Police Department’s Policy Banning Discussion of K-9 Program Unconstitutional

Nevada Highway Patrol Major Kevin Tice announced a policy prohibiting officers from talking about the K-9 program with anyone outside the department.  Some officers complained that Tice’s policy was designed to prevent them from publicizing problems in the K9 program.  So they sued Tice, alleging that the policy’s restriction on speech violated the First Amendment.

M-K-9Profile-0416

As public employees, the officers’ First Amendment claim had a bigger hill to climb than if they were just part of the general public.  Still, the court found that Tice’s policy violates the First Amendment.  Going through the familiar two-pronged qualified immunity test, the court found that the policy 1) covered speech undertaken outside the officers’ official duties, and 2) dealt with matters of public concern (i.e., problems with the department’s K-9 program).

Tice justified the policy by claiming it would help the department’s efficacy by removing an outside disruption.  The court was not convinced:  “Although it could be true that police departments would operate more efficiently absent inquiry into their practices by the public and the legislature, efficiency grounded in the avoidance of accountability is not, in a democracy, a supervening value.”

The court also held that since it was clearly established that such a broad restriction on employee speech was impermissible, Tice is not entitled to qualified immunity.

The opinion’s conclusion summed it up best:  “We make clear today, however, that a public employer generally may not subject all employee speech regarding a particular government program—whether fact or opinion, and whether liable to disrupt the workplace or not—to a blanket ban.”

Case: Moonin v. Tice, No. 15-16571, (9th Cir. Aug. 22, 2017) (opinion here)

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