City of San Diego v. John Roe

Officer John Roe with the San Diego police officer had a part time job (loosely termed) selling sexually explicit sex tapes through the adult link on EBay. The videos were of him in a police uniform, stripping to nude, and then masturbated for the camera/audience.  The uniform used was not that of the San Diego Police Department but, was clearly a police uniform.

In addition to the video he sold police equipment, official uniforms of the San Diego Police Department, other videos, and men’s underwear.  He utilized the user name [email protected]; code 3 in San Diego was a high priority code.  His user ID identified him as an employee of a police department.

Roe’s supervisor was on eBay and found Roe’s items for sale which included the sex tape and items for sale of the San Diego Police Department.  The supervisor’s initial investigation revealed a photograph of Roe as the seller.  The supervisor took the information to Roe’s chain of command.  An internal investigation was authorized.  As a result of the investigation an undercover officer purchased one of Roe’s videos.    The purchased video showed Roe in a police uniform issuing a traffic ticket but, revoked it after stripping and the masturbating.

Roe was confronted with the evidence.  He was in violation of San Diego Police Department policies to wit: conduct unbecoming an officer, outside employment, and immoral conduct. Roe was ordered to cease the distribution of any sexually explicit material any means of distribution. Roe did not adhere to the agreement fully.  He did not change his profile on eBay as ordered, continued to sell the first two videos and custom videos.  San Diego Police Department terminated Roe based on the continued violations of conditions of employment.

Roe filed a U.S.C. 1983 violation maintaining that his first amendment rights were violated. The district court deemed that Roe had proved that his right to the first amendment was applicable in the case.  However, the Court of Appeals reversed deciding that his conduct did not violate the matter of citizen concern citing Connick v. Myers 461 US 138.

In Connick an assistant district attorney was ordered to transfer from prosecuting certain cases.  Connick complained to other supervisors and the District Attorney.  She then distributed a questionnaire to other employees about an internal office policy.  The intent of the questionnaire was undermining her supervisor.  She maintained that the order violated her right to free speech.  The district court agreed with Connick and ordered her re-instated. The case was taken to the Supreme Court where it over turned the decision of the district court and upheld her termination utilizing the following:

“(1) when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, 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 employee's behavior and here, except for one question regarding pressure upon employees to work in political campaigns, the questions posed were not matters of public concern,

(2) the District Court erred in imposing an unduly onerous burden on the state to justify the employee's discharge by requiring it to clearly demonstrate that the speech involved substantially interfered with the operation of the office, and

(3) The limited First Amendment interest involved here did not require the employer to tolerate action that he reasonably believed would disrupt the office, undermine his authority and destroy the close working relationships within the office.” (Connick v. Myers 461 US 138)

The court of appeals utilized National Treasury Employees Union 356 F. 3dd. 1117.  In that case employees were giving speeches or writing outside of their employment.  In ruling with the employees the court stated “Earnings from speaking or writing on a class of federal employees.  The Court held that, within the particular classification of employment, the Government had shown no justification for the outside salary limitations.  The First Amendment right of the employees sufficed to invalidate the restrictions on the outside earnings for such activities.  The Court noted that throughout history public employees who undertook to write or to speak in their spare time had made substantial contributions to literature and art, 513 U.S. at 465, 20 L. Ed. 2d 811, 88 S. Ct. 1731, and observed that none of the speech at issue "even arguably [had] any adverse impact" on the employer”

The Supreme Court ruled that the appellate court relied heavily on NTEU and was misplaced.    Roe took steps to link the San Diego Police Department to his business which would affect the police department in an adverse way.   Even though the activities were outside of work he listed himself as a speaker in the field of law enforcement.  The court acknowledged that Connick was a precedent setting case it was not applicable in this case.  Roe went far and beyond the work place.  He clearly identified himself as a police officer and used that to enhance his sales. 

The Supreme Court ruled that Roe’s speech was detrimental to the department.  It affected the operations of the department and it’s standing in the community.  The court overturned the Appellate court ruling in favor of the San Diego Police department.  Roe was terminated.

We are seeing more and more issues with the internet.  Be sure your policies are in place to cover the department.  It is not uncommon to see several officers involved in computer policy violations that they claim they weren’t aware of.  A good rule is to have officers read and sign their policy and procedure manual yearly.  Additionally, have role call training on the ten major policies in your department.   By doing so it eliminates the “I didn’t know” excuse.

Web Links:

• National Internal Affairs Investigators Association
• Public Agency Training Council

About The Author:

Randy Rider began his career with the Douglas County Sheriff office, Georgia in 1974. He received several promotions eventually to investigations. His areas of expertise are extensive having worked crimes from petty theft to murder. In 1983 he became employed with the Georgia Department of Juvenile Justice as an investigator, promoted to Principal Investigator. He eventually moved into the Internal Affairs Unit as an investigator and as a supervisor.

Rider was elected President of the National Internal Affairs Investigators Association in 2005 and stepped down in 2010 having served five years. He is currently the Chaplain of the organization.

He is employed with the Public Agency Training Council one of the largest police training organizations in the country. Rider travels the country teaching officers on internal investigations of corrections facilities and first line supervisors on investigations of citizen’s complaints. He has experience is police audits.

Over the course of his career he has conducted hundreds of investigations concerning abuse, neglect, and use of force by law enforcement officers. Additionally, he has years of experience in custodial investigations, including numerous investigations involving the highly prevalent but seldom reported cases of inmate on inmate abuse. He has conducted investigations of police personnel for acts of misconduct.

A member of the IACP he worked with the organization on the document “Building Trust between the Police and the Citizens They Serve.” Currently he is an advisor on the Leading by Legacy program. He is an advisor to the International Chiefs of Police and the Department of Justice Community Oriented Policing Services.

Randy is a columnist for Officer.com as the internal affairs author. He published the weekly NIAIA newsletter for five years. He currently publishes the riderreport a police newsletter.