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					  SOCIAL MEDIA: LEGAL
CHALLENGES AND PITFALLS
 International Association of Chiefs of Police
          Legal Officers Section
           September 29, 2012
       SOCIAL MEDIA – SPECIAL
    CONSIDERATIONS FOR LAW
         ENFORCEMENT
   SOCIAL MEDIA – HERE TO STAY
   ISSUE FOR THOSE OF US IN LAW
    ENFORCEMENT: HOW DO WE RESPECT
    EMPLOYEES’ CONSTITUTIONAL RIGHTS WHILE
    ENSURING THAT THEIR USE OF SOCIAL MEDIA
    DOES NOT ADVERSELY AFFECT DEPARTMENT
    OPERATIONS?
          SOCIAL MEDIA – SPECIAL
       CONSIDERATIONS FOR LAW
            ENFORCEMENT
   “This is something that all police chiefs
    around the country, if you are not dealing
    with it, you better deal with it.” (Mark A.
    Marshall, Chief of Police in Smithfield, VA.
    – President of the IACP.)
        SOCIAL MEDIA – SPECIAL
     CONSIDERATIONS FOR LAW
          ENFORCEMENT
   GENERATIONAL ISSUES – EVOLVING STANDARDS OF
    WHAT CONSTITUTES PRIVACY
   EASE OF POSTING THOUGHTS/OPINIONS ON SOCIAL
    MEDIA – THERE IS OFTEN LITTLE THOUGHT OF
    POTENTIAL IMPACT OF THE “SPEECH”
   MISTAKEN PERCEPTION THAT POSTING IS “PRIVATE”
    SPEECH – INFORMATION IS EASILY SHARED; PLACED
    IN THE PUBLIC DOMAIN.
   RECENT EVENTS – POLITICIANS, CELEBRITIES, ETC.
        SOCIAL MEDIA – SPECIAL
     CONSIDERATIONS FOR LAW
          ENFORCEMENT
   Ray Shultz of the Albuquerque Police
    Department was quoted in a recent news story
    as saying “You need to get a handle on this very
    quickly, because this has the potential to
    damage the reputation of the organization and
    also adversely affect you in the courtroom.”
    Chief Shultz added that some social media sites
    are “like the bathroom wall of 20 years ago,
    except now the entire world can see it.”
    EXAMPLES OF WAYS SOCIAL
    MEDIA CAN DETRIMENTALLY
        AFFECT A POLICE
          DEPARTMENT
   I. Revelation of sensitive/restricted departmental
    information/communications.
   II. Sexually explicit communications (Both on and off-
    duty).
   III. Defamatory material.
   IV. Derogatory communications targeted at protected
    classes of persons.
   V. Communications adversely impacting judicial
    proceedings. (Brady/Giglio issues)
EXAMPLES OF CASES WHERE
  OFFICERS’ USE OF SOCIAL
MEDIA ADVERSELY IMPACTED
 JUDICIAL PROCEEDINGS OR
   OTHERWISE CAST THE
DEPARTMENT IN A NEGATIVE
           LIGHT
(Or should we just call them “Facebook Horror
                  Stories?”)
    PEOPLE V. WATERS, (Kings Co.
             NY Sup. Ct. 2009)
   Defendant was charged with felony gun
    possession.
   Defense theory that arresting officer
    planted the gun.
   Police officer had a MySpace account.
   Near time of arrest of Defendant: Mood
    description was listed as “devious.”
   Status: “Watching Training Day” to brush
    up on proper police procedure.
           People v. Waters, cont.

   Officer had also posted comments online regarding
    video arrest clips:
   ““If [officer] wanted to tune him up some, he should
    have delayed cuffing him;” “if you were going to hit
    a cuffed suspect, at least get your money’s worth.”
   Defendant, on parole for burglary, was acquitted of
    the most serious charges.
   Officer’s thoughts: “I’m not going to say it was the
    best of things to do in retrospect.” “….stupidity on
    the Internet is there for everyone to see for all times
    in perpetuity.”
           People v. Waters, cont.
   When asked about the “Not Guilty” verdict, the
    officer stated “I feel it’s partially my fault.” “It
    paints a picture of a person who could be overly
    aggressive. You put that together, it’s
    reasonable doubt in anyone’s mind.”
  HOW WOULD THIS OFFICER’S
POSTING BE PERCEIVED IF HE WAS
 ACCUSED OF USING EXCESSIVE
            FORCE?
       CROMER V. LEXINGTON-
      FAYETTE URBAN CO. GOVT.
               (2009)
   Lexington, KY, police officer arrested singer John Michael
    Montgomery for DUI. City officials learned that Cromer
    had identified himself as a police officer on his MySpace
    page, and had posted words and/or images that
    reflected discredit to him, the PD, and impaired the
    operation and efficiency of himself and the PD. Such
    postings included profane language, comments and
    images regarding homosexuals and the disabled,
    inappropriate sexual comments, and an altered
    photograph depicting him with Montgomery. Both the
    trial ct. and the Ct. of Appeals upheld his termination on
    grounds of misconduct, inefficiency, and insubordination.
         ALBUQUERQUE POLICE
            SHOOTING - 2011
   Officer shot and killed a subject following a traffic stop.
   Had listed his job description on his Facebook page as
    “human waste disposal.”
   Attorney sought to obtain access to fifty-seven officers’
    Facebook pages in order to see if they had discussed the
    shooting.
   Chief of Albuquerque PD said he was “disgusted” by the
    comment and that it will be part of an internal affairs
    investigation into the shooting.
        ALBUQUERQUE POLICE
           SHOOTING, cont.
   The officer involved later said that his Facebook
    posting was “extremely inappropriate and a
    lapse in judgment on my part.”
   Albuquerque PD subsequently developed a
    Social Media policy for its officers.
NYPD Officers Post Comments Regarding the
       Annual West Indian Parade
            West Indian Parade
            Controversy, cont.
   Officers maligned paradegoers on a Facebook page. Some
    posts characterized the participants as “animals” and
    “savages.” The Facebook page on which the comments
    were posted was believed to be accessible to any user of
    the site, and consisted of nearly 70 printed pages of
    material.
   Defense attorneys used the postings in an effort to
    discredit the courtroom testimony of an officer who had
    “liked” the Facebook page. The officer in question had
    arrested an individual in the hours before the parade
    started. Many of the postings were referenced during the
    trial. The defendant was subsequently acquitted.
   17 offficers have since been disciplined by the NYPD for
    their part in posting material to the site.
    And the Examples Continue:
   Peoria, AZ: An officer was disciplined
    after posting this photograph on his
    Facebook page:
     Facebook Posting of Obama
    Shirt Riddled With Bullet Holes
   The Secret Service and the officer’s
    department launched inquiries after the
    photo was posted.
   The officer was demoted and suspended
    by the department due to his violation of
    its social media policy and because he
    discredited the department.
   The discipline was upheld following the
    officer’s appeal of the demotion.
FREE SPEECH AND THE PUBLIC
        EMPLOYEE
   AS LAW ENFORCEMENT ADMINISTRATORS,
    WHAT CAN YOU DO TO EITHER PREVENT SUCH
    SITUATIONS FROM OCCURING OR PUNISHING
    THOSE WHOSE ACTIONS VIOLATE
    DEPARTMENTAL POLICY?
   WHAT ARE YOUR RIGHTS TO RESTRICT
    EMPLOYEES’ “SPEECH?”
   WILL THE EMPLOYEE BE ABLE TO ARGUE THAT
    WHAT THEY SAY AND WRITE “OFF-DUTY” IS OF
    NO CONCERN TO THE DEPARTMENT?
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont.
   WHERE DO WE START?
   AN ANALYSIS OF THE SIGNIFICANT FIRST
    AMENDMENT CASES THAT HAVE CONSIDERED
    THE RESTRICTIONS THAT CAN BE PLACED ON
    PUBLIC EMPLOYEES’ SPEECH.
   THE GOOD NEWS: ALTHOUGH THE USE OF
    SOCIAL MEDIA IS RELATIVELY NEW, EXISTING
    LAW PROVIDES ADEQUATE GUIDANCE FOR
    PUBLIC ENTITES CONFRONTING THESE
    ISSUES. LAW ENFORCEMENT AGENCIES HAVE
    DEALT WITH EMPLOYEE-RELATED “SPEECH”
    ISSUE FOR MANY YEARS.
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont.
   First Amendment to the Constitution:
    “Congress shall make no law respecting an
    establishment of religion, or prohibiting
    the free exercise thereof; or abridging
    the freedom of speech, or of the press;
    or the right of people peaceably to
    assemble, and to petition the government
    for a redress of grievance.”
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont.
   Challenge for Law Enforcement Agencies:
    How do we respect employees’ First
    Amendment Rights while ensuring that the
    agency’s interests are adequately
    protected.
   First Amendment rights are cherished, but
    are certainly not without reasonable
    limitations.
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont.
   A principal inquiry for courts when
    reviewing public employee free speech
    cases is whether the employee made the
    statements in their official capacity or as a
    private citizen.
   The issue is sometimes more difficult
    when dealing with law enforcement
    officers they are often considered to be
    “on duty” at all times.
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont.
   Public employees (esp. law enforcement) vs.
    private citizens.
   As the Supreme Court noted in one significant
    First Amendment case, “when a citizen enters
    government service, the citizen by necessity
    must accept certain limitations on his/her
    freedom.” (Garcetti).
   It is this principle that underscores much of the
    case law in this area.
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont

   As government employees, we are held to
    a higher standard than private citizens.
   IACP Code of Ethics was adopted in the
    late 1950s. The second paragraph of that
    Code, which has become a standard of the
    profession, states “I will maintain an
    unsullied personal life as an example to
    all.”
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont

   Essential analysis when analyzing the First
    Amendment Rights of public employees – How
    do we go about it?
    “SPEECH”: Defined broadly – oral or written
    communications and other forms of conduct.
   Protection of certain forms of public employees’
    speech was recognized by Supreme Court in
    Pickering v. Board of Education (1968)
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont
   In Pickering, Court established a balancing test,
    weighing the employee’s interest in commenting
    on matters of public concern against the
    employer’s interest in promoting efficiency of the
    public services it renders.
   We must always begin the analysis of the
    speech in question by determining whether the
    employee was speaking as a “private citizen” on
    a matter of “public concern.”
   If so, then we balance the interests (employee’s
    and employer’s) involved.
FREE SPEECH AND THE PUBLIC
      EMPLOYEE, cont
   We also need to determine whether the
    employee’s speech was a motivating
    factor in the adverse employment action –
    Did the employer have a reason for taking
    the action even in the absence of the
    protected conduct?
    “PRIVATE CITIZEN” OR PUBLIC
            EMPLOYEE?
   Purely job-related speech: In Garcetti, the
    Supreme Ct. held that when public employees
    make statements pursuant to their official
    duties, the employees are not speaking as
    citizens for First Amendment purposes and the
    Constitution does not insulate their
    communications from employer discipline.
   Deputy DA made allegations regarding an
    affidavit submitted to obtain a SW.
   Later claimed that the DA had retaliated against
    him for drafting a memo critical of the warrant.
                 Garcetti, cont.
   Deputy DA filed suit claiming that his rights
    under the First and Fourteenth Amendments had
    been violated.
   Court rejected claim, by stating that government
    employers must have sufficient discretion to
    manage their operations.
   “Our precedents do not support the existence of
    a constitutional cause of action behind every
    statement a public employee makes in the
    course of doing his or her job.”
               Garcetti, cont.
   Impact of Garcetti: Government employers have
    the ability to retain control over speech that
    “owes its existence to a public employee’s
    professional responsibilities.”
   Sup. Ct. acknowledged that exposing
    governmental inefficiency and misconduct is of
    considerable significance. Although the First
    Amendment may not be the avenue to seek
    protection for statements made by employees,
    there are protections in the form of
    “whistleblower statutes” or labor code
    provisions.
POST-Garcetti cases of interest to law
          enforcement
   Foley v. Town of Randolph (1st Cir. 2010): Fire chief
    spoke at the scene of a fire in uniform. Commented on
    how budget cutbacks had adversely impacted
    department’s response. Discipline was upheld as he was
    speaking as a public employee and not a private citizen.
   Andrew v. Clark (4th Cir. 2009): Officer was terminated
    based upon a memo he wrote re: a police shooting.
    Memo was shared with a reporter. Officer claimed he
    had a First Amendment right to speak about a matter of
    public concern.
   Because Andrew wrote the memo as a private citizen,
    the Court ordered that it be reviewed to determine
    whether it addressed a matter of public concern. If so,
    then court will need to balance the interests of the
    employee, as a citizen, and the interests of the State, as
    an employer, in promoting the efficiency of the public
    services it provides.
     WHAT IS A MATTER OF PUBLIC
             CONCERN?
   Factors to consider: Context, content and manner of
    speech, legitimate news interest or value to society.
   City of San Diego v. Roe (Sup. Ct. 2004): Ct. considered
    the First Amendment claims of a police officer who was
    terminated after the department learned of his sexually
    explicit off-duty behavior.
   Made video of himself stripping off his police uniform
    and masturbating. Sold the video and other items (which
    connected him to the SDPD) on the adults-only section
    of eBay. The Sup. Ct., in reversing the 9th Cir., upheld
    the City’s decision to terminate Roe.
   No balancing of interests was necessary as Roe’s
    conduct did not touch on a matter of public concern.
                    Roe, cont.
   Termination was upheld as the PD
    “demonstrated legitimate and substantial
    interests of its own that were compromised by
    Roe’s speech.”
   Roe’s sexually explicit conduct “brought the
    mission of the employer and the professionalism
    of its officers into serious disrepute.”
   If not a matter of “public concern,” then no need
    to apply the balancing test.
    Dible v. City of Chandler (9th Cir.
                   2008)
   Officer was terminated by PD
    for maintaining sexually
    explicit website featuring
    himself and his wife. Operated
    site for money – no intention
    to express any kind of
    message or engage in social or
    political commentary.
   PD learned of site and
    dismissed Dible.
   Basis: Violated policy from
    bringing discredit to the city
    service.
                     Dible, cont.
   Court asked “whether a police officer can ever
    disassociate himself from his powerful public position
    sufficiently to make his speech (and other activities)
    entirely unrelated to that position in the eyes of the
    public and his supervisors.”
   Dible’s activities “brought the mission of the employer
    and the professionalism of its officers into serious
    disrepute.”
   Negative impact to PD – Officers indicated that they
    had been questioned and ridiculed about the website. A
    female officer claimed she had been called a “porn
    whore” by an arrestee.
    Concern about its ability to recruit female officers.
                   Dible, cont.
   Court rejected Dible’s First Amendment claim.
    “Ronald Dible may have the constitutional right
    to run his sex oriented business, but he has no
    constitutional right to be a policeman for the
    City at the same time.”
Thaeter v. Palm Beach County SO
         (11th Cir. 2006)
   Court upheld the SO’s termination of sheriff’s
    deputy for participating for compensation in
    sexually explicit photographs and videos
    available for paid viewing on the Internet.
   As in the Roe case, the officer’s conduct (or,
    “speech”), did not involve a matter of “public
    concern.” Therefore, no need to apply the
    Pickering balancing test.
   Government can legally apply constraints on
    employees’ behavior, even if “off duty.”
    MATTERS OF PUBLIC CONCERN –
      BALANCING OF INTERESTS
   Interests of law enforcement employer in
    maintaining discipline and harmony in the
    workplace, close working relationships, and
    community trust and respect must be given
    significant weight.
   Locurto v. Giuliani (2nd Cir. 2006): Even if it is a
    matter of public concern, the government
    employer can consider the potentially disruptive
    effects of its employees’ actions.
    SO HOW DO WE AVOID THESE
           PROBLEMS?
   Law Enforcement agencies need to provide clear
    guidance for their employees regarding the use
    of social media.
   What to include:
   I. Warning regarding the misuse of electronic
    media while on duty/employer-provided
    computer systems;
   II. Prohibition on use of agency name, uniform,
    logo, marked vehicles;
    DEPARTMENTAL GUIDANCE,cont.

   III. Ban on disclosure of confidential information (Should
    also prohibit the disclosure of information officers
    acquire during the course of their duties unless the
    information is authorized for release by the department
    or its release is otherwise authorized by law.)
   IV. Caution regarding comments/postings that impair
    working relationships, impact morale, impact community
    relations or otherwise impact the efficiency and
    effectiveness of operations.
   Consider IACP’s Model Policy
   Good start, and can be tailored to meet the needs of
    your agency.
      Cybervetting Applicants by Law
Enforcement Agencies: Current Issues and
                 Trends
   Cybervetting – As noted in the publication
    entitled “Developing a Cybervetting Strategy for
    Law Enforcement,” “cybervetting is an
    assessment of a person’s suitability to hold a
    position using information found on the Internet
    to help make that determination.”
   The above publication is an excellent resource,
    and can be located on the IACP’s social media
    website.
                  Cybervetting
   Increasingly common: 91% of employers
    surveyed in September 2011 reported using
    social networking sites to screen prospective
    applicants.
   Hiring qualified applicants is particularly critical
    in law enforcement. “As social media has
    grown, is that this is a really critical component,
    and you really gotta make sure you are doing
    this.” (San Luis Obispo police captain as quoted
    in a local media outlet.)
        Cybervetting, continued
   Why important: If properly conducted, it will
    provide a number of benefits to law
    enforcement, such as:
    1. Increasing public confidence in police
    agencies by ensuring that law enforcement
    personnel are not engaged in inappropriate
    behavior;
    2. Corroborate or contradict information
    provided on a resume or job application;
         Cybervetting, continued
   3. Identify candidates who posted text, audio, or
    images that:
        a. contain sensitive law enforcement
        information;
        b. reflect that a subject has engaged in
        certain criminal offenses;
        c. Indicate that a subject is associated with
        hate, criminal, or terrorist organizations;
        d. reflect that the subject is a danger to self
        or others. (Source: Developing a Cybervetting
       Strategy for Law Enforcement)
         Cybervetting, continued
   The need to exercise caution in this area.
      Concerns about acquiring information about
       protected/sensitive information. (i.e., medical
       issues, religious beliefs, etc. Will the candidate be
       able to allege that he/she was not hired because
       this information was made known to the agency?)
      Ensure that your agency’s policy considers current
       case law and legislation.
      “Quality control” of vetting process. Is the
       information being considered by the agency
       accurate? Who is conducting the vetting? Are they
       properly trained? How is the information being
       protected?
         Legislative Trends
   Maryland was the first state to enact a law that
    prohibits employers from requesting or requiring
    that employees or applicants provide their
    passwords to social media accounts and other
    personal online accounts.
   Illinois has followed suit. (Illinois Public Act
    097-0875, eff. 1/1/13). There is no exception in
    the law for law enforcement or other sensitive
    occupations.
   Similar bills have been introduced in California,
    New York, and Washington. There is also a
    push for federal legislation in this area.
                  Questions?
   SSA MICHAEL T. PETTRY
    FBI – Office of the General Counsel
    Legal Instruction Unit
    FBI Academy, Quantico, VA
   703-632-1680
   MICHAEL.PETTRY@IC.FBI.GOV

				
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