Metropolitan News-Enterprise


Wednesday, January 28, 2009


Page 3


Ninth Circuit Denies En Banc Review in Text Message Privacy Case


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals, over the dissent of seven of its judges, yesterday declined to review en banc a ruling that the Ontario Police Department violated an employee’s right to privacy when supervisors examined the contents of text messages sent on department pagers.

A panel of the court ruled in June that the department violated the Fourth Amendment rights of Sgt. Jeff Quon and three others to whom he sent text messages when the department obtained transcripts from the service provider and examined the messages’ contents to determine whether a monthly overage charge resulted from personal use.

Judge Kim McLane Wardlaw, joined by Judge Harry Pregerson and U.S. District Judge Ronald Leighton of the Western District of Washington, sitting by designation, wrote that Quon and the others had a reasonable expectation of privacy given Quon’s reliance—by paying overage charges—on an informal department policy permitting personal pager use.

The panel also concluded the search’s manner was not reasonably related to its objectives and was excessively intrusive in light of a jury’s conclusion the search was not aimed at uncovering misconduct, and Wardlaw noted the department could have warned Quon it would prospectively review messages for personal use or first given him an opportunity to redact the transcripts.

However, although a majority of the court’s active judges—with the exception of Judge Jay Bybee, who was recused—voted to deny en banc review, Judge Sandra Ikuta dissented, joined by Judges Diarmuid O’Scannlain, Andrew Kleinfeld, Richard Tallman, Consuelo Callahan, Carlos Bea and N. Randy Smith.

Focusing on Quon’s position on the department’s SWAT team, and his receipt of the pager in that context, Ikuta said the panel undermined the standard established by the Supreme Court in O’Connor v. Ortega (1987) 480 U.S. 709 to evaluate the legitimacy of non-investigatory searches in the workplace, and had, in doing so, “improperly hobble[d] government employers from managing their workforces.”

Under O’Connor, courts must consider the “operational realities of the workplace” when determining whether an expectation of privacy is reasonable, and a public employer may conduct searches of employees only if reasonable “under all the circumstances.”

Ikuta opined that the realities of Quon’s position—and his status as a public employee—left a “significantly diminished or non-existent” privacy interest.

The judge further accused the panel of adopting a “least intrusive means” test for “special needs” searches by examining what the department could have instead done, and wrote that such a decision conflicted not only with Supreme Court precedent, but also the decisions of seven other circuit courts.

But Wardlaw, writing to “correct the seriously flawed underpinnings of the dissent and to demonstrate that our opinion carefully and correctly applied the tests set forth in O’Connor,” countered in a rare concurrence with the order denying review that “[n]o poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal.”

She continued:

“The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding. The dissent’s lofty views of how the City of Ontario Police Department…should have guided the use of its employees’ pagers are far removed from the gritty operational reality at the OPD….

“That our opinion follows Supreme Court precedent and accords with our sister circuits is obviously why this appeal failed to win the support of a majority of our active judges for rehearing en banc….

“By stripping public employees of all rights to privacy regardless of the actual operational realities of each workplace, the dissent would have us create a far broader rule than Supreme Court precedent allows. The majority of our court properly rejected the dissenting judge’s efforts to do so.”

The case is Quon v. Arch Wireless Operating Company, Inc., 07-55282.


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