December 15, 2016
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 something has no value, well
it is worthless.
Id. Richards then replied:
Your right ..... The next 4yrs can't get here fast
enough... From what I've been seeing I don't think I
can last though. You know the old "but true" saying
is.... Your Agency is only as good as it's Leader(s)...
It's hard to "lead by example" when there
those who liked or commented on the Facebook postings, most
were current or former Department officers. Two sergeants,
Liverman's and Richards's supervisors, learned of the
exchange and notified Chief Dixon of the issue. Dixon
determined that the statements violated the Department's
social networking policy and instructed the sergeants to
discipline the officers. In the disciplinary action forms,
the Department stated that Liverman's follow-up comment
and both of Richards's comments violated the Negative
Comments Provision. They each received an oral reprimand and
six months' probation, but were advised that such
discipline would not affect their eligibility for promotion.
Both the City Manager and Human Resources Director signed the
personnel action forms indicating their probationary status.
weeks later, however, Chief Dixon altered the qualifications
for promotion. The new protocol expressly excluded any
officers on probation from participating in the promotion
process. Accordingly, when Liverman and Richards applied for
open sergeant positions, the Department notified them that
they were ineligible to sit for the promotional exam.
October 1, 2013, the two officers sent a letter informing the
City that they intended to challenge the disciplinary
actions. Shortly thereafter, Liverman and Richards were the
subject of several complaints and investigations within the
Department. Based on the findings, Chief Dixon decided to
fire Liverman, but Liverman resigned before receiving notice
of his termination.
March 5, 2014, Liverman and Richards filed a six-count
complaint in federal district court under 42 U.S.C. §
1983, seeking damages and other relief against Chief Dixon
and the City for various violations of the First Amendment.
The two officers claimed that the social networking policy
infringed their free speech rights in Counts One (Liverman)
and Two (Richards). Liverman and Richards also challenged the
adverse disciplinary actions taken pursuant to the policy in
Counts Three and Four, respectively. Finally, they alleged in
Counts Five and Six that the Department instituted subsequent
investigations against them in retaliation for proceeding
with the instant suit.
district court granted Liverman summary judgment on his claim
that the social networking policy infringed his right to free
speech, but nonetheless found that Chief Dixon was entitled
to qualified immunity because the policy fell within a gray
zone. On Liverman's challenge to the disciplinary action,
the court found that qualified immunity again shielded
Dixon's decision because the contours of protected speech
in this area were not clearly established. The district court
next denied relief on Richards's challenges to the policy
and the discipline, holding that Richards's speech was
purely personal and thus not protected by the First
Amendment. For both of their retaliation claims, the court
concluded that the subsequent internal investigations were
not retaliatory. This appeal followed.
legal framework governing public employee speech claims is
well known. Public employees may not "be compelled to
relinquish the First Amendment rights they would otherwise
enjoy as citizens to comment on matters of public
interest." Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968). Underlying this principle is the recognition
that "public employees are often the members of the
community who are likely to have informed opinions as to the
operations of their public employers." City of San
Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam).
Nonetheless, a citizen who accepts public employment
"must accept certain limitations on his or her
freedom." Garcetti v. Ceballos, 547 U.S. 410,
418 (2006). Government employers enjoy considerable
discretion to manage their operations, and the First
Amendment "does not require a public office to be run as
a roundtable for employee complaints over internal office
affairs." Connick v. Myers, 461 U.S. 138, 149
begin the First Amendment inquiry by assessing whether the
speech at issue relates to a matter of public concern.
See Pickering, 391 U.S. at 568. If speech is purely
personal, it is not protected and the inquiry is at an end.
If, however, the speech is of public concern, courts must
balance "the interests of the [employee], as a citizen,
in commenting upon matters of public concern and the interest
of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees."
Id.; see also Connick, 461 U.S. at 142.
this backdrop, we turn to the officers' First Amendment
challenges to the Department's social networking policy
and the subsequent disciplinary actions taken against them.
district court granted summary judgment to Liverman on his
challenge to the social networking policy, but denied
Richards's parallel claim on the grounds that his speech
was not protected by the First Amendment. We hold that the
Department's social networking policy is
unconstitutionally overbroad and, for the following reasons,
award judgment to Richards on his claim as well.
regulations on social media use may appear to present novel
issues, we agree with the district court that such questions
are amenable to the traditional analysis set forth in
Connick and Pickering. Indeed, the
particular attributes of social media fit comfortably within
the existing balancing inquiry: A social media platform
amplifies the distribution of the speaker's message -
which favors the employee's free speech interests - but
also increases the potential, in some cases exponentially,
for departmental disruption, thereby favoring the
employer's interest in efficiency. What matters to the
First Amendment analysis is not only the medium of the
speech, but the scope and content of the restriction.
deal with a broad social networking policy setting forth the
parameters of public employee speech. In United States v.
Nat'l Treasury Employees Union (NTEU), 513
U.S. 454 (1995), the Supreme Court addressed how courts
should apply Pickering when a generally applicable
statute or regulation (as opposed to a post-hoc disciplinary
action) operates as a prior restraint on speech.
NTEU involved a statute that prohibited federal
employees from accepting any compensation for giving speeches
or writing articles, even when the topic was unrelated to the
employee's official duties. See id. at 457.
Emphasizing that the honoraria ban impeded a "broad
category of expression" and "chills potential
speech before it happens, " the Court held that
"the Government's burden is greater with respect to
this statutory restriction on expression than with respect to
[the] isolated disciplinary action[s]" in
Pickering and its progeny. Id. at 467, 468.
Accordingly, "[t]he Government must show that the
interests of both potential audiences and a vast group of
present and future employees in a broad range of present and
future expression are outweighed by that expression's
'necessary impact on the actual operation' of the
Government." Id. at 468 (quoting
Pickering, 391 U.S. at 571). Further, the government
"must demonstrate that the recited harms are real, not
merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way."
Id. at 475.
threshold question in this case is whether the
Department's policy regulates officers' rights to
speak on matters of public concern. There can be no doubt
that it does: the restraint is a virtual blanket prohibition
on all speech critical of the government employer. The
explicit terms of the Negative Comments Provision prevent
plaintiffs and any other officer from making unfavorable
comments on the operations and policies of the Department,
arguably the "paradigmatic" matter of public
concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir.
1995); see also Roe, 543 U.S. at 80.
the competing interests on either side of the
Pickering/NTEU balance, we begin by noting
the astonishing breadth of the social networking policy's
language. The policy seeks to prohibit the dissemination of
any information on social media "that would tend to
discredit or reflect unfavorably upon the [Department]."
J.A. 161. In particular, the Negative Comments Provision
proscribes "[n]egative comments on the internal
operations of the Bureau" - which could be just about
anything - or on the "specific conduct of supervisors or
peers" - which, again, could be just about anything.
interests of "present and future employees" and
their "potential audiences" in such speech is
manifestly significant. See NTEU, 513 U.S. at 468.
We do not, of course, discount the capacity of social media
to amplify expressions of rancor and vitriol, with all its
potential disruption of workplace relationships that
Connick condemned. But social networking sites like
Facebook have also emerged as a hub for sharing information
and opinions with one's larger community. And the speech
prohibited by the policy might affect the public interest in
any number of ways, including whether the Department is
enforcing the law in an effective and diligent manner, or
whether it is doing so in a way that is just and evenhanded
to all concerned. The Department's law enforcement
policies could well become a matter of constructive public
debate and dialogue between law enforcement officers and
those whose safety they are sworn to protect. After all,
"[g]overnment employees are often in the best position
to know what ails the agencies for which they work."
Waters v. Churchill, 511 U.S. 661, 674 (1994)
(plurality opinion). But this policy will cut short all of
that. To repeat, it squashes speech on matters of public
import at the very outset.
the Department's social networking policy unmistakably
imposes a significant burden on expressive activity, we next
consider whether the Department has adequately established
"real, not merely conjectural" harms to its
operations. See NTEU, 513 U.S. at 475. Chief
Dixon's primary contention is that divisive social media
use undermines the Department's interests in maintaining
camaraderie among patrol officers and building community
trust. These are, to be sure, legitimate interests.
"When close working relationships are essential to
fulfilling public responsibilities, a wide degree of
deference to the employer's judgment is
appropriate." Connick, 461 U.S. at 151-52. And
such deference applies with special force to police
departments because they are "paramilitary - discipline
is demanded, and freedom must be correspondingly
denied." Maciariello v. Sumner, 973 F.2d 295,
300 (4th Cir. 1992).
however, the Department fails to satisfy its burden of
demonstrating actual disruption to its mission. Apart from
generalized allegations of budding "divisiveness"
and claims that some "patrol officers sought [shift]
transfers, " J.A. 502, Chief Dixon presented no evidence
of any material disruption arising from plaintiffs' - or
any other officer's - comments on social media. We do not
deny that officers' social media use might present some
potential for division within the ranks, particularly given
the broad audience on Facebook. But the speculative ills
targeted by the social networking policy are not sufficient
to justify such sweeping restrictions on officers'
freedom to debate matters of public concern. See
Connick, 461 U.S. at 152; McVey v. Stacy, 157
F.3d 271, 279 (4th Cir. 1998) (Murnaghan, J., concurring in
part and concurring in the judgment) ("A stronger
showing of public interest in the speech requires a
concomitantly stronger showing of government-employer
interest to overcome it.").
fallback argument is that, even if the Negative Comments
Provision itself is overbroad, the Public Concern Provision
significantly narrows the reach of the social networking
policy. This second provision, which permits comments on
"issues of general or public concern . . . so long as
the comments do not disrupt the workforce, " J.A. 162,
is ostensibly more aligned with the case-by-case analysis of
Connick and Pickering. But the milder
language in a single provision does not salvage the
unacceptable overbreadth of the social networking policy
taken as a whole. Indeed, the Public Concern Provision does
not purport to nullify or otherwise supersede the blanket
censorship endorsed by the Negative Comments Provision. If
the Department wishes to pursue a narrower social media
policy, then it can craft a regulation that does not have the
chilling effects on speech that the Supreme Court deplored.
We cannot, however, allow the current policy to survive as a
management and disciplinary mechanism.
next assert that the district court erred in dismissing their
challenges to the Department's disciplinary actions. We
agree. In fact, the facial overbreadth of the social
networking policy is borne out by the disciplinary actions
taken pursuant to it.
evaluating an ex post disciplinary action, rather than an ex
ante restraint on speech, the nature of our review is
narrower than the analysis under NTEU. In this
context, our court has adopted the traditional
Connick/Pickering three-part test to
determine whether a public employee has sustained a First
Amendment challenge to an adverse employment action. First,
we determine whether the employee spoke as a citizen on a
matter of public concern. Second, we evaluate whether the
employee's interest in First Amendment expression
outweighs the employer's interest in the efficient
operation of the workplace. And finally, we decide whether
the protected speech was a substantial factor in the
employer's decision to take adverse employment action.
McVey, 157 F.3d at 277-78.
first inquiry, once again, is whether Liverman and Richards
spoke on matters of public concern. "Speech involves a
matter of public concern when it involves an issue of social,
political, or other interest to a community." Kirby
v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir.
2004). In resolving this question, the Supreme Court has
directed courts to examine the "content, form, and
context of a given statement." Connick, 461
U.S. at 147-48. Although defendants are certainly correct
that "personal complaints and grievances about
conditions of employment" are not matters of public
concern, Campbell v. Galloway, 483 F.3d 258, 267
(4th Cir. 2007), they misconstrue the thrust of
Liverman's and Richards's comments.
form and context of the comments indicate that plaintiffs did
in fact speak on an issue of public concern. Regarding the
form of speech, we find it significant that the officers
chose Facebook as the forum for their communication. As our
colleague Judge Traxler has recognized, Facebook is a dynamic
medium through which users can interact and share news
stories or opinions with members of their community. See
Bland v. Roberts, 730 F.3d 368, 385 (4th Cir.
2013). Similar to writing a letter to a local newspaper,
see Pickering, 391 U.S. at 569-70, publicly posting
on social media suggests an intent to "communicate to
the public or to advance a political or social point of view
beyond the employment context, " Borough of Duryea
v. Guarnieri, 131 S.Ct. 2488, 2501 (2011). Further, the
officers' Facebook comments were prompted by other
"posts referencing rookie cops becoming
instructors." J.A. 398. Accordingly, the context of the
speech buttresses our conclusion that Liverman and Richards
were not simply airing personal grievances but rather were
joining an ongoing public debate about the propriety of
elevating inexperienced police officers to supervisory roles.
content of the Facebook comments further confirms that they
dealt with issues of public import. Defendants seek to carve
up the Facebook colloquy and assert that Liverman's and
Richards's comments should be considered separately. Yet
this court has previously rejected attempts to "divide
[speech] into discrete components to conduct a constitutional
analysis on each." Stroman v. Colleton Cty. Sch.
Dist., 981 F.2d 152, 157 (4th Cir. 1992). Because we do
not have "license to ignore the portions" of the
communication that touch on a matter of public concern, we
must view the statements "as a single expression of
speech to be considered in its entirety."
Campbell, 483 F.3d at 267. This approach is
consistent with the typical experience on social media, where
users engage in interactive discussions through a series of
posts and comments. Liverman's initial post invited
others to pick up on his observations; Richards responded,
and they began a public dialogue about the Department's
promotion policies. Their comments, therefore, should be read
in conjunction as part of a single conversation on the
qualifications of instructors and the increasing number of
rookies thrust into teaching roles.
together, plaintiffs' statements stand in stark contrast
to the sort of "individualized concerns" this court
has characterized as personal grievances. See Brooks v.
Arthur, 685 F.3d 367, 374 (4th Cir. 2012). Each veteran
officer grounded his statements in specialized knowledge and
expressed a general "concern about the inability of the
[Department] to carry out its vital public mission
effectively." Cromer v. Brown, 88 F.3d 1315,
1325-26 (4th Cir. 1996). Liverman's initial post cited an
FBI study that underscored the danger of promoting green
officers, and his subsequent comment noted the implications
for "officer safety and questions of liability."
J.A. 398-99. Notwithstanding his more colloquial tone,
Richards touched on the same issues of public import in his
responses. First, he agreed with Liverman's observations
and echoed the concerns about "more and more younger
Officers being promoted." J.A. 399. Then he turned to
the issue of skill development raised by the FBI study and
concluded that "LEO Supervisors should be promoted by
experience" and the "Agency is only as good as
it's Leader(s)." J.A. 399-400.
plaintiffs were correct or not in their views is not the
issue. The matter they addressed was of more than personal
import. We thus have no trouble finding that plaintiffs'
Facebook comments, which addressed risks posed by the
Department's inexperienced supervisors, raised issues of
public concern. See, e.g., Brooks, 685 F.3d
at 375 (explaining that when an employer's practice
"crosses a line to the point that imperils the public
welfare . . . then the public would rightly be concerned
about the matter"); Goldstein v. Chestnut Ridge
Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000)
(holding that firefighter's complaints about inadequate
training and unsafe procedures during emergency calls were
matters of public concern).
second and third prongs of the
Connick/Pickering inquiry are not in
genuine dispute. Serious concerns regarding officer training
and supervision are weighty matters that must be offset by an
equally substantial workplace disruption. Chief Dixon failed
to establish a reasonable apprehension that plaintiffs'
social media comments would meaningfully impair the
efficiency of the workplace. See Maciariello, 973
F.2d at 300. Finally, defendants do not seriously dispute
that plaintiffs' Facebook comments were a substantial
factor in the decision to discipline them - indeed, both
disciplinary action forms cited violations of the Negative
Comments Provision as the sole basis for the oral reprimand
and probation. J.A. 427-28.
light of the First Amendment protection accorded to the
officers' posts, we conclude that the discipline they
received pursuant to the social networking policy was
alternative, Dixon contends that the Department's
decisions to adopt the social networking policy and take
disciplinary action pursuant to the Negative Comments
Provision are entitled to qualified immunity. The doctrine of
qualified immunity shields government officials "who
commit constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful." Henry v. Purnell, 652 F.3d 524,
531 (4th Cir. 2011) (en banc).
found that Dixon violated the officers' First Amendment
rights, we must consider whether such rights were
"clearly established" at the time of the events at
issue. "We do not require a case directly on point"
in order to conclude that the law was clearly established,
"but existing precedent must have placed the statutory
or constitutional question beyond debate." Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 2083 (2011).
first argues that he acted reasonably in adopting the social
networking policy because the policy purported to track the
subtle balancing calculus in Pickering. We agree
that officials "are not liable for bad guesses in gray
areas, " Maciariello, 973 F.2d at 298, and
"do not expect [police chiefs] to be judges and to have
the training to sort through every intricacy of case
law." Bland, 730 F.3d at 393. But this case
does not involve gray areas: the right against such a
sweeping prior restraint on speech was clearly established
and then some. Indeed, it is axiomatic that the government
may not ban speech on the ground that it expresses an
objecting viewpoint. See R.A.V. v. City of St. Paul,
505 U.S. 377 (1992). Accordingly, there can be no doubt that
prohibiting any "[n]egative comments on the internal
operations of the Bureau, or specific conduct of supervisors
or peers" - even comments of great public concern -
violates the First Amendment. J.A. 162.
also asserts that the disciplinary actions taken pursuant to
the policy were reasonable in light of the vague boundaries
distinguishing public and private speech. Given the patent
unconstitutionality of the social networking policy, however,
efforts to enforce the policy are similarly suspect. After
all, the core of the policy was a prohibition on legitimate
speech and, as detailed above, we have little difficulty
locating the officers' speech within this protected
sphere. Plaintiffs raised serious concerns regarding the
Department's training programs and the promotion of
inexperienced supervisors, both of which are matters of
public concern. As this court has held time and again, it was
clearly established law that such speech is protected by the
First Amendment. See, e.g., Brooks, 685
F.3d at 375; Goldstein, 218 F.3d at 353.
appreciate the need for order and discipline in the ranks.
See Maciariello, 973 F.2d at 300 (recognizing that
"greater latitude is afforded to police department
officials in dealing with dissension"). At the same
time, we cannot countenance an arm of government with such
enormous powers being removed to this extent from public
scrutiny. This is not an all-or-nothing matter; there is a
balance to be struck. But the Department's social
networking policy, and the disciplinary actions taken to
enforce it, lean too far to one side. We therefore hold that
Chief Dixon is not entitled to qualified immunity.
plaintiffs argue that Dixon retaliated against them for
filing their First Amendment suit. We agree with the district
court that their retaliation claims are without merit.
argue that the retaliation took the form of investigating
their conduct on the force. We cannot conclude, however, that
plaintiffs have raised an issue of triable fact that the
investigations were pretextual. See McVey, 157 F.3d
at 277-78. There were independent bases for each
investigation. Liverman was investigated twice. In notifying
the City of his First Amendment claims, Liverman requested a
wide range of personnel records. While searching for
responsive documents, the Department discovered that Liverman
had sent sexually explicit emails to a female officer. The
Department launched an investigation for sexual harassment,
during which Liverman admitted to engaging in sexual
misconduct on Department property and while on duty.
Additionally, Liverman was investigated for an incident in
which he ignored Chief Dixon's orders and failed to
maintain his duty post as directed.
was also investigated twice. Both inquiries were opened as a
result of complaints initiated not by Chief Dixon but by his
fellow officers. The first complaint related to a report
Richards allegedly made to the media about another
officer's spouse. The Department concluded the
investigation within one week, after Richards demonstrated
his innocence. The second complaint arose from his
involvement with the Department's Shop with a Cop
program. Once again, the Department determined that the
allegations were unfounded.
from generalized assertions regarding the existence of the
investigations, plaintiffs fail to offer any evidence that
the investigations were retaliatory. Far from groundless
"fishing expeditions, " Appellants' Br. at 34,
each arose from discrete allegations of misconduct. Without
more, we see no reason to question the legitimacy of the
Department's investigations. After all, simply filing a
Pickering claim does not confer indefinite immunity
on employees or insulate them from subsequent investigation
and discipline for unrelated misconduct. Granting relief on
plaintiffs' retaliation claims would handcuff the
Department by forcing inaction even where there is police
behavior that warrants close review. Speech is one thing;
misconduct something else. There are countless
unobjectionable reasons why a police department might want to
investigate an officer's performance, including absence
from work, tardiness, insubordination, illegal activity, and
basic failure to carry out one's duties in a competent
and impartial fashion. The garden-variety investigations into
Liverman's and Richards's conduct were no different,
and we therefore reject their claims of retaliation.
City argues that Liverman and Richards have failed to
establish municipal liability. The district court agreed. We
remand on this question to give the district court a chance
to assess under the appropriate standard municipal liability
for establishing the policy under which plaintiffs were
Section 1983, a local government may be held liable for
injuries suffered due to the "execution of a
government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said
to represent official policy." Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 694 (1978). Municipal
liability "attaches only where the decisionmaker
possesses final authority to establish municipal policy with
respect to the action ordered." Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986). Whether an entity
possesses the requisite authority is a question of state law.
Id. at 483.
the district court concluded that the City was not liable
with respect to any of plaintiffs' claims. The
court's holding rested on a city ordinance providing that
the Chief of Police "serve[s] at the pleasure of the
city manager" and is "under the direction and
control of the city manager." Liverman v. City of
Petersburg, 106 F.Supp.3d 744, 769 (E.D. Va. 2015).
Because Dixon does not have the final say over Department
matters, the court indicated, plaintiffs failed to show that
Chief Dixon "possesses the final authority required to
establish municipal liability." Id.
analysis misapprehends the nature of the requisite authority.
We deal here not merely with an individual employment
decision, see Crowley v. Prince George's Cty.,
890 F.2d 683, 687 (4th Cir. 1989), but a broad policy setting
forth all the ground rules for employee speech. An entity has
"final" authority to set this sort of policy when
no further action is needed for the policy to take effect.
The Supreme Court has expressly noted that "[a]uthority
to make municipal policy . . . may be delegated by an
official who possesses such authority" to another
official. Pembaur, 475 U.S. at 483. Here the fact
that Dixon serves "under the direction and control of
the city manager" does not necessarily establish that he
lacked final authority to promulgate the policy whose
validity has been successfully challenged herein. We must
therefore remand to the district court to undertake a more
particularized inquiry into whether Chief Dixon possessed
final authority to set policies on the parameters of speech
on the part of those law enforcement officers under his
command. If so, the City may also be held liable for the
injuries that were caused by the applications of that policy.
a police department is hard work. Its mission requires
capable top-down leadership and a cohesion and esprit on the
part of the officers under the chief's command. And yet
the difficulty of the task and the need for appropriate
disciplinary measures to perform it still does not allow
police departments to wall themselves off from public
scrutiny and debate. That is what happened here. The
sensitivity of all the well-known issues that surround every
police department make such lack of transparency an unhealthy
state of affairs. The advent of social media does not provide
cover for the airing of purely personal grievances, but
neither can it provide a pretext for shutting off meaningful
discussion of larger public issues in this new public sphere.
recapitulate: We hold that the Department's social
networking policy was unconstitutional and that the
disciplinary measures taken against plaintiffs pursuant to
that policy were likewise impermissible. The patent
overbreadth of the policy negates Chief Dixon's qualified
immunity defense. We find no merit, however, in
plaintiffs' retaliation claims, which involved
investigations for alleged police misconduct independent of
any issues of free speech. As to municipal liability, we
remand for further proceedings in accordance with the
foregoing directions. Remedial issues are also best left for
remand, although in light of all that has transpired,
reinstatement is not an equitable option. The calculation of
attorneys' fees must of course await the conclusion of
proceedings on remand.
judgment of the district court is accordingly affirmed in
part, reversed in part, and remanded for further proceedings
consistent with this decision.
IN PART, REVERSED IN PART, AND REMANDED.
[*] "Smh" is an acronym for
"shaking my head."