HERBERT E. LIVERMAN; VANCE R. RICHARDS, Plaintiffs - Appellants,
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
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)
Thomas Bodoh, THOMAS H. ROBERTS & ASSOCIATES, PC,
Richmond, Virginia, for Appellants.
A. Winneberger, BEALE, DAVIDSON, ETHERINGTON & MORRIS,
P.C., Richmond, Virginia, for Appellees.
William F. Etherington, BEALE, DAVIDSON, ETHERINGTON &
MORRIS, P.C., Richmond, Virginia, for Appellees.
WILKINSON and TRAXLER, Circuit Judges, and Bruce H.
HENDRICKS, United States District Judge for the District of
South Carolina, sitting by designation.
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.
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.
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.
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.
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.
398. More than thirty people "liked" or commented
on this post. Richards, also off-duty at the time, commented
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 ...