Metropolitan News-Enterprise


Friday, March 2, 2018


Page 1


Ninth Circuit:

School Employee’s Protest of ‘Police Brutality’ Not Protected

Three-Judge Panel Invokes Case Involving Action Against Then-D.A. Gil Garcetti


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeal yesterday spurned the contention by a campus security supervisor that her rights to freedom of speech were defied when she was fired for repeatedly shouting “police brutality” and instructing students to make video recordings on their cellphones when officers sought to quell a melee at high school.

“This case involves an unusual claim of retaliation for the exercise of First Amendment rights,” the memorandum opinion by a three-judge panel observes.

Yesterday’s opinion affirms summary judgment in favor of the high school principal and the personnel director, defendants in the suit brought by the discharged supervisor, Shenetta Toney. (She brought a separate action against the school district and a supervisor in San Joaquin Superior Court.)

Police came to Bear Creek High School in Stockton after a fight broke out in a parking lot in which students and non-students participated.

Three persons were arrested. It was the arrest of an African American sophomore that prompted Toney’s protest.

Toney Quoted

The campus newspaper, “Bruin’s Voice,” quoted her as saying that she did cry out, “police brutality,” explaining:

“I just felt that excessive force was being used. My job is to protect the students. If I can’t do anything, I feel helpless.”

Toney added:

“I told the kids to take out their cell phones. We live in such a viral world. If you have no proof, who will believe you?”

Police arrested Toney but she was not prosecuted.

Affirming summary judgment awarded by Judge William B. Shubb of the Eastern District of California, the opinion declares that to the extent Toney’s conduct “included speech, she spoke in her capacity as a public employee.”

Action Against Garcetti

It quotes the United States Supreme Court’s 2006 opinion in Garcetti v. Ceballos as saying that the “First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.”

That case involved an action by Deputy Los Angeles District Attorney Richard Ceballos against then-District Attorney Gil Garcetti based on discipline stemming from his writing of a memo. Writing for the majority, Justice Anthony Kennedy said: “The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.”

The Ninth Circuit opinion in Toney’s case goes on to say:

“Ms. Toney contends that she did not speak in her capacity as an employee because her duties did not specifically include declaring police brutality and instructing students to film it. This argument is unavailing. Her comments were made during the course of her duties as a campus supervisor to maintain campus order and safety. As the Supreme Court said in Garcetti, his superiors retained the ‘authority to take proper corrective action’ if they ‘thought his memo was inflammatory or misguided.’….Ms. Toney’s superiors were in a similar position.”

The case is Tony v. Young, No. 17-15395,


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