Moser v. Las Vegas Metro. Police Dep't

• Citation: 984 F.3d 900
• Decision Date: 12 January 2021
• Docket Number: No. 19-16511,19-16511
• Parties: Charles MOSER, Plaintiff-Appellant, and John Sabatini, Plaintiff, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Devin Ballard; Patrick Neville, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

984 F.3d 900

Charles MOSER, Plaintiff-Appellant,andJohn Sabatini, Plaintiff,

v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Devin Ballard; Patrick Neville, Defendants-Appellees.

No. 19-16511

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 3, 2020 Pasadena, California

Filed January 12, 2021

LEE, Circuit Judge:

Social media has allowed Americans to connect with friends in far-flung places and to share their opinions on topics both mundane and momentous. But social media can also tempt people to impulsively make inflammatory comments that they later regret. And even worse for them, employers often react by firing or punishing them for their ill-advised remarks.

Charles Moser is one of those people. A Las Vegas SWAT sniper, Moser commented on Facebook that it was a "shame" that a suspect who had shot a police officer did not have any "holes" in him. After the police department dismissed him from the SWAT team, Moser sued, alleging violation of his First Amendment right. He contended that his comment suggested only that the police officer should have fired defensive shots. The district court, however, construed Moser's statement as advocating unlawful violence, and ruled that the government's interest in employee discipline outweighs Moser's First Amendment right under the Pickering balancing test for speech by government employees.

The district court erred in granting summary judgment for the government because there is a factual dispute about the objective meaning of Moser's comment: was it a hyperbolic political statement lamenting police officers being struck down in the line of duty — or a call for unlawful violence against suspects? Another factual dispute exists over whether Moser's comment would have likely caused disruption in the police department. These factual disputes had to be resolved before the court could weigh the competing considerations under the Pickering balancing test. We thus reverse the grant of summary judgment and remand.

BACKGROUND

In 2000, Charles Moser, a former Navy SEAL, joined the Las Vegas Metropolitan Police Department ("Metro"), and became a member of the SWAT team in 2006. Moser served as the Assistant Team Leader of his SWAT unit and acted as a sniper.

In 2015, someone shot a Metro police officer at the Emerald Suites on Las Vegas Boulevard. Metro police officers later found and arrested that suspect. After seeing news of the assailant's capture, Moser — while off-duty at home — commented on a friend's Facebook post linking an article about the shooting:

Moser's December 17, 2015 comment said, "Thanks to a Former Action Guy (FAG) and his team we caught that asshole ... It's a shame he didn't have a few holes in him ..."¹

An anonymous tipster alerted Metro's internal affairs department to this Facebook comment, prompting an internal investigation. During his interview with Metro investigators on February 8, 2016, Moser admitted his comment was "completely inappropriate" but explained that he intended to express his frustration that the suspect had "basically ambushed one of our officers" and that "the officer didn't have a chance to defend himself." He also said that he had removed that comment by the time of this interview.

Captain Devin Ballard and Deputy Chief Patrick Neville transferred Moser out of SWAT and put him back on patrol, finding that Moser's Facebook comment showed he had become "a little callous to killing." Moser's supervisors testified that snipers "are held to a higher standard" because they toil in difficult and stressful situations. Internal affairs also determined that Moser's comment violated the department's social media policy and found that his Facebook page had information identifying him as a Metro sniper. Moser filed a grievance report, requesting that he receive a verbal reprimand rather than a transfer with a pay decrease. The Labor Management Board denied Moser's grievance and upheld the transfer.

Moser sued Metro, Captain Ballard, and Deputy Chief Neville for First Amendment retaliation, seeking damages under 42 U.S.C. § 1983 and injunctive relief. He alleged that his disciplinary transfer was unconstitutional retaliation for his protected speech. Metro and Moser both moved for partial summary judgment. Metro did not dispute that Moser made that comment as a private citizen and that it addressed an issue of public concern, but it argued that Moser's comment eroded public trust and exposed Metro to legal liability.

The district court held that Metro's disciplinary action was justified under the Pickering balancing test for speech by government employees. While it acknowledged that Moser's statement addressed a "public concern," the district court said it is "difficult to discern what message Moser was attempting to convey" and ultimately believed that Moser "wanted his fellow officers to shoot (and possibly kill) the suspect, regardless of whether the use of deadly force (or any force) was necessary." The district court thus held that Moser's comment was "neither at the core nor the periphery of the First Amendment." Set against this "moderate [First Amendment] interest" was "Metro's prediction of likely future disruptions caused by Moser's continued SWAT service." Specifically, the court reasoned that, if more members of the public read Moser's post, they might question Moser's fitness as a SWAT member. The court also reasoned that "any future use of deadly force by Moser would have been more extensively scrutinized by the public and would more likely subject Metro to suit." The court determined that Metro's interest in employee discipline outweighed Moser's "moderate" free speech interest. The court granted summary judgment for Metro and denied summary judgment for Moser. Moser timely appealed.

STANDARD OF REVIEW

We review de novo a district court's grant of summary judgment. See Devereaux v. Abbey , 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). Federal Rule of Civil Procedure 56(c) authorizes summary judgment where the moving party shows no genuine issue of material fact. The Court views the facts and inferences drawn from the facts in the nonmovant's favor. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 631–32 (9th Cir. 1987).

ANALYSIS

I. Under the Pickering test, courts must balance a government employee's free speech rights with government efficiency.

The Supreme Court has established a framework to balance the free speech rights of government employees with the government's interest in avoiding disruption and maintaining workforce discipline. See Pickering v. Bd. of Ed. of Twp. High Sch. Dist. , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Under the Pickering framework, the plaintiff first has to establish that "(1) [ ]he spoke on a matter of public concern; (2) [ ]he spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action." Barone v. City of Springfield, Or. , 902 F.3d 1091, 1098 (9th Cir. 2018).

If the plaintiff establishes this prima facie case, the burden then shifts to the government to show "that (4) it had an adequate justification for treating [its employee] differently than other members of the general public; or (5) it would have taken the adverse employment action even absent the protected speech." Id. If the government does not meet its burden, then the First Amendment protects the plaintiff's speech as a matter of law.

While the Pickering balancing test presents a question of law for the court to decide, it may still implicate factual disputes that preclude the court from resolving the test at the summary judgment stage. See Eng v. Cooley , 552 F.3d 1062, 1071–72 (9th Cir. 2009) ("Although the Pickering balancing inquiry is ultimately a legal question ... its resolution often entails underlying factual disputes. Thus we must ... assume any underlying disputes will be resolved in favor of the [nonmovant]."). We now apply the Pickering framework to the facts here.

II. The district court erred in granting summary judgment for the government because factual disputes preclude it from assessing the Pickering balancing test.

At the district court and on appeal, the parties do not dispute any of the Pickering factors except for the fourth one — whether the government had adequate justification to treat Moser differently than members of the public. Still, we briefly address the other factors to provide context for Moser's claims and for our analysis.

A. Moser's speech addressed an issue of "public concern."

First, the parties do not dispute that Moser's comment addressed an issue of "public concern" under the Pickering framework. An issue is of "public concern" if it "relat[es] to any matter of political, social or other concern to the community," Eng , 552 F.3d at 1070 (quotation marks and citation omitted), or "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public," City of San Diego v. Roe , 543 U.S. 77, 83–84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004). "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers , 461 U.S. 138, 147–48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ; see also Johnson v. Multnomah Cty., Or. , 48 F.3d 420, 425 (9th Cir. 1995) ("[T]he employee's motivation and the chosen audience are among the many factors to be considered in light of the public's interest in the subject matter of the speech.").

But not all statements of "public concern" are treated equally under the Pickering balancing test (as discussed later). While courts generally do not consider the content of speech under the First Amendment, courts — in the limited context of speech by government employees — have effectively established a sliding scale for how much weight to give to a statement of "public...