Richmond VA Dec 18 2016 A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled Thursday that the Petersburg Police Department’s social media policy is unconstitutional.
In a 27-page opinion, the judges also held that disciplinary measures taken against two former officers for violating the policy were impermissible and that John Dixon III, the former chief of police, was not entitled to “qualified immunity” in the case.
Qualified immunity shields officials who commit constitutional violations but who, in light of clearly established law, could reasonably believe their actions were lawful.
“While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance,” wrote Judge J. Harvie Wilkinson III.
Wilkinson wrote, “The sensitivity of all the well-known issues that surround every police department make such a lack of transparency an unhealthy state of affairs.”
In 2013 the department issued a general order revising the department’s social networking policy that among other things barred the dissemination of anything “that would tend to discredit or reflect unfavorably upon the (department) or any other City of Petersburg Department or its employees.”
Two officers, Herbert E. Liverman and Vance R. Richards, posted a conversation on Liverman’s Facebook page on June 17, 2013, that was critical of the department’s promotions of some unnamed, younger officers who they believed lacked sufficient experience. The department decided the comments violated the bar against negative comments.
The officers were given oral reprimands and six months’ probation. They later learned that as a result they were ineligible to sit for a promotional examination.
Afterward the two were the subject of several other complaints and department investigations, which they contend were retaliatory. Neither officer is still with the department. They filed suit in 2014, alleging, among other things, that the policy violated their First Amendment rights.
Andrew T. Bodoh, one of the officers’ lawyers, said in a prepared statement Thursday, “The decision means Liverman and Richards will have their day in court. Their constitutional rights were violated by this policy, as were the rights of all Petersburg police officers.”
Bodoh said the decision may require other government departments across several states to rewrite their social media policies. The Richmond-based appeals court covers the states of Virginia, West Virginia, Maryland, North Carolina and South Carolina.
Dixon, said Bodoh, “should have known what he was doing was unconstitutional. It is a great decision for government employees and for the public. We need government employees to speak out when the government is in the wrong, and they need to be able to participate in public debate about important social issues.”
The plaintiffs’ other lawyer, Thomas H. Roberts, stated, “With violent protests erupting across the nation, it is paramount that good officers are permitted to criticize unconstitutional policies of law enforcement without fear of discipline. We applaud the United States Fourth Circuit Court of Appeals for this clear decision.”
A police spokesman said Thursday that the department was not prepared to comment on the ruling, which had just been released.