3rd Circuit reinstates police officer’s retaliation claim

Wednesday, April 20, 2011

A federal appeals court panel has reinstated a Pennsylvania police officer’s lawsuit, ruling that a lower court jumped the gun in dismissing his claim that government officials retaliated against him for critical online comments.

Eric Beyer worked as a police officer for Duncannon Borough, Pa. In November 2005, a police officer was killed by a suspect armed with a 7mm Remington Magnum rifle. The officer had a standard 12-gauge shotgun. Some, including Beyer, said the police needed more firepower to contend with criminals.

In February 2006, the department purchased two AR-15s — weapons that shoot at high velocity. Several city council members criticized the purchase as unnecessary. In January 2008, Beyer went online and attacked the views of several council members under the pseudonym “big bear.” He also gave an interview to a local news station in which he supported the weapons purchase.

The committee ultimately agreed to keep one of the weapons but sold the other in March 2008. In June that year, Beyer again posted remarks opposing the council’s decision to get rid of one AR-15. The council fired Beyer in July. A year later, he filed a federal civil rights lawsuit, contending that the council and the borough fired him in retaliation for speech that should have been  protected. He also alleged violations of his free-petition rights and made a state wrongful-discharge claim.

In June 2010, a federal district court dismissed his lawsuit, finding that Beyer failed to allege any facts showing that his speech was a substantial factor in his termination.

On appeal, a three-judge panel of the 3rd U.S. Circuit Court of Appeals reinstated his First Amendment retaliation claim in Beyer v. Duncannon Borough.

The appeals court first asked whether Beyer was speaking as a citizen or as an employee when he posted his comments. The council and other defendants contended that the claim should be dismissed under the Supreme Court’s 2006 decision Garcetti v. Ceballos, in which the Court found that public employees have no free-speech rights pertaining to their official job-duty speech.

The appeals court ruled that Beyer sufficiently pleaded that he spoke as a citizen, noting that his comments “were posted pseudonymously on an internet site and not pursuant to his duties as a police officer.”

Next, the panel determined that Beyer had sufficiently asserted that his comments related to a matter of public concern or public importance — another legal requirement for public employees bringing First Amendment claims.

Significantly for other public employees who are facing punishment for online speech, the 3rd Circuit added: “Communicating the message in a public manner through the internet and news further weighs in favor of the conclusion that the speech here is of public concern.”

The panel concluded that “Beyer alleges facts that his speech was protected sufficient to overcome a motion to dismiss.”

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