Last spring, Norfolk Police Lt. William Kelly, a 19-year veteran, made a $25 donation to a crowdfunding website for Kyle Rittenhouse’s legal defense. Rittenhouse was charged with killing two people and wounding a third with an AR-15 he carried during racially charged protests in Wisconsin following the police shooting of Jacob Blake, a Black man. Rittenhouse is white.
Kelly intended the donation to be anonymous but a data breach shared with journalists linked it to his official email. Along with his donation, Kelly posted, “God bless. Thank you for your courage. Keep your head up. You’ve done nothing wrong. Every rank and file police officer supports you. Don’t be discouraged by actions of the political class of law enforcement leadership.”
Kelly was transferred to patrol, then placed on administrative leave. An investigation concluded his actions violated city and departmental policies and he was fired. He filed a grievance disputing each of the policy violations and making his own claims, including that his dismissal violated his right to free speech. This article addresses the First Amendment claim.
I have written about the U.S. Supreme Court’s three-part test for when public employees’ speech is protected. Kelly’s lawyer acknowledged that test in his grievance by claiming Kelly’s online speech:
- Was made as a “private citizen” (rather than as a public employee);
- Was about a matter of “public concern”;
- And his interest in the speech outweighed any interest the department had in regulating his speech.
In the hopes of helping other officers avoid Lt. Kelly’s situation, let’s discuss his case.
Private citizen
The city contended that when Kelly posted, “Every rank and file police officer supports you,” from his official email without any disclaimer he was speaking in a private capacity, he presented the impression he was representing, giving opinions, or otherwise speaking on behalf of the city.
In Graziosi v. City of Greenville (2015), the city argued Graziosi spoke as a public employee because she invoked her status as a police officer by using words such as “we” and “our” to identify herself as a police officer. The U.S. Supreme Court in Lane v. Franks (2014) said the critical question was whether the speech itself was ordinarily within the scope of an employee’s duties, not whether it merely concerned those duties.
Because Graziosi’s statements were not within the ordinary scope of her duties, the Fifth Circuit held they were made as a private citizen. The same being true of Lt. Kelly, he appears to meet this test.
Public concern
Courts haven’t provided clear guidance on when speech is about a “public concern.”
The U.S. Supreme Court stated in Connick v. Myers (1983) that matters of public concern are those of ‘‘political, social or other concern to the community.” Factors to be considered include content, form and context of the speech, as well as the manner, time and place of delivery. The speaker’s motive alone is not dispositive but may be a relevant factor.
In Connick, the Court held that speech related to the efficient functioning of government was not a public concern because the context revealed it was largely a personal grievance. But in Rankin v. McPherson (1987), an employee’s statement to a coworker about the attempted assassination of President Reagan that ‘‘if they go for him again, I hope they get him’’ met the test because the speech was in the context of a discussion on the president’s policies.
Kelly has a colorable argument his speech was about a “public concern” – the prosecution of a defendant in the high-profile homicides of two people and wounding of a third while the victims were protesting the police use of deadly force in the shooting of a Black man. He must still meet the third prong for his speech to be protected.
The balancing act
In his grievance, Kelly argued: “The City of Norfolk had no legitimate interest in dismissing me because I engaged in this speech and, to the extent it had any interest in regulating that speech, that interest was insufficient to justify dismissal.”
Kelly’s own statements undercut his argument. When Kelly was transferred to patrol, he told news media, “I was told that they had to look out for the department. I didn’t object to being transferred – I understand that public perception is very important in the 21st century and public trust is very important.”
Public perception and trust were of significant concern to the city. The city manager said, “His egregious comments erode the trust between the Norfolk Police Department and those they are sworn to serve. The City of Norfolk has a standard of behavior for all employees, and we will hold staff accountable.”
The police chief stated, “A police department cannot do its job when the public loses trust with those whose duty is to serve and protect them. We do not want perceptions of any individual officer to undermine the relations between the Norfolk Police Department and the community.”
Kelly argued he intended his donation and comments to be anonymous. As previously noted, the speaker’s motive is not determinative. Kelly’s donation and statements did not remain anonymous – a risk he took by posting online, as other headlines about hacked or investigated websites attest. The department must address Kelly’s actions to maintain the public’s trust.
Kelly thanked, praised and donated to a criminal defendant against whom there was probable cause to charge with two homicides and a wounding during a racially charged protest of police use of deadly force. He contended he spoke for all “rank and file” officers. The city manager’s and chief’s concerns about the public perception of whether Kelly could be trusted to protect and serve all citizens in a diverse community equally and fairly are compelling given the critical mission of the department.
Two cases shed light on how difficult it is for an officer to meet this third prong. In Graziosi, the Fifth Circuit found the police department’s interest in preserving loyalty and close working relationships within the department outweighed Graziosi’s individual interest. Quoting another Fifth Circuit case, Nixon v. City of Houston, the court added, “Because ‘police departments function as paramilitary organizations charged with maintaining public safety and order, they are given more latitude in their decisions regarding discipline and personnel regulations than an ordinary government employer.’”
Kelly’s post pitted rank-and-file officers against police leadership. In Nixon, the court also found the city’s interest in promoting and maintaining confidence in the department outweighed the individual officer’s interest in his speech. That public confidence was important, the court noted, because “HPD often relies upon members of the public to provide critical information, to serve as witnesses, to respect law enforcement authority, and to provide financial support.”
The lesson
Do you really want to go through what Lt. Kelly is experiencing? The internet is a BIG bulletin board in the sky readable by anyone with an internet connection. Get real about anonymity. Do you know how easy it is to trace an IP address?
Communities are diverse. Citizens have varied interactions with and perceptions of their police officers. Police must be perceived as protecting and serving all, without bias, to maintain public trust. Without that, police work is much more dangerous.
Please, think before you “click.”
