United States District Court, D. Arizona
ORDER
MICHAEL T. LIBURDI UNITED STALES DISTRICT JUDGE
This
action was initiated by two plaintiffs, Sergeant Juan
Hernandez of the Phoenix Police Department (the
“Department”) and the Arizona Conference of
Police and Sheriffs (“AZCOPS”), which is a group
“dedicated to fair representation of law enforcement
officers located around the State of Arizona.” (Doc. 1
at 3). Plaintiff Hernandez is one of the hundreds of Phoenix
police officers who are AZCOPS members. (Doc. 1 at 3; Doc. 12
at 2). Presently before the Court is Plaintiffs' Amended
Motion for a Preliminary Injunction. Plaintiffs seek a
preliminary injunction against the City of Phoenix, Chief of
Police Jeri Williams, and Commander Shane Disotell to
prohibit potential disciplinary action under the
Department's Social Media Policy. Plaintiffs' request
a preliminary injunction based on prospective discipline of
Plaintiff Hernandez for his previous social media posts which
Plaintiffs claim would be a violation of his free speech
rights and to enjoin enforcement of the Department's
Social Media Policy based on the claim that the threat of
discipline has chilled employee speech as it relates to
commenting on matters of public concern in violation of their
free speech rights.
I.
INTRODUCTION
A.
Factual Background
This
factual recitation derives from the Plaintiffs'
Complaint, the parties' written submissions on the
Amended Motion for Preliminary Injunction, and the
evidentiary hearing held on November 19, 2019 (argument only
was continued on November 22, 2019). The City of Phoenix and
the Department have adopted various rules and policies
concerning employee conduct that takes place outside of work
hours. These polices can be found in the Phoenix Police
Departments' Operations Orders Manual and in the City of
Phoenix's Administrative Regulations that are applicable
to all city employees. Particularly relevant to this case are
the Department's Social Media Policy, which was adopted
in August 2013 and can be found in Operations Order 3.27, and
the Department's Purpose Statement and Guiding Values,
which are in Operations Order 1.1.
On or
about June 1, 2019, a group known as the Plain View Project
publicized several Facebook social media posts made by
various law enforcement officers. The posts of a number of
officers in the Department, including Plaintiff Hernandez
were publicized. (Doc. 1 at 3-5). While the Plain View
Project republished 11 of Plaintiff Hernandez's posts,
the Department only seeks to potentially discipline him for
four posts:
(1) September 30, 2013: A meme[1] with what appears to be mugshots
of men of Middle Eastern descent and containing the text
“THE MOST COMMON NAME FOR A CONVICTED GANG RAPIST IN
ENGLAND IS . . . Muhammad Note to the British media - these
gangs are not comprised of ‘Asians'; they are
Muslims.” [Doc. 1-2, Exhibit 4];
(2) October 8, 2013: A meme entitled “You just got to
love the Brits” recounting a story in which a Muslim
taxi passenger asked the driver to turn off the music in the
car for religious reasons, to which the driver responded
“[i]n the time of the prophet, there were no taxis, so
piss-off and wait for a camel!” [Doc. 1-2, Exhibit 5];
(3) December 24, 2013: A meme entitled “RECENT
CONTRIBUTIONS TO SCIENCE BY ISLAM” in which Muslim
scholars and theologians expressed controversial opinions
regarding female drivers, DNA testing in rape cases, the
Earth revolving around the Sun, and the link between dressing
modestly and earthquakes. [Doc. 1-2, Exhibit 6]; and
(4) January 9, 2014: Article entitled “Military
Pensions Cut, Muslim Mortgages Paid by US!” [Doc. 1-2,
Exhibit 10].
The
Department's Professional Services Bureau (the
“PSB”) investigates violations of Department
policies, including the Department's Social Media Policy.
Commander Disotell leads PSB; however, at the time Plaintiffs
filed this suit, he was on temporary assignment outside of
Arizona. In his absence, Lieutenant Matthew Siekmann is in
charge of PSB. On June 3, 2019, PSB opened an investigation
into the Department officers whose posts appeared on the
Plain View Project website. PSB investigators interviewed
Plaintiff Hernandez on June 20, 2019. They questioned him
regarding the four posts described herein. When asked about
his motivation for his posts, Plaintiff Hernandez told
investigators that he wanted to foster discussion about
issues including assimilation and veteran benefits.
On
October 9, 2019, Commander Disotell issued a report to Chief
Williams concerning Plaintiff Hernandez's Facebook posts.
The report concluded that certain of Plaintiff
Hernandez's Facebook posts violated both the Social Media
Policy and the Department's Purpose Statement and Guiding
Values. (Doc. 17 at 3). Specifically, the PSB report found
infractions with respect to the following Social Media Policy
provision:
Department personnel are free to express themselves as
private citizens on social media sites to the degree that
their speech does not impair working relationships of this
Department, are detrimental to the mission and functions of
the Department, that [sic] undermine respect or
public confidence in the Department, cause embarrassment to
the Department or the City, discredit the Department or City,
or undermine the goals and mission of the Department or City.
Operations Order 3.27.9.B. (6), (New 08/13). (Doc. 1-2 at
78).
The PSB
report also concluded that Plaintiff Hernandez's posts
violated the following provision of the Department's
Guiding Values: “Responsibility and Respect: We respect
and honor the inherent dignity of all people, including
ourselves, and pledge fair and equal treatment for
all.” Operations Order 1.1.2.B. (3). (Doc. 1-2 at 79).
The
report also concluded that Plaintiff Hernandez's posts
“could potentially spread fear and hatred towards
people of Middle Eastern descent, as well as those practicing
the Muslim faith. In addition [the posts] potentially reduced
or contributed to the erosion of public trust. . . .”
(Ex. 104 at 0028 (admitted into evidence November 19, 2019
(Doc. 31)). The report noted that the job description of a
Phoenix police sergeant requires integrity, knowledge of
social problems, and cultural diversity. (Id.).
Moreover, the report says that testifying in court, as is
sometimes required for police sergeants, is more complicated
after an officer demonstrates bias. (Id.). Overall,
the report concludes, the posts for which Plaintiff Hernandez
is under investigation “do not align with the
distinguishing features, essential functions and required
knowledge as outlined in the City of Phoenix classification
for a Police Sergeant.” (Id.). The report said
that the type of policy violation at issue requires a
“referral to the [Disciplinary Review Board] for a
possible demotion and/or 40, 80, or 240 hours suspension, or
termination or referral to the Police Chief (or designee) for
a. . .[h]earing.” (Id. at 0029).
The
Department's Disciplinary Review Board consists of an
assistant chief, commanders, peers and civilians. (Doc. 1 at
8). It was set to meet on October 15, 2019 to consider
disciplinary action against Plaintiff Hernandez.
(Id.). Five days before that hearing, Plaintiffs
filed a Complaint in this Court. (Doc. 1). Plaintiffs
attached Operations Order 3.27 to the Complaint; Operations
Order 3.27 is the six-page Social Media Policy. In the
Complaint, Plaintiffs allege that the Social Media Policy is
unconstitutional on its face because it is overbroad, chills
protected speech involving matters of public concern, and is
impermissibly vague because there is no discernable standard
for enforcement and Defendants enforce the policy
arbitrarily. (Doc. 1 at 9-10). In the Amended Motion for
Preliminary Injunction, Plaintiff Hernandez specifically
alleges that Defendants seek to discipline him for speaking
on matters of public concern without appropriate
justification. (Doc. 20 at 2-6). He thus argues that the
Social Media Policy is unconstitutional as applied to him.
Also
alleged in the Complaint, but not before the Court in the
Amended Motion for Preliminary Injunction, Plaintiff
Hernandez alleges that Chief Williams and Commander Disotell
intentionally or recklessly allowed an investigation and
proposed disciplinary action against him in violation of both
the First Amendment and its Arizona counterpart. Plaintiff
Hernandez alleges that Chief Williams and Commander Disotell
negligently allowed the PSB investigation against him.
Lastly, both Plaintiffs allege that the City of Phoenix and
Chief Williams failed to train Commander Disotell in
constitutionally permissible means of conducting internal
investigations.
Defendants
agreed to postpone disciplinary action against Sgt. Hernandez
pending the resolution of the Motion before the Court. (Doc.
11). After an initial hearing, Plaintiffs filed a Notice of
Change In Factual Circumstances. (Doc. 16). This document
alleges that Chief Williams announced that she would
discipline officers for violating the Social Media Policy,
taking the form of everything from written warnings to a
termination. The Notice did not specify whether any of the
officers Chief Williams was referring to were AZCOPS members,
but Plaintiffs said that the announcement evidenced the
chilling effect of the Social Media Policy. (Id.).
B.
PROCEDURAL BACKGROUND
Plaintiffs
filed their Complaint along with a request for both a
temporary restraining order and preliminary injunction on
October 10, 2019. (Docs. 1 and 2). In asking the Court to
enjoin enforcement of the Social Media Policy, Plaintiffs
argue that the policy is facially overbroad, vague and
subject to arbitrary enforcement. (Doc. 12 at 6-8, 10; Doc.
20 at 11). Plaintiffs seemingly argue that disciplining
Plaintiff Hernandez would be retaliation for Plaintiff
Hernandez exercising his First Amendment rights and would
send a chilling effect, causing members of AZCOPS to
self-censor for fear of being disciplined themselves.
(See Doc. 20 at 2). This Court held a hearing the
day after Plaintiffs filed the Complaint. (Doc. 11). Because
Defendants agreed to postpone Plaintiff Hernandez's
disciplinary hearing pending the resolution of the
preliminary injunction motion, (id.), the request
for a temporary restraining order became moot. Plaintiffs
later filed an Amended Motion for Preliminary Injunction
(Doc. 12). Defendants responded (Doc. 17). Plaintiffs filed a
reply (Doc. 20). This Court held hearings on this matter on
November 19 and November 22, 2019.
II.
ANALYSIS
A
preliminary injunction is an extraordinary remedy that a
court never issues as a matter of right. Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 24
(2008). “A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in
his favor and that an injunction is in the public
interest.” Id. at 20. In the Ninth Circuit, a
showing that there are “serious questions going to the
merits and a hardship balance that tips sharply toward the
plaintiff can support issuance of an injunction, assuming
that the other two elements of the Winter test are
also met.” Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).
A.
Likelihood of Success on the Merits
1.
Governing law
Plaintiffs
frame their request for a preliminary injunction as follows:
“…the question presented is whether the Phoenix
Police Department's Social Media Policy violates the
First Amendment rights of Phoenix Police Department
employees.” (Doc. 12 at 7-8). The Social Media Policy
to which Plaintiffs refer is six-single-spaced pages. (Doc.
1-2 at 6-11). At no point do Plaintiffs specify exactly which
portion(s) of the Social Media Policy allegedly violates
their First Amendment rights such that an injunction would be
justified.
Instead,
Plaintiffs give only one example in their motion of how a
particular portion of the Social Media Policy might justify
an injunction. In that example, Plaintiffs state,
“Specifically, the plain language of the PD Policy -
‘Employees are prohibited from using social media in a
manner that would cause embarrassment to or discredit the
Department in any way' - does not limit its scope to
prohibit actions taken in furtherance of department duties.
[citation omitted]. Accordingly, this Court should find that
the PD Policy reaches beyond the scope of Plaintiff
Hernandez's and police officers' official
duties.” (Doc. 12 at 8-9). This language is one portion
of Operations Order 3.27.9.B. (6). Again, Plaintiffs do not
specify if this identified language alone forms the basis for
their request for injunction. Nonetheless, it is the only
language identified by Plaintiffs as potentially justifying
their injunction.
As
indicated above, the Court knows from the PSB report which
portion of the Social Media Policy forms the underlying basis
for Plaintiff Hernandez's prospective disciplinary
proceeding. (See Ex. 104). However, to the extent
that Plaintiff AZCOPS purports to be in a different position
than Plaintiff Hernandez or to be making a different argument
than Plaintiff Hernandez, at no point does Plaintiffs'
counsel delineate between these two Plaintiffs and their
different factual postures.
Thus,
on this record, it will be very difficult for AZCOPS to
establish it is likely to succeed on the merits independent
of Plaintiff Hernandez because Plaintiffs have made no
arguments specific to this entity or its members. In other
words, all of the factual arguments in the motion appear to
be tied to Plaintiff Hernandez's discipline; thus, as the
record stands, AZCOPS is limited by the arguments both
Plaintiffs have jointly advanced on behalf of Plaintiff
Hernandez.
To
succeed on the merits, or to show serious questions going to
the merits, Plaintiffs must prevail under the
Pickering (and its progeny) test. See generally
Pickering v. Board of Education, 391 U.S. 563 (1968). As
discussed more fully below, Pickering (and its
progeny) set forth the test for when the government may
constitutionally regulate an employee's speech. In other
words, in the context of an employment relationship with the
government, Pickering (and its progeny) are the only
avenue by which Plaintiffs may prevail. A unique test is
required for employees (as opposed to private citizens)
because, as the Supreme Court has stated, “[i]n
Pickering and a number of other cases we have
recognized that [the government] may impose restraints on the
job-related speech of public employees that would be plainly
unconstitutional if applied to the public at large.”
United States v. Nat'l Treasury Employees Union,
513 U.S. 454, 465 (1995) (“NTEU”).
Similarly, the Supreme Court has stated, “surely a
public employer may, consistently with the First Amendment,
prohibit its employees from being ‘rude to
customers,' a standard almost certainly too vague when
applied to the public at large.” Waters v.
Churchill, 511 U.S. 661, 673 (1994) (plurality); cf.
Drake v. Covington Cty. Bd. of Ed., 371 F.Supp. 974, 976
and n.4 (M.D. Ala. 1974) (holding under Pickering
that if the Government prevails under a Pickering
analysis, the Court need not reach a facial challenge.
(“Drake claims the immorality provision of this
section, which provided the statutory basis for her
dismissal, is void for vagueness. She attacks the
constitutionality of the statute both on its face and as
applied to her. Following the example of the Supreme Court in
Pickering v. Board of Education, 391 U.S. 563, we
consider first her challenge to the statute as applied. We
then find it unnecessary to reach her challenge to the
statute on its face.”)).
In this
case, the Court notes that Plaintiffs' briefing discusses
the Pickering test as it relates to Plaintiff
Hernandez, but also cites many cases that discuss the
unconstitutionality of statutes for being too vague or overly
broad as applied to private citizens and not in the
employment context. The Court finds cases outside the
employment context to be inapposite to this case. Plaintiffs
appear to have arrived at the same conclusion as the Court
regarding the governing law, as Plaintiffs' reply
discusses only Pickering and its progeny and does
not re-advance any vagueness or overbreadth arguments.
(See Doc. 20; see also Doc. 35 at 44-45
(Plaintiff's counsel stating that Pickering and
modified Pickering are the controlling test)).
2.
Plaintiff Hernandez - Pickering and Eng
(First Amendment Retaliation)
Defendants
seek to hold a disciplinary hearing against Plaintiff
Hernandez based on both the Social Media Policy (Ex. 104 at
0021, 0027) and based on Operations Order 1.1.2.B. (3) (Ex.
104 at 0029). For Plaintiff Hernandez to obtain an injunction
to prevent this disciplinary hearing, he must make the
showing summarized in Eng. Eng stated,
It is well settled that the state may not abuse its position
as employer to stifle “the First Amendment rights [its
employees] would otherwise enjoy as citizens to comment on
matters of public interest.” Pickering v. Bd. of
Educ.,391 U.S. 563 (1968). Acknowledging the limits on
the state's ability to silence its employees, the Supreme
Court has explained that “[t]he problem in any case is
to arrive at a balance between the interests of the [public
employee], as a citizen, in commenting upon matters of public
concern and the ...