September 27, 2020

Court To Cops: No Expectation Of Privacy In A ‘Beer-Drinking, Nap-Taking Hideout’

Everyone has rights, even the people who often disrespect the rights of others. But those rights can only be violated in certain, specific ways and the two cops, who sued over alleged rights violations, didn’t actually have their rights violated.

Officers Denis Lawlor and Daniel Varallo once worked for the Metropolitan Water Reclamation District (MWRD) in Chicago. They were fired after some of their candid comments about their work ethic and coworkers were inadvertently publicly broadcast on a Illinois State Police channel. These comments were recorded and turned over to the officers’ employer, which correctly decided these two officers should find somewhere else to work. (via FourthAmendment.com)

Lawlor and Varallo arrived at work and set about doing what they apparently normally did: nothing. This isn’t an assumption. It’s what they admitted to during the conversation they thought they were having privately. However, the officers’ expectation of privacy isn’t the same as the Fourth Amendment’s expectation of privacy, even if they were safely (or so they thought) ensconced in a “break room with a lock in a secluded area… during the sparsely manned night shift.”

But first comes the First. The fired cops claimed they were retaliated against unlawfully for their protected speech. The court doesn’t think much of this argument, especially since the plaintiffs did all they could to avoid discussing the content of the speech they claimed was protected. From the decision [PDF]:

[T]he evidence before the Court suggests that the speech was not a matter of public concern. Plaintiffs characterize their statements as “street vernacular and non-politically correct language.” But Plaintiffs avoid pleading the actual contents of their conversation or any specific statements that prompted the adverse employment action. Some of the specific statements that prompted Plaintiffs’ termination, however, were contained in the Decision of the MWRD Civil Service Board setting out the reasons for Plaintiff Lawlor’s termination.

The Civil Service Board noted that Plaintiff Lawlor:

• “informed [Varallo] how to drink alcohol” while on duty,

• explained how he slept on duty by saying “I just set the alarm on my phone (inaudible) for every F***ing hour and fifty-eight. So I call in at fifty-nine, go right back to f***in’ sleep. After you call in at five o’clock, set that motherf***er for six o’clock, you know so you get up to come and do your f’**ing trunk checks,”

• referred to Martin Luther King Day by saying “White guys should call it James Earl Ray Day,”

• Saying of African American co-workers that “It was the n***er laborers that f***in’, that f***ed us,”

• and, in referring a specific African American co-worker, saying “So that stupid Alabama hill n***er is going to think I’m the one that’s trying to bring in relief people who cut down my overtime?”

Yes, this speech is protected. But it’s not without consequences. The issue here is retaliation and only certain speech is protected under this element of the First Amendment. The stuff said here just doesn’t cut it.

Plaintiffs cite no authority—and the Court is not aware of any—establishing that admissions of drinking and sleeping on the job, or using racial slurs towards co-workers, meet the first requirement for stating a First Amendment retaliation claim.

As for the Fourth Amendment claims, they’re no better. The court says the arguments raised by the plaintiffs are ridiculous, not reasonable.

The question before the Court is whether society is prepared to recognize as reasonable an on-duty police officer’s expectation of privacy in a room used to sleep and consume alcohol on the job without his supervisors’ knowledge. Common sense says the answer is “no,” and Plaintiffs cite no authority to the contrary.

The room that supposedly held the officers’ expectations of privacy was actually accessible by other MWRD officers seeking to while away the workday not doing any work.

Plaintiffs do not allege that this “break room” was given to them by the MWRD for their “exclusive use” or that no one else had access to the room (rather than that it was unlikely anyone else would access the room). In fact, it was a secret room hidden from MWRD supervisors, and Plaintiff Lawlor named several other employees who had access to the area.

The court reiterates its point about reasonableness and the Fourth Amendment.

[E]ven if Plaintiffs had subjective expectations of privacy in their beer-drinking and nap-taking hideout, society does not appear ready to recognize them as objectively reasonable.

So, what have these officers (hopefully) learned? Several things. First, protected speech can be protected and still have negative consequences. The Fourth Amendment doesn’t cover “private” conversations that are inadvertently publicly broadcast. And, if you insist on suing the manufacturer of the handsets that supposedly malfunctioned — resulting in your termination — you might get hit with sanctions.

Unsurprisingly, Motorola suggests that Plaintiffs violated Federal Rule of Civil Procedure 11(b) and seems to be considering a motion for sanctions under Rule 11(c)(2).

Cops have rights. But their rights work like they work for us. They don’t get extra First or Fourth Amendment rights just because. They already have extra rights, like qualified immunity — something that compounds the defeat suffered here as the court also grants qualified immunity to the State Police and the MWRD for their actions in this case. Maybe if these officers spent more time working and less time drinking, sleeping, and making racist statements about their coworkers, they’d still be employed.

Via:: Court To Cops: No Expectation Of Privacy In A ‘Beer-Drinking, Nap-Taking Hideout’