While Police Department Did Not Retaliate against Fired Employee for Exercising First Amendment Rights, Requiring Her to Sign Agreement Not to Criticize City, Department, or Employees Was Unconstitutional Prior Restraint

In Barone v. City of Springfield, published September 5, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part a defense summary judgment in this 42 U.S.C. § 1983 lawsuit.  A police department community service officer served as community liaison to the city's minority communities.  Members of the Latino community complained to her of racial profiling.  The officer became the subject of internal affairs investigations.  After the investigations began, the officer spoke at a community event, in uniform.  The department paid her to be present, and her presence on behalf of the police department was advertised.  At the event, she answered a question from the audience about increasing racial profiling complaints by stating she had heard such complaints.  A week later, the police chief placed her on administrative leave for alleged untruthfulness in the two internal affairs investigations.  The department eventually informed her she had to sign a "last chance agreement" to keep her job.  The agreement barred her from saying or writing anything negative about the city, the department, or the department's officers.  It permitted her to report complaints involving discrimination or profiling by the department.  She refused to sign the agreement, and was terminated.  She sued the department for First Amendment retaliation and imposing an unlawful prior restraint.

The 9th Circuit agreed with the district court that the defendants were entitled to summary judgment on the First Amendment retaliation claim.  Under the facts, the plaintiff spoke in her capacity as a public employee when she spoke at the community event.  Her speech was therefore not protected by the First Amendment.  The 9th Circuit reversed the district court's conclusion that the last chance agreement was not an unlawful prior restraint.  Applying the Pickering standards for limitations on public employee speech, a restriction on criticizing the city, the department, or the department's officers was overbroad, since it covered both speech as an employee and speech as a private citizen.  The speech involved a subject of public interest.  The burden shifted to the defendants to justify the restriction.  The department's interests in protecting the department from disrepute and preventing employee misconduct did not justify the broad restrictions.