Cop’s Critical Facebook Posts Protected Speech

RICHMOND, Va. (CN) - A police department violated one officer's free-speech rights when it placed him on six months' probation for trash-talking about rookies on Facebook, a federal judge ruled.

Former Petersburg Police Officer Herbert Liverman claimed he had a right to express his concerns as a private citizen via public forum, and that his department's social media policy is unconstitutional.

Chief of Police John Dixon III placed to Liverman and another officer, Vance Richards, on probation, after a thread on Liverman's Facebook page expressed concerns regarding the department's recent promotion of rookie officers to instructors.

The post inspired comments from 23 current and former Petersburg officers, court documents say.

"Give me a freaking break," Liverman's initial post read. "Over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers."

"There used to be a time when you had to earn a promotion or a spot in a specialty unit," Liverman continued. "But now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been 'devalued' ... and when something has no value, well it is worthless."

According to the court documents, Richards responded to the post by observing that "LEO Supervisors should be promoted by experience."

"Perfect example and you know who I'm talking about ... How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 1/2 years experience in the street... It's hard to lead by example when there isn't one," Richard's post continued.

Following an investigation, the department disciplined the officers, having concluded the posts "painted the Department in an unfavorable light."

Petersburg's social networking policy, which was introduced in 2010 and amended in 2013, forbids police officers from making any statement on the internet "that would tend to discredit or reflect unfavorable upon the Petersburg Bureau of Police or any other City of Petersburg Department or its employees," and discourages employees from disclosing anything related to "off-duty activities."

Additionally, the policy states that "negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public[']s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law."

On July 25, 2013, Liverman and Richards were told that because they'd been placed on probation, the department would no longer consider them as applicants for an open sergeant position.

Just one day later, court documents say, the department adopted a new policy prohibiting officers on probation from promotional consideration. Liverman and Richards allege the new rule was created as retaliation for their actions.

The two men also claim that once they disclosed their intention to file a lawsuit, the department subjected them to further scrutiny. This led to Liverman's being fired after investigators discovered he'd been having sex on the job and using department property to engage in sexual conduct, the court documents say.

In his May 6 ruling, U.S. District Judge James Spencer found that Liverman's Facebook post was constitutionally-protected speech on an issue of public concern.

Citing Goldstein v. Chestnut Ridge Volunteer Fire Co., Spencer held that Liverman's comments were "of the highest public concern, and as such they are entitled to the highest level of First Amendment protection."

"Liverman's Comment concerned not just the Department for which he specifically worked, but symptoms of a greater perceived illness." Spencer said.

In contrast, Spencer found Richards' commentary personal in nature, "replete with references to himself," and therefore unqualified as protected speech under the First Amendment.

Both officers had been longtime members of the Petersburg Police Department. Liverman spent 18 years on the force before his January 2014 resignation; Richards, meanwhile had served a total of 21 years with police departments in New York and Virginia.

"Experienced officers such as Liverman can contribute valuable insights to the discussion," Spencer wrote. "Thus, his potential audiences have a strong interest in hearing his Comment given the special knowledge Liverman has as a police officer and the important police department operations on which he commented."

Liverman and Richards are represented by Andrew Bodoh and Thomas Roberts of Roberts & Associates.

The Petersburg Police Department has not yet returned CNS' request for comment.

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