Monday, June 25, 2018
Court of Appeal:
LAPD Sergeant’s Facebook Posting Was Disciplinable
Opinion Says Derisive Comment on Pending Case Against LAPD Was ‘Disruptive’
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed the denial of a writ petition sought by a Los Angeles Police Department sergeant who contested receipt of a reprimand and a five-day suspension without pay for posting a comment on a third party’s Facebook page ridiculing an action against the LAPD by a female officer who claimed gender and religious discrimination.
Rejecting the contention by Benjamin Zucker that the discipline was an affront to his First Amendment right to comment in his role as a private citizen, Div. Five affirmed the decision of Los Angeles Superior Court Judge Mary Strobel in upholding the penalty. The opinion, filed Thursday and not certified for publication, was authored by Los Angeles Superior Court Judge Dorothy C. Kim, sitting on assignment.
“Plaintiff was disciplined for making an inappropriate Facebook comment while off-duty,” Kim declared. “Government employees may be disciplined for off-duty misconduct.”
His commenting on the lawsuit was disciplinable, she said, because it caused “disruption” within the department, and constituted “conduct unbecoming an officer,” proscribed by the LAPD Manual.
The acting justice also said that although Zucker did not identify himself as a member of the LAPD, it was inferable that he was, and this was susceptible of substantiation by going to his own Facebook page where he mentions his affiliation.
Reaction to Article
Zucker’s comment was posted on the Facebook page of Officer Mark Cronin, who had provided a link on March 31, 2014, to an article of that date on the Daily News webpage. It was a story from City News Service telling of a lawsuit against the city by Officer Victoria DeBellis, who claimed she was harassed based, in part, based on being an adherent to the Wicca religion—that is, being a “witch.”
In his March 31 posting, Zucker did not allude to DeBellis’s status as a “witch.” He did say:
“I was born Jewish, raised Mormon and married to a catholic that is Japanese, Portuguese & German. NOW WHERES MY MONEY?
“Kiss my [buttocks] ya greedy house mouse!”
At his Board of Rights hearing, Zucker explained:
“Well, what I meant by that is that, you know, we work in a city that’s very diverse. Everybody has their own quirks. Everybody has their own issues. And you know, at what point in time do we stop suing and being so litigious and stop suing everybody for every little thing, in some cases even looking to create a lawsuit, and actually get to work and do our jobs? That’s what I meant by it.”
He said the term “house mouse” is understood among LAPD personnel as referring to a member of the department who—such as DeBellis—is not in the field. Zucker said he would have no criticism of such a person if he or she had been injured, adding:
“If it’s somebody...that doesn’t do police work because they don’t want to do police work, then yes, I have a problem with that.”
“If I had posted as ‘Sergeant Zucker’ and I said that in uniform or in context—or in the context of being a supervisor or a police officer, yes, that is not right. That wouldn’t be right.”
But, he stressed, he posted “as Ben Zucker…with no nexus to the department,” asserting:
“[T]hat’s my First Amendment right.”
Kim proclaimed that Zucker’s First Amendment right was overcome by other considerations. She wrote:
“A government employer’s showing of the potential disruptiveness of the speech is sufficient to outweigh its employee’s First Amendment right….
“Here, the department’s showing of the potential disruptiveness of plaintiff’s Facebook comment outweighs plaintiff’s First Amendment right. While the speech involved a matter of public concern because plaintiff commented on a news article, it also included a derogatory statement directed at Debellis. Plaintiff made the comment on Cronin’s Facebook profile, knowing other department employees would see his post. Debellis saw plaintiff’s Facebook comment and filed a personnel complaint against him after determining he was a LAPD employee through his Facebook profile.”
She said that a subsequent internal investigation confirmed “that the Facebook comment impaired harmony among co-workers and caused potential disruption to department operations.” It was determined that about 30 persons who were employed by the LAPD or linked to Cronin saw Zucker’s posting.
Link to Department
Rejecting the contention by Zucker’s that there was no link between his employment by the LAPD and his posting, Kim noted that Cronin, on his Facebook page, was depicted in police uniform and identified as director of the Los Angeles Police Protective League.
By virtue of Zucker’s use of the phrase, “WHERE [’]S MY MONEY?,” she said, Strobel reasonably found inferable that the poster, like Debellis, was “an officer that could choose to sue the LAPD.” His use of the term, “house mouse”—which, she observed, “is not a term commonly used by the general public” but “is a term that is used by department personnel”—was a give-away, Kim found, as to his status.
She noted that Zucker’s employment by the LAPD was easily verified by looking on his own Facebook page.
The case is Zucker v. City of Los Angeles, B281382.
Richard A. Levine of Rains Lucia Stern St. Phalle & Silver represented Zucker and Deputy Los Angeles City Attorney Shaun Dabby Jocobs argued for affirmance.
Subsequent to the events giving rise to the disciplinary action against Zucker, Victoria DeBellis’s husband, LAPD Sgt. A.J. DeBellis, also brought an action for harassment.
He alleged that as “a practicing Wiccan,” he was “deeply offended” by having to attend a department training session that took place at a church and that he “was required to sit through a recital of a Christian prayer.”
After he complained, the sergeant asserted, he began to experience retaliation.
Last year, the law firm of McNicholas & McNicholas secured a $1.25 million settlement from the City of Los Angeles of lawsuits brought against it by the two plaintiffs.
Brian Ross of the law firm of the Ontario law firm of Rains Lucia Stern, which represented Zucker, advised on Friday:
“We are currently reviewing and analyzing the decision, and have not yet made any determination regarding future actions.”
Comments on Opinion
Former Los Angeles County District Attorney Steve Cooley—co-author of a book on fallen police officers, “Blue Lives Matter”—commented:
“Employers have some rights to control speech of employees if the speech can be ‘disruptive of the workplace.’ The case of Ceballos v Garcetti made that clear.
“I guess the lesson to be taken away is when you enter the social media world, one would be well advised to assure anonymity. I came away with the impression that the First Amendment’s protection of the marketplace of ideas was given short shrift in this instance.”
Media attorney Gary Bostwick provided this analysis:
“The court’s opinion is not adventurous. It relies on well-established precedent. Note it is not for publication.
“If I had to frame the question, I would say it is whether an off-duty government employee may express an opinion on social media. As always with the First Amendment, the analysis must balance interests on both sides.
“The opinion is clear that one statement posted by the plaintiff was crucial; he said, ‘Kiss my ass ya’ greedy house mouse.’ If he hadn’t said those words, I believe he may have been protected. That’s because the U.S. Supreme Court has held that a government employer may bar its employees from making offensive speech to members of public or coworkers, and without that poisonous comment, it’s hard to say the statement hurt the public service. The court here concluded that statement ‘was directed at [a fellow police officer] and posted on [another police officer’s] Facebook profile, which was viewed by other LAPD employees and members of the public who were...Facebook friends. This comment brought discredit to the agency.’ It harmed the public service; that’s over the line, when balanced against the officer’s First Amendment rights.
“This appears to be a straightforward application of existing law to the facts. Without that last personal dig, this would have been seen differently.”
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