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Liverman v. City of Petersburg

United States Court of Appeals, Fourth Circuit

December 15, 2016

HERBERT E. LIVERMAN; VANCE R. RICHARDS, Plaintiffs - Appellants,
v.
CITY OF PETERSBURG; JOHN I. DIXON, III, both individually and in his capacity as the Chief of Police for the City of Petersburg Bureau of Police, Defendants-Appellees.

          Argued: October 27, 2016

         Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:14-cv-00139-JRS)

         ARGUED:

          Andrew Thomas Bodoh, THOMAS H. ROBERTS & ASSOCIATES, PC, Richmond, Virginia, for Appellants.

          Leslie A. Winneberger, BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for Appellees.

         ON BRIEF:

          William F. Etherington, BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for Appellees.

          Before WILKINSON and TRAXLER, Circuit Judges, and Bruce H. HENDRICKS, United States District Judge for the District of South Carolina, sitting by designation.

         Affirmed in part, reversed in part, and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Traxler and Judge Hendricks joined.

          WILKINSON, Circuit Judge.

         Two police officers challenge disciplinary actions for violations of their Department's social networking policy. The district court denied relief on most of their claims. 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. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

         I.

         The pertinent facts in this case are not in dispute. Plaintiffs Herbert Liverman and Vance Richards were veteran police officers in the City of Petersburg's Police Department. Both served as field officers under Chief John Dixon, who led the Department. Dixon in turn served under the general direction of the City Manager.

         In April 2013, Chief Dixon issued a general order revising the Department's social networking policy. That policy governs officers' use of social media platforms. The preface to the revised policy prohibits in sweeping terms the dissemination of any information "that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees." J.A. 161. The central provision of the policy, which we will refer to as the Negative Comments Provision, states:

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.

J.A. 162. Another provision, which we label the Public Concern Provision, specifies:

Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.

Id. The policy nonetheless "strongly discourages employees from posting information regarding off-duty activities" and provides that violations will be forwarded to the Chief of Police for "appropriate disciplinary action." J.A. 163.

         This case concerns the Department's application of the social networking policy to the following conversation between Liverman and Richards. While off-duty on June 17, 2013, Liverman posted a message to his Facebook page:

Sitting here reading posts referencing rookie cops becoming instructors. Give me a freaking break, 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 knowledge to teach other officers. But in todays world of instant gratification and political correctness we have rookies in specialty units, working as field training officer's and even as instructors. Becoming a master of your trade is essential, not only does your life depend on it but more importantly the lives of others. Leadership is first learning, knowing and then doing.

         J.A. 398. More than thirty people "liked" or commented on this post. Richards, also off-duty at the time, commented as follows:

Well said bro, I agree 110%... Not to mention you are seeing more and more younger Officers being promoted in a Supervisor/ or roll. It's disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience... And what comes with experience are "experiences" that "they" can pass around to the Rookies and younger less experienced Officers. 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 11/2yrs experience in the street? Or less as a matter of fact. It's a Law Suit waiting to happen. And you know who will be responsible for that Law Suit? A Police Vet, who knew tried telling and warn the admin for promoting the young Rookie who was too inexperienced for that roll to begin with. Im with ya bro....smh[*]

J.A. 399. Later that day, Liverman responded to Richards with a comment of his own:

There used to be a time when you had to earn a promotion or a spot in a specialty unit...but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been "devalued"...and when ...

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