Liverman et al v. City of Petersburg et al, No. 3:2014cv00139 - Document 54 (E.D. Va. 2015)

Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 5/6/2015. (sbea, )

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Liverman et al v. City of Petersburg et al Doc. 54 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION HERBERT E. LIVERMAN, et al., Plaintiffs, v. Civil Action No. 3:14– CV– 139 CITY OF PETERSBURG, et al. Defendants. MEMORAN D U M OPIN ION THIS MATTER is before the Court on the Plaintiffs’ Motion for Sum m ary J udgm ent as to Liability, Declaratory J udgm ent, and an Injunction as to Counts I and II of Plaintiffs’ Com plaint (“Plaintiffs’ Motion”) (ECF No. 17), and a Motion for Sum m ary J udgm ent (“Defendants’ Motion”) (ECF No. 20 ), filed by Defendants, City of Petersburg (“the City”) and J ohn I. Dixon (“Chief Dixon”) (collectively, the “Defendants”). Specifically, Plaintiffs Herbert E. Liverm an (“Liverm an”) and Vance R. Richards (“Richards”) (collectively, the “Plaintiffs”) m ove for partial sum m ary judgm ent on Counts I and II of Plaintiffs’ Com plaint, seeking declarative and injunctive relief in addition to com pensatory and punitive dam ages 1 for claim s that Defendants violated their rights under the Free Speech Clause of the First Am endm ent to the United States Constitution. Plaintiffs claim Defendants punished them pursuant to written policies for speaking out on social m edia as citizens regarding m atters of public concern. 2 Defendants, on the other hand, m ove this Court for sum m ary judgm ent as to all counts of 1 Although Plaintiffs seek com pen satory and punitive dam ages, as well as injunctive relief, costs, and attorneys’ fees via their Com plaint, see Com plaint (“Com pl.”) ¶¶ 112, 117, in their m oving papers they claim that they “did not m ove for sum m ary judgm ent as to dam ages” and are only seeking equitable relief. Pls.’ Reply at 9. 2 This Circuit has not yet addressed constitutional issues em erging in the context of social m edia policies. Dockets.Justia.com Plaintiffs’ Com plaint. The parties have not requested a hearing on this m atter, and the Court finds that oral argum ent is unnecessary. E.D. Va. Loc. Civ. R. 7(J ). For the reasons stated below, the Court will GRANT IN PART and DENY IN PART Plaintiffs’ Motion, and GRANT IN PART and DENY IN PART Defendants’ Motion. I. FACTU AL BACKGROU N D This case arose after Plaintiffs, each police officers, were put on probation for posting com m ents on the social m edia website Facebook and noticing, via written letter, claim s against Defendants. Plaintiffs bring this action pursuant to 42 U.S.C § 1983 against Defendants, alleging that they violated Plaintiffs’ First Am endm ent rights by subjecting them to unconstitutional social networking policies issued by the City of Petersburg Police Departm ent (“the Departm ent”). In particular, Plaintiffs claim that the Departm ent im properly im pinged upon their rights under the Free Speech Clause of the First Am endm ent by preventing them , through the Departm ent’s written policies, from speaking out as citizens regarding m atters of public concern and by retaliating against them for seeking to exercise these rights. Defendants deny liability in all respects. Additionally, Chief Dixon asserts the defense of qualified im m unity to Plaintiffs’ claim s for m onetary dam ages. Except as indicated, the following facts are not in dispute. Liverm an was an officer with the Departm ent for approxim ately eighteen years before he resigned on J anuary 10 , 20 14. He attended Virginia State University, and served as an instructor at the regional police academ y. His disciplinary record shows “behavioral and judgm ental problem s” beginning as early as Decem ber of 1995. Br. in Supp. of Defs.’ Mot. at 3 (citing Exs. 1, 4). Richards is also a veteran police officer with twenty-one years of law enforcem ent experience, including four years with the Departm ent. He is currently a Crisis Intervention officer as well as a patrol officer with the Departm ent. He trained with the New York Police Departm ent Special Victim s Unit. Neither Liverm an nor Richards have served in a policy-m aking position. Chief Dixon is the Chief of Police for the Departm ent. He has served in this role for approxim ately seven years. 2 In Decem ber of 20 10 , Major Charlene Hinton (“Major Hinton”) 3 drafted the Departm ent’s first social networking policy, entitled “General Order 10 0 -1.” General Order 10 0 1 becam e effective on Decem ber 1, 20 10 after being approved by Chief Dixon. See id. Ex. 2, ¶ 4, B (“the 20 10 Social Networking Policy”). In or around April of 20 13, the 20 10 Social Networking Policy was reviewed and reform atted. This edited policy, entitled, “Gen eral Order 40 0 -23,” was approved by Chief Dixon and issued on April 15, 20 13. “The overall substance of the policy did not change.” Id. at ¶ 13 (citing Ex. 2, ¶ 5, C) (“the 20 13 Social Networking Policy”). Thus, as of April 15, 20 13, Liverm an and Richards were accountable for following the 20 13 Social Networking Policy. On J une 17, 20 13, while he was off-duty, Liverm an “posted” on Facebook the following com m unication (“Liverm an’s Initial Post”) as an expression of his opinion form ed as a citizen: Sitting here reading posts referencing rookie cops becom ing instructors. Give m e 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 [sic] and even as instructors. Becom ing a m aster of your trade is essential, not only does your life depend on it but m ore im portantly the lives of others. Leadership is first learning, knowing and then doing. Liverm an’s Initial Post was supported by an authoritative source.4 This post was “liked” by at least thirty-two people and received m any com m en ts. In response to Liverm an’s Initial Post, Richards wrote the following on Facebook: Well said bro, I agree 110 % . . . Not to m ention you are seeing m ore and m ore younger Officers being prom oted in a Supervisor/ or [sic] roll [sic]. It’s disgusting and m akes m e sick to m y stom ach DAILY. LEO Supervisors should be prom oted by experience . . . And what com es with experience are “experiences” 3 Major Hinton serves as one of two m ajors working for the Departm ent. She also serves as the Departm ent’s Chief of Staff. 4 Federal Bureau of Investigations, U.S. Dept. of J ustice, Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcem ent Officers 159 (Aug. 20 0 6) (“The am ount of street tim e needed in any agency to lose the rookie status varies from agency to agency. Many officers expressed that this generally occurs after spending 5 years on patrol and becom ing com fortable with their position in the law enforcem ent profession.”). 3 that “they” can pass around to the Rookies and younger less experienced Officers. Perfect exam ple and you know who I’m talking about . . . . How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 ½ years experience in the street? Or less as a m atter 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 [sic] knew tried telling and warn [sic] the adm in for prom oting the young Rookie who was too inexperienced for that roll [sic] to begin with. I’m with ya bro 5 . . . sm h[.] 6 (“First Com m ent”). Later that day, Liverm an stated: There used to be a tim e when you had to earn a prom otion or a spot in a specialty unit . . . but now it seem s as though anything goes and beyond officer safety and questions of liability, these positions have been “devalued” . . . and when som ething has no value, well it is worthless. (“Com m ent”). Subsequently, Richards replied: Your right . . . The next 4 yrs 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 exam ple” when there isn’t one . . . sm h[.] 7 (Second Com m ent”). Excluding Richards and Liverm an, thirty-four people either “liked” or com m ented on the Facebook postings at issue. Id. at Ex. 7 at 30 -40 ; Ex. 5, ¶ 4. Of the thirty-four people who either liked or com m ented on those Facebook posts, twenty-eight of those people knew Liverm an was an officer with the Departm ent, six people were Departm ent em ployees, and seventeen people were form er Departm ent em ployees. Br. in Supp. of Defs.’ Mot. at ¶ 21. Both Liverm an and Richards m ade these Facebook exchanges from their personal com puters while they were offduty and at their respective hom es. After a Departm ent em ployee brought Liverm an’s and Richards’ Facebook com m unications to the attention of the Departm ent, see id. at Ex. 5, ¶ 3, 5 Of this First Com m ent, Richards was only disciplined, specifically, for the part reading, “Perfect exam ple, and you know who I’m talking about . . . How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 ½ years experience in the street? Or less as a m atter 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 [sic] the adm in for prom oting the young Rookie who was too inexperienced for that roll [sic] to begin with. I’m with ya bro . . .’” 6 “SMH” m eans “Shaking My Head.” See Defs.’ Mem . Ex. 8 at 35. 7 Of this Second Com m ent, Richards was only disciplined for the part reading “It’s hard to ‘lead by exam ple’ when there isn’t one.” 4 they8 were each investigated for posting the aforem entioned com m ents to Facebook in violation of the 20 13 Social Networking Policy, id. at ¶ 14. As a consequence, they were subsequently disciplined for this exchange and were notified of their discipline on or about J uly 8, 20 13. In particular, the “Narrative of Events/ Action” on the Disciplinary Action Report form for Liverm an, signed on J uly 8, 20 13, states, During a ‘Facebook’ exchange with Officers Vance Richards and Evan J ones, Liverm an m ade the [C]om m ent, ‘There used to be a tim e when you had to earn a prom otion or a spot in a specialty unit . . . but now it seem s as though anything goes and beyond officer safety and questions of liability, these positions have been ‘devalued’ . . . and when som ething has no value, well it is worthless.’ Likewise, Richards’ “Narrative of Events/ Action,” signed J uly 8, 20 13, states During a ‘Facebook’ exchange with Officers’ [sic] Herbert Liverm an and Evan J ones, Richards m ade the com m ent, ‘Perfect exam ple, and you know who I’m talking about . . . How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 ½ years experience in the street? Or less as a m atter 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 [sic] knew tried telling and warn [sic] the adm in for prom oting the young Rookie who was too inexperienced for that roll [sic] to begin with. I’m with ya bro . . .’ In addition, ‘It’s hard to lead by exam ple’ when there isn’t one. . . In response to these com m ents, Chief Dixon directed that Liverm an and Richards be returned to probation for one reason: violating bureau policy.9 Specifically, the Departm ent claim ed that Plaintiffs violated Section 4, Part IV, entitled “Procedures,” of the 20 13 Social Networking Policy, which provides: Negative com m ents on the internal operations of the Bureau, or specific conduct of supervisors or peers that im pacts the public[’]s perception of the departm ent is not protected by the First Am endm ent free speech clause, in accordance with established case law.10 8 Defendants claim , generally, that both Liverm an and Richards were aware of the 20 13 Social Networking Policy in effect in J une of 20 13. Br. in Supp. of Defs.’ Mot. at ¶ 15. 9 At one point in their m oving papers, Defendants argue that Liverm an and Richards were not disciplined solely for the reason listed in their Disciplinary Action Report form . Rather, Defendants argue that Chief Dixon disciplined them for a num ber of reasons not specifically set forth in the Disciplinary Action Report form s. 10 The source of Defendants’ authority, if any, for returning Liverm an and Richards to probation for alleged violations is a disputed fact. 5 In sum , “As a result of the investigation into the Facebook postings, Liverm an was disciplined for his second post [i.e., the Com m ent] in violation of [] the 20 13 Social Networking Policy.” Id. at ¶ 22 (em phasis added). “The Departm ent found that Liverm an m ade negative com m ents on the internal operations of the Departm ent, or specific conduct of supervisors or peers that im pacted the public’s perception of the Departm ent through his Facebook postings.” Id. Likewise, “[a]s a result of the investigation into the Facebook postings, Richards was disciplined for . . . [his First Com m ent and Second Com m ent] in violation of the 20 13 Social Networking Policy.” Id. at ¶ 23. The Departm ent found, in particular, that these postings am ounted to negative com m ents that painted the Departm ent in an unfavorable light. Because of their J une 17, 20 13 Facebook com m entary, Plaintiffs were both given oral reprim ands and “returned” to probation 11 for six m onths beginning on J une 17, 20 13. While Major Hinton prepared the Personnel Action form s for approval and signature by City officials indicating a return to probation for Liverm an and Richards, the City was not involved in the investigation or determ ination of discipline. Furtherm ore, while the Disciplinary Actions form s indicated the reason for Plaintiffs’ return to probation and the source of the violation as the 20 13 Social Networking Policy, the Personnel Action form s did not. Ultim ately, Chief Dixon signed both Disciplinary Action Report form s for Plaintiffs as well as their Personnel Action form s. The City Manager only signed the Personnel Action form s for Plaintiffs. Because of the return to probation, Richards and Liverm an were each notified by letter dated August 13, 20 13 of the Departm ent’s decision that Plaintiffs were ineligible to participate in the testing for the position of sergeant in the m ost recent prom otion pool. Pl.’s Br. in Supp. of Pls.’ Mot. at ¶ 18; Br. in Supp. of Defs.’ Mot. at ¶ 38. The events leading up to Plaintiffs receiving 11 Every Departm ent em ployee undergoes a probationary period of at least six m onths at the beginning of their em ploym ent. Liverm an and Richards had com pleted that probationary period long before they were “returned” to probation because of their Facebook com m ents at issue. 6 this letter of denial are as follows. On J uly 25, 20 13, an announcem ent was m ade concerning the opening of an application and testing process for eligible candidates to be prom oted to the rank of sergeant. On J uly 26, 20 13, a policy was published, General Order 10 0 -14, § III(f) (“Prom otion Opportunity Policy”), excluding Richards and Liverm an from participation in the prom otion process on the basis of their probationary status. Thus, the Prom otion Opportunity Policy was prom ulgated just one day after the prom otional opportunity was announced and approxim ately ten days after Liverm an and Richards were notified of their discipline. The Prom otion Opportunity Policy replaced the prior prom otion procedures policy, “General Order 1-12A,” under which Liverm an and Richards would have been perm itted to participate in the prom otion process despite the discipline. In other words, the Prom otion Opportunity Policy m odified the prior General Order 1-12A on the issue of prom otional procedures. Unlike the prior order, the Prom otional Opportunity Policy prohibits probationary em ployees from testing for the rank of sergeant. In fact, the prior order m ade no m ention of em ployees who are on probation, while the Prom otional Opportunity Policy explicitly says such em ployees are “ineligible” to participate in the prom otional exam ination. Apart from having been returned to probation, Plaintiffs each m et the eligibility requirem ents for testing for the prom otion. In sum , Liverm an and Richards each applied for the prom otion to the rank of sergeant but because of their probationary status resulting from the Facebook postings, they could not participate in the prom otional process. Br. in Supp. of Pls.’ Mot. at ¶ 18; Br. in Supp. of Defs.’ Mot. at ¶ 38 . On October 1, 20 13, Liverm an and Richards m ade it known via letter that they planned to file suit against Chief Dixon and the City for being orally reprim anded and returned to probation for the speech at issue on Facebook. Subsequently after Plaintiffs’ sent such letter, Plaintiffs were the subject of several com plaints and investigations by the Defendants. 7 II. PROCED U RAL BACKGROU N D On March 5, 20 14, Plaintiffs filed a Com plaint in this Court, seeking relief against Chief Dixon, both individually and in his official capacity as the Chief of Police of the Departm ent, as well as the City, pursuant to 42 U.S.C. § 1983. Specifically, Plaintiffs’ causes of action can be grouped into three categories. First, Plaintiffs allege First Am endm ent violations pursuant to the 20 10 Social Networking Policy12 and 20 13 Social Networking Policy. Second, Plaintiffs claim that the Departm ent took adverse em ploym ent actions against them in retaliation for their com m ents at issue on Facebook. Third, Plaintiffs allege that investigations were opened against them in retaliation for their notice of claim s in contravention of the First Am endm ent. Plaintiffs seek a declaratory judgm ent stating that their First Am endm ent rights were violated by Defendants’ social networking policies; an injunction barring infringem ent of Plaintiffs’ or other em ployees’ First Am endm ent rights as the 20 13 Social Networking Policy is the present operative policy in effect at the Departm ent; com pensatory dam ages in the am ount of $ 2 m illion or such am ount as the jury awards; attorneys’ fees; and exem plary and punitive dam ages against Chief Dixon in the am ount of $ 350 ,0 0 0 .0 0 or such am ount as the jury awards. On October 22, 20 14, Plaintiffs filed a Motion for Partial Sum m ary J udgm ent, only requesting that the Court find that the 20 10 Social Networking Policy and the 20 13 Social Networking Policy are unconstitutional. Defendants filed their Opposition on October 31, 20 14 (“Defs.’ Opp’n Mem .”) (ECF No. 22). Subsequently, on Novem ber 3, 20 14, Plaintiffs filed a Reply (“Pls.’ Reply”) (ECF No. 23). On October 27, 20 14, Defendants filed a Motion for Sum m ary J udgm ent as to all counts contained in Plaintiffs’ Com plaint. Plaintiffs filed their response in opposition on Novem ber 6, 20 14 (“Pls.’ Opp’n Mem .”) (ECF No. 24). On Novem ber 10 , 20 14, Defendants filed their reply brief (“Defs.’ Reply”) (ECF No. 26). This m atter is now ripe for review. 12 The 20 10 Social Networking Policy is not relevant or actionable under the facts. 8 III. LEGAL STAN D ARD When faced with cross-m otions for sum m ary judgm ent, the Court applies the sam e standard as that applied to individual m otions for sum m ary judgm ent. See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 20 0 3). The Court m ust consider “each m otion separately on its own m erits to determ ine whether either of the parties deserves judgm ent as a m atter of law.” Id. at 523 (internal citations and quotations om itted). A m otion for sum m ary judgm ent should be granted where “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If there is no genuine dispute as to any m aterial fact, it is the “affirm ative obligation of the trial judge to prevent factually unsupported claim s and defenses from proceeding to trial.” Drew itt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal citations and quotations om itted). A court m ust look to the specific facts pled to determ ine whether a triable issue exists. See Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 247-49 (1996). The m oving party bears the burden of establishing the nonexistence of a triable issue of fact by showing—that is, pointing out to the district court—that there is an absence of evidence to support the nonm oving party’s case. Celotex Corp., 477 U.S. at 325 (internal quotations om itted). “The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [nonm oving party] is entitled to a verdict.” Anderson, 477 U.S. at 252. All “factual disputes and any com peting, rational inferences [are resolved] in the light m ost favorable to the party opposing that m otion.” Rossignol, 316 F.3d at 523 (internal citations and quotations om itted). But only disputes over facts that m ight affect the outcom e of the suit under the governing law will properly preclude the entry of sum m ary judgm ent. Anderson, 477 U.S. at 248. “Mere unsupported speculation is not sufficient to defeat a sum m ary judgm ent m otion if the undisputed evidence indicates the other party should win as a m atter of law.” Francis v. Booz, Allen & Ham ilton, Inc., 452 F.3d 299, 30 8 (4th Cir. 20 0 6). If, therefore, 9 the nonm oving party’s evidence is only colorable or is not significantly probative, the court m ay grant sum m ary judgm ent. Anderson, 477 at 249– 50 . IV. D ISCU SSION A. The 20 13 Social Netw orking Policy The Court begins with Richards’ and Liverm an’s First Am endm ent claim regarding the validity (or invalidity) of the 20 13 Social Networking Policy. 13 As a prelim inary m atter, previous decisions dictate that constitutional speech protections extend to certain Facebook posts and com m unications over the internet. See e.g., Reno v. Am erican Civil Liberties Union, 521 U.S. 844, 870 (1997) (holding that a statute, which prohibited transm itting obscene or indecent com m unications over the internet, restricted First Am endm ent speech); Bland v. Roberts, 857 F. Supp. 2d 599 (E.D. Va. 20 12), rev’d, 730 F.3d 368 (4th Cir. 20 13) (concluding that a Sheriff’s em ployee’s “like” of a political cam paign Facebook page constitutes First Am endm ent protected speech); Mattingly v. Milligan, No. 4:11CV0 0 215, 20 11 WL 5184283, at *2-*3 (E.D. Ark. Nov. 1, 20 11) (finding that an em ployee’s reference on his Facebook wall to the firing of various em ployees was an expression of constitutionally protected speech). “It is clearly established that a State m ay not discharge an em ployee on a basis that infringes that em ployee's constitutionally protected interest in freedom of speech.” Rankin v . McPherson, 483 U.S. 378, 383 (1987). The Suprem e Court has stated that “a citizen who works for the governm ent is nonetheless a citizen. The First Am endm ent lim its the ability of a public em ployer to leverage the em ploym ent relationship to restrict, incidentally or intentionally, the liberties em ployees enjoy in their capacities as private citizens.” Garcetti v. Ceballos, 547 U.S. 410 , 419 (20 0 6). Indeed, “public em ployees do not surrender all their First Am endm ent rights by reason of their em ploym ent. Rather, the First Am endm ent protects a public em ployee’s 13 Because Plaintiffs were disciplined pursuant on ly to the 20 13 Social Networking Policy, which overrode any prior social networking policies, the Court finds that it only needs to exam ine the language of said policy, which is still presently in effect at the Departm ent. There is no need to m ake detailed findings with respect to the prior version of the policy. 10 right, in certain circum stances, to speak as a citizen addressing m atters of public concern.” Id. at 417. It is well-settled that to sustain a prim a facie case in support of a First Am endm ent freedom of speech claim , the plaintiff m ust establish the following elem ents: (1) the em ployee spoke as (i) a citizen on a (ii) m atter of public concern; (2) the em ployee’s and public’s interests in the First Am endm ent expression outweighs the em ployer’s legitim ate interest in the efficient operation of the workplace, if that interest was infringed by the com m unication, and (3) the protected speech is a substantial factor in the decision to take adverse em ploym ent action. Sm ith v. Gilchrist, 749 F.3d 30 2, 30 8 (4th Cir. 20 14); Love-Lane v. Martin, 355 F.3d 766, 776 (4th Cir. 20 0 4). The second factor in this analysis is known as the Pickering balancing test. Pickering v. Bd. of Edu., 391 U.S. 563 (1968).14 In Pickering, the Suprem e Court struck a balance between the right of the em ployee to speak and the em ployer’s interest in effectively conducting its affairs. The Pickering balancing test involves a two-step inquiry: initially, a court m ust determ ine whether the speech that led to an em ployee’s discipline regarded a m atter of public concern; and second, if it does, free speech concerns are balanced against efficient public service concerns. When an em ployee challenges an official policy that applies to all em ployees of the governm ental entity, “[t]he Governm ent m ust show that the interests of both potential audiences and a vast group of present and future em ployees in a broad range of present and future expression are outweighed by the expression’s ‘necessary im pact on the actual operation’ 14 To the extent Plaintiffs assert any facial, as applied, or overbreath challenges to the 20 13 Social Networking Policy, or rely upon the Suprem e Court’s prior restraint doctrine, this Court follows the approach taken in other courts, which have indicated that these claim s m erge into the Pickering/ N TEU analysis. See Harm an v. City of N .Y., 140 F.3d 111, 118 (2d Cir. 1998) (“[U]nder the Pickering/ N TEU test[,] the distinction between facial as-applied constitutional challenges becom es unim portant”); W eaver v. United States Info. Agency , 87 F.3d 1429, 1440 (D.C. Cir. 1996) (holding that the special concerns im plicated by prior restraints can be addressed in the Pickering analysis). 11 of the Governm ent.” United States v. Nat’l Treasury Em ploy ees Union , 513 U.S. 454, 468 (1995) (“NTEU”). Here, Defendants do not dispute that Liverm an and Richards were speaking as private citizens under the first elem ent of the above-defined test. 15 Moreover, as to last prong of the prim a facie case, it is unarguable because Defendants concede that the Departm ent disciplined Liverm an and Richards by orally reprim anding the Plaintiffs and returning them to probation for six m onths. Thus, against the backdrop of the aforem entioned facts, as seen through the prism of the Pickering analysis, the following issues take shape. First, the Court m ust determ ine whether Liverm an’s and Richards’ speech 16 is worthy of First Am endm ent protection because it relates to a m atter of public concern. See McVey v. Stacy , 157 F.3d 271, 277 (4th Cir. 1998). Second, the Court m ust balance the value of Plaintiffs’ speech against Defendants’ justification for harnessing it—in other words, the Court m ust determ ine whether the interests of Defendants in the efficient operation of the police departm ent outweigh the interests of the public and Plaintiffs in the speech. Id. at 277-78; see Urofsky v. Gilm ore, 216 F.3d 40 1, 40 6 (4th Cir. 20 0 0 ) (en banc) (instructing that, if the speech involves a m atter of public concern, then the court m ust determ ine whether the em ployee's First Am endm ent interest “outweighs the public em ployer's interest in what the em ployer has determ ined to be the appropriate operation of the workplace.”). 15 A person is not speaking as a citizen when m aking statem ents pursuant to official duties. Garcetti, 547 U.S. at 421. This Court notes that Defendants concede that Plaintiffs were not m aking statem ents pursuant to their official duties. See id. 16 Liverm an and Richards m ust each be judged separately for their own statem ents, but those statem ents will be understood in context, form , and content. See Cam pbell v. Gallow ay , 483 F.3d 258, 267 (4th Cir. 20 0 7) (citing Connick v. My ers, 461 U.S. 138, 147-48(1983) (instructing that content, form , and context of a given statem ent, as revealed by the whole record., m ust be considered when determ ining whether an em ployee's speech addresses a m atter of public concern). 12 i. Public Concern The first part of the M cVey / Pickering test concerns whether Liverm an and Richards, considered separately, were speaking on m atters of public concern. “Speech involves a m atter of public concern when it involves an issue of social, political, or other interest to a com m unity.” Kirby v. City of Elizabeth City , N .C., 388 F.3d 440 , 446 (4th Cir. 20 0 4). On the other hand, “[w]hen em ployee expression cannot fairly be considered as relating to any m atter of political, social, or other concern to the com m unity, governm ent officials should enjoy wide latitude in m anaging their offices, without intrusive oversight by the judiciary in the nam e of the First Am endm ent.” Connick, 461 U.S. at 146. As such, When a public em ployee speaks not as a citizen upon m atters of public concern, but instead as an em ployee upon m atters only of personal interest, absent the m ost unusual circum stances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the em ployee’s behavior. Id. at 147. There can be no doubt that “[p]ersonal grievances, com plaints about conditions of em ploym ent, or expressions about other m atters of personal interest do not constitute speech about m atters of public concern that are protected by the First Am endm ent, but are m atters m ore im m ediately concerned with the self-interest of the speaker as em ployee.” Strom an v. Colleton Cnty . Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992). “Whether an em ployee's speech addresses a m atter of public concern m ust be determ ined by the content, form , and context of a given statem ent, as revealed by the whole record.” Connick, 461 U.S. at 147– 48. “This is a highly fact-intensive inquiry, which m ay be influenced by any variety of factors,” Stickley v. Sutherly , 416 F. App'x 268, 272 (4th Cir. 20 11), including whether an individual was m erely seeking redress for her own personal em ploym ent grievances. Com pare Brooks v. Arthur, 685 F.3d 367, 372, 374 (4th Cir. 20 12) (holding that the plaintiff's EEO com plaint, which referred to race and religion, was not on a m atter of public concern, where the com plaint was “replete with I's and m e's” and did not “seek anything other than an im provem ent of his own situation”); w ith Cam pbell v. Gallow ay , 483 F.3d 258, 269– 70 (4th Cir. 20 0 7) (holding that a fem ale police 13 officer's letter com plaining of sexual harassm ent and gender discrim ination touched on m atters of public concern where the letter “included com plaints about inappropriate conduct directed towards other fem ale [officers]” and “m em bers of the public” and did not m erely seek “to resolve [the officer's] own personal problem ”). Additionally, as directed by the Fourth Circuit, while this Court m ust view the statem ents cited as the basis of the punishm ent “as a single expression of speech to be considered in its entirety,” Cam pbell, 483 F.3d at 267 (quoting Strom an, 981 F.2d at 157), that does “not give [the Court] license to ignore portions” of the com m unication that touch on a m atter of public concern, id. at 268. In other words, even if only part of the com m unication touched on a m atter of public concern, the first elem ent of the above-defined standard is still satisfied. See Connick, 461 U.S. at 149 (“Because one of the questions in Myers' survey touched upon a m atter of public concern, and contributed to her discharge[,] we m ust determ ine whether Connick was justified in discharging Myers.”) (em phasis added); see also Strom an, 981 F.2d at 158 (treating as a m atter of public concern a letter that was in large part a discussion of personal grievances but also m entioned a m atter that could have been of public concern). The Court will now address each of Liverm an’s and Richards’ statem ents that are at issue and explain whether the com m ents regard public or private concerns. 1. W h e th e r Live rm an Sp o ke o n a Matte r o f Pu blic Co n ce rn W h e n H e Mad e H is Co m m e n ts o n Fa ce bo o k The evidence shows that Liverm an was disciplined for his Com m ent—not for his Initial Post. His Com m ent provides, There used to be a tim e when you had to earn a prom otion or a spot in a specialty unit . . . but now it seem s as though anything goes and beyond officer safety and questions of liability, these positions have been ‘devalued’ . . . and when som ething has no value, well it is worthless. See Br. in Supp. of Pls.’ Mot. at Ex. 22 (“Disciplinary Action Report Form for Liverm an”). Liverm an’s Com m ent does not evidence m erely private concerns—that is, it is not criticism of his em ployer’s isolated decisions. Rather, the speech im plicated issues of public 14 safety by noting concerns of “officer safety and questions of liability,” and was som ething of general interest to the public. His speech was a vigorous attem pt to bring issues of inexperienced officers in supervisory positions to the forefront. Further, the speech was an exam ple of the shortcom ings of the prom otional process leading to an untoward result. Viewed through this lens, Liverm an’s Com m ent concerned not just the Departm ent for which he specifically worked, but sym ptom s of a perceived greater illness. The m atters Liverm an com m ented upon are clearly related to a m atter of public concern, and further are “of the highest public concern, and as such they are entitled to the highest level of First Am endm ent protection.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 355 (4th Cir. 20 0 0 ). Liverm an was participating in or propelling a debate over public safety as a “m em ber[] of a com m unity m ost likely to have inform ed and definite opinions” about a wide range of m atters, related, directly or indirectly, to their em ploym ent. Pickering, 391 U.S. at 572. To be certain, inquiry into the form and context of the speech confirm s that Liverm an’s Com m ent warrants protection. Regarding the form of the speech, the record supports a finding that Liverm an was, at the very least, joining or contributing to a public debate regarding the propriety of prom oting young officers to supervisory positions. Regarding the Com m ent’s context, Liverm an’s Initial Post 17 does not concern speech propelled by self-interest. In his Initial Post, he referenced others posts he saw on Facebook, expressing a concern as an educated citizen with specialized knowledge on a practice that he believe im pacted the safety of officers and others. And, he grounded his opinion on data collected and previously published by the Federal Bureau of Investigation (“FBI”). Based on his Initial Post about the study regarding assaults on officers, inexperienced officers and training new officers, his Com m ent was continuing to discuss issues of “officer safety and questions of liability.” Based on the plain language of the Com m ent, it is not clear that he was critiquing practices of prom oting 17 Specifically, the part of the Initial Post providing, “Becom ing a m aster of your trade is essential, not only does your life depend on it but m ore im portantly the lives of others. Leadership is first learning, knowing and then doing.” 15 inexperienced officers in a specific departm ent. What is clear is that he was expressing his concern that the perform ance of public em ployees’ duties and the operation of the institution were being im peded. His Com m ent was certainly relevant to the public’s evaluation of the perform ance of governm ental agencies. That a portion of Liverm an’s speech m ay not touch upon a m atter of public concern does not alter this conclusion. 18 See Connick, 461 U.S. at 149. For these reasons, Liverm an’s speech relates to m atters of public concern. 2 . W h e th e r Rich ard s Sp o ke o n Matte rs o f Pu blic Co n ce rn W h e n H e Mad e H is Firs t Co m m e n t an d Se co n d Co m m e n t o n Face bo o k To recall, Richards was disciplined for the following language contained in his First Com m ent on Facebook: Perfect exam ple and you know who I’m talking about…How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 ½ years experience in the street? Or less as a m atter 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 [sic] knew tried telling and warn [sic] the adm in for prom oting the young Rookie who was too inexperienced for that roll [sic] to begin with. I’m with ya bro . . . He was also disciplined for language included in his Second Com m ent, providing: “It’s hard to ‘lead by exam ple’ when there isn’t one . . . sm h.” Plaintiffs urge this Court to find that both of Richards’ com m ents m ade on Facebook were protected under the First Am endm ent. Although m aking a com pelling argum ent that he was saying that inexperienced supervising officers will not be able to set an exam ple necessary for subordinate officers to follow, Richards’ argum ent m isses the m ark and is unsuccessful. Exam ining the speech at issue, this Court concludes that the First Com m ent and Second Com m ent pertained to personal grievances and com plaints about conditions of em ploym ent rather than broad m atters of policy m eriting the protection of the First Am endm ent. Looking within the contours of the speech for which he was disciplined, this Court cannot find any line of 18 Also, “[t]he inappropriate or controversial character of a statem ent is irrelevant to the question [of] whether it deals with a m atter of public concern.” Rankin v. McPherson, 483 U.S. 378, 387 (1987). 16 the com m unication touching upon a m atter of public concern, and thus Richards’ speech is not protected by the First Am endm ent. Turning first to the content, Richards’ First Com m ent and Second Com m ent focus on personal dissatisfactions that are not m atters of public concern. His speech is replete with references to him self: “you know who I’m talking about” and “And you know who will be responsible for that Law Suit? A Police Vet, who knew [and] tried [sic] telling and warn[ing] the adm in” and “I’m with ya bro . . . sm h.” The Suprem e Court has warned courts to guard against “attem pt[s] to constitutionalize the em ployee grievance.” Connick, 461 U.S. at 154. Richards “did not seek to inform the public that [the inexperienced supervisory officers were] not discharging [their] governm ental responsibilities.” Id. at 148. Second, he did not “seek to bring to light actual or potential wrongdoing or breach of public trust.” Id. Plaintiffs’ own citation to Edw ards v. City of Goldsboro underm ines their argum ent as to Richards’ speech. 178 F.3d 231 (1999). The speech at issue in Edw ards stands in sharp contrast to Richards’ speech. In Edw ards, “no facts indicat[ed] that Sergeant Edwards [the plaintiff] did or would offer any com m ent on the Departm ent’s policies or operations, m ake any reference to any other m em ber of the Departm ent, or claim [ed] to be speaking for or in any way on behalf of the departm ent.” Id. at 248. The Suprem e Court in Edw ards ultim ately held that Sergeant Edwards was speaking on a m atter of public concern and thus entitled to First Am endm ent protection. Id. at 248 , 249. All three of those factors, however, are present in Richards’ speech in the instant case. First, Richards did com m ent on the Departm ent’s operations. Second, as Richards adm its, he did reference another m em ber of the Departm ent when he com m ented, “Perfect exam ple, and you know who I’m talking about . . . . How can ANYONE look up or give respect to SGT in Patron [sic] with ONLY 1 ½ yrs experience in the street?” And, finally, although he did not explicitly claim to be speaking for or on behalf of the Departm ent, his Facebook page indicated that he was an em ployee for the Departm ent and he 17 also had photos of him self in uniform . Thus, it could appear that he was representing the Departm ent when he m ade the com m ents on Facebook. The context and form of the speech further confirm that Richards’ speech constituted a personal, not public m atter. Choosing Facebook as the forum for his com m unication m ay generally indicate that Richards wanted to contribute to a discussion as Facebook provides a platform for m any purposes. However, the context in which Richards’ speech was m ade supports the conclusion that his speech did not touch on a m atter of public concern. Phrases such as “It’s disgusting and m akes m e sick to m y stom ach DAILY” and “the next 4yrs can’t get here fast enough . . . From what I’ve been seeing I don’t think I can last though” indicate Richards’ personal com plaints and not m atters of public concern. Therefore, for the aforem entioned reasons, the Court finds that Richards’ speech is not protected under the First Am endm ent. If an em ployee's speech “cannot be fairly characterized as constituting speech on a m atter of public concern, it is unnecessary for us to scrutinize the reasons for [the em ployee's] discharge.” Connick, 461 U.S. at 146. If the em ployee cannot carry this burden, then sum m ary judgm ent for the em ployer is appropriate, even if the term ination decision “m ay not be fair” or is “m istaken or unreasonable.” Id. at 146– 47. ii. Policy Language Because Liverm an’s language relates to m atters of public concern, the Court m ust under the Pickering balancing test, weigh the Departm ent’s interest in prom ulgating the abovem entioned restrictions against both Liverm an’s and the public’s right to publicly discuss m atters of officer safety and questions of liability. Prior to balancing the parties’ respective interests, however, the Court m ust determ in e the scope of the 20 13 Social Networking Policy’s provisions. The 20 13 Social Networking Policy, “prohibit[s] activities by em ployees on such web sites such as MySpace, Facebook, Twitter, and other social sites” if it “m ay bring discredit to the Petersburg Bureau of Police and any other City of Petersburg Departm ent.” Br. in Supp. of 18 Defs.’ Mot. at Ex. 2. C. The Departm ent’s 20 13 Social Networking Policy provides m any exam ples of social networking sites 19 but also leaves the definition open to “other social sites.” In particular, Liverm an challenges the validity of the following provisions of the 20 13 Social Networking Policy under the First Am endm ent: Section II; 20 the introductory paragraph of Section IV; 21 and Section IV ¶¶ 4, 5, 6 22 .23 The 20 13 Social Networking Policy enum erates specific exam ples of what qualifies as a personal grievance and what constitutes a m atter of public concern. Included in som e of the nam ed provisions are warnings of disciplinary action 19 The policy defines “Social Networking” as follows: Social Networking—using such Internet or m obile form ats as Facebook, Twitter, MySpace, LinkedIn, Foursquare, Gowalla Police Pulse, the Squad Room , Usenet groups, online forum s, m essage boards or bulletin boards, blogs, and other sim ilarly developed form ats, to com m unicate with others using the sam e groups while also networking with other users based upon sim ilar interests, geographical location, skills, occupation, ideology, beliefs, etc. Defs.’ Mem . Ex. 2. C. 20 Section II of the 20 13 Social Networking Policy provides, It shall be the policy of the Bureau of Police to prohibit activities by em ployees on such web sites such as My Space, Facebook, Twitter and other social sites that m ay bring discredit to the Petersburg Bureau of Police and any other City of Petersburg Departm ent. Professionalism , ethics, and integrity are of param ount im portance in the law enforcem ent com m unity. To achieve and m aintain the public’s highest level of respect, we m ust place reasonable restriction on our conduct and hold to these standards of conduct whether on or off-duty. Defs.’ Mem . Ex. 2. C. 21 The prelude to Section IV instructs, Em ployees shall not post, transm it, reproduce, and/ or dissem inate inform ation (text, pictures, video, audio, etc.) to the internet or any other forum (public or private) that would tend to discredit or reflect unfavorably upon the Petersburg Bureau of Police or any other City of Petersburg Departm ent or its em ployees. Id. 22 Section IV ¶ 6 provides a “catch-all” lim iting provision in the final paragraph, The Petersburg Bureau of Police strongly discourages em ployees from posting, inform ation regarding off-duty activities. Additional, social networking violations deem ed to be in violation of the Policy 10 0 -1, Rules of Conduct, will be forwarded to Chief of Police or design ee for appropriate disciplinary action. Id. Because Liverm an was fired under Section IV ¶ 4, the Court will focus its analysis prim arily on the language of that provision. 23 19 for failure to com ply. The policy does indeed reference the rights of em ployees to speak but also places restrictions on expression. Specifically, Part IV, Section 4 of the policy provides the following, Negative com m ents on the internal operations of the Bureau, or specific conduct of supervisors or peers that im pacts the public[’]s perception of the departm ent is not protected by the First Am endm ent free speech clause, in accordance with established case law. Br. in Supp. of Defs.’ Mot. at Ex. 2. C. Officer expression is also lim ited by the following prohibition: Officers m ay com m ent on issues of general or public concern (as opposed to personal grievances) so long as the com m ents do not disrupt the workplace, interfere with im portant working relationships or efficient work flow, or underm ine public confidence in the officer. The instances m ust be judged on a case-by-case basis. Id. The Departm ent characterizes the restrictions on em ployee speech set forth in the 20 13 Social Networking Policy as applying “both on and off-duty.” The Departm ent claim s the policy distinguishes between speech m ade as a citizen as opposed to that m ade in an official capacity. The Departm ent argues that the policy literally acknowledged em ployees’ First Am endm ent rights and tracks such rights. For exam ple, the Departm ent looks to the language contained in Part IV, Section 4, providing, “the instances m ust be judged on a case-by-case basis.” This language, Defendants argue, parallels the Pickering balancing test. Liverm an argues in response that the policy does not precisely distinguish between em ployee speech as part of the em ployee’s official duties, which m ay lawfully be restricted, and em ployee speech on workplace topics of public concern not offered within the scope of the em ployee’s official duties, which m ay not be categorically proscribed. Further, Liverm an argues that Part IV, Section 4 purports to establish active censorship of any statem ents concerning the internal operation of the Departm ent regardless of whether the com m unication is on-duty or off-duty, on a m atter of public concern or not, and without weighing the interest of the parties on a case-by-case basis. 20 Liverm an contends that the term s used in the policy, like “so long as” create a bright-line rule, which contradicts the instruction provided in Pickering. These provisions clearly aim at speech that is of considerable im portance to the public. Indeed, discussion regarding current Departm ent policies and activities is “perhaps the paradigm atic ‘m atter[] of public concern.’” Sanjour v. Envtl. Prot. Agency , 56 F.3d 85, 91 (D.C. Cir. 1995). Here, Liverm an was disciplined—i.e., given an oral reprim and and returned to probationary status for six m onths—for stating on Facebook that “[t]here used to be a tim e when you had to earn a prom otion or a spot in a specialty unit . . . but now it seem s as though anything goes and beyond officer safety and questions of liability, these positions have been ‘devalued’ . . . and when som ething has no value, well it is worthless.” This speech concerning the priorities and effectiveness of the Departm ent is obviously of interest to the public. The Court will now further consider whether the Departm ent’s posited interests are significant enough to outweigh the free speech interests of Liverm an and the public. iii. Pickering Balancing Next, upon finding that Liverm an’s speech relates to m atters of public concern, and that the plain language of the 20 13 Social Networking Policy restricts his speech, the Departm ent “m ust show that the interests of both potential audiences and a vast group of present and future em ployees in a broad range of present and future expression are outweighed by that expression’s ‘necessary im pact on the actual operation’ of the Governm ent.” N TEU, 513 U.S. at 468 (quoting Pickering, 391 U.S. at 571); Rankin, 483 U.S at 388 (stating that the governm ent bears the “burden of justifying the discharge on legitim ate grounds”). That is, to determ in e whether the Departm ent’s conduct in reprim anding Liverm an was justified, this Court m ust weigh the “interests of [Liverm an], as a citizen, in com m enting upon m atters of public concern and the interests of the State, as an em ployer, in prom oting the efficiency of the public services it perform s through its em ployees.” Pickering, 391 U.S. at 568. 21 The Suprem e Court has held that the governm ent’s burden of justifying the restriction on free speech “is not satisfied by m ere speculation or conjecture; rather, a governm ental body seeking to sustain a restriction on . . . speech m ust dem onstrate that the harm s it recites are real and that its restriction will in fact alleviate them to a m aterial degree.” Edenfield v. Fane, 50 7 U.S. 761, 770 -71 (1993). In other words, the governm ent m ust dem onstrate actual harm before its interests m ay be deem ed to justify a restriction on speech. Id. However, the court need not require the governm ent “em ployer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is m anifest before taking action.” Connick, 461 U.S. at 152; see W aters v. Churchill, 511 U.S. 661, 673 (1994) (plurality opinion); Maciariello v. Sum ner, 973 F.2d 295, 30 0 (4th Cir. 1992); Jurgensen v. Fairfax Cnty ., Va., 745 F.2d 868 , 879-8 0 (4th Cir. 1984); Crom er v. Brow n, 88 F.3d 1315, 1327 (4th Cir. 1996) (recognizing that, to be effective, a police departm ent m ust have the respect of the com m unity and its officers and that “the public has a keen interest in seeing that police officers are free to speak up against any broad-based discrim ination in their agencies”). As the Court noted in Garcetti, “Governm ent em ployers, like private em ployers, need a significant degree of control over their em ployees' words and actions; without it, there would be little chance for the efficient provision of public services. Public em ployees, m oreover, often occupy trusted positions in society.” 547 U.S. at 418– 19 (citation om itted). “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the em ployer's judgm ent is appropriate.” Connick, 461 U.S. at 151– 52. Indeed, police departm ents have a particularly strong interest in m aintaining discipline and order within their ranks. See, e.g., Maciariello, 973 F.2d at 30 0 ; Jurgensen, 745 F.2d at 880 . As the Fourth Circuit stated in Maciariello, A police departm ent has an undeniable interest in discouraging unofficial internal investigations. If personal investigations were the usual way for an officer to check out suspicious activities of a fellow officer, the effect on efficiency and m orale could be very disrupting, and the effectiveness of the police force m ight deteriorate. Instead of concentrating on their traditional duties in the com m unity, officers with personal hostilities could becom e preoccupied with personal investigations of one another. Esprit de corps could collapse into a 22 kafkaesque nightm are of im proper investigations into the im propriety of im proper investigations. 973 F.2d at 30 0 ; see, e.g., Breuer v. Hart, 90 9 F.2d 10 35, 10 40 – 42 (7th Cir. 1990 ). Therefore, a public em ployer m ay restrain job-related speech in order “to m aintain discipline and ensure harm ony as necessary to the operation and m ission of its agencies.” M cVey , 157 F.3d at 277. But, em ployees speaking as citizens about the m atters of public concern m ust face only those speech restrictions “that are necessary for their em ployers to operate efficiently and effectively.” Garcetti, 547 U.S. at 418. The balancing test also requires the Court to consider the context in which the speech was m ade, including the em ployee's role and the extent to which the speech im pairs the efficiency of the workplace. Gilchrist, 749 F.3d at 30 9. Factors relevant to this inquiry include whether a public em ployee's speech (1) im paired the m aintenance of discipline by supervisors; (2) im paired harm ony am ong coworkers; (3) dam aged close personal relationships; (4) im peded the perform ance of the public em ployee's duties; (5) interfered with the operation of the [agency]; (6) underm ined the m ission of the [agency]; (7) was com m unicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the em ployee within the [agency]; and (9) abused the authority and public accountability that the em ployee's role entailed. Id. (citation om itted). “The efficient functioning of governm ent offices is a param ount public interest. Police are the m ost restrictive in this regard as they are param ilitary—discipline is dem anded, and freedom m ust be correspondingly denied.” Durham v. Jones, 737 F.3d 291, 30 1 (4th Cir. 20 13) (internal quotation m arks and citations om itted). Issues of “particular im portance” to law enforcem ent “include ‘discipline and harm ony in the workplace, confidentiality, protection from false accusations that m ay prove difficult to counter given the em ployee's supposed access to inside inform ation . . . and protection of close working relationships that require loyalty and confidence.’” Pierson v. Gondles, 693 F. Supp. 40 8, 413 (E.D. Va. 1988) (quoting Piver v. Pender Cnty . Bd. of Edu., 835 F.2d 10 76, 10 81 (4th Cir. 1987)). 23 In balancing the com peting interests, “we do not require the public em ployer to prove that the em ployee's speech actually disrupted efficiency, but only that an adverse effect was ‘reasonably to be apprehended.’” Maciariello, 973 F.2d at 30 0 (quoting Jurgensen, 745 F.2d at 8 79). 1. Th e In te re s ts o f Live rm an an d th e Pu blic On the facts of this case, Liverm an’s free-speech interests outweighed his em ployer’s interest because Defendants fail to sufficiently show that Liverm an’s Com m ent harm ed or created a “reasonable prediction of harm ” to the Departm ent’s operations. W aters, 511 U.S. at 673. Speaking as a citizen, Liverm an possesses potent free-speech interests in being able to com m ent on m atters of public concern: “[S]peech concerning public affairs is m ore than selfexpression; it is the essence of self-governm ent.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). These interests go to the core of the freedom s the First Am endm ent was designed to protect. See, e.g., Roth v. United States, 354 U.S. 476, 484 (1957) (stating that the First Am endm ent “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people”). While the governm ent has special authority to proscribe the speech of its em ployees, “[v]igilance is necessary to ensure that public em ployers do not use authority over em ployees to silence discourse, not because it ham pers public functions but sim ply because superiors disagree with the content of em ployees' speech.” Rankin, 483 U.S. at 384. In Pickering, which concerned a teacher's published com plaints about the school board's allocation of funds, the Court stated: On such a question free and open debate is vital to inform ed decision-m aking by the electorate. Teachers are, as a class, the m em bers of a com m unity m ost likely to have inform ed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dism issal. Pickering, 391 U.S. at 571– 72. Here, the public’s interest in Liverm an’s opinions m ay have had particular value to the public in light of his status as a Departm ent em ployee. See e.g., W aters, 511 U.S. at 674 24 (“Governm ent em ployees are often in the best position to know what ails the agencies for which they work; public debate m ay gain m uch from their inform ed opinions.”); see also Sanjour, 56 F. 3d at 94. Especially as evidenced by Liverm an’s reference in his Initial Post to reading other Facebook posts about young officers becom ing instructors as well as the public’s com m entary in response to his Com m ent, there was an ongoing public debate about the effectiveness of the Departm ent’s supervisors. Experienced officers such as Liverm an can contribute valuable insights to the discussion. Thus, am ong other reasons, his speech is valuable to the public because he was speaking from his experience as a m em ber of the Departm ent. His Com m ent concerning officer safety and possible related liability issues, for exam ple, illum inates potential problem s in the m anagem ent of the Departm ent. Thus, his potential audiences have a strong interest in hearing his Com m ent given the special knowledge Liverm an has as a police officer and the im portant police departm ent operations on which he com m ented. 2 . Th e D e p artm e n t’s In te re s t The Departm ent’s prim ary, purported interests are its need to prom ote the efficient and effective operation of the law enforcem ent agency. The Departm ent’s asserted interest in prom oting efficiency is essentially a corollary to its interests in m aintaining cohesiveness am ong patrol officers, effective recruiting efforts, officer com radery, and com m unity trust and partnerships. Here, Defendants unpersuasively argue that these interests of the Departm ent were purportedly harm ed or would be harm ed by Liverm an’s Com m ent. Specifically with regards to Defendants’ argum ent that Liverm an’s Com m ent threatened recruiting efforts, their argum ent fails. For exam ple, in Locurto v. Giuliani, 447 F.3d 159 (2d Cir. 20 0 6), the New York Police Departm ent and New York Fire Departm ent officers’ participation in “blackface” was broadcast on the local news and extensively covered in the print m edia. Id. at 180 . The court in Locurto, in concluding that the City’s concern for disruption was reasonable, explained, “[t]he capacity for a particular incident to generate public attention is obviously highly relevant to the City’s assessm ent of the incident’s disruptive effects.” Id. 25 Sim ilarly, in McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985), a clerical em ployee of the Sheriff’s Office of J acksonville filed suit against the Sheriff because he was fired after appearing on the local televised news as a recruiter for the Ku Klux Klan. Id. at 936-37. The McMullen court concluded that the Sheriff’s interests outweighed the form er em ployee’s because the public had becom e aware that a m em ber of the Sheriff’s departm ent was involved with the Ku Klux Klan, which would “dangerously [threaten] to cripple the ability of the . . . agency to perform effectively its public duties,” unless the em ployee was fired. Id. at 940 . This case is distinguishable from both Locurto and McM ullen because, in both, the em ployer’s “reasonable prediction of harm ” was based on actual widespread publicity of the em ployees’ speech. In Locurto, the officers’ use of blackface was televised on the local news and the New York Tim es published an article about it, specifically identifying the perpetrators as New York City police officers and firefighters. Locurto, 447 F.3d at 165. In McMullen, the em ployee’s interview was televised on the local news and printed in the newspaper, and both sources followed up to identify the em ployee as working in the Sheriff’s Office of J acksonville. McMullen, 754 F.2d at 937. Here, Chief Dixon underscores that: (1) m any people saw the Facebook activity at issue; (2) the speech specifically referenced the Departm ent; and (3) “[a]lm ost all of the people liking or com m enting on the [Facebook exchange] knew Liverm an was a Petersburg Police officer” and that “the m ajority of those sam e individuals were either em ployed or previously em ployed by the Departm ent.” Br. in Supp. of Defs.’ Mot. at 20 . Addressing these points in order, Defendants fail to show that anyone other than the thirty-four people who either “liked” or com m ented on the posts was actually exposed to Liverm an’s Com m ent or the rest of the Facebook exchange.24 See Br. in Supp. of Defs.’ Mot. at Ex. 7 at 30 40 ; Ex. 5, ¶ 4, Ex. A. It is unclear as to how m any people viewed the Com m ent. Moreover, Defendants fail to show that a significant num ber of people would know that Liverm an is an 24 The privacy settings (e.g., “public,” “custom ized,” “only friends,” etc.) of Liverm an’s Initial Post and Com m ent, prior to him changing it to “Only Me,” are not presented to this Court. 26 em ployee of the Departm ent since Liverm an did not post the nam e of his em ployer—i.e., the Departm ent—and had no pictures of him in uniform on Facebook. Id. at Ex. 7 (Liverm an Dep. 30 :9-15). And, although Chief Dixon argues that the Com m ent harm ed or would harm recruiting efforts, he underm ines his own argum ent by pointing out that “the m ajority of [the individuals who “liked” or com m ented] were either em ployed or previously em ployed by the Departm ent.” Logically then, if the m ajority of people who participated in the Facebook exchange were previously or currently em ployees of the Departm ent, then the inference can be drawn that recruiting efforts were not im pacted as to them . Based on the evidence presented to this Court, the exposure of the Com m ent cannot be said to m irror, for exam ple, that present in Locurto and McMullen. Furtherm ore, to support his position, Chief Dixon provided an affidavit, listing his concerns over the publication of the Facebook Com m ent by Liverm an. Additionally, he m irrored his statem ents m ade under the penalty of perjury in a response to an interrogatory propounded by Plaintiffs. See Br. in Supp. of Defs. Mot. at Ex. 1 ¶ 3 (Chief Dixon Affidavit). Chief Dixon did not present other evidence of any actual disruption resulting from Liverm an ’s com m unication, other than vague references to Liverm an’s com m unications as “strain[ing] [the] Operations” of the Departm ent. Id. While Defendants are correct that “concrete evidence” of an actual disruption is not required, there m ust still be a reasonable apprehension of such a disruption. See Maciariello, 973 F.2d at 30 0 . In his affidavit—the only source in the record of the Departm ent’s interests—Chief Dixon claim ed ostensible dam age to recruiting efforts, relationships between colleagues, and the function of the office, generally. Additionally, he alleged that there was divisiveness am ong patrol officers as well as “hostility, irritation, and distraction between patrol officers.” Br. in Supp. of Defs. Mot. Ex. 1 ¶ 3. But Chief Dixon did not articulate any way in which the Departm ent would have been different or was actually different due to Liverm an’s statem ents. 27 Although this Court recognizes that Chief Dixon asserted the Departm ent’s interest under the penalty of perjury, his statem ents nevertheless am ount to “generalized and unsubstantiated allegations of ‘disruptions,’ and predictions thereof.” See Goldstein, 218 F.3d at 354. This is not to say that there was no im pact felt in the Departm ent whatsoever or that there was absolutely no “potential for disruption.” This Court agrees that the Departm ent has a strong interest in prom oting internal harm ony, trust, and cam araderie am ongst its officers. But it is not enough that there is som e disruption ; the am ount of disruption has to outweigh the im portance of the speech and its concern to the public. See Connick, 461 U.S. at 152; McVey , 157 F.3d at 279 (Murnaghan, J ., concurring) (“A strong showing of public interest in the speech requires a concom itantly stronger showing of governm ent-em ployer interest to overcom e it.”). Concerns regarding the safety of the public as well as officer safety and training are substantial concerns that “m ust be m et with a sim ilarly substantial disruption in the calibration of the controlling balancing test.” Id. As the Fourth Circuit has stated in a factually sim ilar case: Indeed, any com plaint by one firefighter that another firefighter is violating safety regulations is sure to affect “cam araderie” in the general sense. However, to adopt the district court's approach would perm it fire com panies-and sim ilarly situated state actors-to sanction the com plaining firefighter based upon unsupported and generalized predictions of “disruptions” caused by the com plaints. In the context of a fire com pany, such a result would effectively endorse a “red line of silence,” whereby fire com panies, police officers and other entities carrying out crucial public functions are perm itted to quash com plaints affecting public safety under the general aegis of “cam araderie” and the avoidance of disruptions. Goldstein, 218 F.3d at 355. The Departm ent fails to m eet its burden. Although police departm ents have a particularly strong interest in m aintaining discipline and order within their ranks, see, e.g., Maciariello, 973 F.2d at 30 0 ; Jurgensen, 745 F.2d at 880 , the Departm ent’s interest sim ply do not outweigh Liverm an’s and the public’s interest in allowing freewheeling debate on m atters of public concern. Thus, the balance between Liverm an’s rights as a private citizen under the First Am endm ent and the Departm ent’s asserted interests tilts heavily in favor of Liverm an. 28 B. Qualified Im m unity 25 The Court turns now to the alternative argum ent m ade by Chief Dixon—that even if Liverm an’s Com m ent was a m atter of public concern, he is entitled to qualified im m unity because Chief Dixon believed that: (1) he reasonably applied the Pickering balancing test to Liverm an’s Facebook Com m ent to conclude that the Departm ent’s interests outweighed any purported concerns Liverm an had about inexperienced officers in certain roles; and (2) he reasonably m isjudged Liverm an’s speech as concerning a private, not public, m atter. He also argues that he was reasonable in believing that he was approving the adoption of a lawful social m edia policy, which incorporated the Pickering balancing test. “Qualified im m unity shields governm ent officials perform ing discretionary functions from personal-capacity liability for civil dam ages under § 1983, insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Ridpath v. Bd. of Governors Marshall University , 447 F.3d 292, 30 6 (4th Cir. 20 0 6) (internal quotation m arks om itted). “A right is clearly established if the contours of the right are sufficiently clear so that a reasonable officer would have understood, under the circum stances at hand, that his behavior violated the right.” Bailey v. Kennedy , 349 F.3d 731, 741 (4th Cir.20 0 3) (internal quotation m arks and alteration om itted). The broad legal principle governing this case—that public em ployees m ay not be returned to probationary status on a basis that infringes on their First Am endm ent rights—was clearly established at the tim e Liverm an was returned to probationary status. However, the focus m ust be narrower, as the determ ination of whether a given right was clearly established requires that the right be defined “at a high level of particularity.” Cam pbell, 483 F.3d 258 (quoting Edw ards, 178 F.3d at 251); see Gilchrist, 749 F.3d at 312 (confirm ing that the “the right 25 Chief Dixon is being sued in both his personal and official capacity as the Chief of Police of the City. Pursuant to W ill v. Michigan Dep’t of State Police, 491 U.S. 58 (1989), “State officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.” Id. at 71 (citation omitted). Therefore, the claims against Chief Dixon in his official capacity are addressed within the m unicipal liability argum ent. 29 at issue” m ust be “described at the appropriate level of specificity”); Pritchett v. Alford, 973 F.2d 30 7, 312 (4th Cir. 1992) (noting that “the proper focus is not upon the right at its m ost general or abstract level of its application to the specific conduct being challenged”). When the right is defined at the proper level of particularity, the question becom es whether a reasonable officer would have known that Liverm an’s Com m ent touched on a m atter of public concern, thus entitling Liverm an to the protection of the First Am endm ent. The Fourth Circuit as well as sister circuits have done little to clarify when social m edia com m entary about officer and public safety are m atters of public concern and when such com m entary are m atters of private concern. Under these circum stances, this Court cannot conclude that Chief Dixon unreasonably viewed Liverm an’s Com m ent as involving personal grievances only. See Saucier v. Katz, 533 U.S. 194, 20 5 (20 0 1) (“The concern of the im m unity inquiry is to acknowledge that reasonable m istakes can be m ade as to the legal constraints on particular police conduct. It is som etim es difficult for an officer to determ ine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts . . . . If the officer's m istake as to what the law requires is reasonable, however, the officer is entitled to the im m unity defense.”). This Court also cannot find that Chief Dixon unreasonably adopted the 20 13 Social Networking Policy, which claim ed to track First Am endm ent principles. “When determ ining whether a reasonable officer would have been aware of a constitutional right, we do not im pose on the official a duty to sort out conflicting decisions or to resolve subtle or open issues.” McVey , 157 F.3d at 277. Here, as with m ost cases, the Court cannot conclude that reasonable officials in Chief Dixon’s position would have known that disciplining Liverm an for his Com m ent pursuant to the 20 13 Social Networking Policy would be a violation of his First Am endm ent rights. After all, we “do not expect sheriffs [or Chiefs of Police] to be judges and to have the training to sort through every intricacy of case law that is hardly a m odel of clarity. Bland v. Roberts, 730 F.3d 368, 393-94 (4th Cir. 20 13) (citing Law y er v. City of Council Bluffs, 30 361 F.3d 10 99, 110 8 (8th Cir. 20 0 4)) (holding that defendants were entitled to qualified im m unity because “[p]olice officers are not expected to parse code language as though they were participating in a law school sem inar”). Also, “[p]articularly with regard to legal conclusions, lay officers obviously cannot be expected to perform at the level achievable by those trained in the law.” Kroll v. United States Capitol Police, 847 F.2d 899, 90 6 (D.C. Cir. 1988) (Robinson, J ., concurring) (footnote om itted). This Court cannot conclude that Chief Dixon’s actions transgressed bright lines. “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello, 973 F.2d at 298; see also McVey , 157 F.3d at 277 (citations om itted) (“Thus, particularly in First Am endm ent cases, where a sophisticated balancing of interests is required to determ ine whether a plaintiff's constitutional rights have been violated, only infrequently will it be clearly established that a public em ployee's speech on a m atter of public concern is constitutionally protected.”) (internal quotation m arks om itted). In sum , the Fourth Circuit has recognized that given the difficult application of the First Am endm ent balancing test, courts can rarely say that the law was so clearly established that reasonable officials would have known that an em ployee's activity was constitutionally protected. Pike v. Osborne, 30 1 F.3d 182, 185 (4th Cir. 20 0 2); DiM eglio v. Haines, 45 F.3d 790 , 80 6 (4th Cir. 1995). For these reasons, Chief Dixon is entitled to qualified im m unity from m onetary dam ages. C. Municipal Liability A plaintiff suing a m unicipal entity under 42 U.S.C. § 1983 m ust show that his or her injury was caused by m unicipal policy or custom . Monell v. Dept. of Soc. Servs. N ew York City , 436 U.S. 658, 694 (1978). A m unicipality cannot be held liable under § 1983 solely because it em ployed a tortfeasor. Id. at 691. “[M]unicipal liability m ay be im posed for a single decision by m unicipal policym akers under appropriate circum stances.” Stickley , 416 F. App'x at 273 (quoting Pem baur v. City of Cincinnati, 475 U.S. 469, 480 (1986)). To hold a m unicipality liable, the decisionm aker m ust possess “‘final authority to establish m unicipal policy with 31 respect to the action ordered.’” Love– Lane, 355 F.3d at 782 (quoting Pem baur, 475 U.S. at 481). The question of who possesses final policym aking authority is one of state law. Pem baur, 475 U.S. at 483. Here, Plaintiffs fail to show that Chief Dixon possesses the final authority required to establish m unicipal liability. They m erely argue that sim ply by virtue of his status as the “‘chief law enforcem ent officer of’ the City of Petersburg,” (Pls.’ Reply at 8) (citing Va. Code § 15.2170 1), Chief Dixon “‘has the responsibility and authority to im plem ent final m unicipal policy with respect to a particular course of action,’” id. (quoting Riddick v. Sch. Bd. of the City of Portsm outh, 238 F.3d 518, 523 (4th Cir. 20 0 0 )). Plaintiffs’ argum ent is unavailing. Defendants bring to the Court’s attention the fact that the City retains the final decision-m aking authority with respect to the Chief of Police’s actions. Defs.’ Opp’n at 3– 4, 10 – 11. The City’s ordinances provide that the Chief of Police “serve[s] at the pleasure of the city m anager” and “shall be under the direction and control of the city m anager.” Here, the City never ratified the 20 13 Social Networking Policy. See Stickley , 416 F. App'x at 273; see also Crow ley v. Prince George's Cnty ., 890 F.2d 683, 686– 87 (4th Cir. 198 9) (holding that even where a police chief has been delegated final decision-m aking authority for personnel decisions, that does not m ake the police chief the final policym aker for purposes of im puting m unicipal liability). Th erefore, no m unicipal liability attaches to the City. D. Retaliation Claim s In Counts III and IV of the Com plaint, Liverm an and Richards allege that Chief Dixon violated their First Am endm ent Freedom of Speech Rights by retaliating against them for their Facebook posts. Generally, in order to prove a retaliation claim for exercising the right to free speech, Liverm an and Richards m ust prove: (1) they spoke as citizens, not em ployees, on a m atter of public concern; (2) their interest as citizens in the speech at issue “outweighed the em ployer’s ‘interest in providing effective and efficient services to the public;’” and (3) there was a sufficient causal connection between the speech and the retaliatory conduct. Ridpath, 447 F.3d 32 at 316 (quoting McVey , 157 F.3d at 277-78); Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 20 0 5). To constitute actionable retaliation, the em ployer’s conduct m ust adversely im pact First Am endm ent rights. See Suarez Corp. Indus. v. M cGraw , 20 2 F.3d 676, 685 (4th Cir.20 0 0 ). De m inim is actions do not constitute adverse action for purposes of a First Am endm ent retaliation claim . Id. at 686. Thus, a public em ployer adversely affects an em ployee's First Am endm ent rights when it refuses to rehire an em ployee because of the exercise of those rights, see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doy le, 429 U.S. 274, 285– 87 (1977); or when it m akes decisions, which relate to “prom otion, transfer, recall, and hiring,” based on the exercise of an em ployee's First Am endm ent rights, Rutan v. Republican Party , 497 U.S. 62, 79 (1990 ). On the other hand, courts have declined to find that an em ployer's actions have adversely affected an em ployee's exercise of his First Am endm ent rights where the em ployer's alleged retaliatory acts were criticism , false accusations, or verbal reprim ands. See Benningfield v. City of Houston, 157 F.3d 369, 376– 77 (5th Cir.1998) (holding that em ployees “falsely accused” of crim inal wrongdoing and “verbally reprim anded” by their em ployer failed to allege adverse em ploym ent actions sufficient to constitute retaliation), cert. denied, 526 U.S. 10 65 (1999); Harrington v. Harris, 118 F.3d 359, 366 (5th Cir.1997) (holding that an em ployer's criticism of em ployees and failure to award them m erit pay increases did not constitute actionable adverse em ploym ent actions). As previously detailed, Richards cannot satisfy the first prong of the retaliation test because he was addressing a private, not public, concern. Therefore, his retaliation claim s m ust fail. As to Liverm an, he satisfies the first and second prong of a retaliation claim since he was speaking on a m atter of public concern and his interests outweighed those of the Departm ent’s. As to the third prong, Liverm an alleges that being returned to probationary status constitutes adverse em ploym ent action. That is the only adverse action that is apparent to this Court. The 33 evidence supports the conclusion that a sufficient causal connection exists between Liverm an’s Facebook posts speech and the retaliatory conduct. Ridpath, 447 F.3d at 316. First Am endm ent retaliation claim s are subject to the affirm ative defense of qualified im m unity. Trulock v. Freeh, 275 F.3d 391, 40 5-0 6 (4th Cir. 20 0 1). Chief Dixon would not be entitled to such im m unity if (1) the violation of the deputies' constitutionally protected rights was clearly established at the tim e of the challenged acts and (2) a reasonable official would have understood that his conduct violated that clearly established law. See Henderson v. Sim m s, 223 F.3d 267, 271 (4th Cir.20 0 0 ). For the reasons stated m ore fully above, Chief Dixon is entitled to qualified im m unity, and therefore is not liable for the retaliation claim s. As to the City’s liability, a m unicipality m ay be liable under § 1983 only when “execution of a governm ent’s policy or custom , whether m ade by its lawm akers or by those whose edicts or acts m ay fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs. of N .Y., 436 U.S. 658, 694 (1978). Liverm an m ust show the City had knowledge of unconstitutional retaliatory conduct and took no action in response, thereby evincing a custom or policy of deliberate indifference. W illiam s v. Griffin, 952 F.2d 820 , 826 (4th Cir. 1991). All of this assum es, of course, that unconstitutional conduct occurred in the first place. Even if unconstitutional conduct did occur, there is no evidence that the City knew why Liverm an was disciplined or was involved in the investigation related to the Facebook postings. While Major Hinton prepared the personnel action form s indicating Liverm an’s placem ent on probation for signature by City officials, nam ely Claristine Moore and the City Manager, the City was not involved in the investigation or determ ination of discipline. Nor is there any evidence that the City was involved in drafting or approving policies and procedures put in place by the Departm ent. In Counts V and VI of the Com plaint, Liverm an and Richards claim they were retaliated against by Chief Dixon and the City once they m ade it known that they planned to file suit against Defendants. The particular actions that Plaintiffs allege were retaliatory include: 34 Defendants opening up investigations against them and also recom m ending them for term ination. Liverm an was investigated and disciplined twice after the Facebook discipline and after he m ade known his intentions to sue Chief Dixon and the City. The first investigation occurred because of the Freedom of Inform ation Act (“FOIA”) request included in the notice letter his counsel sent to the City. In gathering the docum ents responsive to that request, the Departm ent discovered Liverm an had engaged in som e inappropriate em ail correspondence with a fellow officer. Major Hinton asked for further investigation. Upon further investigation and, pursuant to Liverm an’s own adm issions, it becam e clear that Liverm an was having sex on the job and using Departm ent property to engage in sexual conduct. He adm itted to engaging in this behavior. Defendants also presented m any pieces of evidence supporting that Liverm an was also investigated for failing to m aintain his duty post until Chief Dixon arrived. When Chief Dixon arrived and Liverm an was not there, the investigation was launched by Sargent Cham bliss, Liverm an’s im m ediate supervisor. Liverm an’s discipline was a result of his own behavior, a behavior that the evidence shows has been well-docum ented in the past. He had been disciplined m any tim es in the past, including for insubordination. Therefore, Liverm an’s claim in Count V of Plaintiffs’ Com plaint is without m erit. As to Richards, he was investigated twice after he was disciplined for his Facebook com m ents and after he m ade the City aware that he planned to file suit. Both investigations were launched as a result of com plaints m ade by fellow officers. The evidence establishes that the first com plaint initially arose from Richards’ participation in the Shop with the Cop program . Officer Clem ent m ade the com plaint after receiving com plaints from two Wal-Mart em ployees. The investigation concluded with a finding of no wrongdoing as it regarded the Shop with a Cop program . In fact, Richards was praised for his work with that program . The investigation did find he wrongfully requested turkeys from Wal-Mart without approval from Chief Dixon. Officer Clem ent was assigned to that task. Richards received an oral reprim and. 35 The second investigation of Richards related to a report m ade to the m edia about a fellow officer’s spouse and was initiated by that fellow officer. The investigation concluded with a finding that Richards did not engage in any wrongdoing. It is difficult to im agine how the Departm ent could have determ ined to retaliation against Richards for filing suit against the City and Chief Dixon where the investigations were launched as a result of com plaints m ade by fellow officers. These officers were not Richards’ supervisors or part of the Com m and Staff. There is no evidence that these investigations were encouraged by any one above Richards. Therefore, no retaliation occurred in light of Plaintiffs filing the notice of claim s. V. CON CLU SION For the aforem entioned reasons, the Court will GRANT IN PART and DENY IN PART Plaintiffs’ Motion.26 Specifically, the Court GRANTS Plaintiffs’ Motion as to Count I of Plaintiffs’ Com plaint and DENIES Plaintiffs’ Motion as to Count II. The Court finds that the 20 13 Social Networking Policy clearly restricts Liverm an’s First Am endm ent rights. Further, the Court finds that the Departm ent’s interest in providing effective and efficient services to the public does not outweigh Liverm an’s interest in expressing his opinion regarding officer training, officer safety, experience as a requirem ent for prom otion to the supervisory level, and issues of potential liability. See Pickering, 391 U.S. at 572-73. In contrast, Richards’ speech was private in nature and did not address a m atter of public concern. Accordingly, Defendants’ Motion as to Count I is DENIED but is GRANTED as to Count II. Defendants’ Motion as to Counts III and IV is hereby GRANTED. Chief Dixon is entitled to Qualified Im m unity. Sim ilarly, as to any claim against the City, no m unicipal liability attached because the City did not ratify the 20 13 Social Networking Policy. Further, the City and 26 Plaintiffs argue that they are only seeking equitable relief. Pls.’ Reply at 23. Plaintiffs apparently seek an injunction—but nowhere in their m oving papers do they argue the elem ents required for such injunction and thus no injunction will be granted. Also, to the extent that Plaintiffs seek m onetary dam ages in Counts I and II, their claim s are barred because Chief Dixon is entitled to qualified im m unity. Liverm an is, therefore, only entitled to a declaratory judgm ent that his First Am endm ent rights were violated. 36 Chief Dixon did not violate Plaintiffs’ First Am endm ent Rights to petition the governm ent for redress by retaliating against them for noticing their claim s. As such, Defendants’ Motion as to Counts V and VI is hereby GRANTED. Let the Clerk send a copy of this Mem orandum Opinion to all counsel of record. An appropriate Order will issue. _____________________/s/________________ James R. Spencer Senior U. S. District Judge ENTERED this _ _ 6th_ _ _ day of May 20 15. 37

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