Moser v. Las Vegas Metropolitan Police Department, No. 19-16511 (9th Cir. 2021)
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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.
Court Description: Civil Rights The panel reversed the district court’s summary judgment in favor of the Las Vegas Metropolitan Police Department and remanded in an action brought by a former SWAT sniper who alleged 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 outweighed plaintiff’s First Amendment right under the balancing test for speech by government employees, set forth in Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968). * The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. MOSER V. LVMPD 3 The panel first determined that plaintiff’s speech addressed an issue of public concern under the Pickering framework, that plaintiff spoke as a private citizen, not a public employee, and that he was demoted because of his speech. The panel held that the district court erred in granting summary judgment for the government because there was 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, as the Department interpreted, a call for unlawful violence against suspects? Another factual dispute existed over whether plaintiff’s comment would have likely caused disruption in the police department. These factual disputes had to be resolved before the court could weigh the competing considerations of plaintiff’s First Amendment rights against the government interest in workforce discipline under the Pickering balancing test. Dissenting, Judge Berzon stated that plaintiff waived any argument about the meaning of his Facebook comment and because the Department’s interpretation of plaintiff’s statement was by far more reasonable than plaintiff’s proffered alternative, Judge Berzon would affirm the district court’s judgment. 4 MOSER V. LVMPD