Fired cop can proceed with lawsuit over online postings

Friday, October 5, 2012

A former part-time police officer for a central Pennsylvania borough who alleged he was fired a month after posting critical comments online about the borough council has moved a step closer to having his day in court.

Eric Beyer was working for the Duncannon Borough Police Department when in November 2005 a controversy arose over the firearms police officers carried. That month a suspect with a 7mm Magnum rifle shot and wounded an officer, who was armed only with a shotgun. Many said officers needed rifles, which fire at much longer range than shotguns. The department then purchased two AR-15 rifles.

However, after learning of the purchases two years later, the Borough Council said the rifles were unnecessary and ordered them removed from the police department.

Beyer attended a council meeting and requested that the rifles be placed back into service for officers. The council denied the request, but in March 2008 allowed one rifle back into service.

Earlier, under the name “bigbear,” according to court papers, Beyer had posted derogatory remarks about council members. He used profanity in some postings. In one, Beyer said he would continue to carry his personal rifle on duty despite the council’s order to remove the department-purchased rifles.

In June 2008, the council learned of the postings and sent a letter to Beyer asking whether he was “bigbear.” Beyer responded that he identified himself as such on some websites.

The chairman of Duncannon’s Community Policing Committee next wrote to Beyer, asking him to appear for a fact-finding interview on July 8, 2008. Beyer did not attend the meeting, having sent a note saying he could not make it. A week later, the council fired him.

Beyer filed a federal lawsuit in July 2009, contending that two council members and the Duncannon Borough had retaliated against him because of his online speech. The defendants claimed that Beyer’s postings were not protected speech. They also argued that he was fired not for his criticisms but for failing to appear at the fact-finding meeting.

On Oct. 1, 2012, U.S. District Judge William W. Caldwell ruled in Beyer v. Duncannon Borough that Beyer’s online speech was a form of protected citizen speech. The judge said that Beyer spoke about matters of public concern — the removal of rifles and officer safety. The judge also said that when Beyer wrote about these topics on the Internet, he was acting as a citizen, not as an employee.

The defendants argued that Beyer’s use of profanity removed the postings from the ambit of protected speech. Caldwell disagreed, noting that “use of  profanity does not preclude constitutional protection.”

Caldwell did dismiss a lawsuit Beyer had filed against two individual council members — Duane Hammaker and Patrick Brunner. The judge reasoned that there was not enough evidence that the particular council members had engaged in “retaliatory action.”

However, the judge refused to dismiss the claim against the borough. He said a jury could determine whether the real reason Beyer was discharged was his criticism, not because he missed the fact-finding hearing.

Because the council fired Beyer only a month after learning of his Internet postings, Caldwell emphasized, “a jury could find that the Council retaliated against Plaintiff for making comments critical of their decision concerning the rifles.”

Another district judge had thrown out Beyer’s case in 2010, but the 3rd U.S. Circuit Court of Appeals reinstated it in April 2011.

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