Appellate court revives First Amendment lawsuit by Phoenix police officer who posted anti-Muslim comments online

---

The 9th U.S. Circuit Court of Appeals reinstated a Free Speech lawsuit that a Phoenix police officer had filed after his department investigated him for past anti-Muslim Facebook posts. 

Key Players

The Phoenix Police Department (PD) employs about 2,700 police officers.

Juan Hernandez, a sergeant for the Phoenix PD, shared many articles and memes with anti-Muslim language and themes between 2012 and 2014. 

Further Details

In 2012, Hernandez shared a link to an article titled: “ISLAMISTS DRAG DEAD BODY OF US AMBASSADOR IN THE STREETS!” Over the next two years, he shared more content of a similar tone. In 2013, he shared a meme with the caption: “THE MOST COMMON NAME FOR A CONVICTED GANG RAPIST IN ENGLAND IS … Muhammed.”

In total, 11 anti-Muslim posts appeared on Hernandez’s Facebook page, according to the Plain View Project, an online database that catalogues offensive content shared by law enforcement. The database launched in June 2019, and its release prompted Phoenix Police Chief Jeri Williams to investigate the posts. 

On June 5, 2019, the Phoenix PD informed Hernandez that an internal investigation focusing on four of his Facebook posts had begun. 

Williams told KTAR that the posts’ language and photos had “shocked” her, and that department policy allowed for the discipline of officers for “conduct that results in the erosion of public trust in the organization.” 

On Oct. 11, 2019, Hernandez filed a federal lawsuit against the city, Williams, and Shane Disotell, the commander of the Phoenix Police Professional Standards Bureau, AZCentral reported. The lawsuit sought an injunction against potential consequences, alleging that disciplining Hernandez for his online activity would violate his right to Free Speech, and that department policy was unconstitutional. Filed four days before the investigation was scheduled to end, the lawsuit noted that Hernandez’s potential punishment ranged from a 40-hour suspension to a dismissal. 

On Jan. 8, 2020, U.S. District Judge Michael T. Liburdi, nominated by former President Donald Trump, denied the request for a preliminary injunction, noting that “The public interest in this case weighs against granting an injunction.” On May 26, 2021, Liburdi dismissed the lawsuit, writing that Hernandez had not shown that department policy chilled “a substantial amount of constitutionally protected speech.” 

Responding to the claim that the policy was unclear about what rose to objectionable conduct, Liburdi wrote that it was “such that an ordinary officer should understand what conduct might reasonably put them at risk of discharge or punishment.” 

Hernandez appealed the decision.

Outcome

Ninth Circuit overrules dismissal, remands case to District Court

On Aug. 5, 2022, a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled that Hernandez’s lawsuit had been dismissed prematurely, Reuters reported. 

Judge Paul Watford, nominated by former President Barack Obama, wrote that while Hernandez’s posts were reprehensible, police presented “no evidence of actual or potential disruptive impact caused by Hernandez’s posts.”

The appellate court upheld the department’s policy of disciplining officers for conduct that eroded “public trust in the organization,” saying it was reasonably specific. However, the panel noted, without evidence of professional misconduct, the policy might not be enforceable in this case. 

The case was remanded to the district court to be reviewed within the scope outlined by the appellate court. Reuters noted that the decision was in line with a string of appellate court decisions affirming that personal social media activity was protected Free Speech, even when the content is offensive. Azza Abuseif, executive director of the Arizona branch of the Council on American-Islamic Relations, disagreed that there was no “potential disruptive conduct,” saying that Hernandez’s publicly shared Islamaphobic content “draws into question his ability to treat members of the Muslim community fairly in accordance with the law.”