202
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;
4. Fourteenth Amendment procedural rights in police disciplinary actions;
Discussion Outline
§10.1 Introduction
§10.2 First Amendment Protection in the Police Workplace
Police officers are entitled to First Amendment protection for speech that annoys superiors only
A. Did the Officer Speak as an Employee or as a Private Citizen?
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
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 .
Supplemental material. In Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011), the
B. ?
1. Public concern
2. Whether speech involves a matter of public or private concern is determined from the
content, form, and context of the speech:
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 community. Speech alleging official misconduct, waste of public funds,
204
Connick v. Meyers (Part II) is the case that laid down the
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 co
The Supreme Court held that the questionnaire addressed a matter of private, not
public concern because: (1) the content dealt with internal office affairs of no
C. The third prong requires the court to balance the value of the speech against its
adverse effect on the police department. Balancing
survives the first two inquiries. The Garcetti official duties limitation generally puts an end
to most free speech retaliation claims.
1. Because police departments have a greater need to maintain loyalty, discipline, and
respect for authority than the typical government employer, t
D.
officer leaves the workplace. Officers can be disciplined if their off-duty speech impairs the
cy or brings their profession into disrepute.
1. Locurto v. Guiliani Part II. The court upheld dismissal of police officers and
firefighters who participated in a Labor Day parade on a float that depicted African–
E. The First Amendment prohibits government agencies from discharging employees because
–
§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 work-related intrusion
1. Noninvestigatory work-related intrusions. Most workplace intrusions on privacy are
noninvestigatory. When an intrusion is made for noninvestigatory work related reason,
such as when a superior goes into s his absence to retrieve a
needed report, a work-related need is the only justification required.
City of Ontario, California v. Quon Part II. Jeffrey Quon, a member of the Ontario
large amount, but paid for the overage. The lieutenant eventually grew tired of this
arrangement, and told the chief that Quon regularly exceeded his monthly allotment.
The chief obtained tran ges for a two-month period from the
service provider and ordered an audit to determine whether the 25,000 monthly
character limit was high enough to cover department business or whether the overage
206
2. Investigatory workplace searches. When a workplace search is performed for an
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
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.
§10.4 Fifth Amendment Privilege against Self-incrimination during Internal Investigations
A. Police officers undergoing an internal affairs investigation may be compelled to answers to
questions about their job performance and terminated for refusing, even though the answers
are self-incriminating, because immunity arises by operation of law when a statement is
1. Lingler v. Fechko Part II. Two officers sued the chief of police for violating their
rights under the Fifth Amendment by ordering them to prepare a report detailing their
§10.5
A. Police officers are more heavily regulated than any government employees outside the
military. Police department regulations that infringe on an off the
workplace are usually challenged on the theory that they violate substantive due process.
This theory requires proof that the regulation had no rational relationship to any legitimate
interest of the police department. Because police departments are looked upon as
1. Regulations affecting grooming, personal appearance, and obesity have all been upheld
as constitutional.
207
2. The following regulations have also been upheld as constitutional: requiring police
officers to be citizens of the United States, requiring police officers to reside in the
3. Police officers may be disciplined for off-duty sexual behavior when the behavior has an
adverse effect on the department.
§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.,
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 j
§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
B. Title VII recognizes three kinds of discrimination claims: (1) disparate treatment, (2)
disparate impact, and (3) sexual/racial harassment.
1. Disparate treatment discrimination occurs when one person is deliberately treated less
favorably
gender, or national origin.
a. Caucasian male police officers who are deliberately treated less favorably than
208
b. 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 white firefighters and one
Hispanic who would have been promoted based on their exam scores sued the City
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. Dothard v. Rawlinson Part II. (1) Requirement that applicants for prison guard
positions possess a minimum height of 5 feet 2 inches and weight of 120 pounds
violated Title VII because it disproportionately eliminated female applicants from
b. If the selection criteria reliably test knowledge, skills, and traits needed for the job,
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
209
§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
§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.
common.
1. 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
210
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 ial civil liability is coextensive with
C. Potential defendants in a § 1983 action. Defendants in a § 1983 action are liable only for
their own acts and omissions, not for what someone else did. The city, police department,
and supervisory personnel can be held liable for a rank-and-file police
1. Vann v. City of New York Part II. Municipality was liable under § 1983 for a violent
assault committed by a police officer with a personality disorder and long history of
2. Yang v. Hardin Part II. A police officer who witnesses another police officer commit
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
ly established statutory or constitutional rights of which a reasonable
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.
2. If the constitutional right was clearly established, the second inquiry is whether a
Review Questions
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?
(§11.1)
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. He had to leave
almost immediately after his arrival. When he returned, he noticed a knife near the dead
terminated shortly thereafter. He sued, claiming a violation of his First Amendment rights.
a. Describe the three-
First Amendment rights were violated by the action taken against him in response to his
testimony against a fellow officer.
b. How should the first inquiry be resolved?
criminal misconduct, and testifying against a fellow officer in a criminal trial, both fall
outside . When a public employee goes outside of
established institutional channels to express his concern, the employee is speaking as a
212
3. ideration in
hiring, transfer, promotion, or dismissal decisions? (§10.2)
5. The Whosville Police Department maintains lockers for the use of its employees. Department
shall: (1) keep their lockers clean and orderly, (2) not
store articles of evidence, confiscated materials, contraband, intoxicants or food in their
lockers at any time, and (3) provide their commanding officer with a duplicate key. The
6. What justification does the police deparment need to perform a workplace search when the
officer has a reasonable expectation of privacy in the subject of the search? Answer, depends
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.
a. Suppose Officer Johnson refuses to give a statement and is fired. Has the Whosville
Police Department violated Officer Johnson’s Fifth Amendment privilege against self–
incrimination? Explain. Yes
213
f. Off-duty sexual behavior?
(§10.5)
11. The Fourteenth Amendment due process clause entitles police officers facing adverse
employment action to a hearing in certain instances.
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)
17.
exam. The Whosville Police Department, nevertheless, passed over him and appointed
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
protection? (§10.8)
18. What two things must a plaintiff prove to make a recovery against a police officer under
§1983? (§10.9)
19. Officer Green is violence-prone. Last week alone, he shot two people with his service
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)
Examination Questions (*indicates correct answer)
(§10.2)
1. Detective Jones sent a memorandum to his supervisor stating that he believed that a detective
on his drug investigation task force had tipped the target of the investigation off about an
impending drug bust. Jones was subsequently demoted and transferred. He filed suit claiming his
First Amendment rights were violated. The most likely outcome is that:
2. To be speaking as a citizen, for First Amendment purposes, the speech must:
3.
Chief Sullivan devised a plan to catch the thief. He left several baggies with tea leaves that looked
like marijuana in the evidence room. After the baggies disappeared, Police Chief Sullivan
conducted a locker search pursuant to a departmental regulation that allowed lockers to be
in
dismissal, Officer Brown sued Police Chief Sullivan for violating his Fourth Amendment rights.
The Court should find for:
4. The Whosville Police Department recently adopted a regulation requiring all police officers
to undergo a drug test
has challenged the constitutionality of this regulation. The Court should find this regulation:
5. The Fifth Amendment privilege against self-incrimination protects a police officer
undergoing an internal affairs investigation from:
6. Police officers are more heavily regulated than any government employees outside the
military. Challenges against departmental regulations have been brought under a wide variety of
theories, rarely successfully. Which of the following regulations is most likely to be capable of
successful challenge?
7. Jones, a probationary officer with the Whosville police department, was fired for three
incidents of lateness. The letter sent to him advising him of his termination was placed in his
personnel file. Which of the following best describes his right to a hearing under the Fourteenth
Amendment?
8. The Fourteenth Amendment entitles officers facing dismissal who have a property right in
their job to all but which of the following procedural rights?
9. Title VII prohibits discrimination in employment on all but which of the following grounds?
216
10. Disparate treatment discrimination occurs when:
11. Quid pro quo sexual harassment occurs when:
12. Disparate treatment discrimination occurs when an employer intentionally treats:
13. The §198
(§10.10)
14. Qualified immunity protects a police officer from liability under §1983 only when:
Multiple Choice Questions (*indicates correct answer)
217
1. Police officers are entitled to First Amendment protections in which of the following
situations:
2. The following Supreme Court ruling set the standard for First Amendment protection for
public employees:
3. Police officers can be compelled to answer questions pertaining to criminal activity without
resulting in a violation of the Fifth Amendment, as decided in:
4. Challenges to minimum height and weight restrictions for police departments have survived in
court, due to:
5. The justification for heightened regulation for police departments is that they are:
6. Police departments can be held liable for sexual harassment in which of the following
situations:
7. When an officer cannot be fired without cause, that officer is said to have:
8. The following are legitimate discrimination claims, except for:
9. In Griggs v. Duke Power Company, the Supreme Court recognized:
10.
11. Title 42 U.S.C. §1983 is a widely used federal statute that:
True/False Questions (*indicates correct answer)
1. Police officers have the same First Amendment protections as ordinary citizens.
2. Challenges to police department regulations establishing maximum weight restrictions have
been unsuccessful in court.
3.
and giving it to a woman or a member of a minority group.
4. Police officers cannot be required to reside in the jurisdictions in which they work.
5. Police officers can be held civilly liable when a wrong is undertaken for personal gain if the
officer is on duty and wearing a uniform but not purporting to be acting as a police officer when
the wrong is committed.
6. According to Garcetti v. Ceballos, when government employees make statements pursuant to
their official duties, they speak as employees not as citizens.
7. Only three states have laws (Hatch Acts) prohibiting government employees from taking an
active role in political campaigns.
8. Police officers cannot challenge a supervisory search even if the officer has a reasonable
expectation of privacy in the location searched.
9. tions” are not entitled to the same Fourteenth Amendment protections as
ordinary citizens or civil servants in other branches of government.
10. arassment.