By Thomas Bullock, law enforcement specialist, VMLIP
Just about everyone today has either a Facebook, Instagram, or Twitter account—some may have one of each. Social networking sites have led to many long lost friends and relatives reconnecting with one another, and they have also led to the downfall of many police officers, court cases being lost, and agency embarrassment.
It is important that officers understand that what they post on these sites can, and will be, viewed by others, including defense attorneys looking for a unique way to defend their clients.
Sometimes these posts can lead to disciplinary action and subsequent litigation, such as the recent court case involving the City of Petersburg Police Department.
In Liverman v. City of Petersburg [Virginia] the United States Court of Appeals for the Fourth Circuit reviewed the discipline of two Petersburg officers based on posts they made on Facebook. In their review, the court overturned the discipline and concluded that the department’s policy was “overbroad,” because it prohibited too much, and, therefore infringed on the officers’ First Amendment rights.
Herbert Liverman and Vance Richards were both veteran police officers with the City of Petersburg. While off-duty, Liverman posted a message on Facebook in response to a discussion about rookie officers becoming instructors and supervisors. His message voiced his disagreement with this practice.
Richards joined the discussion as well, and posted comments that mirrored Liverman’s. They were subsequently disciplined for violating the police department’s social media policy. Both officers challenged their discipline, among other things.
There are several steps that a court will apply in deciding whether an officer, or any public employee’s speech is protected by the First Amendment:
Is the speech about a matter that would be of public concern? Speech that is purely personal – and not a matter of public concern – is not protected. Any court review will end if the court determines that the speech is purely personal.
If the court has determined that the speech is a matter of public concern, the court will attempt to balance the employee’s interest as a citizen in commenting on a matter of public concern, versus the interests of the law enforcement agency (or any governmental entity) “in promoting the efficiency of the public services it performs through its employees.”
However, speech that is found to be disruptive to the law enforcement operation may be subject to restriction, even if it is a matter of public concern.
Applying these guidelines, the court ruled that the discipline given to the officers was unconstitutional, as the officers were speaking on a matter of public concern and the police chief did not establish that the comments would meaningfully impair the efficiency of the police department.
There are several instances where a department could establish that an officer’s posts on social media could be disruptive to their operations and impair the efficiency of the police department. For example:
Indiana State Police (ISP) Trooper Chris Prestow. Some of the entries on his Facebook page showed Pestow with a .357 Magnum pointed at his head, drinking what he described as “lots of beer” with his buddies and vulgar horseplay. He also posted pictures of a crash involving his ISP cruiser.
“Oops! Where did my front end go?” he wrote when he posted the picture. Later, while discussing the accident with his friends on Facebook, Pestow added, “kiss my butt, Not my fault:” And he wasn’t shy about sharing his views of police work, referring to himself as not a state trooper, but as a “garbage man.” His Facebook page said, “I pick up trash for a living.”
In a New York State criminal court proceeding, a New York Police Department (NYPD) officer was questioned by the defense attorney regarding statements posted on his Facebook page that portrayed him as a rogue cop. At the conclusion of his testimony, what should have been a slam-dunk case resulted in an acquittal for the defendant because of the reasonable doubt created by the officer’s own postings on Facebook and MySpace.
In other words, his own website statements were used to impeach him.
The officer in this case had made questionable social network postings but claimed it was simply bravado, similar to what might be said in a locker room. One of the notable postings introduced to the jury was that the officer watched the movie “Training Day” (a motion picture that displayed corrupt police behavior and brutality) to brush up on “proper police procedure.”
Another series of postings revolved around miscellaneous internet video clips of police arrests. One of his postings said, “If he wanted to tune him up some, he should have delayed cuffing him.” In another he added, “If you were going to hit a cuffed suspect, at least get your money’s worth ’cause now he’s going to get disciplined for a relatively light punch.”
Cody Anderson, a Montana police officer wrote on his Facebook page that there should be a law allowing police to take people to jail for being “stupid”; he has since resigned. His posting came to light last month when a Bozeman man filed a lawsuit against the city, Anderson and other officers, saying his civil and constitutional rights were violated when he was wrongly arrested.
The lawsuit alleges entries from Anderson’s Facebook profile indicate he has a lack of respect for citizens’ rights and a willingness to abuse his position of authority.
Washington State Patrol Cadet Math Blahut was forced to resign from the state patrol after officials received a complaint about content on his Facebook page. Blahut had been temporarily based in Ellensburg while he completed the last part of his academy requirements — eight weeks of on-the-job training with a field training trooper. He appeared excited to be a trooper, displaying photos of himself on Facebook dressed in uniform and posing next to his cruiser.
But he also had pictures of himself drinking from a pitcher of beer and waiting for a ride after a night of partying. Even though these actions weren’t illegal, they were viewed by several citizens who voiced their concern about the lack of professionalism that his postings exhibited. Washington State Patrol officials took the complaint seriously, investigated Blahut and within days gave him the option to resign or be fired. Though Blahut’s Facebook page was only accessible by people who were on his “friends” list,state patrol officials took swift action after seeing the vulgar language and photos of some “questionable activity” combined with pictures of Blahut’s professional life.
Officer O.J. Concepcion, of the Sandy Springs, Georgia police department was fired because of comments he posted on Facebook. Some of those posts included details about his police work, such as announcing that he was working with the FBI on a drug case.
One posting stated, “I’m going to be working plain clothes tonight.” Another mentioned that Concepcion was frustrated at work. But Concepcion said he never released confidential information. He said other officers have posted racially insensitive information but have not faced any disciplinary action.
“Nothing was derogatory,” said Concepcion, who spent seven years with the DeKalb County police force. “I posted that stuff for my friends and family to read, not for the public.”
Many police departments have no policies concerning use of social networking websites. Some are in the process of addressing the issue. In Gwinnett County, Georgia, members of the police department are prohibited from posting anything on a social media site that relates to the department.
The Atlanta Police Department is working on policies to address electronic communication, and the Smyrna Police Department is developing a social media policy.
These situations should provide a commanding reminder to all of us—don’t post anything on the internet that you would not want to see on the news!
This does not mean that police officers aren’t entitled to private lives or should be forbidden from having social networking pages, but they do have to remember that the information and pictures they post on these pages may be scrutinized by their supervisors, criminals they arrest, and their community, therefore, it is important to have a policy that addresses the use of social media by employees.
VMLIP members purchasing Law Enforcement Liability Coverage may access a sample social media policy by contacting Thomas Bullock, law enforcement specialist at tbullock@vmlins.org.