CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,
FOURTEENTH EDITION
BY JACQUELINE R. KANOVITZ
INSTRUCTOR’S GUIDE
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 10
Constitutional and Civil Rights in the Government Workplace
Objectives
Many students who read this book will someday be police officers. This chapter examines the constitutional
rights of officers in personnel disputes, federal protection against employment discrimination, and civil
liability for violating the constitutional rights of others. The student should emerge from this chapter with
a clear understanding of:
1. First Amendment protection for on and off-duty speech.
2. Fourth Amendment protection against workplace searches for evidence of work-related misconduct.
[PowerPoint Slides 1 and 2 contain book and chapter title information.]
PowerPoint Slide 3. Introduction
We demand from our law enforcement officers, and properly so,
Discussion Outline
§ 10.1 Introduction
A. The constitutional rights studied in earlier chapters have a narrower application in the workplace.
Officers retain constitutional rights only to the extent their exercise is compatible with the department’s
need to operate efficiently.
§ 10.2 First Amendment Protection in the Police Workplace
PowerPoint Slide 4. Work-Related Speech
Police officers are entitled to First Amendment protection for work-
related speech only when they:
• Speak as a citizen, not as an employee carrying out their
A. Did the Officer Speak as an Employee or as a Private Citizen?
PowerPoint Slide 5. Employee or Citizen?
• No First Amendment protection:
o Garcetti v. Ceballos
▪ When government employees make statements
pursuant to their official duties, they speak as
employees, not as citizens
1. When government employees speak “pursuant to their official duties,” they speak as an employee
and have no First Amendment protection against managerial discipline. Rationale: The
government has the right to control speech for which the employee has been paid a salary. A public
employee’s on-the-job speech belongs to the government, not the employee, and the employee has
no First Amendment interest in it.
▪ Garcetti v. Ceballos (Part II). A memorandum sent by prosecutor to supervisors expressing
2. When complaints are made internally, the speech is treated as occurring pursuant to official duties
because this is what government employees who have beefs against their employer are expected
to do. When the same charges are made to an outside agency or the media, the speech is treated as
made in the role of a citizen unless making external reports is part of the employee’s official duties.
Supplemental material. In Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011), the court gave
the following non-exclusive list of factors, gleaned from the case law, as relevant to whether an
B. Did the Officer’s Speech Deal with a Matter of Public or Private Concern?
PowerPoint Slide 6. Public Concern Requirement
Public or private concern is determined by:
• Content
1. “Public concern” has been defined broadly as including speech on any matter of “political, social,
or other concern to the community,” “of legitimate news interest,” or “about which information is
needed or appropriate to enable the members of society to make informed decisions about the
operation of their government.”
a. Content. Content is the most important consideration. To be considered a matter of public
concern, the topic must relate to a matter of political, social, or other concern of the
b. Form, including whether the speech was addressed to the public or only to persons inside the
workplace.
c. Context, such as whether the communication was made against the background of an
employment dispute or had a broader public purpose.
▪ Connick v. Meyers (Part II) is the case that laid down the “public concern” requirement.
Meyers, an assistant district attorney, sent a questionnaire to fellow staff members
soliciting their views on the office transfer policy, the need for a grievance committee,
and the level of confidence in the department’s supervisors. The Supreme Court held that
the questionnaire addressed a matter of private, not public concern because: (1) the
PowerPoint Slide 7. Balancing of Interests
If a police officer’s work-related speech satisfies the first two
requirements, First Amendment protection will be determined by
balancing:
C. The third prong requires the court to balance the value of the officer’s speech against its adverse effect
on the police department. Balancing is required only if the officer’s claim survives the first two
inquiries. Since the Garcetti “official duties” limitation generally disposes of most claims based on the
first prong, courts rarely have to consider the second and third.
1. Because police departments have a greater need to maintain loyalty, discipline, and respect for
authority than the typical government employer, the department’s decision to impose discipline
will generally be upheld if the officer’s speech has an adverse effect on the police department, as
D. Supplemental class-discussion or essay questions
Case 1
Susan Glass, a 26-year veteran of the Greenville Police Department, was fired for posting a
statement on Mayor Falk’s Facebook page that read:
“I just found out that the Greenville Police Department did not send a representative to the
funeral of Pearl City Police Officer Mark Williams, who was killed in the line of duty on May
1, 2014. This is totally unacceptable. I don’t want to hear about the price of gas. My colleagues
and I would gladly have paid for and driven our own vehicles had we known the city was in
such dire straits as to not to be able to afford a trip to Pearl, Ms., which, by the way, is where
our police academy is located. Can we please get a leader who understands that a police
department is suppose[d] to send officers to the funeral of an officer killed in the line of duty?
Thank you. Susan Glass”
Later that day, she posted a statement on the Police Chief Daniel’s Facebook page that read: If
you don’t want to lead, can you just get the hell out of the way.” Internal Affairs investigated
Officer Glass’ Facebook postings at the request of Chief Daniels, found them insubordinate, and
recommended her termination. Does Officer Glass have First Amendment grounds to appeal her
Case 2
There had been hard feelings between Sometown Police Chief Strickler and Mayor Martinette
going back for years. When Strickler learned from a subordinate that the Mayor might be using
the city gas card for campaign travel, Strickler decided to investigate. He put his assistant in charge
of the investigation. Monitoring the mayor’s gasoline card usage was easy because the mayor had
Chief Strickler contest his discharge under the First Amendment? Which requirement for First
Amendment protection is at issue? The facts of this problem were taken from Gibson v. Kilpatrick,
734 F.3d 395 (5th Cir. 2013) (finding that police chief’s reports to external agencies that mayor
misused city gasoline card did not constitute citizen speech)
PowerPoint Slide 8. Off-Duty Speech
• Can be disciplined if their off-duty speech:
o Impairs the police department’s efficient operations
o Brings the profession into disrepute
• Political activity
o Many states have laws (Hatch Acts) prohibiting
government employees from taking an active role in
political campaigns
o Government employees have a First Amendment right not
to be fired for political affiliation, provided that they are
not policy-makers
E. The police department’s legitimate interests as the officer’s employer do not end when the officer
leaves the workplace. Officers can be disciplined if their off-duty speech impairs the police
department’s efficiency or brings their profession into disrepute.
▪ Locurto v. Guiliani (Part II). The court upheld dismissal of police officers and firefighters who
E. The First Amendment prohibits government agencies from discharging employees because of their
party affiliation unless the job is a “policy-making position” in which the employee acts as an advisor
or spokesperson for an elected public official or is privy to confidential information, making party
loyalty and shared ideological beliefs an appropriate requirement for the job.
PowerPoint Slide 9. Supervisory Searches
Police officers can successfully challenge a supervisory search only
if:
§ 10.3 Fourth Amendment Protection against Workplace Searches
A. Application of the Fourth Amendment to government workplace searches requires the Court to
answer two questions: (1) Did the officer have a reasonable expectation of privacy in the location
searched? (2) If so, was the police department’s work-related intrusion justified? Unless the answer
to the first question is “yes” and the second “no,” the officer has no Fourth Amendment protection.
B. Reasonable expectation of privacy. Whether a police officer has a reasonable expectation of privacy
C. Justification for search. If a reasonable expectation of privacy exists, the court must next decide
whether the department’s work-related intrusion was justified. The justification needed depends on
whether the intrusion was for a non-investigatory work-related reason, to obtain evidence of work-
related misconduct for use in a disciplinary proceedings, or to gather evidence for a criminal
prosecution.
1. Noninvestigatory work-related intrusions. Most workplace intrusions on privacy are
noninvestigatory. When an intrusion is made for noninvestigatory work-related reason, such as
2. Investigatory workplace searches. When a workplace search is performed for an investigatory
reason—to obtain evidence for use in a disciplinary proceeding—the Fourth Amendment
requires reasonable suspicion that the search would turn up evidence of work-related
misconduct.
▪ Gwynn v. City of Philadelphia (Part II). Two police officers were accused by a man they
frisked of stealing money from him. When they returned to the police station, they were
informed by their superior that a formal complaint had been made against them. They were
3. Criminal investigations of suspected work-related misconduct. When the purpose of the search
is to obtain evidence for use in a criminal investigation, the Fourth Amendment requires
probable cause and a search warrant, just as in any other criminal investigation, even though the
conduct is work-related.
D. Mandatory drug testing. Compulsory production of a urine sample for drug testing constitutes a search.
Police officers may be forced to undergo drug testing only when: (1) the department has reasonable
suspicion that they are abusing drugs, or (2) the testing is done pursuant to a systematic drug screening
program.
PowerPoint Slide 10. Fifth Amendment Protection in Disciplinary Proceedings
• Officers undergoing internal affairs investigation may be
§ 10.4 Fifth Amendment Privilege against Self-incrimination during Internal Investigations
A. Police officers undergoing an internal affairs investigation may be compelled to answer questions about
their job performance and may be terminated for refusing, even though the answers are self-
incriminating, because immunity arises by operation of law when a statement is compelled under threat
of removal from office. The immunity is called Garrity immunity. Garrity immunity precludes use in
a subsequent criminal prosecution of statements obtained under threat of removal from office; the
department is limited to making disciplinary use of such statements.
▪ Lingler v. Fechko (Part II). Two officers sued the chief of police for violating their rights under
PowerPoint Slide 11. Personal Liberty
• Fourteenth Amendment
o Police departments often impose significant restrictions on a
police officer’s liberty, both on and off the job
• “Paramilitary organizations”
§ 10.5 Fourteenth Amendment Protection for a Police Officer’s Personal Liberty
A. Police officers are more heavily regulated than any government employees outside the military. Police
1. Regulations affecting grooming, personal appearance, and obesity have all been upheld as
constitutional.
2. The following regulations have also been upheld as constitutional: requiring police officers to be
3. Police officers may be disciplined for off-duty sexual behavior when the behavior has an adverse
effect on the department.
PowerPoint Slide 12. Minimum Height and Weight Requirements
• Minimum height and weight requirements are vulnerable to
4. Minimum height and weight requirements violate Title VII of the Civil Rights Act of 1964 when
they have a disproportionate impact on women or minority applicants unless the department is
able to demonstrate that the requirements measure traits necessary for successful performance as
a police officer.
PowerPoint Slide 13. Disciplinary Actions
• Fourteenth Amendment entitles officers with a property right
in their job to a hearing to contest charges
o Job must be one that cannot be taken away without
§ 10.6 Procedural Due Process in Police Disciplinary Actions
A. Procedural protection for officers with a property right in their job. The Fourteenth Amendment due
process clause entitles officers who have a property right in their job (i.e., who cannot be dismissed
B. Procedural protection for probationary officers and others who lack a property right in their job.
Although probationary officers lack a property right in their job, they have a “liberty interest” in
pursuing their chosen profession. They are entitled to a name-clearing hearing if they are dismissed
§ 10.7 Employment Discrimination Based on Race, Color, Religion, Gender, or National Origin
A. Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for a police
department to refuse to hire, discharge, or otherwise discriminate against any person because of the
person’s race, color, religion, gender, or national origin.
B. Title VII recognizes three kinds of discrimination claims: (1) disparate treatment, (2) disparate impact,
and (3) sexual/racial harassment.
PowerPoint Slide 14. Disparate Treatment
• Title VII of the Civil Rights Act of 1964
• When an employer intentionally treats others less favorably
because of their race, color, religion, sex, or national origin
1. Disparate treatment discrimination occurs when one person is deliberately treated less favorably
than others similarly situated because of the person’s race, color, religion, gender, or national
origin. Caucasian male police officers who are deliberately treated less favorably than women,
blacks, or Hispanics because of their race or gender can bring a Title VII disparate treatment claim
against their employer. Their claim is called a reverse discrimination claim.
▪ Ricci v. DeStefano (Part II). The City of New Haven discarded the results of the firefighter
promotional exam because the racial distribution of the test results was such that the city could
not have considered black candidates for any of the vacant positions had the results been
certified. A group of several white firefighters and one Hispanic firefighter who would have
been promoted based on their exam scores sued the city for disparate treatment discrimination.
PowerPoint Slide 15. Disparate Impact
• Title VII of the Civil Rights Act of 1964
• An employer uses selection criteria that disproportionately
eliminate members of a protected class without being valid
predictors of knowledge, skills, or traits necessary for the job
2. Disparate impact discrimination occurs when a police department uses selection criteria that
disproportionately eliminate members of a protected class without being valid predictors of the
knowledge, skills, or other traits required for the job.
a. If the selection criteria reliably test knowledge, skills, and traits needed for the job, the
department may use them even though they disproportionately eliminate members of a
protected class. Ricci v. DeStefano (Part II).
PowerPoint Slide 16. Workplace Harassment
• Title VII of the Civil Rights Act of 1964
• Quid pro quo sexual harassment
• Hostile work environment sexual harassment
3. Sexual/racial harassment.
a. Sexual Harassment. Two basic forms of sexual harassment are recognized:
i. Quid pro quo sexual harassment occurs when a superior threatens to take a negative
action or to withhold a positive action unless the subordinate acquiesces in sexual
demands.
ii. Hostile work environment sexual harassment occurs when unwelcome verbal or physical
▪ Desardouin v. City of Rochester (Part II). A female police officer’s complaint that
her supervisor made “sexual advances” toward her (telling that her husband was not
taking care of her in bed) on a weekly basis for several weeks was sufficient to state
a claim for hostile work environment sexual harassment.
iii. Persons liable. Title VII imposes liability on employees who commit sexual harassment.
b. Hostile work environment harassment claims can also be brought by employees who are
victims of racial, religious, and ethnic harassment when the harassment is sufficiently severe
or pervasive as to create an intimidating, hostile, or abusive working environment.
PowerPoint Slide 17. Equal Protection
• Affirmative action plans
• Police may undertake affirmative action plans only if:
§ 10.8 Equal Protection in the Police Workplace
The equal protection clause of the Fourteenth Amendment requires government employers to make
employment decisions based on job qualifications, rather than race or gender. Employment policies that
give preferential treatment to women and minorities in jobs or promotions, better known as affirmative
action, violate the equal protection clause unless:
A The department has a compelling need to correct workforce imbalances caused by its own prior
discriminatory employment practices or to increase diversity in order operate more effectively, and
PowerPoint Slide 18. Constitutional Accountability
• Title 42 U.S.C. § 1983
• Civil liability for officers who:
o Acting “under color of state law”
o Deprive an individual of a constitutional right
§ 10.9 Constitutional Accountability under Federal Law
Police officers are civilly liable under §1983 when (1) they act under color of state law, in (2) depriving an
individual of a constitutional right.
A. Under color of state law. The Supreme Court has defined “action under color of state law” as referring
to “the misuse of power, possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” A police officer’s constitutional wrongs are
treated as committed under “color of state law” in two situations: (1) the wrong occurs while
undertaking official action, or (2) the wrong is committed for private gain under a false pretense of
exercising legal authority. The first situation is more common.
▪ Rogers v. City of Little Rock, Ark. (Part II). (1) Officer Morgan acted under color of state law
when he stopped a motorist for a broken tail light, followed her home to get her insurance papers,
and when she was unable to produce them, intimidated her into having sex with him. Even though
2. Federal law enforcement agents cannot be sued under §1983 because they act under color of
federal law. However, the Supreme Court has crafted an identical remedy for holding federal
officials liable that arises directly under the Constitution.
B. Deprivation of a constitutional right. An officer’s potential civil liability is coextensive with the entire
Constitution and decisions interpreting it. Each time the Supreme Court announces a new constitutional
ruling, it enlarges the decisional base on which §1983 claims can be brought.
C. Potential defendants in a §1983 action. Defendants in a §1983 action are liable only for their own acts
▪ Ortega v. City and County of Denver (Part II). Municipalities can be sued under §1983 for a rank-
and-file police officer’s use of excessive force when their own lax policies and practices are
responsible for causing the plaintiff’s injury. The plaintiff’s allegation that the police department’s
failure to investigate citizen complaints of excessive force and hold officers accountable, and its
acquiescence in the “code of silence” with respect to uses of force was sufficient to state a claim
for municipal liability under §1983.
▪ Yang v. Hardin (Part II). A police officer who witnesses another police officer commit
unconstitutional acts is liable under §1983 for failing to intervene if the officer has a realistic
opportunity to prevent the unconstitutional conduct and does nothing.
PowerPoint Slide 19. Qualified Immunity
Police are immune from liability for violating a constitutional
right if:
D. Qualified immunity. Police officers make mistakes and errors of judgment just like anybody else. The
defense of qualified immunity protects them from §1983 liability if their conduct “does not violate
clearly established statutory or constitutional rights of which a reasonable person would have known.”
Application of this test calls for two inquiries.
1. The first inquiry is whether the constitutional right the officer is charged with violating was clearly
established at the time of the events that gave rise to the suit.
a. To be “clearly established,” the right must be established with sufficient clarity that a
▪ Stanton v. Sims (Part II). I thought it would be a nice touch to end the book with a case
on qualified immunity to remind students of the practical reasons for studying
constitutional law—avoiding liability. Civil liability for violating the Constitution
attaches only if the law at the time of the challenged action was established with sufficient
clarity that the reasonable police officer sued should have appreciated that his conduct
was unconstitutional. In Stanton v. Sims, officers responded to a report of a disturbance.
2. If the constitutional right was clearly established, the second inquiry is whether a reasonable police
officer, confronted with the same facts, could have believed that the action taken complied with
that standard.
Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)
1. The observation has been made that police officers have less constitutional protection in the workplace
than the criminals they investigate. Is this observation correct? If so, why? (§10.1)
*2. Officer Dobosz was the first officer to arrive on the scene after a deadly shooting involving a teenager
who had been shot in the back of the head by Officer Fitzgerald. Dobosz had to leave almost
immediately after his arrival. When he returned, he noticed a knife near the dead boy’s body that had
not been there when he left. Someone had planted the weapon there after the shooting so that Fitzgerald
c. How should the second inquiry be resolved?
d. What is the third inquiry? What kind of workplace disruption is the testimony of one police officer
against a fellow officer during a criminal trial likely to cause? Should that court find the
department’s interest in avoiding these disruptions outweighed Officer Dobosz’s First
Amendment interest in testifying? (§10.2)
3. When, if ever, may a public employee’s party affiliation be taken into consideration in hiring, transfer,
promotion, or dismissal decisions? (§10.2)
4. Describe the approach courts use to decide whether a workplace search violated a police officer’s
Fourth Amendment rights. What factors do courts consider in deciding whether an officer has a
reasonable expectation of privacy in her work space/equipment? (§10.3)
*5. The Whosville Police Department maintains lockers for the use of its employees. Department
regulations provide that: “Officers shall: (1) keep their lockers clean and orderly, (2) not store articles
*6. What justification does the police department need to perform a workplace search when the officer has
a reasonable expectation of privacy in the location searched? (§10.3; Gwynn v. City of Philadelphia
(Part II))
7. Under what circumstances may a police officer be compelled to undergo work-related drug testing?
(§10.3)
*8. Officer Johnson was ordered to appear before the Whosville Police Department internal affairs unit,
investigating an allegation that he had taken a bribe. When he appears, he is ordered to cooperate and
informed that if he fails to cooperate, he will be fired.
10. How successful have police officers been in challenging police department regulations affecting:
(§10.5)
a. Grooming, personal appearance, and obesity?
b. Minimum height and weight requirements?
11. The Fourteenth Amendment due process clause entitles police officers facing adverse employment
action to a hearing in certain instances. (§10.6)
a. When is a police officer entitled to a hearing to contest whether grounds existed for his or her
dismissal?
b. What procedural safeguards must be provided at the hearing?
c. What is a “name-clearing” hearing?
d. When is a police officer entitled to a name-clearing hearing?
12. Title VII prohibits police departments from refusing to hire, discharging, or otherwise discriminating
against people on any one of five different grounds. What are the five grounds? (§10.7)
13. Identify and describe the three kinds of discrimination claims that can be brought under Title VII?
Which kind of discrimination did the white firefighters in Ricci v. DeStefano allege? (§10.7; Ricci v.
DeStefano (Part II))
14. What must a claimant prove in order to establish quid pro quo sexual harassment? Hostile workplace
sexual harassment? (§10.7)
*17. Officer Johnson, a white, male officer, had the highest score on the sergeant’s promotional exam. The
Whosville Police Department, nevertheless, passed over him and appointed Officer Ricardo, a Hispanic
officer, who scored five points lower, based on the Department’s affirmative action plan. Officer
Johnson sued the Department, claiming he was denied equal protection of the laws. What two inquiries
will the court make to decide whether the preferential treatment given to Officer Ricardo violated
Officer Johnson’s right to equal protection? (§10.8)
18. What two things must a plaintiff prove to make a recovery against a police officer under §1983? (§10.9)
20. When can a municipality be sued under §1983 for the unconstitutional acts of a rank-and-file police
officer? (§10.9)
21. When is the defense of qualified immunity available in a §1983 action? (§10.9)
22. What test do courts use to determine whether a constitutional right has been established with sufficient
clarity that an officer can be held liable for violating it? What degree of case law specificity is generally
necessary to satisfy this test? (§10.9)
ANSWERS:
2. To be protected, the officer’s speech must be (1) made as citizen, not employee, (2) relate to a matter
of public concern, and (3) the officer’s interest in bringing this matter into the open must outweigh the
police department’s interest in avoiding disruptions in the workplace. Officer Dobosz should prevail
5. Officer Johnson’s Fourth Amendment rights were not violated by the search of his locker because he
6. The answer depends on whether the search is investigatory. No justification is required to perform a
8. (a) A police officer’s Fifth Amendment rights are not violated if he is fired for refusing to disclose his
17. If the police department (1) had a compelling need to remedy a workforce imbalances caused by its
own prior discriminatory employment practices or to increase diversity in order to operate more