In Barnes v. City of Charlack, a federal district court in Missouri dismissed two police officer’s claims that they were retaliated against for speaking out against the police chief. The district court ruled that the officer’s had spoken in their capacity as public employees rather than private citizens and had no First Amendment claims.
William Barnes and Jason Powell both began their employment as officers with the City of Charlack in 2007. In July of 2012, the officers wrote a letter to the mayor about concerns they had regarding the new chief of police, including his performance. The letter stated, in pertinent part:
This letter is a formal and official notice informing you that I, Officer [Powell/Barnes], who is listed in this letter, is pledging a “Vote of No Confidence” on Sgt. Tony Fanara. I feel strongly that I do not trust his knowledge, skills, and abilities as a supervisor or as the Acting Chief of Police as it relates to his supervision and management of police personnel (me).
A few months after the letter was sent to the mayor, Barnes was terminated for not providing a medical note to excuse his absence from work and Powell was terminated for failing to secure his firearm while playing kickball with neighborhood children. After their terminations, both officers sued the city and alleged they had been retaliated against for their speech in violation of the First Amendment.
A public employee engages in speech protected under the First Amendment if they speak as a citizen on a matter of public concern. The district court found that a reading of the letter in its entirety showed its primary purpose was to further the officers own employment interests. Further, the officers had identified themselves as police officers giving official and formal notice regarding employment issues rather than matters of public concern. In light of this, the district court did not believe their speech was protected under the First Amendment and dismissed their claim.
This case highlights the challenge of analyzing speech that relates to issues of both public and private concern. As explained by the court, speech on a matter of public concern is protected, but speech that is purely private is not.
The distinction between public v. private speech is not only challenging for the courts, but is particularly challenging to the public employee who wants First Amendment protection when speaking out about issues in the workplace that touch on public matters.
In reviewing the evidence, the court here was clearly persuaded by the fact that the officers spoke as police officers in an “official capacity,” the speech was only directed to city personnel, and involved employment decisions.
Had the officers made the statements publicly to, for example, a newspaper, as private citizens (without reference to job title), and raised concerns that more closely involved matters of public concern, such as safety, financial mismanagement, or even government corruption, then the officers would likely have had a stronger claim.
This case was tough too because both officers were ultimately terminated for seemingly legitimate reasons (job abandonment and improper use of a handgun while off-duty). If the officers were terminated for suspect or unsubstantiated rule violations, that evidence could also have been helpful in proving their retaliation claims.