By: Loyd Willaford and Clive Pontusson
In Carey v. Throwe, a federal court determined that misleading statements made by former colleagues and supervisors of a police officer were not retaliation for exercise of his First Amendment rights, because his comments were not protected by the First Amendment. Because Norris Carey’s statements were not about a “matter of public concern” they were not protected, and therefore he was not a victim of unlawful retaliation. His lawsuit was dismissed by the Court.
Carey served as an officer with the Maryland Natural Resources Police (MNRP) for 26 years until his retirement in 2013. He retired in good standing. In 2015, Carey began to work for the state Department of Natural Resources. In late 2016 and early 2017, he had submitted two anonymous blog posts about online misbehavior by a former colleague at the MNRP, Captain Johnson. Carey and Johnson had a previous disagreement regarding an internal investigation of another MNRP Officer. After Carey made these posts, several supervisors at MNRP apparently contacted the DNR and falsely claimed Carey had not retired in good standing. He was abruptly fired from his job with DNR in 2017. He was not given a reason for his termination. Carey then filed a lawsuit against his former supervisors at both the MNRP and the DNR, arguing that all of these events were connected.
Carey claimed that when he made the anonymous blog posts, he engaged in speech on a matter of concern to the public. The social media posts by Cpt. Johnson that he referenced contained “sexually provocative poses” and jokes about gun violence. Carey argued that this would be of concern to the public because Officers are supposed to be upstanding citizens. Carey further argued that the calls made by MNRP officials to the DNR about his reputation were retaliation for Carey’s blog posts. Carey argued that this motivated his firing, and therefore his firing was unlawful, because he was exercising his rights as protected by the First Amendment.
Both the MNRP and DNR officials argued that Carey’s lawsuit should be dismissed because he could not establish a connection between these events, and more importantly, his blog posts were not entitled to First Amendment protection. They argued that Carey, like all public employees, have a more limited set of free speech rights than the general public, and that his statements about Cpt. Johnson’s social media posts were not of concern to the public and therefore were not protected by the First Amendment.
The Court agreed with Carey’s employers, and dismissed his lawsuit. The Court did not analyze the complicated set of facts that Carey presented, because it determined at the outset that Carey’s speech was not protected by the First Amendment. The Court began by explaining that:
Matters of internal policy, including mere allegations of favoritism, employment rumors, and other complaints of interpersonal discord, are not treated as matters of public policy… The Court must “examine the content, context, and form of the speech at issue in light of the entire record” to determine if it rises to the level of speech on a matter of public concern.
Applying this general rule to the facts, the Court found that the dispute between Carey and Johnson was uniquely personal:
There was no suggestion in the December Post that Captain Johnson was not fulfilling his duties, or that his actions were endangering the public welfare. Instead, the December Post reflected Carey’s personal belief that Captain Johnson was not a model MNRP employee. Carey did not suggest that Captain Johnson failed to comply with agency protocol for gun safety or that he in any way endangered the public’s safety. Instead, Carey seemed to take issue with Captain Johnson’s flippant discussion of gun violence and death. The tone Captain Johnson struck in discussing gun usage on a personal Facebook page may offend Carey, but this is a grievance of personal, not public, import.
Carey’s firing may have been unfair and may even have been tied to his relationships with the MNRP, but it did not give him a viable lawsuit for violation of his First Amendment rights.
This case illustrates some of the limits of First Amendment retaliation claims. Speech made by a public employee on matters of private concerns does not have same protection as the speech made on matters of public concern. Here, the court ruled that the private dispute between Carey and Johnson did not amount to a public concern because Carey’s description of Johnson’s behavior did not amount to a complaint about public safety. Therefore, even if MNRP firing of Carey was motivated by Carey’s posts about Johnson, this would not amount to illegal retaliation for speech.
Interestingly, this case does not appear to have included defamation claims against Johnson and others who apparently lied about Carey’s good standing status when he retired from the MNRP and lied about Carey’s ability to legally carry a gun. Defamation is claim for damages resulting from a person telling a knowing untruth about another person. It appears that DNR relied on false assertions when it fired Carey. Thus, Carey was damaged by the untruths. While defamation claims can be difficult, and collection against individuals uncertain, this case appears to be one where such a claim would have had a better chance of success than the First Amendment claim against MNRP and DNR that Carey brought and lost.
In an interesting side note that may have some interest for retired police officers who want to obtain the nationwide permit to carry firearms allowed under the Law Enforcement Officer’s Safety Act (LEOSA). The Court ruled that the mandate to issue a LEOSA card does not create a right of action to enforce a refusal to issue a LEOSA card. Courts have disagreed on this point and it is an area of law that may have to ultimately have cleared up by the U.S. Supreme Court.
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