Court Rejects Police Officers' First Amendment Lawsuit Relating to their Personal Social Media Activities

Court Rejects Police Officers' First Amendment Lawsuit Relating to their Personal Social Media Activities

  Friday, November 01, 2024    Julie Tappendorf

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A federal district court recently rejected police officers' claims that their First Amendment rights were violated by a city after the officers were disciplined or terminated for their personal social media activities. Fenico v. City of Philadelphia.

The officers' Facebook posts were brought to light by the "Plain View Project," a database of public social media posts and comments of current and former police officers across the country. According to the district court's opinion, the database includes over 5,000 posts and comments by police officers which Plain View deemed likely to "undermine public trust and confidence in police." Over 3,000 of the posts were attributed to Philadelphia police officers according to the Plain View Project.

After the posts and comments of city police officers were brought to light, the city faced protests by a number of groups and organizations objecting to the social media activities of some of the city police officers. The city subsequently conducted an internal investigation which ultimately led to disciplinary action against many of the officers, including termination in some cases. A number of the officers filed a lawsuit against the city, claiming the city retaliated against them in violation of their First Amendment free speech rights.

The district court considered the following three factors to determine whether a government employee's free speech rights are violated: (1) whether the employee was speaking as a private citizen; (2) whether the employee spoke on a matter of public concern; and (3) whether the employee's and public's interest in the speech outweighs the government interest in avoiding disruption to government operations that could be caused by the speech. If the government employee can demonstrate they meet each of the three factors, they will prevail in a First Amendment lawsuit.

As to the first factor, the parties acknowledged that the officers spoke as "private citizens." 

With respect to the second factor, after analyzing the plaintiff-officers' social media posts, the court determined that they spoke on matters of "public concern." The court noted that even the most inappropriate, inflammatory, or controversial comments can touch on matters of public concern.

The third factor (called the Pickering Balance) required the court to balance the city's interest in avoiding significant disruption to police operations against the employee's and public's interest in the employee's speech. After analyzing the hundreds of social media posts that were part of the lawsuit (many of which are reprinted in the opinion itself), the court determined that the city established that the city's interest in protecting police operations outweighed any employee or public interest in that speech. The court noted that many of the social media posts and comments involved advocating for violence against members of protected classes, included sexist and racist imagery, etc. The city demonstrated that public confidence in these officers and the department in general was negatively impacted by the officers' social media activities, and that the activities impacted law enforcement operations for many reasons, including that the district attorney had issued letters to many of the officers that it would have to disclose their social media activities to defense attorneys in cases where the officer was involved. 

Because the plaintiff-officers did not meet the third factor required to demonstrate a First Amendment claim against the city, the court rejected the plaintiff-officers' First Amendment claims and ruled in favor of the city on all claims.

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PAC Finds Public Body in Violation for Not Publishing Notice of Change to Regular Meeting Schedule

PAC Finds Public Body in Violation for Not Publishing Notice of Change to Regular Meeting Schedule

  Monday, October 28, 2024    Julie Tappendorf

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The Public Access Counselor of the Attorney General's office (PAC) issued its 13th binding opinion for 2024, finding a public body in violation of the OMA for failing to publish notice of a change to its regular meeting schedule. PAC Op. 24-013.

An individual filed a request for review with the PAC claiming that a village board failed to comply with the OMA when it voted to move its regular meetings from the third Monday of each month to the third Wednesday of each month. Specifically, the individual claimed the village did not publish notice of this change to its regular meeting schedule 10 days prior to taking action on the change, as required by section 2.03.

The PAC reviewed section 2.03 of the OMA and distinguished between (1) a change in a single regular meeting date that would be subject to the rescheduled or special meeting notice requirements (posting 48 hours in advance) and (2) a change to a public body's regular meeting dates "going forward" which requires 10 days prior notice by publication in a newspaper and posting notice at the principal office of the public body (see excerpt of section 2.03 below):

If a change is made in regular meeting dates, at least 10 days' notice of such change shall be given by publication in a newspaper of general circulation in the area in which such body functions. However, in the case of bodies of local governmental units with a population of less than 500 in which no newspaper is published, such 10 days' notice may be given by posting a notice of such change in at least 3 prominent places within the governmental unit. Notice of such change shall also be posted at the principal office of the public body or, if no such office exists, at the building in which the meeting is to be held. Notice of such change shall also be supplied to those news media which have filed an annual request for notice as provided in paragraph (b) of Section 2.02.

Here, the PAC determined that because the village board changed its regular meeting schedule "going forward," it was subject to the 10 day prior notice requirement of section 2.03. Since the village board did not publish notice of the change in its regular meeting schedule 10 days prior to voting on that change, it violated the OMA. However, the PAC acknowledged that the village board subsequently published notice of its change to its regular meeting schedule, so no further action was necessary to remedy that violation.

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Officer's PEDA Claim Subject to CBA Grievance Procedure

Officer's PEDA Claim Subject to CBA Grievance Procedure

  Wednesday, October 23, 2024    Julie Tappendorf

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An Illinois Appellate Court recently ruled in favor of a City in a case brought by a police officer who claimed the City failed to comply with the Public Employee Disability Act (PEDA) after he was injured. Allenbaugh v. City of Peoria.

A police officer filed a lawsuit against a City claiming the City failed to comply with the terms of PEDA by denying him full pay after he was injured in the line of duty. The City argued the trial court had no jurisdiction over the officer's claim because the dispute was governed by the City's collective bargaining agreement (CBA). Specifically, the City argued that because the officer's claim would require an interpretation of the meaning of specific language contained in the CBA, it had to be resolved through the exclusive grievance procedure contained in that CBA. The officer argued that because the lawsuit involved a claim that the City violated state law, the court had jurisdiction over the claim. The trial court ruled in favor of the City, finding that because resolution of the officer's PEDA claim depended on an interpretation of the CBA, it was subject to the mandatory grievance provisions of that agreement.

On appeal, the Appellate Court agreed with the trial court that resolution of the dispute turned on an interpretation of the language in the CBA, and so the claims brought by the officer were subject to the exclusive grievance provision of the CBA. As a result, the Appellate Court upheld the ruling in favor of the City. 

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City's Limited Curfew During Protests Did Not Violate First Amendment

City's Limited Curfew During Protests Did Not Violate First Amendment

  Tuesday, October 22, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently ruled in favor of a city in a First Amendment challenge to a curfew order in Knowlton v. City of Wauwatosa.

In 2020, a police officer shot and killed a black teenager. After the District Attorney's (DA) office decided not to criminally charge the officer, and anticipating that this decision might spark violence in the community, the mayor issued a limited curfew order that went into effect after the DA's announcement. The curfew temporarily restricted pedestrian and vehicular traffic on city streets for five nights and ran from 7 pm to 6 am with exceptions for people traveling to and from work, government officials, the press, and social workers. 

A group of individuals who attended protests in the city (some of whom had been arrested for violating the curfew) sued the city to challenge the curfew, claiming it violated the First Amendment among other claims. The district court ruled in favor of the city on all claims and the plaintiffs appealed to the Seventh Circuit.

On appeal, the Seventh Circuit agreed with the district court ruling in favor of the city on the plaintiff's First Amendment claims. 

First, the Court determined that the city had a "significant government interest" in enacting the curfew to protect the safety of persons and property. The Court noted that a government need not wait until violence or harm materializes to impose safety measures, and that preventative measures to promote public safety are a "basic contribution to government." The Court found the city's public safety concerns to be well founded after the city had experienced civil unrest for months leading up to the curfew. The Court also noted that the neighboring town of Kenosha had seen extensive property damage and serious physical injury in the wake of a police shooting weeks earlier. 

Next, the Court found that the curfew was narrowly tailored to keep people off the streets for a short period of time after the DA's announcement, and was not imposed arbitrarily because of a generalized fear amidst nationwide protests. It was also limited in duration, and had exceptions for certain groups of people. 

Finally, the Court held that the curfew order left plaintiffs with adequate alternative means of communication because they could protest during the daytime hours, or after the curfew expired.

In sum, the Seventh Circuit ruled in favor of the city on the First Amendment challenge to the curfew.

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Lawsuit Challenging City's Authority to Enact Vaccination Policy Dismissed

Lawsuit Challenging City's Authority to Enact Vaccination Policy Dismissed

  Monday, October 14, 2024    Julie Tappendorf

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An Illinois Appellate Court recently dismissed a challenge to a City's COVID-19 employee vaccination policy because the employees did not identify any legal authority to support their claim that the City violated the law in adopting the policy. Sokolovski et al v. Arwady, City of Chicago et al.

In 2021, the City adopted a COVID-19 vaccination policy that required every City employee, contractor, or vendor who had contact with certain persons in the City to be vaccinated against COVID-19 unless exempted. A group of City employees filed a lawsuit to challenge the policy, claiming the City had no authority to require vaccination. The case was dismissed and the employees appealed.

On appeal, the employees argued the policy was unlawful because the City did not expressly identify any state statutory authority or municipal authority for the City to adopt the vaccination policy. The employees also argued that because the policy itself did not specifically state that the Mayor or City Council created the policy, the City had no authority to adopt or enforce the vaccination policy. The City defended its policy claiming it had authority under the Illinois Municipal Code to manage its workforce and to make regulations for the promotion of health or the suppression of diseases. The Appellate Court rejected the employees' arguments, finding no support for their claim that the policy had to name a specific City official who authorized the policy and identify the express authority relied upon to enact the policy. As a result, the lawsuit against the City to challenge the vaccination policy was properly dismissed.

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Local Government Law Institute - December 6, 2024

Local Government Law Institute - December 6, 2024

  Wednesday, October 09, 2024    Julie Tappendorf

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Calling all local government attorneys -- don't forget to sign up for the 2024 Local Government Law Institute hosted by the Illinois Institute for Continuing Legal Education (IICLE). This year's conference will be held in-person at the UBS Center in Chicago and will also offer a webcast option. 

More details about the conference sessions and speakers and registration can be found here. Below is a brief summary of the sessions offered at this year's conference.

Local Government Law Institute, 2024

Friday, December 6, 2024

The conference begins at 8:55 a.m. and concludes at 4:15 p.m. (cocktail reception to follow)

UBS Tower, Chicago (and webcast)

Sessions include:

• Case Law and Legislative Update
• Due Process Considerations in Administrative Hearings
• State and Federal Tort Immunity
• Update on Takings and Impact Fees
• Lunch Panel on Parliamentary Procedures/How to Run a Meeting
• Zoning & Planning Issues and Overlap Between Taxing Bodies
• Difficult World, Difficult Issues
• From Polls to Policy: Election Law Updates
• Secondary Trauma & Imposter Syndrome: Resilience Strategies for Local Government Attorneys

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In the Zone: Seventh Circuit Dismisses Takings Challenge to City’s Short-Term Rental Regulations

In the Zone: Seventh Circuit Dismisses Takings Challenge to City’s Short-Term Rental Regulations

  Monday, October 07, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals dismissed a lawsuit against a city that argued that the city’s shared housing ordinance constituted an unconstitutional "takings" because it prevented a condo owner from renting his property on Airbnb and other homesharing platforms. Mogan v. City of Chicago

The city’s ordinance for shared housing units allowed condominium homeowners’ associations (HOAs) to determine whether short-term rentals would be allowed in their respective buildings. When an HOA prohibited rentals, they would contact the city to have that building added to a list of prohibited buildings for short-term rentals. Renting or listing a short-term rental in a prohibited building would subject the unit owner to a $5,000 fine each day the violation continued. 

A condo unit owner in a building that had been placed on the city's prohibited building list by the HOA and property management company sued, arguing that the city’s ordinance was an unconstitutional taking under the Fifth Amendment and an inverse condemnation under the Illinois Constitution. The condo unit owner claimed he suffered financial losses because he had invested thousands of dollars to refurbish the apartment with the intent of using it as a short-term rental. The district court dismissed both claims, and the unit owner appealed.  

On appeal, the Seventh Circuit focused on language in the HOA covenants that governed the use of all units within the condo building. The covenants stated that no unit within the condominium could be leased for less than 30 days or greater than 30 days where hotel services were provided. Based on the language in the covenants that were in place at the time the owner purchases his condo unit, the court found that the owner was on notice he could not lease his unit for less than 30 days. As a result, the court reasoned that the owner could not prove the city’s ordinance had any economic impact on his unit or that the ordinance interfered with a reasonable investment-backed expectation (necessary elements to prove both the takings and inverse condemnation claims) because the unit owner never had a property right to lease his unit on a short-term basis.

Post Authored by Dan Lev & Julie Tappendorf, Ancel Glink

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Public Body Properly Redacted 911 Callers' Phone Numbers in PAC Opinion

Public Body Properly Redacted 911 Callers' Phone Numbers in PAC Opinion

  Thursday, October 03, 2024    Julie Tappendorf

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A law firm submitted a FOIA request seeking copies of 911 call recordings and other records related to a traffic crash, and the public body disclosed responsive 911 recordings, but redacted the callers' names and phone numbers. After the requestor submitted a request for review with the PAC challenging the redactions, the public body disclosed the names of the callers, but maintained that the home and personal phone numbers of the callers was exempt from disclosure under the "private information" exemption in FOIA. The PAC agreed with the public body and issued a binding opinion finding that the public body properly redacted the callers' phone numbers. PAC Op. 24-012.

First, the PAC rejected the requester’s claim that law firms are entitled to greater access to exempt information in public records because attorneys are officers of the court, noting that FOIA applies equally to all requestors and there is no statute supporting the existence of an “attorney-exception” that would allow attorney to have broader access to otherwise exempt information based on the professional credentials and motives of the requestor.

Second, the PAC rejected the requester's argument that the FOIA exemption in Section 7(1)(d)(iv) applies only to "confidential sources," finding that the exemption’s plain language includes people who file complaints with or provide information to law enforcement agencies, like the callers at issue.

Third, the PAC rejected the requester's argument that this same exemption does not apply when people call an agency and voluntarily provide their information, because the plain language of the exemption does not condition the confidentiality of a person’s name on whether those people have a reasonable basis to believe their names will be kept confidential. The PAC further noted that even if the 911 callers who provided their private phone numbers anticipated being contacted about what they witnessed, this possibility does not render this FOIA exemption inapplicable to the otherwise confidential identifying information of people who voluntarily contact law enforcement.

Finally, the PAC rejected the argument that the term "identities" in that FOIA exemption also includes at least one piece of personal information (e.g., home address, phone number, date of birth) in addition to a person's name, because there is no support for this claim. Indeed, the PAC determined that the term “identity” is typically defined as a person’s name, and a person’s other contact information is not necessary to provide an essential component of an "identity." Even if FOIA requires disclosing the identities of witnesses to traffic accidents, the PAC stated this does not diminish a public body’s authority to redact expressly exempt private information such as their phone numbers.

Post Authored by Eugene Bolotnikov, Ancel Glink

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In the Zone: Court Upholds Constitutionality of Horse Boarding Zoning Ordinance

In the Zone: Court Upholds Constitutionality of Horse Boarding Zoning Ordinance

  Wednesday, October 02, 2024    Julie Tappendorf

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An Illinois Appellate Court issued a ruling in favor of a Village in a longstanding dispute over a commercial horse boarding operation in Drury et al. v. Village of Barrington Hills, et al.

A property owner filed suit against the Village and his neighboring property owner to challenge the constitutionality of a zoning approval ordinance that allowed a horse boarding operation on his neighbor's property. The lawsuit claimed that the ordinance was unconstitutional because it did not benefit the "public welfare" but instead was intended to personally benefit his neighbor. The trial court upheld the zoning ordinance finding that it was "rationally related to the legitimate public interest of promoting horse-boarding operations" in the Village and plaintiffs appealed. 

On appeal, the Appellate Court upheld the trial court's ruling upholding the constitutionality of the zoning ordinance. First, the Court held that even though the zoning approval ordinance had since been repealed, the constitutionality of the ordinance was still relevant because the operator of the horse-boarding facility had filed a separate lawsuit claiming he had a vested right to continue his operations. Second, the Appellate Court rejected plaintiffs' argument that the trial court applied the wrong legal standard, holding that the "rational basis" test applied to their facial substantive due process challenge to the zoning ordinance. Applying the rational basis test to this challenge, the Court acknowledged that the Village had conducted extensive public hearings and received testimony and evidence from experts and numerous members of the public before acting on the zoning ordinance. The Court found the trial court's findings to be well reasoned and thorough, and agreed with its legal conclusion that the zoning ordinance was rationally related to a legitimate public welfare purpose. Finally, the Court rejected plaintiffs' argument that the zoning ordinance's "retroactivity" provision only benefited his neighbor, finding that it was actually beneficial to a number of other horse boarders in the Village. 

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Court of Appeals Weighs in On Recent First Amendment Decision Issued by U.S. Supreme Court

Court of Appeals Weighs in On Recent First Amendment Decision Issued by U.S. Supreme Court

  Tuesday, October 01, 2024    Julie Tappendorf

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In March, we reported on two opinions issued by the U.S. Supreme Court in cases involving First Amendment challenges to government officials’ use of social media on their personal social media accounts, including Lindke v. Freed. In Lindke, the Supreme Court announced a two-part test for establishing that an official’s actions on their personal social media acounts can be attributed to the government (and subject to First Amendment limitations. In order to show that an official’s social media activity on the official's personal social media account is subject to the First Amendment, it must be shown that the official:

1.  has actual authority to speak on behalf of the government on a particular matter; and
2.  purports to exercise that authority in the official's activities on social media.

The Lindke opinion was issued in response to a case challenging the social media activities of the City Manager of Port Huron, Michigan, who had deleted critical comments on his personal Facebook page that were left by an individual who was dissatisfied with the City’s handling of the COVID-19 pandemic. In addition to deleting the critical comments, the City Manager eventually blocked the critic from accessing his Facebook page altogether. The commenter sued the City Manager, claiming the deletion of comments and blocking violated his First Amendment rights. After the U.S. Supreme Court announced its two-part test, it sent the case back to the Sixth Circuit Court of Appeals to assess whether the City Manager’s social media activities violated the First Amendment. In late August, the Sixth Circuit issued its opinion, providing more insight on the analysis set forth by the Supreme Court.

For the first part of the test announced by the Supreme Court, the Sixth Circuit clarified that the City Manager must have had actual authority to speak on behalf of the City in his posts. The Sixth Circuit explained that the City Manager’s Facebook posts would need to be within his “portfolio of responsibilities” to bring his activity under First Amendment scrutiny. In other words, it would not be enough for an individual challenging his activities to show that he had some authority to speak on behalf of the City—rather, the posts must be clearly related to his role and responsibilities as City Manager. Additionally, the actual authority to speak on behalf of the government must come from a distinct statute, ordinance, regulation, custom, or usage. While it is relatively easy to show that an ordinance or regulation gives an official authority to speak, the Court acknowledged it can be difficult to show actual authority by “custom” or “usage,” which rely on unwritten practices that have become so widespread or common that they carry the force of law. The Sixth Circuit, echoing the Supreme Court, cautioned that assessing actual authority requires a close review of an official’s duties, and will be found where those duties include making statements on behalf of the government consistent with their office.

If the critic is able to show that the City Manager had actual authority to speak on behalf of the City, he then has to establish that the City Manager exercised that authority in the social media activity being challenged. The Sixth Circuit clarified that this second step of the test announced by the Supreme Court requires a post-by-post analysis. The commenter must show that the City Manager was exercising his official authority in the posts where his comments were deleted. For the challenge to the City Manager’s choice to block the critic from his page, however, the assessment is much broader -- any post on the account that is shown to be an exercise of his actual authority to speak on behalf of the City could result in liability under the First Amendment if the City Manager censored protected speech. The Sixth Circuit noted that “context is everything” for the post-by-post analysis under the second part of the test announced by the Supreme Court and requires a close review of the challenged posts’ content and function. The Sixth Circuit provided several examples of social media activity that would most likely lead to a finding that the First Amendment applies: 

• Posts expressly citing an official’s legal authority to post on behalf of the government;
• Posts that have some legal consequence, such as the posting of a “burn ban” by a municipal fire marshal; or
• Posts that were made using government staff or funding.

Because the test announced by the Supreme Court was not available to the parties when the Lindke case was brought, the Sixth Circuit sent the case back to the district court to provide an opportunity to establish facts that shed light on this new test. The Sixth Circuit noted, however, that the state action analysis set forth by the Supreme Court does not address several other important issues that are relevant to a First Amendment challenge (including forum analysis and the application of qualified immunity), suggesting that there will likely be more litigation challenging government social media activities in the future.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Court Finds in Favor of College that Protected Personal Information of Students from FOIA Release

Court Finds in Favor of College that Protected Personal Information of Students from FOIA Release

  Monday, September 30, 2024    Julie Tappendorf

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The BGA submitted a FOIA request to City Colleges of Chicago (College) seeking various education records related to their 2018 graduation rate. The College withheld its responsive records citing Section 7(1)(a) of FOIA, claiming that the educational records contained personally identifying student information (PII) that was prohibited from disclosure by the Family Educational Rights and Privacy Act of 1974 (FERPA) without the consent of the students, their parents, or guardians. The BGA sued the College alleging that its response violated FOIA, and the circuit court ruled in favor of BGA, finding that FERPA did not "specifically prohibit" the disclosure of the requested records because FERPA only conditioned the College's receipt of federal funding on its compliance with FERPA, and ordered the College to disclose the records.

The College appealed and the Appellate Court reversed the circuit court's ruling. BGA v. City Colleges of Chicago. In a matter of first impression in Illinois state courts, the Appellate Court examined the interplay between FERPA and FOIA, and concluded that FERPA specifically prohibited the College from disclosing PII in educational records without student, parental, or guardian consent. Thus, the Appellate Court held that the College properly withheld educational records containing PII in response to the FOIA request. The Court also found that the circuit court’s order requiring the College to disclose its records containing PII without consent was unreasonable, because FERPA imposes a binding obligation on schools that accept federal funds and prohibits schools from disclosing PII. As a result, the circuit court’s order for the College to disclose its PII without consent would force the Colleges to violate federal law, and risk losing its federal funding, which is essential to its operations.

The Appellate Court also declined to order the College to disclose its de-identified educational records with PII removed, and instead remanded the case back to the circuit court to review the College's responsive records "in camera" to determine whether the records can be redacted or segregated to protect the disclosure of PII.

Post Authored by Eugene Bolotnikov, Ancel Glink

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PAC Finds Police Department in Violation of FOIA for Withholding Police Report

PAC Finds Police Department in Violation of FOIA for Withholding Police Report

  Thursday, September 26, 2024    Julie Tappendorf

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In response to a FOIA request seeking a case report and related records for an incident, a municipal police department withheld responsive records from disclosure citing Section 7(1)(d)(i) of FOIA, which exempts records that would interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement. The requestor then appealed the denial to the Public Access Counselor of the Attorney General's office (PAC). 

In PAC Op. 24-011, the PAC issued a binding opinion concluding that the police department violated FOIA by entirely withholding its responsive records. Specifically, the PAC noted that the case report indicated the police department had administratively closed its investigation into this matter. The PAC rejected the police department's argument that this exemption was still valid because the department was assisting other law enforcement agencies with similar incidents involving a suspect matching the same description, motive, and vehicle, finding that the department did not provide a detailed factual basis explaining with specificity how disclosing its responsive records would interfere with those ongoing joint law enforcement investigative efforts.

The PAC ordered the department to release the records, but stated the department could redact names, identifying information, and details that might disclose the identity of an at-large suspect pursuant to the personal privacy and private information exemptions.

Post Authored by Eugene Bolotnikov, Ancel Glink

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