcement Agencies: How do we respect Agencies: How do we respect employees’ First Amendment Rights employees’ First Amendment Rights while ensuring that the agency’s while ensuring that the agency’s interests are adequately protected. interests are adequately protected.

First Amendment rights are First Amendment rights are cherished, but are certainly not cherished, but are certainly not without reasonable limitations. without reasonable limitations.

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, cont.EMPLOYEE, cont.

A principal inquiry for courts when A principal inquiry for courts when reviewing public employee free reviewing public employee free speech cases is whether the speech cases is whether the employee made the statements in employee made the statements in their their official capacityofficial capacity or as a or as a private private citizencitizen..

The issue is sometimes more difficult The issue is sometimes more difficult when dealing with law enforcement when dealing with law enforcement officers they are often considered to officers they are often considered to be “on duty” at all times. be “on duty” at all times.

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, cont.EMPLOYEE, cont.

Public employees (esp. law enforcement) Public employees (esp. law enforcement) vs. private citizens.vs. private citizens.

As the Supreme Court noted in one As the Supreme Court noted in one significant First Amendment case, “when a significant First Amendment case, “when a citizen enters government service, the citizen enters government service, the citizen by necessity must accept certain citizen by necessity must accept certain limitations on his/her freedom.” (limitations on his/her freedom.” (Garcetti).Garcetti).

It is this principle that underscores much It is this principle that underscores much of the case law in this area. of the case law in this area.

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, contEMPLOYEE, cont

As government employees, we are As government employees, we are held to a higher standard than private held to a higher standard than private citizens. citizens.

IACP Code of Ethics was adopted in IACP Code of Ethics was adopted in the late 1950s. The second paragraph the late 1950s. The second paragraph of that Code, which has become a of that Code, which has become a standard of the profession, states “I standard of the profession, states “I will maintain an unsullied personal life will maintain an unsullied personal life as an example to all.” as an example to all.”

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, cont EMPLOYEE, cont

Essential analysis when analyzing the First Essential analysis when analyzing the First Amendment Rights of public employees – Amendment Rights of public employees – How do we go about it?How do we go about it?

“ “SPEECH”: Defined broadly – oral or written SPEECH”: Defined broadly – oral or written communications and other forms of conduct. communications and other forms of conduct.

Protection of certain forms of public Protection of certain forms of public employees’ speech was recognized by employees’ speech was recognized by Supreme Court in Supreme Court in Pickering v. Board of Pickering v. Board of EducationEducation (1968) (1968)

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, contEMPLOYEE, cont

In In Pickering, Pickering, Court established a balancing Court established a balancing test, weighing the employee’s interest in test, weighing the employee’s interest in commenting on matters of public concern commenting on matters of public concern against the employer’s interest in promoting against the employer’s interest in promoting efficiency of the public services it renders. efficiency of the public services it renders.

We must always begin the analysis of the We must always begin the analysis of the speech in question by determining whether speech in question by determining whether the employee was speaking as a “private the employee was speaking as a “private citizen” on a matter of “public concern.” citizen” on a matter of “public concern.”

If so, then we balance the interests If so, then we balance the interests (employee’s and employer’s) involved.(employee’s and employer’s) involved.

FREE SPEECH AND THE PUBLIC FREE SPEECH AND THE PUBLIC EMPLOYEE, contEMPLOYEE, cont

We also need to determine whether We also need to determine whether the employee’s speech was a the employee’s speech was a motivating factor in the adverse motivating factor in the adverse employment action – Did the employment action – Did the employer have a reason for taking employer have a reason for taking the action even in the absence of the the action even in the absence of the protected conduct? protected conduct?

““PRIVATE CITIZEN” OR PUBLIC PRIVATE CITIZEN” OR PUBLIC EMPLOYEE?EMPLOYEE?

Purely job-related speech: In Purely job-related speech: In Garcetti, Garcetti, the the Supreme Ct. held that when public employees Supreme Ct. held that when public employees make statements pursuant to their official duties, make statements pursuant to their official duties, the employees are not speaking as citizens for the employees are not speaking as citizens for First Amendment purposes and the Constitution First Amendment purposes and the Constitution does not insulate their communications from does not insulate their communications from employer discipline. employer discipline.

Deputy DA made allegations regarding an affidavit Deputy DA made allegations regarding an affidavit submitted to obtain a SW. submitted to obtain a SW.

Later claimed that the DA had retaliated against Later claimed that the DA had retaliated against him for drafting a memo critical of the warrant. him for drafting a memo critical of the warrant.

Garcetti, Garcetti, cont. cont.

Deputy DA filed suit claiming that his rights Deputy DA filed suit claiming that his rights under the First and Fourteenth Amendments under the First and Fourteenth Amendments had been violated.had been violated.

Court rejected claim, by stating that Court rejected claim, by stating that government employers must have sufficient government employers must have sufficient discretion to manage their operations.discretion to manage their operations.

““Our precedents do not support the Our precedents do not support the existence of a constitutional cause of action existence of a constitutional cause of action behind every statement a public employee behind every statement a public employee makes in the course of doing his or her job.” makes in the course of doing his or her job.”

Garcetti, Garcetti, cont.cont.

Impact of Impact of Garcetti:Garcetti: Government employers have Government employers have the ability to retain control over speech that the ability to retain control over speech that “owes its existence to a public employee’s “owes its existence to a public employee’s professional responsibilities.” professional responsibilities.”

Sup. Ct. acknowledged that exposing Sup. Ct. acknowledged that exposing governmental inefficiency and misconduct is of governmental inefficiency and misconduct is of considerable significance. Although the First considerable significance. Although the First Amendment may not be the avenue to seek Amendment may not be the avenue to seek protection for statements made by employees, protection for statements made by employees, there are protections in the form of there are protections in the form of “whistleblower statutes” or labor code “whistleblower statutes” or labor code provisions. provisions.

POST-POST-GarcettiGarcetti cases of interest to law cases of interest to law enforcementenforcement

Foley v. Town of RandolphFoley v. Town of Randolph (1 (1stst Cir. 2010): Fire chief Cir. 2010): Fire chief spoke at the scene of a fire in uniform. Commented on spoke at the scene of a fire in uniform. Commented on how budget cutbacks had adversely impacted how budget cutbacks had adversely impacted department’s response. Discipline was upheld as he was department’s response. Discipline was upheld as he was speaking as a public employee and not a private citizen. speaking as a public employee and not a private citizen.

Andrew v. ClarkAndrew v. Clark (4 (4thth Cir. 2009): Officer was terminated Cir. 2009): Officer was terminated based upon a memo he wrote re: a police shooting. based upon a memo he wrote re: a police shooting. Memo was shared with a reporter. Officer claimed he Memo was shared with a reporter. Officer claimed he had a First Amendment right to speak about a matter of had a First Amendment right to speak about a matter of public concern. public concern.

Because Andrew wrote the memo as a private citizen, Because Andrew wrote the memo as a private citizen, the Court ordered that it be reviewed to determine the Court ordered that it be reviewed to determine whether it addressed a matter of public concern. If so, whether it addressed a matter of public concern. If so, then court will need to balance the interests of the then court will need to balance the interests of the employee, as a citizen, and the interests of the State, as employee, as a citizen, and the interests of the State, as an employer, in promoting the efficiency of the public an employer, in promoting the efficiency of the public services it provides. services it provides.

WHAT IS A MATTER OF PUBLIC WHAT IS A MATTER OF PUBLIC CONCERN?CONCERN?

Factors to consider: Context, content and manner of Factors to consider: Context, content and manner of speech, legitimate news interest or value to society. speech, legitimate news interest or value to society.

City of San Diego v. RoeCity of San Diego v. Roe (Sup. Ct. 2004): Ct. (Sup. Ct. 2004): Ct. considered the First Amendment claims of a police considered the First Amendment claims of a police officer who was terminated after the department officer who was terminated after the department learned of his sexually explicit off-duty behavior. learned of his sexually explicit off-duty behavior.

Made video of himself stripping off his police uniform Made video of himself stripping off his police uniform and masturbating. Sold the video and other items and masturbating. Sold the video and other items (which connected him to the SDPD) on the adults-only (which connected him to the SDPD) on the adults-only section of eBay. The Sup. Ct., in reversing the 9section of eBay. The Sup. Ct., in reversing the 9thth Cir., Cir., upheld the City’s decision to terminate Roe. upheld the City’s decision to terminate Roe.

No balancing of interests was necessary as Roe’s No balancing of interests was necessary as Roe’s conduct did not touch on a matter of public concern. conduct did not touch on a matter of public concern.

Roe, Roe, cont. cont.

Termination was upheld as the PD Termination was upheld as the PD “demonstrated legitimate and substantial “demonstrated legitimate and substantial interests of its own that were interests of its own that were compromised by Roe’s speech.” compromised by Roe’s speech.”

Roe’s sexually explicit conduct “brought Roe’s sexually explicit conduct “brought the mission of the employer and the the mission of the employer and the professionalism of its officers into serious professionalism of its officers into serious disrepute.” disrepute.”

If not a matter of “public concern,” then If not a matter of “public concern,” then no need to apply the balancing test. no need to apply the balancing test.

Dible v. City of ChandlerDible v. City of Chandler (9 (9thth Cir. Cir. 2008)2008)

Officer was terminated by Officer was terminated by PD for maintaining sexually PD for maintaining sexually explicit website featuring explicit website featuring himself and his wife. himself and his wife. Operated site for money – Operated site for money – no intention to express any no intention to express any kind of message or engage kind of message or engage in social or political in social or political commentary. commentary.

PD learned of site and PD learned of site and dismissed Dible. dismissed Dible.

Basis: Violated policy from Basis: Violated policy from bringing discredit to the bringing discredit to the city service.city service.

Dible, Dible, cont. cont.

Court asked “whether a police officer can ever Court asked “whether a police officer can ever disassociate himself from his powerful public disassociate himself from his powerful public position sufficiently to make his speech (and position sufficiently to make his speech (and other activities) entirely unrelated to that position other activities) entirely unrelated to that position in the eyes of the public and his supervisors.”in the eyes of the public and his supervisors.”

Dible’s activities “brought the mission of the Dible’s activities “brought the mission of the employer and the professionalism of its officers employer and the professionalism of its officers into serious disrepute.”into serious disrepute.”

Negative impact to PDNegative impact to PD – Officers indicated that – Officers indicated that they had been questioned and ridiculed about the they had been questioned and ridiculed about the website. A female officer claimed she had been website. A female officer claimed she had been called a “porn whore” by an arrestee. called a “porn whore” by an arrestee.

Concern about its ability to recruit female Concern about its ability to recruit female officers. officers.

Dible,Dible, cont. cont.

Court rejected Dible’s First Amendment Court rejected Dible’s First Amendment claim. “Ronald Dible may have the claim. “Ronald Dible may have the constitutional right to run his sex oriented constitutional right to run his sex oriented business, but he has no constitutional right business, but he has no constitutional right to be a policeman for the City at the same to be a policeman for the City at the same time.” time.”

Thaeter v. Palm Beach County SO Thaeter v. Palm Beach County SO (11(11thth Cir. 2006) Cir. 2006)

Court upheld the SO’s termination of Court upheld the SO’s termination of sheriff’s deputy for participating for sheriff’s deputy for participating for compensation in sexually explicit compensation in sexually explicit photographs and videos available for paid photographs and videos available for paid viewing on the Internet. viewing on the Internet.

As in the As in the RoeRoe case, the officer’s conduct case, the officer’s conduct (or, “speech”), did not involve a matter of (or, “speech”), did not involve a matter of “public concern.” Therefore, no need to “public concern.” Therefore, no need to apply the apply the PickeringPickering balancing test. balancing test.

Government can legally apply constraints Government can legally apply constraints on employees’ behavior, even if “off duty.” on employees’ behavior, even if “off duty.”

MATTERS OF PUBLIC CONCERN – MATTERS OF PUBLIC CONCERN – BALANCING OF INTERESTSBALANCING OF INTERESTS

Interests of law enforcement employer in Interests of law enforcement employer in maintaining discipline and harmony in the maintaining discipline and harmony in the workplace, close working relationships, workplace, close working relationships, and community trust and respect must be and community trust and respect must be given significant weight. given significant weight.

Locurto v. GiulianiLocurto v. Giuliani (2 (2ndnd Cir. 2006): Even if Cir. 2006): Even if it is a matter of public concern, the it is a matter of public concern, the government employer can consider the government employer can consider the potentially disruptive effects of its potentially disruptive effects of its employees’ actions. employees’ actions.

SO HOW DO WE AVOID THESE SO HOW DO WE AVOID THESE PROBLEMS? PROBLEMS?

Law Enforcement agencies need to Law Enforcement agencies need to provide clear guidance for their employees provide clear guidance for their employees regarding the use of social media. regarding the use of social media.

What to include:What to include: I. Warning regarding the misuse of I. Warning regarding the misuse of

electronic media while on duty/employer-electronic media while on duty/employer-provided computer systems;provided computer systems;

II. Prohibition on use of agency name, II. Prohibition on use of agency name, uniform, logo, marked vehicles;uniform, logo, marked vehicles;

DEPARTMENTAL GUIDANCE,cont.DEPARTMENTAL GUIDANCE,cont.

III. Ban on disclosure of confidential information III. Ban on disclosure of confidential information (Should also prohibit the disclosure of information (Should also prohibit the disclosure of information officers acquire during the course of their duties officers acquire during the course of their duties unless the information is authorized for release by unless the information is authorized for release by the department or its release is otherwise the department or its release is otherwise authorized by law.)authorized by law.)

IV. Caution regarding comments/postings that IV. Caution regarding comments/postings that impair working relationships, impact morale, impair working relationships, impact morale, impact community relations or otherwise impact impact community relations or otherwise impact the efficiency and effectiveness of operations.the efficiency and effectiveness of operations.

Consider IACP’s Model Policy Consider IACP’s Model Policy Good start, and can be tailored to meet the Good start, and can be tailored to meet the needs needs

of your agency. of your agency.

Cybervetting Applicants by Law Cybervetting Applicants by Law Enforcement Agencies: Current Issues and Enforcement Agencies: Current Issues and

TrendsTrends

Cybervetting – As noted in the publication Cybervetting – As noted in the publication entitled “entitled “Developing a Cybervetting Developing a Cybervetting Strategy for Law Enforcement,” Strategy for Law Enforcement,” “cybervetting is an assessment of a “cybervetting is an assessment of a person’s suitability to hold a position using person’s suitability to hold a position using information found on the Internet to help information found on the Internet to help make that determination.” make that determination.”

The above publication is an excellent The above publication is an excellent resource, and can be located on the IACP’s resource, and can be located on the IACP’s social media website. social media website.

CybervettingCybervetting

Increasingly common: 91% of employers Increasingly common: 91% of employers surveyed in September 2011 reported using surveyed in September 2011 reported using social networking sites to screen social networking sites to screen prospective applicants. prospective applicants.

Hiring qualified applicants is particularly Hiring qualified applicants is particularly critical in law enforcement. “As social critical in law enforcement. “As social media has grown, is that this is a really media has grown, is that this is a really critical component, and you really gotta critical component, and you really gotta make sure you are doing this.” (San Luis make sure you are doing this.” (San Luis Obispo police captain as quoted in a local Obispo police captain as quoted in a local media outlet.)media outlet.)

Cybervetting, continuedCybervetting, continued

Why important: If properly conducted, it Why important: If properly conducted, it will provide a number of benefits to law will provide a number of benefits to law enforcement, such as:enforcement, such as:

1. Increasing public confidence in police 1. Increasing public confidence in police agencies by ensuring that law agencies by ensuring that law enforcement personnel are not engaged in enforcement personnel are not engaged in inappropriate behavior;inappropriate behavior;

2. Corroborate or contradict information 2. Corroborate or contradict information provided on a resume or job application;provided on a resume or job application;

Cybervetting, continuedCybervetting, continued 3. Identify candidates who posted text, audio, or 3. Identify candidates who posted text, audio, or

images that:images that:

a. contain sensitive law enforcement a. contain sensitive law enforcement information;information;

b. reflect that a subject has engaged in b. reflect that a subject has engaged in certain criminal offenses;certain criminal offenses;

c. Indicate that a subject is associated with c. Indicate that a subject is associated with

hate, criminal, or terrorist organizations;hate, criminal, or terrorist organizations;

d. reflect that the subject is a danger to d. reflect that the subject is a danger to self self or others. (Source: or others. (Source: Developing a Developing a Cybervetting Cybervetting Strategy for Law Enforcement)Strategy for Law Enforcement)

Cybervetting, continuedCybervetting, continued The need to exercise caution in this area.The need to exercise caution in this area.

Concerns about acquiring information about Concerns about acquiring information about protected/sensitive information. (i.e., medical protected/sensitive information. (i.e., medical issues, religious beliefs, etc. Will the candidate issues, religious beliefs, etc. Will the candidate be able to allege that he/she was not hired be able to allege that he/she was not hired because this information was made known to because this information was made known to the agency?) the agency?)

Ensure that your agency’s policy considers Ensure that your agency’s policy considers current case law and legislation.current case law and legislation.

““Quality control” of vetting process. Is the Quality control” of vetting process. Is the information being considered by the agency information being considered by the agency accurate? Who is conducting the vetting? Are accurate? Who is conducting the vetting? Are they properly trained? How is the information they properly trained? How is the information being protected? being protected?

Legislative Trends Legislative Trends MarylandMaryland was the first state to enact a law that was the first state to enact a law that

prohibits employers from requesting or prohibits employers from requesting or requiring that employees or applicants provide requiring that employees or applicants provide their passwords to social media accounts and their passwords to social media accounts and other personal online accounts. other personal online accounts.

IllinoisIllinois has followed suit. (Illinois Public Act has followed suit. (Illinois Public Act 097-0875, eff. 1/1/13). There is no exception in 097-0875, eff. 1/1/13). There is no exception in the law for law enforcement or other sensitive the law for law enforcement or other sensitive occupations. occupations.

Similar bills have been introduced in Similar bills have been introduced in CaliforniaCalifornia, , New YorkNew York, and , and WashingtonWashington. There is also a . There is also a push for federal legislation in this area. push for federal legislation in this area.

Questions? Questions?

SSA MICHAEL T. PETTRYSSA MICHAEL T. PETTRY

FBI – Office of the General CounselFBI – Office of the General Counsel

Legal Instruction UnitLegal Instruction Unit

FBI Academy, Quantico, VAFBI Academy, Quantico, VA 703-632-1680703-632-1680 MICHAEL.PETTRY@IC.FBI.GOVMICHAEL.PETTRY@IC.FBI.GOV