FREE SPEECH -- The Ninth U.S. Circuit Court of Appeals ruled yesterday that complaints by two San Bernardino police officers about their supervisors’ conduct toward them were not protected by the First Amendment, reports Kenneth Ofgang for the Metropolitan News-Enterprise in Los Angeles.


In Desrochers v. City of San Bernardino, Ofgang notes, "Judge Diarmuid F. O’Scannlain, writing for a divided panel that affirmed a judgment in favor of the city of San Bernardino, said the dispute was an intradepartmental matter and not a subject of public concern."

Judge Pamela Ann Rymer agreed, while dissenting Judge Kim M. Wardlaw argued that matters involving “the performance, functioning, and mismanagement of government agencies” may implicate employee free speech rights.

The plaintiffs in the case, Michael Desrochers and Steve Lowes, are among four SBPD sergeants who filed an internal grievance against a lieutenant in April 2006. While the other two accepted an informal resolution, Desrochers and Lowes formally accused their superior of criticizing them in front of others and acting unprofessionally in other ways, including placing the department in a negative light by making critical comments in meetings with officers from other agencies.

The pair claimed that it was in retaliation for that grievance that Desrochers was transferred over his objection from the Homicide Unit that he had headed to the Robbery Unit, and that Lownes was suspended for two weeks. They also claimed that then-Chief Michael Billdt and the assistant chief failed to take appropriate corrective action in response to their grievance.

Billdt retired earlier this year, following a plebiscite in which three-quarters of the officers indicated a lack of confidence in his leadership, and was replaced by former Bell Gardens Chief Keith Kilmer.

The city contended that Descrochers was transferred because he botched a murder probe, and that Lowes disobeyed orders and endangered a suspect in custody. The city also contended that their grievance was a matter of personal interest, rather than public concern, and thus did not implicate public employee free speech rights under Connick v. Myers (1983)  461 U.S. 138.

Connick held that the New Orleans district attorney did not violate the First Amendment by firing an assistant for circulating a questionnaire that solicited criticism of office personnel and policies.

U.S. District Judge Virginia Phillips of the Central District of California found that there were no issues of public concern involved, granted summary judgment on the free speech claim under 42 U.S.C. Sec. 1983, and declined to hear the plaintiffs’ state law claims.

O’Scannlain said the district judge was correct. He said he was “not persuaded” by the officers’ claim that they were concerned with the “competency,” “preparedness,” “efficiency,” and “morale” of the department.