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Embattled Georgia Cop Stumbles in Speech Suit

ATLANTA (CN) - A deputy police chief demoted after posting a confederate flag on Facebook during the presidential election cannot sue the department, a federal judge ruled.

Rex Duke joined the Clayton State University Police Department as a police officer in 2004, and eventually rose to captain and deputy chief of police at the Morrow, Ga.-based school.

In November 2012, shortly after the presidential election ended, Duke posted an image of the Confederate flag on his Facebook page, accompanied by the phrase, "It's time for the second revolution." Even though Duke removed the post within an hour, Atlanta television station WSB was alerted to it and ran an evening news story discussing the Facebook post and Duke's position as deputy chief. The department investigated Duke after it received anonymous complaints against him, and concluded that the post was inappropriate given Duke's position.

Duke claimed the post was intended only for his close friends and family, did not mention the department or his colleagues, and did not break any department policies. He explained that his intention was to express "his general dissatisfaction with Washington politicians."

Duke said Police Chief Bobby Hamil nevertheless recommended demoting him, noting that officers "should not espouse political beliefs in public."

Lowered from captain to detective in January 2013, Duke suffered a $15,000 pay cut and was stripped of his duties as deputy chief.

Duke filed suit and resigned after he was allegedly reassigned later that year from his day-shift patrol duties to a less desirable shift typically given to less experienced officers.

The First Amendment complaint against Hamil and the Board of Regents of the University System of Georgia, which runs Clayton State University, alleged that the demotion caused Duke emotional distress and financial hardship, exacerbating a pre-existing heart condition.

U.S. District Judge Richard Story dismissed Duke's claims against the Board of Regents last week based on his finding that the state institution has immunity.

In addition to concluding that 11th Amendment immunity bars claims against Hamil in his official capacity, Story found no basis to enjoin the police chief from continuing alleged First Amendment violations against Duke and other employees.

On this point, Duke had not offered specific evidence that Hamil had been suppressing the speech of his subordinates, and any violation of Duke's speech rights could not be deemed ongoing because of his resignation, the Feb. 4 order states.

What's more, Duke never alleged that he was fired in retaliation for his speech or that his resignation was forced, according to the ruling.

Here it is plain that Duke had posted the image and the caption on his Facebook page as a citizen, not as an employee of the police department, according to the ruling.

"The court finds that plaintiff's speech can be fairly considered to relate to matters of political concern to the community because a Confederate flag can communicate an array of messages, among them various political or historical points of view," Story wrote.

"Combine this symbol with a statement calling for a revolution right after an election, and it is plausible that plaintiff was expressing his dissatisfaction with Washington politicians," he continued. "Even if plaintiff had intended to convey a more radical message by using the Confederate flag and the word revolution, that message would also relate to political and social concerns of the community regardless of how unpopular or controversial that point of view may be." (Emphasis in original.)

Outweighing Duke's interest in speaking are the police department's interests, as a government agency, which include maintaining discipline, mutual respect and "a favorable reputation with the public," according to the ruling.

"After all, while the court acknowledges that plaintiff intended to express his disapproval of Washington politicians, on its face his speech could convey a drastically different message with different implications," Story wrote. "Many of these messages are controversial, divisive, and prejudicial to say the least. Because these potentially offensive messages came from the department's second-in-command, Hamil did not have to wait to see if the controversy affected the discipline, mutual respect, or trust among the officers plaintiff supervised before addressing it."

Given Duke's supervisory responsibilities, his conduct reflected on the department's reputation, and could undermine loyalty, discipline and good working relationships among his colleagues if left unaddressed, according to the ruling.

Story noted that Duke's message, which could be interpreted as prejudicial and as advocating revolution, could undermine confidence in the department, an institution charged with upholding law and order.

What's more, Story found, the politically charged context in which Duke posted the message also heightened the potential for his speech to damage the department's interests.

The court concluded that Hamil did not violate the First Amendment when he demoted Duke because the department's interest in maintaining its order and reputation outweighed Duke's interest in expressing his political opinions, especially when they could be perceived as offensive or divisive.

Even if the court found that Hamil did violate Duke's speech rights, he would still be entitled to qualified immunity because the rights were not clearly established, the order adds.

An appeal is possible, Duke's attorney James Radford said in an interview.

"There is no doubt that Mr. Duke was protected by the First Amendment for the expression of his viewpoints," Radford said. "The issue is whether the university had an overriding interest that would justify them punishing his free speech. We believe the record was not sufficient for the state to meet that burden, and we respectfully disagree with the order."

A spokeswoman for the attorney general, who represents the Board of Regents, declined to comment on the ruling.

Hamil's attorney did not return a request for comment.

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