By Jack Ryan, Attorney, Co-Director LLRMI

In the last two sessions of the United States Supreme Court, there have been no cases directly impacting criminal procedure for law enforcement.  Thus, there have been no substantive changes directing law enforcement to operate differently in investigations, search and seizure, questioning, or use of force.  When cases impacting operations are decided, LLRMI immediately reports on those cases.

This article is a summary of the cases this term that touches upon law enforcement while not changing daily operations.

Person May Have Claim For Malicious Prosecution/Unlawful Seizure Even When Their Arrest Is Supported By Probable Cause For Some Charge

“The presence of probable cause for one charge in a criminal proceeding does not categorically defeat a Fourth Amendment malicious- prosecution claim relating to another, baseless charge. The parties, and the United States as amicus curiae, all agree with this conclusion, which follows from both the Fourth Amendment and traditional common-law practice.”

The Court outlined the issues in the case of Chiaverini v. City of Napoleon, Ohio[1] as follows:

“This case involves what is often called a Fourth Amendment malicious-prosecution claim under 42 U. S. C. §1983. To succeed on such a claim, a plaintiff must show that a government official charged him without probable cause, leading to an unreasonable seizure of his person. See Thompson v. Clark, 596 U. S. 36, 43, and n. 2 (2022). The question presented here arises when the official brings multiple charges, only one of which lacks probable cause. Do the valid charges insulate the official from a Fourth Amendment malicious-prosecution claim relating to the invalid charge? The answer is no: The valid charges do not create a categorical bar. We leave for another day the follow-on question of how to determine in those circumstances whether the baseless charge caused the requisite seizure.”

At the outset it should be recognized that the Court asserted that the valid charge does “not create a categorical bar.”   A reading of the entire case suggests that the bad charge, must cause a more significant seizure than otherwise would have occurred but for the bad charge.  An example used by the Court is instructive: “A person is detained on two charges—a drug offense supported by probable cause and a gun offense built on lies. The prosecutor, for whatever reason, drops the (valid) drug charge, leaving the person in jail on the (invalid) gun charge alone. The inclusion of the baseless charge—though brought along with a good charge—has thus caused a constitutional violation, by unreasonably extending the pretrial detention.”  In other words, when the prosecutor dropped the valid drug charge, the subject would have been released, but because of the invalid charge, the subject now has an improper seizure supported only by the bad charge.

The Court reported the facts in Chiaverini as follows:

This dispute began with a set of peculiar interactions between a jewelry store owner and police officers in Napoleon, Ohio. The jeweler, Jascha Chiaverini, bought a ring for $45 from a (petty) jewel thief. The ring’s rightful owners found out about the sale, and asked Chiaverini to return their property. Chiaverini said no, so the owners contacted the police. Two officers, on a later visit to the store, directed Chiaverini to surrender the ring to its owners. But Chiaverini refused their request too, saying that it contradicted a letter he had just received from the police department telling him to retain the ring as evidence. And when repeating his refusal to another officer the next day, Chiaverini suggested (for reasons unclear) that he was operating his store without a license. The result of that (shall we say, unprofitable) ex- change was that the police turned their attention from the original theft to Chiaverini’s business.

Soon afterward, the officers launched a criminal proceeding against Chiaverini in municipal court. They filed three complaints, each charging him with a separate offense. Two were misdemeanors: receiving stolen property and dealing in precious metals without a license. The third was a felony: money laundering. To support their accompanying application for an arrest warrant, the officers submitted an affidavit making the case for probable cause on all three charges, but focusing on the felony. See App. 16–17. For that charge to succeed, Chiaverini must have known when he bought the ring that the transaction involved the proceeds of unlawful activity. See Ohio Rev. Code Ann. §1315.55(a)(1) (Lexis 2016). In support of that element, the officers averred that Chiaverini always suspected the ring was stolen. The judge issued the requested warrant, and the officers arrested Chiaverini. He remained in custody for three days, until his arraignment. At a later preliminary hearing, the judge heard testimony about the evidence supporting the officers’ probable-cause allegations. See App. to Pet. for Cert. 6a–7a. The officers maintained that Chiaverini had admitted in their interview to suspecting the ring was stolen; Chiaverini denied making any such statement. At the hearing’s conclusion, the judge again found probable cause, and set the three charges for trial.

The county prosecutors, though, decided that they had higher priorities. They failed to present the case to a grand jury in the required time. The court therefore dismissed the charges.

But Chiaverini decided not to let matters lie. After all, he had been arrested and held for three days, he thought unjustifiably. So he sued the officers under §1983, alleging what is known as a Fourth Amendment claim for malicious prosecution. To prevail on that claim, he had to show (among other things) that the officers brought criminal charges against him without probable cause. See Thompson, 596 U. S., at 43–44. In addressing that issue, he gave special attention to the felony charge for money laundering. According to Chiaverini, the officers lacked probable cause for that charge for two reasons. First, they had no reason to think he knew the ring was stolen; indeed, he said, their claim that he had admitted as much was an out-and-out lie. And second, they could not show—as, in his view, Ohio law required—that the ring was worth more than $1,000; its value was far less, more in line with its $45 purchase price. So Chiaverini concluded that his suit satisfied the “without probable cause” element of a Fourth Amendment malicious- prosecution claim.

The issue that went before the United States Supreme Court was the lower courts’ findings that if there was probable cause for any proper charge then there could be no claim for a constitutional malicious prosecution by Chiaverini.

The Court noted: “The claim Chiaverini brought—a Fourth Amendment malicious-prosecution claim—emerged from that method. The constitutional violation alleged in such a suit is a type of unreasonable seizure—an arrest and detention of a person based on a criminal charge lacking probable cause.”

The Court continued:

The question here is whether a Fourth Amendment malicious-prosecution claim may succeed when a baseless charge is accompanied by a valid charge. The Court of Appeals, as described above, answered that question with a categorical no: Even if the felony count lacked probable cause, the Sixth Circuit held, Chiaverini could not recover because the misdemeanor counts were adequately supported. But a funny thing happened on the way to this Court. The officers now agree with Chiaverini that there is no such flat bar. And the United States as amicus curiae also argues that the Sixth Circuit rule is wrong. We agree with them all. Consistent with both the Fourth Amendment and traditional common-law practice, courts should evaluate suits like Chiaverini’s charge by charge. Consider first how that result follows from established Fourth Amendment law. Under that Amendment, a pre- trial detention (like the one Chiaverini suffered) must be based on probable cause. Otherwise, such a detention counts as an unreasonable seizure. And even when a detention is justified at the outset, it may become unreasonably prolonged if the reason for it lapses.  So if an invalid charge—say, one fabricated by police officers—causes a detention either to start or to continue, then the Fourth Amendment is violated. And that is so even when a valid charge has also been brought (although, as soon noted, that charge may well complicate the causation issue.(cites omitted).

The Court citing the Fourth Amendment and common-law torts held that probable cause for one of the charges did not preclude a malicious prosecution claim under the Fourth Amendment.

The Court noted that there was still the issue of causation. “As noted earlier, a Fourth Amendment malicious-prosecution suit depends not just on an unsupported charge, but on that charge’s causing a seizure—like the arrest and three-day detention here.   The parties did not agree on how causation should be analyzed.

“Chiaverini’s test [for causation] is the easiest [for plaintiff] to satisfy. On his view, when both valid and invalid charges are brought before a judge for a probable cause determination, the warrant the judge issues is irretrievably tainted, so any detention depending on that warrant is the result of the invalid charge. The United States disagrees, arguing for the use of a but-for test to discover whether the invalid charge, apart from the valid ones, caused a detention. The question then would be whether the judge “in fact [would] have authorized” the detention had the invalid charge not been present. Id., at 43. And finally, the officers urge a still stricter test. In their view, the question is whether the judge, absent the invalid charge, could have legally authorized the detention—regardless of what he really would have done.”

The Court then noted that the causation issue was not presented to the Court and thus, the Court would not decide how causation would be analyzed.

Commentary: This case makes clear that a plaintiff may make out a constitutional claim of malicious prosecution under the Fourth Amendment even when the officer has probable cause to support one of the charges brought.  The issue of how causation of a constitutional injury will be determined was not decided by the Court.

Plaintiff May Have Claim For Retaliatory Arrest When There Is Probable Cause of Some Charge, But they Can Show They Were Treated Differently Than Other Similarly Situated Persons

In Gonzalez v. Trevino,[2] the Court examined the arrest of city council member from Castle Hill, Texas.   The Court reported the facts as follows:

In 2019, Sylvia Gonzalez ran for a seat on the city council of Castle Hills, a small town in southern Texas. While on the campaign trail, Gonzalez heard multiple complaints about the city manager, Ryan Rapelye. As city manager, Rapelye was responsible for enforcing the city’s laws and managing its budget, among other things.

Gonzalez was elected in May 2019. Her first act in office was to help gather signatures for a petition seeking Rapelye’s removal. Eventually, over 300 residents signed the petition. The petition was introduced at the next city council meeting, where discussions grew heated after various residents rose to Rapelye’s defense and spoke against Gonzalez. The discussion over the petition continued the next day.

At the end of the second day, Gonzalez was packing up her belongings when the mayor, Edward Trevino, II, asked her for the petition. Gonzalez indicated that the petition was in Trevino’s possession, which he denied. He then asked Gonzalez to check her binder, where she found the petition. Gonzalez claims that she “did not intentionally put the petition in her binder,” and that she was “surprise[d]” to find it there. Complaint and Jury Demand in No. 5:20–cv–01151 (WD Tex., Sept. 9, 2020), ECF Doc. 1, p. 11.

Trevino brought this incident to the city police’s attention, and an investigation into these events soon began. Within a month, a private attorney tasked with leading the investigation concluded that Gonzalez had likely violated a Texas anti-tampering statute that, among other things, prohibits a person from intentionally “remov[ing] . . . a governmental record.” Tex. Penal Code Ann. §§37.10(a)(3), (c)(1) (West Cum. Supp. 2023).1

On the private attorney’s request, a local Magistrate granted a warrant for Gonzalez’s arrest. When she heard the news, Gonzalez turned herself in and spent an evening in jail. The district attorney ultimately dismissed the charges. Gonzalez claims that this episode has convinced her to step away from political life.

Gonzalez brought suit under 42 U. S. C. §1983, in Federal District Court against Trevino along with the police chief and the private attorney in their individual capacities.2 Her complaint alleged that she was arrested in retaliation for her role in organizing the petition for Rapelye’s removal and that the defendants therefore violated her First Amendment rights.

To bolster her claim, Gonzalez alleged that she had reviewed the past decade’s misdemeanor and felony data for Bexar County (where Castle Hills is located) and that her review had found that the Texas anti-tampering statute had never been used in the county “to criminally charge someone for trying to steal a nonbinding or expressive document.” ECF Doc. 1, at 17. Gonzalez’s search turned up 215 felony indictments, and she characterized the typical indictment as involving “accusations of either using or making fake government identification documents.” Ibid. Other felony indictments included ones for fake checks, hiding murder evidence, or cheating on government exams. Every misdemeanor case, according to Gonzalez, involved “fake social security numbers, driver’s licenses, [or] green cards.” Ibid. Gonzalez pointed to this research as evidence that the defendants had engaged in a political vendetta by bringing a “sham charge” against her.

The Court citing its prior decision in Nieves v. Bartlett, 587 U.S. 391 402 (2019), noted that the general rule is that a person alleging a retaliatory arrest must plead and prove that there was no probable cause for the arrest. The Court noted that in Nieves, a narrow exception to the general rule was carved out. “The existence of probable cause does not defeat a plaintiff’s claim if he produces ‘objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

The Court noted that this exception applies to “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.”  The Court noted that a plaintiff in this type of case must point to objective evidence to fit within the exception.

The Court found that Gonzalez’s survey evidence was the type of objective evidence that would be allowed.

The Court concluded: “Gonzalez’s survey is a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel—makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.”

Commentary: Establishing Probable Cause for an arrest where the conduct is protected under the First Amendment will not insulate an officer from a lawsuit where the plaintiff can point to objective evidence establishing that no other persons have been charged with the offense brought by the officer.

 

An Officer’s Non-Disciplinary Transfer May Violate Title VII

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1).

At the outset, it is noted that officers are not able to make Title VII claims unless they meet one of the criteria within the law.  Specifically, the officer must be able to meet the requirement that they were discriminated against because of race, color, religion, sex, or national origin.

The Court recited the facts in Muldrow v. City of St. Louis,[3] as follows:

From 2008 through 2017, Sergeant Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. During her tenure there, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. By virtue of her Division position, Muldrow was also deputized as a Task Force Officer with the Federal Bureau of Investigation—a status granting her, among other things, FBI credentials, an unmarked take home vehicle, and the authority to pursue investigations outside St. Louis. In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a “workhorse”—still more, that “if there was one sergeant he could count on in the Division,” it was Muldrow. 2020 WL 5505113, *1 (ED Mo., Sept. 11, 2020).

But the new Intelligence Division commander, Captain Michael Deeba, instead asked the Department to transfer Muldrow out of the unit. Deeba wanted to replace Muldrow—whom he sometimes called “Mrs.” rather than the customary “Sergeant”—with a male police officer. See id., at *1–*2. That officer, Deeba later testified, seemed a better fit for the Division’s “very dangerous” work. Id., at *2; App. 139. The Department approved the transfer against Muldrow’s wishes. It reassigned her to a uniformed job in the Department’s Fifth District.

While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, Muldrow now supervised the day-to-day activities of neighborhood patrol officers. Her new duties included approving their arrests, reviewing their reports, and handling other administrative matters; she also did some patrol work herself. Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. And the change of jobs made Muldrow’s workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. Now she was placed on a “rotating schedule” that often involved weekend shifts. 2020 WL 5505113, *2. Muldrow brought this Title VII suit to challenge the transfer. Her complaint alleged that the City, in ousting her from the Intelligence Division, had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. §2000e–2(a)(1). In later deposition testimony, Muldrow set out her view of what the transfer had cost her. She had been moved out of a “premier position [in] the Police Department” into a less “prestigious” and more “administrative” uniformed role. App. 105, 114, 120. She had fewer “opportunities” to work on “important investigations,” as well as to “network” with commanding officers. Id., at 104. And she lost material benefits—her weekday work schedule and take-home car. Or as she summarized the situation: “I went from straight days, weekends off with a take-home car and more visibility and responsibility within the Department to a rotating schedule with few weekends off, assigned to . . . uniformed patrol,” with “responsibilities being limited to that of administrative work” and “supervising officers on patrol.” Id., at 120. Title VII, Muldrow asserted in her suit, prevented the City from making those changes to her employment because of her sex.

The Federal District Court had rejected Muldrow’s claim holding that “Muldrow needed to show that her transfer effected a ‘significant’ change in working conditions producing “material employment disadvantage.” In rejecting her claim the lower court noted that Muldrow suffered no change in salary or rank. Further, the District Court found that “Her loss of ‘networking [opportunities] available in Intelligence’ was immaterial because she had not provided evidence that it had harmed her ‘career prospects’…And given her continued ‘supervisory role,’ she had not ‘suffered any significant alteration to her work responsibilities.’…Finally, the District Court concluded that the switch to a rotating schedule (including weekend work) and the loss of a take-home vehicle could not fill the gap.”

The United States Court of Appeals for the Eighth Circuit affirmed the grant of summary judgment concluding that Muldrow could not meet the burden of a Title VII claim.  The United States Supreme Court granted certiorari to settle a split among the circuits as to whether an employee challenging a transfer under Title VII must meet the heightened standard.

At the outset, the Court noted:

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). Muldrow’s suit, as described above, alleges that she was transferred to a lesser position because she is a woman. That transfer, as both parties agree, implicated “terms” and “conditions” of Muldrow’s employment, changing nothing less than the what, where, and when of her police work. See Brief for Muldrow 19; Brief for City 1, 45–46. So the statutory language applicable to this case prohibits “discriminating against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex.

The Court said that this language required “Muldrow to show that the transfer brought about some ‘disadvantageous’ change in an employment term or condition.” The Court defined “discriminates against” as “‘differences in treatment’ that injure employees…or ‘treat people worse’ because of sex or other protected trait.”  The Court noted that the definitions did not include how much worse the treatment has to be to establish a claim.  The fact that some of the Circuits created a heightened standard for plaintiffs, requiring significant disadvantages, went beyond the statutory language in Title VII.

The Court concluded that requiring Muldrow to prove that the alleged discriminatory treatment of her transfer caused a “significant employment disadvantage” was the wrong standard. “Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so.”  As such, summary judgement for the City should not have been granted and the case was sent back to the lower courts to decide the issues based on the proper analysis.  Having established that Muldrow’s transfer did leave her worse off, the issue for the lower courts will likely focus on whether the transfer had anything to di with her being a woman.

Commentary:  This case makes it easier for a person in a class protected by Title VII to bring an action based on changes in employment which are alleged to have been prompted by their position in the protected class.   The employee need only prove that they suffered some employment disadvantage and not significant employment disadvantage.

Social Media and Public Officials

At the outset, it is noted that this was a unanimous decision by the Court.

Note: This case has nothing to do with a public employee’s rights to speech or use of social media but instead focuses on when a government official can be sued for a violation of First Amendment rights when they restrict citizens from making comment on the public employee’s public social media.

The Court recited the underlying facts in Lindke v. Freed[4] as follows:

Like millions of Americans, James Freed maintained a Facebook account on which he posted about a wide range of topics, including his family and his job. Like most of those Americans, Freed occasionally received unwelcome comments on his posts. In response, Freed took a step familiar to Facebook users: He deleted the comments and blocked those who made them.

For most people with a Facebook account, that would have been the end of it. But Kevin Lindke, one of the unwelcome commenters, sued Freed for violating his right to free speech. Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen. Freed, however, is not only a private citizen but also the city manager of Port Huron, Michigan—and while Freed insists that his Facebook account was strictly personal, Lindke argues that Freed acted in his official capacity when he silenced Lindke’s speech.

When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.

The court recognized that Mr. Freed had created his Facebook account while in college as a private account that he shared only with “friends.”  The court noted that “friends” on Facebook “are not necessarily confidants or even real-life acquaintances.”

The court added these additional facts:

When Freed, an avid Facebook user, began nearing the platform’s 5,000- friend limit, he converted his profile to a public “page.” This meant that anyone could see and comment on his posts. Freed chose “public figure” for his page’s category, “James Freed” for its title, and “James R Freed 1” as his username. Facebook did not require Freed to satisfy any special criteria either to convert his Facebook profile to a public page or to describe himself as a public figure.

In 2014, Freed was appointed city manager of Port Huron, Michigan, and he updated his Facebook page to reflect the new job. For his profile picture, Freed chose a photo of himself in a suit with a city lapel pin. In the “About” section, Freed added his title, a link to the city’s website, and the city’s general email address. He described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.”

As before his appointment, Freed operated his Facebook page himself. And, as before his appointment, Freed posted prolifically (and primarily) about his personal life. He uploaded hundreds of photos of his daughter. He shared about outings like the Daddy Daughter Dance, dinner with his wife, and a family nature walk. He posted Bible verses, updates on home-improvement projects, and pictures of his dog, Winston.

Freed also posted information related to his job. He described mundane activities, like visiting local high schools, as well as splashier ones, like starting reconstruction of the city’s boat launch. He shared news about the city’s efforts to streamline leaf pickup and stabilize water intake from a local river. He highlighted communications from other city officials, like a press release from the fire chief and an annual financial report from the finance department. On occasion, Freed solicited feedback from the public—for instance, he once posted a link to a city survey about housing and encouraged his audience to complete it.

Freed’s readers frequently commented on his posts, sometimes with reactions (for example, “Good job it takes skills” on a picture of his sleeping daughter) and sometimes with questions (for example, “Can you allow city residents to have chickens?”). Freed often replied to the comments, including by answering inquiries from city residents. (City residents can have chickens and should “call the Planning Dept for details.”) He occasionally deleted comments that he thought were “derogatory” or “stupid.”

After the COVID–19 pandemic began, Freed posted about that. Some posts were personal, like pictures of his family spending time at home and outdoors to “[s]tay safe” and “[s]ave lives.” Some contained general information, like case counts and weekly hospitalization numbers. Others related to Freed’s job, like a description of the city’s hiring freeze and a screenshot of a press release about a relief package that he helped prepare.

Enter Kevin Lindke. Unhappy with the city’s approach to the pandemic, Lindke visited Freed’s page and said so. For example, in response to one of Freed’s posts, Lindke commented that the city’s pandemic response was “abysmal” and that “the city deserves better.” When Freed posted a photo of himself and the mayor picking up takeout from a local restaurant, Lindke complained that while “residents [we]re suffering,” the city’s leaders were eating at an expensive restaurant “instead of out talking to the community.” Initially, Freed deleted Lindke’s comments; ultimately, he blocked him. Once blocked, Lindke could see Freed’s posts but could no longer comment on them.

Mr. Lindke filed a lawsuit under 42 U.S.C. §1983 alleging that Freed, as a government official had violated Lindke’s free speech rights.  It should be clear that the Constitution’s First Amendment, gives all persons the right to free speech, and provides the strongest protection when that speech is critical of government.   Lindke alleged that “he had the right to comment on Freed’s Facebook page, which he characterized as a public forum.

At the outset of the decision, the Court noted that in order to prevail on a §1983 claim, the person bringing the lawsuit must show that there was “state action” or action taken under color of state law. The Court wrote: “The need for governmental action is also explicit in the Free Speech Clause, the guarantee that Lindke invokes in this case.”

The Court described the analysis in color of law questions noting:

In the run-of-the-mill case, state action is easy to spot. Courts do not ordinarily pause to consider whether §1983 applies to the actions of police officers, public schools, or prison officials. See, e.g., Graham v. Connor, 490 U. S. 386,  388 (1989) (police officers); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 504–505 (1969) (public schools); Estelle v. Gamble, 429 U. S. 97, 98 (1976) (prison officials). And, absent some very unusual facts, no one would credit a child’s assertion of free speech rights against a parent, or a plaintiff ‘s complaint that a nosy neighbor unlawfully searched his garage. Sometimes, however, the line between private conduct and state action is difficult to draw. Griffin v. Maryland is a good example. 378 U. S. 130 (1964). There, we held that a security guard at a privately owned amusement park engaged in state action when he enforced the park’s policy of segregation against black protesters. Id., at 132–135. Though employed by the park, the guard had been “deputized as a sheriff of Montgomery County” and possessed “ `the same power and authority’ ” as any other deputy sheriff. Id., at 132, and n. 1. The State had therefore allowed its power to be exercised by someone in the private sector. And the source of the power, not the identity of the employer, controlled.

By and large, our state-action precedents have grappled with variations of the question posed in Griffin: whether a nominally private person has engaged in state action for purposes of § 1983. (emphasis added).

The question is difficult, especially in a case involving a state or local official who routinely interacts with the public. Such officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But the state-action doctrine avoids such broad-brush assumptions—for good reason. While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights. By excluding from liability “acts of officers in the ambit of their personal pursuits,” Screws v. United States, 325 U. S. 91, 111 (1945) (plurality opinion), the state-action requirement “protects a robust sphere of individual liberty” for those who serve as public officials or employees, Halleck, 587 U. S., at 808.

The dispute between Lindke and Freed illustrates this dynamic. Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U. S. 410, 417 (2006). This right includes the ability to speak about “information related to or learned through public employment,” so long as the speech is not “itself ordinarily within the scope of [the] employee’s duties.” Lane v. Franks, 573 U. S. 228, 236, 240 (2014). Where the right exists, “editorial control over speech and speakers on [the public employee’s] properties or platforms” is part and parcel of it. Halleck, 587 U. S., at 816. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own. (emphasis added).

So Lindke cannot hang his hat on Freed’s status as a state employee. The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look.   (emphasis added).

It should be recognized that law enforcement officers meet the criteria of being a government official. The Court noted that there are “approximately 20 million state and local government employees across the nation, with an extraordinary wide range of job descriptions-from Governors, mayors, and police chiefs to teachers, healthcare professionals, and transportation workers.”

The Court set forth the criteria for when a “public officials social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s [governmental entity’s] behalf, and (2) purported to exercise that authority that authority when he spoke on social media.  The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first step.”

The court pointed out that the first prong of the test has its basis in the fact that conduct alleged to violate federal rights must be “fairly attributable to the State.”

In applying this principle to law enforcement, if a police officer or deputy has no authority to speak on behalf of their agency, then their actions would not be considered state action. The Court wrote, “An act is not attributable to a State [government entity] unless it is traceable to the State’s [governmental entity’s] power or authority. Private action—no matter how ‘official’ it looks—lacks necessary lineage.”

Lindke’s focus on appearance skips over this crucial step. He insists that Freed’s social-media activity constitutes state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns. But Freed’s conduct is not attributable to the State unless he was “possessed of state authority” to post city updates and register citizen concerns. Griffin, 378 U. S., at 135. If the State did not entrust Freed with these responsibilities, it cannot “fairly be blamed” for the way he discharged them. Lugar, 457 U. S., at 936. Lindke imagines that Freed can conjure the power of the State through his own efforts. Yet the presence of state authority must be real, not a mirage.

Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed’s bailiwick. For example, imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed’s state authority—because he had none. For state action to exist, the State must be “responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U. S. 991, 1004 (1982) (emphasis deleted). There must be a tie between the official’s authority and “the gravamen of the plaintiff’s complaint.” Id., at 1003. To be clear, the “[m]isuse of power, possessed by virtue of state law,” constitutes state action…Every §1983 suit alleges a misuse of power, because no state actor has authority to deprive someone of a federal right.  To misuse power, however, one must possess it in the first place.

The Court noted that a government officials power has been found to come from “statute, ordinance, regulation, custom, or usage.” Thus, the power can come from that which is written into law or regulations or where the power of the government official has been recognized for so long that the officials power to undertake the conduct has become “permanent and well settled.” The Court noted, “The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State (government entity) entrusted the official to do.”

On the first prong, the Court concluded: “In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.”

In moving to the second prong, the Court wrote, “For social media to constitute state action, an official must not only have state authority—he must also purport to use it.”

The Court wrote: “[G]enerally, a public employee” purports to speak on behalf of the State while speaking “in his official capacity or” when he uses his speech to fulfill “his responsibilities pursuant to state law.” West, 487 U. S., at 50. If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.”

The Court noted that if a public employee were to add a qualifier to their social media account such as “this is the personal page of James R. Freed…[or] the views expressed are strictly my own” the employee “would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.”  The Court asserted that the official page of a governmental entity or which is passed from governmental official to a replacement government official purportedly does speak for the government.

The Court also noted that official announcements on the government employee’s page will meet this second prong, while the sharing of an official announcement that appears on the official page may not meet the second prong as purportedly using official state authority.

The Court warned, “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

The Court did not decide whether Freed violated Lindke’s rights, but instead directed the lower courts on how such claims must be analyzed.  The Court then remanded the case back to the lower courts to apply the announced analysis to the case.

It is noted that the Court, in a per curiam decision also overturned the United States Court of Appeals for the 9th Circuit’s decision in O’Connor-Ratcliff ET AL. v. Garner ET UX.  Based on the fact that the 9th Circuit also used an analysis inconsistent with the analysis announced in Freed v Lindke.

Commentary:  There was a split among the United States Courts of Appeals as to how it would be determined as to when a public official’s actions in using social media was government action thus restricting the government actor from blocking others from commenting or eliminating opposing posts.  This case only decided what the proper analysis should be.

The Court identified a two-step analysis: “public officials social-media activity constitutes state action under §1983 only if the official:

(1) possessed actual authority to speak on the State’s [governmental entity’s] behalf, and

(2) purported to exercise that authority that authority when he spoke on social media. 

The Court warned, “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

In many agencies, officers, particularly high-ranking officers have authority to speak on the law enforcement agencies behalf.  Clearly Sheriffs and Chiefs have this authority.  In such cases, a plaintiff will likely be able to establish the first step of the analysis.

The remaining question will be whether the officer, Chief, or Sheriff, who possessed authority to speak on behalf of the agency under the first prong, purported to exercise that authority when they spoke.   If both questions are answered in the affirmative then the person bringing the lawsuit has met their burden under the test announced.

In using social media where agency issues may be posted as a citizen rather than as an official, officers, Sheriffs and Chiefs would be advised to include a statement that their page is not an official page of the agency and that views expressed on the page are strictly their own and do not represent the views of the agency.  

 

 

 

 

[1] Chiaverini v. City of Napoleon, 2024 U.S. LEXIS 2710 (2024).

[2] Gonzalez v. Trevino, 144 S.Ct. 325 (2023).

[3] Muldrow v. City of St. Louis, 144 S.Ct. 967 (2024).

[4] Lindke v. Freed, 144 S.Ct. 756 (2024).

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