Why cops have fewer rights than criminals

What do police officers need to know about the 1st and 4th Amendment rights of public employees?

Editor’s Note and Author’s Disclaimer: This is not intended to be nor should it be taken as legal advice. It is for discussion purposes only.

From reader comments to articles I’ve published — and questions during training I provide on officers’ 1st and 4th Amendment rights — one thing is clear: There’s confusion amongst the ranks. Here are just two examples.

Police1 ran an article about a New Orleans police officer who commented on a local TV station’s website about the fatal shooting of teenager Trayvon Martin by George Zimmerman. The officer posted, “Act like a Thug Die like one!” When another commenter named “Eddie” questioned whether the officer was racist and a hoodie sweatshirt made someone a thug, the officer replied:

“Eddie come on down to our town with a ‘Hoodie’ and you can join Martin in HELL and talk about your racist stories!”

The officer was suspended and then resigned. The first two reader comments to the article on Police1 illustrate confusion:

“When are officers across this country going to learn that your 1st Amendment rights are severely restricted?”

“Absolutely disagree! Our 1st Amendment rights are not restricted simply because we chose to join the law enforcement profession. Nowhere in my Oath of Office did it say “and I forfeit the following USC rights...”

My second example came in the aftermath of a shootout in March 2011 between Carlos Boles and officers who went to arrest him on a felony warrant. Boles shot Deputy U.S. Marshal John Perry, another U.S. Marshal and a St. Louis police officer. Boles was killed when officers returned fire. John Perry later died from his wounds.

A photo of Boles’ dead body began circulating the city. The St. Louis Police Department launched an internal affairs investigation into who took the photo and how it was disseminated.

Ultimately, the Department sought a court order for responding officers’ cell phone photo records, claiming the officers were not cooperating with the investigation and providing the relevant information voluntarily.

A spokesman for the local Police Officers Association was quick to respond, telling the media how awful it was for morale to know your administration:

“[D]oesn’t think that you have the same [Fourth Amendment] rights as every criminal out there has.”

I hear the same confusion in my training about officers’ 1st and 4th Amendment rights — and liabilities — in the internet age. It comes in the form of:

“You mean I put everything on the line to protect and serve and I have fewer Constitutional rights than criminals who violate other peoples’ rights?”

Simply put, yes.

But so does every other citizen. Think about it. A citizen you ask general questions of doesn’t have the right to a Miranda warning, an attorney the rest of us may have to pay for, and a speedy trial by jury.

Nor is a person you stop based on reasonable suspicion and pat down for officer safety protected by the 4th Amendment’s requirement of probable cause before you seize and search them.

It is only when they become criminal suspects, are in custody and interrogated and charged with a crime that certain constitutional rights attach. If the authors in the Boles shooting wanted the same rights as criminals, they need only have asked to have the IA investigation become a criminal one. Then their department would have to get a warrant to search their cell phone records for evidence.

Confusion also exists regarding 1st and 4th Amendment rights when the government is acting in two different roles:

1.) Enacting laws in its legislative capacity or investigating and prosecuting crimes in its executive capacity, or
2.) As an employer of a public employee who has voluntarily entered into this work relationship.

Let’s look at the differences.

Cops’ 1st Amendment Rights
The 1st Amendment states, in relevant part:

“Congress shall make no law … abridging the freedom of speech …[.]

The Supreme Court subsequently interpreted this to prohibit not just Congress from abridging our freedom of speech but also federal, state and local government. Our founders, having fled the tyrannical whims of inherited royalty, were very concerned about the power of government in making laws and enforcing them vis a vis the rights of individual citizens. Behold — the Bill of Rights.

There’s less concern when the individual has entered into a voluntary employer-employee arrangement with the government. In that situation, the Courts have ruled that the Government, as an employer, should not have to pay an employee to disrespect, criticize or otherwise disrupt its discipline or orderly functioning.

For the speech of an officer as a public employee to be protected against job action by the 1st Amendment:

1.) It must touch on a matter of public concern, and;
2.) It must be made as a citizen — not as part of the officer’s official duties, and;
3.) Even if 1 and 2 are met, the court will still balance the officer’s interest in the speech against the public safety agency’s substantial interest in promoting and maintaining efficient operations and public trust and cooperation.

Garcetti v. Ceballos, U.S. Supreme Court (2006)
If you post negative comments about the citizenry or your supervisor on your Facebook page — for example, referring to yourself as a “garbage man who collects trash for a living” or calling your supervisor a “moron” or scumbag” — your agency can take job action against you ...including termination

Neither of these comments are matters of public concern that take them out of the insubordination column and put them in the protected speech one.

Even if you comment about matters of public concern, like expressing concerns to your agency’s management about wrong doings by other investigators, the 1st Amendment doesn’t protect you from your brass threatening to transfer you to the patrol unit if you don’t “get along.” (See the case of Sgt. Vose v. Chief Kliment in the sidebar above and to the left.)

Even if you comment on a matter of public concern as a private citizen, the court will still balance the officer’s 1st Amendment rights against the agency’s interest in maintaining positive working relations with the community. Officer Nixon lost that balancing act in the 5th Circuit (again, see his case in the sidebar).

Cops’ 4th Amendment Rights
Every cop has heard of the 4th Amendment’s protection of citizens’ “reasonable expectation of privacy” against government intrusion. However, when you’re in a voluntary work relationship with the government — versus being investigated as a suspected criminal — that expectation is balanced differently.

The 4th Amendment’s protection of a public employee from her government employer’s intrusion is:

1.) Whether the employee had a reasonable expectation of privacy given the operational realities of the workplace and
2.) If 1 is met, the employer’s intrusion to investigate work-related misconduct must be judged by the standard of reasonableness under all the circumstances.

O’Connor v. Ortega, U.S. Supreme Court (1987)
Cops don’t just have fewer rights than criminals when they are employees of the government. They have fewer rights than criminals when they are government agents investigating the criminals. Officers in the Carlos Boles leak had to give up their cell phone records

Check out Charles Remsberg’s excellent article about a judge ordering an officer to turn over his personal cell phone records because a DWI defendant claimed the officer received a call on that phone which may have influenced the stop. 

If we wanted the defendant’s cell phone records, we’d have to get a warrant based on probable cause a crime had been committed.

Do you have a reasonable expectation of privacy in what you post from your home computer on a privacy protected social network site? The law is evolving with the technology.

A judge in the case of Largent v. Reed — a civil injury case — required the plaintiffs to turn over their Facebook user names and passwords. The judge reasoned:

“By definition, there can be little privacy on a social networking website. Facebook’s foremost purpose is to ‘help you connect and share with the people in your life.’ That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

How do you think officers’ Facebook postings end up making headlines on a weekly basis? Do you think they “friended” their local newspaper or TV station?

Yes, Largent v. Reed was a civil case but officers and their departments get sued and civil plaintiffs’ attorneys can have a field day with Facebook postings. Just ask the attorneys who are “Finding Treasures for Cases on Facebook.”  

Are you and your department ready to have the Facebook account of every officer responding to an officer-involved shooting disclosed to the deceased’s family’s attorney? 

There are no 1st and 4th Amendment protections in a civil case. The parties are entitled to discover any information that may be relevant to the claims that is not privileged (for example, attorney-client privilege).

Here’s the Bottom Line
When it comes to free speech, protesters can burn the American flag and call the President profane names and you may be required to protect this expression. But you can be fired for criticizing your boss or agency even — or especially — on the Internet.

As for your 4th Amendment privacy — your personal cell phone might be subject to discovery by your agency in an IA investigation or by a defense attorney in a criminal case or a civil attorney in a use of force lawsuit without probable cause or a warrant.

But that’s not just true for cops. It’s true for any public employee. Think it’s not fair? You can always become a private sector security officer. They have no 1st Amendment protections from job retaliation for their speech (they are protected by the National Labor Relations Act, which does not apply to public employees.)

If you want the same rights as a criminal, you have to become one. Otherwise you only have the same rights as any other public employee or citizen.

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