Moser v. Las Vegas Metropolitan Police Department, No. 19-16511 (9th Cir. 2021)Annotate this Case
Plaintiff, a former SWAT sniper, filed suit alleging that the Department unconstitutionally retaliated against him for his protected speech when it dismissed him from the SWAT team after he commented on Facebook that it was a "shame" that a suspect who had shot a police officer did not have any "holes" in him. The district court construed plaintiff's statement as advocating unlawful violence, and ruled that the government's interest in employee discipline outweighs plaintiff's First Amendment right under the Pickering balancing test for speech by government employees.
The Ninth Circuit reversed and remanded, holding that the district court erred in granting summary judgment for the government because there is a factual dispute about the objective meaning of plaintiff's comment: was it a hyperbolic political statement lamenting police officers being struck down in the line of duty — or a call for unlawful violence against suspects? Furthermore, another factual dispute exists over whether plaintiff's comment would have likely caused disruption in the police department. Therefore, the panel concluded that these factual disputes had to be resolved before the district court could weigh the competing considerations under the Pickering balancing test.