ATLANTA (CN) — An attorney for a Georgia cop fired after parking her police cruiser under a Confederate flag in her front yard asked an 11th Circuit panel Tuesday to give her another chance to show the police department violated her free speech rights.
Roswell Police Sergeant Silvia Cotriss lost her job after an internal investigation determined that she violated police department and city policies by engaging in improper conduct impacting public confidence in the department.
Cotriss, who has said that she was simply trying to honor her Southern heritage by flying the flag on a 15-foot flagpole in her yard, responded by suing Roswell and its police department for allegedly violating her First Amendment rights.
In a 45-minute hearing Tuesday that involved the type of hypothetical questioning one attorney said was “reminiscent of a law school examination,” a three-judge panel of the 11th Circuit peppered counsel with questions about how the police department can balance the civil rights of its officers against its rules for the display of flags and symbols which might be “unbecoming.”
“If a police officer in the Roswell Police Department wants to fly a black and blue flag and have a patrol car in front of their home, is that considered conduct unbecoming of an officer?” U.S. Circuit Judge Barbara Lagoa asked, referring to the Blue Lives Matter flag showing support for police.
“What is conduct unbecoming of an officer? What flag can an officer fly in front of their home? Can they fly the American flag? Some people believe the American flag is racist,” added Lagoa, a Donald Trump appointee.
Arguing on behalf of the city, attorney Brenton Bean of Freeman, Mathis & Gary said that the context of the action and the divisiveness of the flag are really what’s at issue in this case.
“[Cotriss] associated a divisive flag with the city of Roswell Police Department and she did it in a context at a time in which she literally endangered her fellow officers,” Bean told the panel.
Bean said he did not think the city could have disciplined Cotriss for flying a Blue Lives Matter flag because “there is not a history associated with that type of statement and that flag such as there is with the Confederate flag.”
Cotriss’s actions came to the attention of the police department in July 2016, after a citizen complained to the chief of police. The complaint was made during a period of heightened racial tensions across the country in the wake of the police shootings of Alton Sterling in Louisiana and Philando Castile in Minnesota.
A Georgia federal judge dismissed Cotriss’ case last year, ruling that her display of the flag above her patrol car invited an “obvious association” between the flag and the police department.
U.S. District Judge William Ray II, a Trump appointee, ruled that her display of the flag was a matter of public concern due to the “nationwide social and political context” and that the city’s interest in operating an effective police department outweighed her interest in her right to free speech.
The 11th Circuit panel questioned Tuesday what level of notice officers have regarding the types of symbols and flags which might be considered improper.
“Would you say that an officer did not have fair notice by the conduct unbecoming policy that she could not fly the Nazi swastika flag on a 15-foot flagpole above her house on a very busy road displayed right next to her police cruiser?” asked U.S. Circuit Judge Robin Rosenbaum, a Barack Obama appointee.
Arguing on behalf of Cotriss, attorney Regan Keebaugh of Radford & Keebaugh acknowledged that “society has progressed to a point where it’s widely understood that it’s unacceptable for a police officer to display the Nazi flag.”
“But it’s not widely understood for a police officer to fly a Confederate flag in a time of heightened racial tension?” asked Senior U.S. Circuit Judge Ed Carnes, a George H.W. Bush appointee.
“Societal norms change,” Keebaugh replied. “Ten years ago, maybe it was okay to do this but now it’s probably not. But that just highlights the need for fair notice.”
But Bean said Cotriss should have known better.
“She was a supervisor. She had 20 years’ experience. It’s not a close call for her. Three days before this incident was reported, police officers were shot in Dallas because of racial tensions,” he said.
Keebaugh told the panel that the department’s policies were ambiguous, calling the matter a “constitutionally untenable situation.”
“You’ve got a city that’s clearly intent on regulating speech in this area but they’re really just refusing to tell their employees what they can and can’t do,” Keebaugh said. “This court can tell the city of Roswell that you can regulate speech but if you’re going to do it, you’ve got to do it with precision.”
He proposed that the city issue a policy similar to the U.S. military’s policy preventing officers from displaying the Confederate flag on military property. Although the military’s guidance does not specifically prohibit the Confederate battle flag from display, it is not listed among the flags allowed to be displayed.
The panel did not indicate when it will reach a decision in the case.