In Moser v. Las Vegas Metropolitan Police Dept., published January 12, 2021, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment in favor of the defendant department. An officer in the department was shot. The suspect was later arrested. The plaintiff, a SWAT team sniper in the department, posted a comment on a friend's Facebook post linking an article about the shooting, "we caught that _______ . . . It's a shame he didn't have a few holes in him . . . ." An anonymous tipster alerted the department's Internal Affairs department about the comment. An investigation ensued. During his interview with investigators, the plaintiff admitted his comment was inappropriate, but stated he intended to express his frustration that the suspect had ambushed one of the department's officers and and the officer did not have a chance to defend himself. He further said he had removed the comment by the time of the interview, less than two months after the comment was posted. The department transferred the plaintiff out of SWAT and put him back on patrol. Department officials found that the comment showed that the plaintiff had become too callous to killing; opined that snipers are held to a higher standard because they dealt with stressful situations; determined that the comment violated the department's social media policy. The plaintiff sued the department and officials for First Amendment retaliation. The district court granted summary judgment on the ground that the department's disciplinary action was justified under the Pickering balancing test for speech by government employees. The district court concluded that the comment meant that the plaintiff wanted his fellow officers to shoot the suspect, regardless of whether the use of force was necessary; that the comment was subject to moderate First Amendment protection; and that the protection was outweighed by the department's prediction of likely future disruptions caused by the plaintiff's continued SWAT service as members of the public would question the plaintiff's fitness as a SWAT member and any future use of deadly force by him might subject the department to suit.
The panel majority held the trial court erred because genuine issues of fact prevented summary judgment. While the Pickering balancing test for weighing the employee's First Amendment interests in private speech against the employer's interest in treating the employee different from a member of the public is a question of law, it may still implicate factual disputes that preclude the court from resolving the test by summary judgment. Here, it was undisputed that the officer's speech addressed an issue of public concern (the shooting), that he spoke as a private citizen, and that the department demoted the plaintiff because of his speech. But there was a factual dispute about the meaning of the Facebook comment: whether the plaintiff meant that the ambushed officer should have shot his assailant, or whether he was commenting about the perils officers face and the government's failure to protect them. The former would not be "core" First Amendment speech, while the latter would. There was also a factual dispute over whether the department provided any evidence of predicted disruption to the department. There was no evidence that anyone other than the anonymous tipster saw the comment, or that most people would have known from the comment that the plaintiff was a SWAT team member. The chance that a member of the public saw the post was reduced by the short time it was left online. The department provided no evidence that the comment would expose the department to future liability.
A dissenting judge pointed out that the plaintiff conceded that there was no genuine issue of material fact about the meaning of his comment; that the officer's private, subjective meaning did not make his public statement ambiguous; or that the department's interpretation of the statement was not reasonable. The dissenting judge would have affirmed summary judgment.
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