By Jeremy M. Lazarus

Police officers and other government employees do not completely surrender their First Amendment rights when they go to work.

The 4th U.S. Circuit Court of Appeals issued that reminder in striking down as unconstitutional the Petersburg Police Department’s policy on officers’ use of social media to comment on departmental policies.

The 17-page opinion written by Judge J. Harvie Wilkinson found unconstitutional the sweeping ban imposed in 2013 by then-Police Chief John I. Dixon III on officers using Facebook, Twitter or other social media outlets to make comments “that would tend to discredit or reflect unfavorably” on the department.

“While we are sensitive to the department’s need for discipline throughout the chain of command,” Judge Wilkinson wrote for a three-judge panel, “the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.”

The Dec. 15 ruling, in which Judges William B. Traxler Jr. and Bruce H. Hendricks joined, largely overturned a previous lower court decision from senior District Court Judge James R. Spencer that decided in favor of Chief Dixon.

The case involves two former Petersburg police officers, Herbert E. Liverman and Vance R. Richards.

They sued Chief Dixon in 2014, claming they were disciplined for making critical comments about the department on Facebook, including disparaging what they viewed as the department’s propensity for promoting young, inexperienced officers as supervisors.

As part of the opinion, the appellate court overturned the lower court finding that Chief Dixon, who was replaced earlier this year, was immune from suit. Judge Wilkinson stated that the chief surrendered his immunity from suit when he imposed an illegal policy and followed it with illegal discipline.

Because the “department’s social networking policy was unconstitutional, the disciplinary measures taken against plaintiffs pursuant to that policy were likewise impermissible,” Judge Wilkinson stated.

In their original filing, Mr. Liverman and Mr. Richards sued Chief Dixon for compensatory damages of $2 million and punitive damages amounting to $350,000, plus attorney fees.

The appellate court returned the case to Judge Spencer for further proceedings to determine the appropriate remedy based on the ruling.

After learning of the critical Facebook posts in June 2013, Chief Dixon cited violation of the policy and placed both officers on probation for six months. He then changed promotion procedures to ensure they could not compete for vacant sergeant positions.

The two officers informed the city they intended to challenge their punishment. Shortly thereafter, the two officers became the subject of several complaints and internal investigations. One was fired. The other resigned.

The lawsuit followed. In it, the officers alleged the investigations involved retaliation for exercising their First Amendment rights. In his opinion, Judge Wilkinson found, as Judge Spencer had, that the internal investigations that led to the departure of the officers were unrelated to discipline over their use of social media and dismissed those claims.

In finding the general policy unconstitutional, Judge Wilkinson noted that government employees are not protected when their comments are determined to be personal gripes or complaints.

However, that changes, he stated, when the comments involve discussion of issues of public concern by insiders with the most knowledge, as in this case.

As importantly, he stated that Chief Dixon and the department could offer no proof that the opinions Mr. Livermore and Mr. Richards expressed created any disruption. That, he stated, undermined the department’s claim that the ban was needed to promote good order and discipline in the ranks.

“Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command,” Judge Wilkinson wrote.

“Yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate,” he continued.

“That is what happened here,” he wrote. “The sensitivity of all the well known issues that surround every police department make such lack of transparency an unhealthy state of affairs.

“The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.”