PORTLAND,
Ore. (AP) — A federal appeals court has ruled that a police officer who
complained about his department's safety standards is not entitled to First
Amendment protection of his speech.
Former
Eugene officer Brian Hagen complained about four incidents in which Eugene
police SWAT team members accidentally fired their weapons and, in two of those
incidents, shot and injured another officer.
Hagen
complained to a superior numerous times and was transferred as a result. He
sued, challenging the transfer as retaliation against his whistleblowing, and
won $250,000 in a federal jury trial in March 2012.
Eugene
police appealed, arguing that Hagen was not entitled to First Amendment
protection because he made his remarks as part of his job duties as a public
employee.
This
week, the U.S. Court of Appeals for the Ninth Circuit agreed with the police
department and reversed the verdict.
"Hagen's
concerns," wrote Judge Arthur L. Alarcon, "contain all the hallmarks
of traditionally internal workplace complaints one would typically expect an
officer to communicate to his superiors."
It's
a break with another opinion written by Alarcon in 2009, in which he said
Baltimore, Md., police commanders violated the First Amendment rights of an
officer who leaked an internal memo to The Sun newspaper in Baltimore. The
difference is that Hagen didn't bring his concerns outside the department,
while the Baltimore officer did, thus entitling him to First Amendment
protections as a private citizen.
David
Fidanque, executive director of ACLU Oregon, said the ruling reemphasizes the
problematic situation in which public employees find themselves, especially
when they follow the chain of command.
"My
gut feeling is that it's a difficult standard to meet the First Amendment claim
for a public employee," Fidanque said, "particularly one who does
what an employee would be expected to do, which is raise the complaint to their
supervisors."
The
problems at the Eugene Police Department date back to at least the late 1990s,
when SWAT members began to accidentally fire their weapons. Sometimes they hit
their own, like in 2001, when a police sniper accidentally shot a sergeant
during a SWAT operation.
Hagen
joined the department in 2004 and, a year later, a SWAT officer attempting to
pull the pin on a flash-bang grenade accidentally pulled the trigger on his
rifle. It was aimed at the ground and no one was hurt.
Hagen,
who worked with the department's police dogs, and two other department dog
handlers complained to their supervisor. Two years later, in January 2007, a
SWAT officer again accidentally fired his rifle while climbing a fence and,
this time, hit another officer.
Hagen
and the other dog handlers again complained to their supervisor. When they
pressed, the sergeant "became irritated and expressed frustration that the
issue was being raised again."
Again
in April 2007, a SWAT officer accidentally fired his weapon during a search
warrant in a residential neighborhood. Hagen sent an email to sergeants with
the dog and SWAT teams, asking for a meeting to discuss the safety issues.
Three days after the email, the department's police chief suspended SWAT
operations for about three weeks.
The
SWAT sergeant, Tom Eichhorn, attempted to transfer Hagen for "passive
insubordination" and, when that failed, began to write him up for job
performance concerns that Eichhorn admitted in court "he had previously
regarded positively or neutrally."
Hagen
stopped reporting safety concerns to Eichhorn and was transferred in May 2009.
He sued the department in April 2010.
