Herbert Liverman v. City of Petersburg

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2207

HERBERT E. LIVERMAN; VANCE R. RICHARDS,

Plaintiffs - Appellants,

v.

CITY OF PETERSBURG; JOHN I. DIXON, III, both individually

and in his capacity as the Chief of Police for the City of

Petersburg Bureau of Police,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. James R. Spencer, Senior

District Judge. (3:14-cv-00139-JRS)

Argued: October 27, 2016 Decided: December 15, 2016

Before WILKINSON and TRAXLER, Circuit Judges, and Bruce H.

HENDRICKS, United States District Judge for the District of

South Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by published

opinion. Judge Wilkinson wrote the opinion, in which Judge

Traxler and Judge Hendricks joined.

ARGUED: Andrew Thomas Bodoh, THOMAS H. ROBERTS & ASSOCIATES, PC,

Richmond, Virginia, for Appellants. Leslie A. Winneberger,

BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia,

for Appellees. ON BRIEF: William F. Etherington, BEALE,

DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for

Appellees.

WILKINSON, Circuit Judge:

Two police officers challenge disciplinary actions for

violations of their Department’s social networking policy. The

district court denied relief on most of their claims. While we

are sensitive to the Department’s need for discipline throughout

the chain of command, 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. For the reasons that follow,

we affirm in part, reverse in part and remand for further

proceedings.

I.

The pertinent facts in this case are not in dispute.

Plaintiffs Herbert Liverman and Vance Richards were veteran

police officers in the City of Petersburg’s Police Department.

Both served as field officers under Chief John Dixon, who led

the Department. Dixon in turn served under the general direction

of the City Manager.

In April 2013, Chief Dixon issued a general order revising

the Department’s social networking policy. That policy governs

officers’ use of social media platforms. The preface to the

revised policy prohibits in sweeping terms the dissemination of

any information “that would tend to discredit or reflect

unfavorably upon the [Department] or any other City of

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Petersburg Department or its employees.” J.A. 161. The central

provision of the policy, which we will refer to as the Negative

Comments Provision, states:

Negative comments on the internal operations of the

Bureau, or specific conduct of supervisors or peers

that impacts the public’s perception of the department

is not protected by the First Amendment free speech

clause, in accordance with established case law.

J.A. 162. Another provision, which we label the Public Concern

Provision, specifies:

Officers may comment on issues of general or public

concern (as opposed to personal grievances) so long as

the comments do not disrupt the workforce, interfere

with important working relationships or efficient work

flow, or undermine public confidence in the officer.

The instances must be judged on a case-by-case basis.

Id. The policy nonetheless “strongly discourages employees from

posting information regarding off-duty activities” and provides

that violations will be forwarded to the Chief of Police for

“appropriate disciplinary action.” J.A. 163.

This case concerns the Department’s application of the

social networking policy to the following conversation between

Liverman and Richards. While off-duty on June 17, 2013, Liverman

posted a message to his Facebook page:

Sitting here reading posts referencing rookie cops

becoming instructors. Give me a freaking break, over

15 years of data collected by the FBI in reference to

assaults on officers and officer deaths shows that on

average it takes at least 5 years for an officer to

acquire the necessary skill set to know the job and

perhaps even longer to acquire the knowledge to teach

other officers. But in todays world of instant

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gratification and political correctness we have

rookies in specialty units, working as field training

officer’s and even as instructors. Becoming a master

of your trade is essential, not only does your life

depend on it but more importantly the lives of others.

Leadership is first learning, knowing and then doing.

J.A. 398. More than thirty people “liked” or commented on this

post. Richards, also off-duty at the time, commented as follows:

Well said bro, I agree 110%... Not to mention you are

seeing more and more younger Officers being promoted

in a Supervisor/ or roll. It’s disgusting and makes me

sick to my stomach DAILY. LEO Supervisors should be

promoted by experience... And what comes with

experience are “experiences” that “they” can pass

around to the Rookies and younger less experienced

Officers. Perfect example, and you know who I’m

talking about..... How can ANYONE look up, or give

respect to a SGT in Patrol with ONLY 1 1/2yrs

experience in the street? Or less as a matter of fact.

It’s a Law Suit waiting to happen. And you know who

will be responsible for that Law Suit? A Police Vet,

who knew tried telling and warn the admin for

promoting the young Rookie who was too inexperienced

for that roll to begin with. Im with ya bro....smh *

J.A. 399. Later that day, Liverman responded to Richards with a

comment of his own:

There used to be a time when you had to earn a

promotion or a spot in a specialty unit...but now it

seems as though anything goes and beyond officer

safety and questions of liability, these positions

have been “devalued”...and when something has no

value, well it is worthless.

Id. Richards then replied:

Your right..... The next 4yrs can’t get here fast

enough... From what I’ve been seeing I don’t think I

can last though. You know the old “but true” saying

* “Smh” is an acronym for “shaking my head.”

4

is.... Your Agency is only as good as it’s

Leader(s)... It’s hard to “lead by example” when there

isn’t one....smh

J.A. 400.

Among those who liked or commented on the Facebook

postings, most were current or former Department officers. Two

sergeants, Liverman’s and Richards’s supervisors, learned of the

exchange and notified Chief Dixon of the issue. Dixon determined

that the statements violated the Department’s social networking

policy and instructed the sergeants to discipline the officers.

In the disciplinary action forms, the Department stated that

Liverman’s follow-up comment and both of Richards’s comments

violated the Negative Comments Provision. They each received an

oral reprimand and six months’ probation, but were advised that

such discipline would not affect their eligibility for

promotion. Both the City Manager and Human Resources Director

signed the personnel action forms indicating their probationary

status.

Several weeks later, however, Chief Dixon altered the

qualifications for promotion. The new protocol expressly

excluded any officers on probation from participating in the

promotion process. Accordingly, when Liverman and Richards

applied for open sergeant positions, the Department notified

them that they were ineligible to sit for the promotional exam.

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On October 1, 2013, the two officers sent a letter

informing the City that they intended to challenge the

disciplinary actions. Shortly thereafter, Liverman and Richards

were the subject of several complaints and investigations within

the Department. Based on the findings, Chief Dixon decided to

fire Liverman, but Liverman resigned before receiving notice of

his termination.

On March 5, 2014, Liverman and Richards filed a six-count

complaint in federal district court under 42 U.S.C. § 1983,

seeking damages and other relief against Chief Dixon and the

City for various violations of the First Amendment. The two

officers claimed that the social networking policy infringed

their free speech rights in Counts One (Liverman) and Two

(Richards). Liverman and Richards also challenged the adverse

disciplinary actions taken pursuant to the policy in Counts

Three and Four, respectively. Finally, they alleged in Counts

Five and Six that the Department instituted subsequent

investigations against them in retaliation for proceeding with

the instant suit.

The district court granted Liverman summary judgment on his

claim that the social networking policy infringed his right to

free speech, but nonetheless found that Chief Dixon was entitled

to qualified immunity because the policy fell within a gray

zone. On Liverman’s challenge to the disciplinary action, the

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court found that qualified immunity again shielded Dixon’s

decision because the contours of protected speech in this area

were not clearly established. The district court next denied

relief on Richards’s challenges to the policy and the

discipline, holding that Richards’s speech was purely personal

and thus not protected by the First Amendment. For both of their

retaliation claims, the court concluded that the subsequent

internal investigations were not retaliatory. This appeal

followed.

II.

The legal framework governing public employee speech claims

is well known. Public employees may not “be compelled to

relinquish the First Amendment rights they would otherwise enjoy

as citizens to comment on matters of public interest.” Pickering

v. Bd. of Educ., 391 U.S. 563, 568 (1968). Underlying this

principle is the recognition that “public employees are often

the members of the community who are likely to have informed

opinions as to the operations of their public employers.” City

of San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam).

Nonetheless, a citizen who accepts public employment “must

accept certain limitations on his or her freedom.” Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006). Government employers enjoy

considerable discretion to manage their operations, and the

First Amendment “does not require a public office to be run as a

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roundtable for employee complaints over internal office

affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983).

Courts begin the First Amendment inquiry by assessing

whether the speech at issue relates to a matter of public

concern. See Pickering, 391 U.S. at 568. If speech is purely

personal, it is not protected and the inquiry is at an end. If,

however, the speech is of public concern, courts must balance

“the interests of the [employee], as a citizen, in commenting

upon matters of public concern and the interest of the State, as

an employer, in promoting the efficiency of the public services

it performs through its employees.” Id.; see also Connick, 461

U.S. at 142.

Against this backdrop, we turn to the officers’ First

Amendment challenges to the Department’s social networking

policy and the subsequent disciplinary actions taken against

them.

A.

The district court granted summary judgment to Liverman on

his challenge to the social networking policy, but denied

Richards’s parallel claim on the grounds that his speech was not

protected by the First Amendment. We hold that the Department’s

social networking policy is unconstitutionally overbroad and,

for the following reasons, award judgment to Richards on his

claim as well.

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Although regulations on social media use may appear to

present novel issues, we agree with the district court that such

questions are amenable to the traditional analysis set forth in

Connick and Pickering. Indeed, the particular attributes of

social media fit comfortably within the existing balancing

inquiry: A social media platform amplifies the distribution of

the speaker’s message — which favors the employee’s free speech

interests — but also increases the potential, in some cases

exponentially, for departmental disruption, thereby favoring the

employer’s interest in efficiency. What matters to the First

Amendment analysis is not only the medium of the speech, but the

scope and content of the restriction.

Here we deal with a broad social networking policy setting

forth the parameters of public employee speech. In United States

v. Nat’l Treasury Employees Union (NTEU), 513 U.S. 454

(1995), the Supreme Court addressed how courts should

apply Pickering when a generally applicable statute or

regulation (as opposed to a post-hoc disciplinary action)

operates as a prior restraint on speech. NTEU involved a statute

that prohibited federal employees from accepting any

compensation for giving speeches or writing articles, even when

the topic was unrelated to the employee’s official duties. See

id. at 457. Emphasizing that the honoraria ban impeded a “broad

category of expression” and “chills potential speech before it

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happens,” the Court held that “the Government’s burden is

greater with respect to this statutory restriction on expression

than with respect to [the] isolated disciplinary action[s]” in

Pickering and its progeny. Id. at 467, 468. Accordingly, “[t]he

Government must show that the interests of both potential

audiences and a vast group of present and future employees in a

broad range of present and future expression are outweighed by

that expression’s ‘necessary impact on the actual operation’ of

the Government.” Id. at 468 (quoting Pickering, 391 U.S. at

571). Further, the government “must demonstrate that the recited

harms are real, not merely conjectural, and that the regulation

will in fact alleviate these harms in a direct and material

way.” Id. at 475.

The threshold question in this case is whether the

Department’s policy regulates officers’ rights to speak on

matters of public concern. There can be no doubt that it does:

the restraint is a virtual blanket prohibition on all speech

critical of the government employer. The explicit terms of the

Negative Comments Provision prevent plaintiffs and any other

officer from making unfavorable comments on the operations and

policies of the Department, arguably the “paradigmatic” matter

of public concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir.

1995); see also Roe, 543 U.S. at 80.

10

Weighing the competing interests on either side of the

Pickering/NTEU balance, we begin by noting the astonishing

breadth of the social networking policy’s language. The policy

seeks to prohibit the dissemination of any information on social

media “that would tend to discredit or reflect unfavorably upon

the [Department].” J.A. 161. In particular, the Negative

Comments Provision proscribes “[n]egative comments on the

internal operations of the Bureau” — which could be just about

anything — or on the “specific conduct of supervisors or peers”

— which, again, could be just about anything. J.A. 162.

The interests of “present and future employees” and their

“potential audiences” in such speech is manifestly significant.

See NTEU, 513 U.S. at 468. We do not, of course, discount the

capacity of social media to amplify expressions of rancor and

vitriol, with all its potential disruption of workplace

relationships that Connick condemned. But social networking

sites like Facebook have also emerged as a hub for sharing

information and opinions with one’s larger community. And the

speech prohibited by the policy might affect the public interest

in any number of ways, including whether the Department is

enforcing the law in an effective and diligent manner, or

whether it is doing so in a way that is just and evenhanded to

all concerned. The Department’s law enforcement policies could

well become a matter of constructive public debate and dialogue

11

between law enforcement officers and those whose safety they are

sworn to protect. After all, “[g]overnment employees are often

in the best position to know what ails the agencies for which

they work.” Waters v. Churchill, 511 U.S. 661, 674 (1994)

(plurality opinion). But this policy will cut short all of that.

To repeat, it squashes speech on matters of public import at the

very outset.

Because the Department’s social networking policy

unmistakably imposes a significant burden on expressive

activity, we next consider whether the Department has adequately

established “real, not merely conjectural” harms to its

operations. See NTEU, 513 U.S. at 475. Chief Dixon’s primary

contention is that divisive social media use undermines the

Department’s interests in maintaining camaraderie among patrol

officers and building community trust. These are, to be sure,

legitimate interests. “When close working relationships are

essential to fulfilling public responsibilities, a wide degree

of deference to the employer’s judgment is appropriate.”

Connick, 461 U.S. at 151-52. And such deference applies with

special force to police departments because they are

“paramilitary — discipline is demanded, and freedom must be

correspondingly denied.” Maciariello v. Sumner, 973 F.2d 295,

300 (4th Cir. 1992).

12

Here, however, the Department fails to satisfy its burden

of demonstrating actual disruption to its mission. Apart from

generalized allegations of budding “divisiveness” and claims

that some “patrol officers sought [shift] transfers,” J.A. 502,

Chief Dixon presented no evidence of any material disruption

arising from plaintiffs’ — or any other officer’s — comments on

social media. We do not deny that officers’ social media use

might present some potential for division within the ranks,

particularly given the broad audience on Facebook. But the

speculative ills targeted by the social networking policy are

not sufficient to justify such sweeping restrictions on

officers’ freedom to debate matters of public concern. See

Connick, 461 U.S. at 152; McVey v. Stacy, 157 F.3d 271, 279 (4th

Cir. 1998) (Murnaghan, J., concurring in part and concurring in

the judgment) (“A stronger showing of public interest in the

speech requires a concomitantly stronger showing of government-

employer interest to overcome it.”).

Defendants’ fallback argument is that, even if the Negative

Comments Provision itself is overbroad, the Public Concern

Provision significantly narrows the reach of the social

networking policy. This second provision, which permits comments

on “issues of general or public concern . . . so long as the

comments do not disrupt the workforce,” J.A. 162, is ostensibly

more aligned with the case-by-case analysis of Connick and

13

Pickering. But the milder language in a single provision does

not salvage the unacceptable overbreadth of the social

networking policy taken as a whole. Indeed, the Public Concern

Provision does not purport to nullify or otherwise supersede the

blanket censorship endorsed by the Negative Comments Provision.

If the Department wishes to pursue a narrower social media

policy, then it can craft a regulation that does not have the

chilling effects on speech that the Supreme Court deplored. We

cannot, however, allow the current policy to survive as a

management and disciplinary mechanism.

B.

Plaintiffs next assert that the district court erred in

dismissing their challenges to the Department’s disciplinary

actions. We agree. In fact, the facial overbreadth of the social

networking policy is borne out by the disciplinary actions taken

pursuant to it.

When evaluating an ex post disciplinary action, rather than

an ex ante restraint on speech, the nature of our review is

narrower than the analysis under NTEU. In this context, our

court has adopted the traditional Connick/Pickering three-part

test to determine whether a public employee has sustained a

First Amendment challenge to an adverse employment action.

First, we determine whether the employee spoke as a citizen on a

matter of public concern. Second, we evaluate whether the

14

employee’s interest in First Amendment expression outweighs the

employer’s interest in the efficient operation of the workplace.

And finally, we decide whether the protected speech was a

substantial factor in the employer’s decision to take adverse

employment action. McVey, 157 F.3d at 277-78.

The first inquiry, once again, is whether Liverman and

Richards spoke on matters of public concern. “Speech involves a

matter of public concern when it involves an issue of social,

political, or other interest to a community.” Kirby v. City

of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004). In

resolving this question, the Supreme Court has directed courts

to examine the “content, form, and context of a given

statement.” Connick, 461 U.S. at 147-48. Although defendants are

certainly correct that “personal complaints and grievances about

conditions of employment” are not matters of public concern,

Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007), they

misconstrue the thrust of Liverman’s and Richards’s comments.

The form and context of the comments indicate that

plaintiffs did in fact speak on an issue of public concern.

Regarding the form of speech, we find it significant that the

officers chose Facebook as the forum for their communication. As

our colleague Judge Traxler has recognized, Facebook is a

dynamic medium through which users can interact and share news

stories or opinions with members of their community. See Bland

15

v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). Similar to

writing a letter to a local newspaper, see Pickering, 391 U.S.

at 569-70, publicly posting on social media suggests an intent

to “communicate to the public or to advance a political or

social point of view beyond the employment context,” Borough of

Duryea v. Guarnieri, 131 S. Ct. 2488, 2501 (2011). Further, the

officers’ Facebook comments were prompted by other “posts

referencing rookie cops becoming instructors.” J.A. 398.

Accordingly, the context of the speech buttresses our conclusion

that Liverman and Richards were not simply airing personal

grievances but rather were joining an ongoing public debate

about the propriety of elevating inexperienced police officers

to supervisory roles.

The content of the Facebook comments further confirms that

they dealt with issues of public import. Defendants seek to

carve up the Facebook colloquy and assert that Liverman’s and

Richards’s comments should be considered separately. Yet this

court has previously rejected attempts to “divide[] [speech]

into discrete components to conduct a constitutional analysis on

each.” Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 157

(4th Cir. 1992). Because we do not have “license to ignore the

portions” of the communication that touch on a matter of public

concern, we must view the statements “as a single expression of

speech to be considered in its entirety.” Campbell, 483 F.3d at

16

267. This approach is consistent with the typical experience on

social media, where users engage in interactive discussions

through a series of posts and comments. Liverman’s initial post

invited others to pick up on his observations; Richards

responded, and they began a public dialogue about the

Department’s promotion policies. Their comments, therefore,

should be read in conjunction as part of a single conversation

on the qualifications of instructors and the increasing number

of rookies thrust into teaching roles.

Taken together, plaintiffs’ statements stand in stark

contrast to the sort of “individualized concerns” this court has

characterized as personal grievances. See Brooks v. Arthur, 685

F.3d 367, 374 (4th Cir. 2012). Each veteran officer grounded his

statements in specialized knowledge and expressed a general

“concern about the inability of the [Department] to carry out

its vital public mission effectively.” Cromer v. Brown, 88 F.3d

1315, 1325-26 (4th Cir. 1996). Liverman’s initial post cited an

FBI study that underscored the danger of promoting green

officers, and his subsequent comment noted the implications for

“officer safety and questions of liability.” J.A. 398-99.

Notwithstanding his more colloquial tone, Richards touched on

the same issues of public import in his responses. First, he

agreed with Liverman’s observations and echoed the concerns

about “more and more younger Officers being promoted.” J.A. 399.

17

Then he turned to the issue of skill development raised by the

FBI study and concluded that “LEO Supervisors should be promoted

by experience” and the “Agency is only as good as it’s

Leader(s).” J.A. 399-400.

Whether plaintiffs were correct or not in their views is

not the issue. The matter they addressed was of more than

personal import. We thus have no trouble finding that

plaintiffs’ Facebook comments, which addressed risks posed by

the Department’s inexperienced supervisors, raised issues of

public concern. See, e.g., Brooks, 685 F.3d at 375 (explaining

that when an employer’s practice “crosses a line to the point

that imperils the public welfare . . . then the public would

rightly be concerned about the matter”); Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000)

(holding that firefighter’s complaints about inadequate training

and unsafe procedures during emergency calls were matters of

public concern).

The second and third prongs of the Connick/Pickering

inquiry are not in genuine dispute. Serious concerns regarding

officer training and supervision are weighty matters that must

be offset by an equally substantial workplace disruption. Chief

Dixon failed to establish a reasonable apprehension that

plaintiffs’ social media comments would meaningfully impair the

efficiency of the workplace. See Maciariello, 973 F.2d at 300.

18

Finally, defendants do not seriously dispute that plaintiffs’

Facebook comments were a substantial factor in the decision to

discipline them — indeed, both disciplinary action forms cited

violations of the Negative Comments Provision as the sole basis

for the oral reprimand and probation. J.A. 427-28.

In light of the First Amendment protection accorded to the

officers’ posts, we conclude that the discipline they received

pursuant to the social networking policy was unconstitutional.

C.

In the alternative, Dixon contends that the Department’s

decisions to adopt the social networking policy and take

disciplinary action pursuant to the Negative Comments Provision

are entitled to qualified immunity. The doctrine of qualified

immunity shields government officials “who commit constitutional

violations but who, in light of clearly established law, could

reasonably believe that their actions were lawful.” Henry v.

Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

Having found that Dixon violated the officers’ First

Amendment rights, we must consider whether such rights were

“clearly established” at the time of the events at issue. “We do

not require a case directly on point” in order to conclude that

the law was clearly established, “but existing precedent must

have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2083 (2011).

19

Dixon first argues that he acted reasonably in adopting the

social networking policy because the policy purported to track

the subtle balancing calculus in Pickering. We agree that

officials “are not liable for bad guesses in gray areas,”

Maciariello, 973 F.2d at 298, and “do not expect [police chiefs]

to be judges and to have the training to sort through every

intricacy of case law.” Bland, 730 F.3d at 393. But this case

does not involve gray areas: the right against such a sweeping

prior restraint on speech was clearly established and then some.

Indeed, it is axiomatic that the government may not ban speech

on the ground that it expresses an objecting viewpoint. See

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Accordingly,

there can be no doubt that prohibiting any “[n]egative comments

on the internal operations of the Bureau, or specific conduct of

supervisors or peers” — even comments of great public concern —

violates the First Amendment. J.A. 162.

Dixon also asserts that the disciplinary actions taken

pursuant to the policy were reasonable in light of the vague

boundaries distinguishing public and private speech. Given the

patent unconstitutionality of the social networking policy,

however, efforts to enforce the policy are similarly suspect.

After all, the core of the policy was a prohibition on

legitimate speech and, as detailed above, we have little

difficulty locating the officers’ speech within this protected

20

sphere. Plaintiffs raised serious concerns regarding the

Department’s training programs and the promotion of

inexperienced supervisors, both of which are matters of public

concern. As this court has held time and again, it was clearly

established law that such speech is protected by the First

Amendment. See, e.g., Brooks, 685 F.3d at 375; Goldstein, 218

F.3d at 353.

We appreciate the need for order and discipline in the

ranks. See Maciariello, 973 F.2d at 300 (recognizing that

“greater latitude is afforded to police department officials in

dealing with dissension”). At the same time, we cannot

countenance an arm of government with such enormous powers being

removed to this extent from public scrutiny. This is not an all-

or-nothing matter; there is a balance to be struck. But the

Department’s social networking policy, and the disciplinary

actions taken to enforce it, lean too far to one side. We

therefore hold that Chief Dixon is not entitled to qualified

immunity.

III.

Finally, plaintiffs argue that Dixon retaliated against

them for filing their First Amendment suit. We agree with the

district court that their retaliation claims are without merit.

Plaintiffs argue that the retaliation took the form of

investigating their conduct on the force. We cannot conclude,

21

however, that plaintiffs have raised an issue of triable fact

that the investigations were pretextual. See McVey, 157 F.3d at

277-78. There were independent bases for each investigation.

Liverman was investigated twice. In notifying the City of his

First Amendment claims, Liverman requested a wide range of

personnel records. While searching for responsive documents, the

Department discovered that Liverman had sent sexually explicit

emails to a female officer. The Department launched an

investigation for sexual harassment, during which Liverman

admitted to engaging in sexual misconduct on Department property

and while on duty. Additionally, Liverman was investigated for

an incident in which he ignored Chief Dixon’s orders and failed

to maintain his duty post as directed.

Richards was also investigated twice. Both inquiries were

opened as a result of complaints initiated not by Chief Dixon

but by his fellow officers. The first complaint related to a

report Richards allegedly made to the media about another

officer’s spouse. The Department concluded the investigation

within one week, after Richards demonstrated his innocence. The

second complaint arose from his involvement with the

Department’s Shop with a Cop program. Once again, the Department

determined that the allegations were unfounded.

Apart from generalized assertions regarding the existence

of the investigations, plaintiffs fail to offer any evidence

22

that the investigations were retaliatory. Far from groundless

“fishing expeditions,” Appellants’ Br. at 34, each arose from

discrete allegations of misconduct. Without more, we see no

reason to question the legitimacy of the Department’s

investigations. After all, simply filing a Pickering claim does

not confer indefinite immunity on employees or insulate them

from subsequent investigation and discipline for unrelated

misconduct. Granting relief on plaintiffs’ retaliation claims

would handcuff the Department by forcing inaction even where

there is police behavior that warrants close review. Speech is

one thing; misconduct something else. There are countless

unobjectionable reasons why a police department might want to

investigate an officer’s performance, including absence from

work, tardiness, insubordination, illegal activity, and basic

failure to carry out one’s duties in a competent and impartial

fashion. The garden-variety investigations into Liverman’s and

Richards’s conduct were no different, and we therefore reject

their claims of retaliation.

IV.

The City argues that Liverman and Richards have failed to

establish municipal liability. The district court agreed. We

remand on this question to give the district court a chance to

assess under the appropriate standard municipal liability for

establishing the policy under which plaintiffs were disciplined.

23

Under Section 1983, a local government may be held liable

for injuries suffered due to the “execution of a government’s

policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official

policy.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978). Municipal liability “attaches only where the

decisionmaker possesses final authority to establish municipal

policy with respect to the action ordered.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 (1986). Whether an entity

possesses the requisite authority is a question of state law.

Id. at 483.

Here, the district court concluded that the City was not

liable with respect to any of plaintiffs’ claims. The court’s

holding rested on a city ordinance providing that the Chief of

Police “serve[s] at the pleasure of the city manager” and is

“under the direction and control of the city manager.” Liverman

v. City of Petersburg, 106 F. Supp. 3d 744, 769 (E.D. Va. 2015).

Because Dixon does not have the final say over Department

matters, the court indicated, plaintiffs failed to show that

Chief Dixon “possesses the final authority required to establish

municipal liability.” Id.

This analysis misapprehends the nature of the requisite

authority. We deal here not merely with an individual employment

decision, see Crowley v. Prince George’s Cty., 890 F.2d 683, 687

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(4th Cir. 1989), but a broad policy setting forth all the ground

rules for employee speech. An entity has “final” authority to

set this sort of policy when no further action is needed for the

policy to take effect. The Supreme Court has expressly noted

that “[a]uthority to make municipal policy . . . may be

delegated by an official who possesses such authority” to

another official. Pembaur, 475 U.S. at 483. Here the fact that

Dixon serves “under the direction and control of the city

manager” does not necessarily establish that he lacked final

authority to promulgate the policy whose validity has been

successfully challenged herein. We must therefore remand to the

district court to undertake a more particularized inquiry into

whether Chief Dixon possessed final authority to set policies on

the parameters of speech on the part of those law enforcement

officers under his command. If so, the City may also be held

liable for the injuries that were caused by the applications of

that policy.

V.

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. And 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

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debate. That is what happened here. 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.

To recapitulate: We hold that the Department’s social

networking policy was unconstitutional and that the disciplinary

measures taken against plaintiffs pursuant to that policy were

likewise impermissible. The patent overbreadth of the policy

negates Chief Dixon’s qualified immunity defense. We find no

merit, however, in plaintiffs’ retaliation claims, which

involved investigations for alleged police misconduct

independent of any issues of free speech. As to municipal

liability, we remand for further proceedings in accordance with

the foregoing directions. Remedial issues are also best left for

remand, although in light of all that has transpired,

reinstatement is not an equitable option. The calculation of

attorneys’ fees must of course await the conclusion of

proceedings on remand.

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The judgment of the district court is accordingly affirmed

in part, reversed in part, and remanded for further proceedings

consistent with this decision.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED

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