Hernandez v. City of Phoenix

          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 ...