Liverman v. City of Petersburg

• Decision Date: 06 May 2015
• Docket Number: Civil Action No. 3:14–CV–139.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Herbert E. LIVERMAN, et al., Plaintiffs, v. CITY OF PETERSBURG, et al., Defendants.

106 F.Supp.3d 744

Herbert E. LIVERMAN, et al., Plaintiffs,

v.CITY OF PETERSBURG, et al., Defendants.

Civil Action No. 3:14–CV–139.

United States District Court, E.D. Virginia, Richmond Division.

Signed May 6, 2015.

Andrew Thomas Bodoh, Thomas Hunt Roberts, Thomas H. Roberts & Associates PC, Richmond, VA, for Plaintiffs.

Leslie A. Winneberger, William Fisher Etherington, Beale Davidson Etherington & Morris PC, Richmond, VA, for Defendants.

MEMORANDUM OPINION

JAMES R. SPENCER, Senior District Judge.

THIS MATTER is before the Court on the Plaintiffs' Motion for Summary Judgment as to Liability, Declaratory Judgment, and an Injunction as to Counts I and II of Plaintiffs' Complaint ("Plaintiffs' Motion") (ECF No. 17), and a Motion for Summary Judgment ("Defendants' Motion") (ECF No. 20), filed by Defendants, City of Petersburg ("the City") and John I. Dixon ("Chief Dixon") (collectively, the "Defendants"). Specifically, Plaintiffs Herbert E. Liverman ("Liverman") and Vance R. Richards ("Richards") (collectively, the "Plaintiffs") move for partial summary judgment on Counts I and II of Plaintiffs' Complaint, seeking declarative and injunctive relief in addition to compensatory and punitive damages¹ for claims that Defendants violated their rights under the Free Speech Clause of the First Amendment to the United States Constitution. Plaintiffs claim Defendants punished them pursuant to written policies for speaking out on social media as citizens regarding matters of public concern.² Defendants, on the other hand, move this Court for summary judgment as to all counts of Plaintiffs' Complaint. The parties have not requested a hearing on this matter, and the Court finds that oral argument 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. FACTUAL BACKGROUND

This case arose after Plaintiffs, each police officers, were put on probation for posting comments on the social media website Facebook and noticing, via written letter, claims against Defendants. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 against Defendants, alleging that they violated Plaintiffs' First Amendment rights by subjecting them to unconstitutional social networking policies issued by the City of Petersburg Police Department ("the Department"). In particular, Plaintiffs claim that the Department improperly impinged upon their rights under the Free Speech Clause of the First Amendment by preventing them, through the Department's written policies, from speaking out as citizens regarding matters 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 immunity to Plaintiffs' claims for monetary damages.

Except as indicated, the following facts are not in dispute. Liverman was an officer with the Department for approximately eighteen years before he resigned on January 10, 2014. He attended Virginia State University, and served as an instructor at the regional police academy. His disciplinary record shows "behavioral and judgmental problems" beginning as early as December 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 enforcement experience, including four years with the Department. He is currently a Crisis Intervention officer as well as a patrol officer with the Department. He trained with the New York Police Department Special Victims Unit. Neither Liverman nor Richards have served in a policy-making position. Chief Dixon is the Chief of Police for the Department. He has served in this role for approximately seven years.

In December of 2010, Major Charlene Hinton ("Major Hinton")³ drafted the Department's first social networking policy, entitled "General Order 100–1." General Order 1001 became effective on December 1, 2010 after being approved by Chief Dixon. See id. Ex. 2, ¶ 4, B ("the 2010 Social Networking Policy").

In or around April of 2013, the 2010 Social Networking Policy was reviewed and reformatted. This edited policy, entitled, "General Order 400–23," was approved by Chief Dixon and issued on April 15, 2013. "The overall substance of the policy did not change." Id. at ¶ 13 (citing Ex. 2, ¶ 5, C) ("the 2013 Social Networking Policy"). Thus, as of April 15, 2013, Liverman and Richards were accountable for following the 2013 Social Networking Policy.

On June 17, 2013, while he was off-duty, Liverman "posted" on Facebook the following communication ("Liverman's Initial Post") as an expression of his opinion formed as a citizen:

Sitting here reading posts referencing rookie cops becoming instructors. Give me 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. Becoming a master of your trade is essential, not only does your life depend on it but more importantly the lives of others. Leadership is first learning, knowing and then doing.

Liverman's Initial Post was supported by an authoritative source.⁴ This post was "liked" by at least thirty-two people and received many comments. In response to Liverman's Initial Post, Richards wrote the following on Facebook:

Well said bro, I agree 110% ... Not to mention you are seeing more and more younger Officers being promoted in a Supervisor/ or [sic] roll [sic]. It's disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience ... And what comes with experience are "experiences" that "they" can pass around to the Rookies and younger less experienced Officers. Perfect example 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 matter 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 admin for promoting the young Rookie who was too inexperienced for that roll [sic] to begin with. I'm with ya bro⁵ ... smh[.]⁶

("First Comment"). Later that day, Liverman stated:

There used to be a time when you had to earn a promotion or a spot in a specialty unit ... but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been "devalued" ... and when something has no value, well it is worthless.

("Comment"). 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 example" when there isn't one ... smh[.]⁷

("Second Comment").

Excluding Richards and Liverman, thirty-four people either "liked" or commented 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 commented on those Facebook posts, twenty-eight of those people knew Liverman was an officer with the Department, six people were Department employees, and seventeen people were former Department employees. Br. in Supp. of Defs.' Mot. at ¶ 21. Both Liverman and Richards made these Facebook exchanges from their personal computers while they were off-duty and at their respective homes. After a Department employee brought Liverman's and Richards' Facebook communications to the attention of the Department, see id. at Ex. 5, ¶ 3, they⁸ were each investigated for posting the aforementioned comments to Facebook in violation of the 2013 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 July 8, 2013.

In particular, the "Narrative of Events/Action" on the Disciplinary Action Report form for Liverman, signed on July 8, 2013, states,

During a ‘Facebook’ exchange with Officers Vance Richards and Evan Jones, Liverman made the [C]omment, ‘There used to be a time when you had to earn a promotion or a spot in a specialty unit ... but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been ‘devalued’ ... and when something has no value, well it is worthless.'

Likewise, Richards' "Narrative of Events/Action," signed July 8, 2013, states

During a ‘Facebook’ exchange with Officers' [sic] Herbert Liverman and Evan Jones, Richards made the comment, ‘Perfect example, 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 matter 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 admin for promoting 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 example’ when there isn't one ...

In response to these comments, Chief Dixon directed that Liverman and Richards be returned to probation for one reason: violating bureau policy.⁹ Specifically, the Department claimed that Plaintiffs violated Section 4, Part IV, entitled "Procedures," of the 2013 Social Networking Policy, which provides:

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public[']s perception of the department is not protected by the First Amendment free speech clause,

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