Charles Moser v. Lvmpd ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES MOSER, No. 19-16511
Plaintiff-Appellant,
D.C. Nos.
and 2:17-cv-01012-
JAD-NJK
JOHN SABATINI, 2:17-cv-01704-
Plaintiff, JAD-NJK
v.
OPINION
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; DEVIN BALLARD;
PATRICK NEVILLE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted September 3, 2020
Pasadena, California
Filed January 12, 2021
2 MOSER V. LVMPD
Before: Eugene E. Siler, * Marsha S. Berzon, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Lee;
Dissent by Judge Berzon
SUMMARY **
Civil Rights
The panel reversed the district court’s summary
judgment in favor of the Las Vegas Metropolitan Police
Department and remanded in an action brought by a former
SWAT sniper who alleged that the Department
unconstitutionally retaliated against him for his protected
speech when it dismissed him from the SWAT team after he
commented on Facebook that it was a “shame” that a suspect
who had shot a police officer did not have any “holes” in
him.
The district court construed plaintiff’s statement as
advocating unlawful violence and ruled that the
government’s interest in employee discipline outweighed
plaintiff’s First Amendment right under the balancing test
for speech by government employees, set forth in Pickering
v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968).
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MOSER V. LVMPD 3
The panel first determined that plaintiff’s speech
addressed an issue of public concern under the Pickering
framework, that plaintiff spoke as a private citizen, not a
public employee, and that he was demoted because of his
speech. The panel held that the district court erred in
granting summary judgment for the government because
there was a factual dispute about the objective meaning of
plaintiff’s comment: was it a hyperbolic political statement
lamenting police officers being struck down in the line of
duty, or, as the Department interpreted, a call for unlawful
violence against suspects? Another factual dispute existed
over whether plaintiff’s comment would have likely caused
disruption in the police department. These factual disputes
had to be resolved before the court could weigh the
competing considerations of plaintiff’s First Amendment
rights against the government interest in workforce
discipline under the Pickering balancing test.
Dissenting, Judge Berzon stated that plaintiff waived any
argument about the meaning of his Facebook comment and
because the Department’s interpretation of plaintiff’s
statement was by far more reasonable than plaintiff’s
proffered alternative, Judge Berzon would affirm the district
court’s judgment.
4 MOSER V. LVMPD
COUNSEL
Adam Levine (argued) and Daniel Marks, Law Office of
Daniel Marks, Las Vegas, Nevada, for Plaintiff-Appellant.
Jackie V. Nichols (argued) and Nick D. Crosby, Marquis
Aurbach Coffing, Las Vegas, Nevada, for Defendants-
Appellees.
OPINION
LEE, Circuit Judge:
Social media has allowed Americans to connect with
friends in far-flung places and to share their opinions on
topics both mundane and momentous. But social media can
also tempt people to impulsively make inflammatory
comments that they later regret. And even worse for them,
employers often react by firing or punishing them for their
ill-advised remarks.
Charles Moser is one of those people. A Las Vegas
SWAT sniper, Moser commented on Facebook that it was a
“shame” that a suspect who had shot a police officer did not
have any “holes” in him. After the police department
dismissed him from the SWAT team, Moser sued, alleging
violation of his First Amendment right. He contended that
his comment suggested only that the police officer should
have fired defensive shots. The district court, however,
construed Moser’s statement as advocating unlawful
violence, and ruled that the government’s interest in
employee discipline outweighs Moser’s First Amendment
right under the Pickering balancing test for speech by
government employees.
MOSER V. LVMPD 5
The district court erred in granting summary judgment
for the government because there is a factual dispute about
the objective meaning of Moser’s comment: was it a
hyperbolic political statement lamenting police officers
being struck down in the line of duty — or a call for unlawful
violence against suspects? Another factual dispute exists
over whether Moser’s comment would have likely caused
disruption in the police department. These factual disputes
had to be resolved before the court could weigh the
competing considerations under the Pickering balancing
test. We thus reverse the grant of summary judgment and
remand.
BACKGROUND
In 2000, Charles Moser, a former Navy SEAL, joined the
Las Vegas Metropolitan Police Department (“Metro”), and
became a member of the SWAT team in 2006. Moser served
as the Assistant Team Leader of his SWAT unit and acted as
a sniper.
In 2015, someone shot a Metro police officer at the
Emerald Suites on Las Vegas Boulevard. Metro police
officers later found and arrested that suspect. After seeing
news of the assailant’s capture, Moser — while off-duty at
home — commented on a friend’s Facebook post linking an
article about the shooting:
6 MOSER V. LVMPD
Moser’s December 17, 2015 comment said, “Thanks to
a Former Action Guy (FAG) and his team we caught that
asshole. . . It’s a shame he didn’t have a few holes in
him. . .” 1
1
Moser said that “Former Action Guy (FAG)” is a self-deprecating
term coined by a former SWAT colleague who switched to a different
unit in Metro. Moser’s use of that derogatory term is not at issue in this
case.
MOSER V. LVMPD 7
An anonymous tipster alerted Metro’s internal affairs
department to this Facebook comment, prompting an
internal investigation. During his interview with Metro
investigators on February 8, 2016, Moser admitted his
comment was “completely inappropriate” but explained that
he intended to express his frustration that the suspect had
“basically ambushed one of our officers” and that “the
officer didn’t have a chance to defend himself.” He also said
that he had removed that comment by the time of this
interview.
Captain Devin Ballard and Deputy Chief Patrick Neville
transferred Moser out of SWAT and put him back on patrol,
finding that Moser’s Facebook comment showed he had
become “a little callous to killing.” Moser’s supervisors
testified that snipers “are held to a higher standard” because
they toil in difficult and stressful situations. Internal affairs
also determined that Moser’s comment violated the
department’s social media policy and found that his
Facebook page had information identifying him as a Metro
sniper. Moser filed a grievance report, requesting that he
receive a verbal reprimand rather than a transfer with a pay
decrease. The Labor Management Board denied Moser’s
grievance and upheld the transfer.
Moser sued Metro, Captain Ballard, and Deputy Chief
Neville for First Amendment retaliation, seeking damages
under 42 U.S.C. § 1983 and injunctive relief. He alleged that
his disciplinary transfer was unconstitutional retaliation for
his protected speech. Metro and Moser both moved for
partial summary judgment. Metro did not dispute that Moser
made that comment as a private citizen and that it addressed
an issue of public concern, but it argued that Moser’s
comment eroded public trust and exposed Metro to legal
liability.
8 MOSER V. LVMPD
The district court held that Metro’s disciplinary action
was justified under the Pickering balancing test for speech
by government employees. While it acknowledged that
Moser’s statement addressed a “public concern,” the district
court said it is “difficult to discern what message Moser was
attempting to convey” and ultimately believed that Moser
“wanted his fellow officers to shoot (and possibly kill) the
suspect, regardless of whether the use of deadly force (or any
force) was necessary.” The district court thus held that
Moser’s comment was “neither at the core nor the periphery
of the First Amendment.” Set against this “moderate [First
Amendment] interest” was “Metro’s prediction of likely
future disruptions caused by Moser’s continued SWAT
service.” Specifically, the court reasoned that, if more
members of the public read Moser’s post, they might
question Moser’s fitness as a SWAT member. The court
also reasoned that “any future use of deadly force by Moser
would have been more extensively scrutinized by the public
and would more likely subject Metro to suit.” The court
determined that Metro’s interest in employee discipline
outweighed Moser’s “moderate” free speech interest. The
court granted summary judgment for Metro and denied
summary judgment for Moser. Moser timely appealed.
STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. See Devereaux v. Abbey, 263 F.3d 1070, 1074
(9th Cir. 2001) (en banc). Federal Rule of Civil Procedure
56(c) authorizes summary judgment where the moving party
shows no genuine issue of material fact. The Court views
the facts and inferences drawn from the facts in the
nonmovant’s favor. See T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 631–32 (9th Cir. 1987).
MOSER V. LVMPD 9
ANALYSIS
I. Under the Pickering test, courts must balance a
government employee’s free speech rights with
government efficiency.
The Supreme Court has established a framework to
balance the free speech rights of government employees with
the government’s interest in avoiding disruption and
maintaining workforce discipline. See Pickering v. Bd. of
Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968). Under the
Pickering framework, the plaintiff first has to establish that
“(1) []he spoke on a matter of public concern; (2) []he spoke
as a private citizen rather than a public employee; and (3) the
relevant speech was a substantial or motivating factor in the
adverse employment action.” Barone v. City of Springfield,
Or., 902 F.3d 1091, 1098 (9th Cir. 2018).
If the plaintiff establishes this prima facie case, the
burden then shifts to the government to show “that (4) it had
an adequate justification for treating [its employee]
differently than other members of the general public; or (5) it
would have taken the adverse employment action even
absent the protected speech.” Id. If the government does not
meet its burden, then the First Amendment protects the
plaintiff’s speech as a matter of law.
While the Pickering balancing test presents a question of
law for the court to decide, it may still implicate factual
disputes that preclude the court from resolving the test at the
summary judgment stage. See Eng v. Cooley, 552 F.3d
1062, 1071–72 (9th Cir. 2009) (“Although the Pickering
balancing inquiry is ultimately a legal question . . . its
resolution often entails underlying factual disputes. Thus we
must . . . assume any underlying disputes will be resolved in
10 MOSER V. LVMPD
favor of the [nonmovant].”). We now apply the Pickering
framework to the facts here.
II. The district court erred in granting summary
judgment for the government because factual
disputes preclude it from assessing the Pickering
balancing test.
At the district court and on appeal, the parties do not
dispute any of the Pickering factors except for the fourth one
— whether the government had adequate justification to
treat Moser differently than members of the public. Still, we
briefly address the other factors to provide context for
Moser’s claims and for our analysis.
A. Moser’s speech addressed an issue of “public
concern.”
First, the parties do not dispute that Moser’s comment
addressed an issue of “public concern” under the Pickering
framework. An issue is of “public concern” if it “relat[es] to
any matter of political, social or other concern to the
community,” Eng, 552 F.3d at 1070 (quotation marks and
citation omitted), or “is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern
to the public,” City of San Diego v. Roe, 543 U.S. 77, 83–84
(2004). “Whether an employee’s speech addresses a matter
of public concern must be determined by the content, form,
and context of a given statement, as revealed by the whole
record.” Connick v. Myers, 461 U.S. 138, 147–48 (1983);
see also Johnson v. Multnomah Cty., Or., 48 F.3d 420, 425
(9th Cir. 1995) (“[T]he employee’s motivation and the
chosen audience are among the many factors to be
considered in light of the public’s interest in the subject
matter of the speech.”).
MOSER V. LVMPD 11
But not all statements of “public concern” are treated
equally under the Pickering balancing test (as discussed
later). While courts generally do not consider the content of
speech under the First Amendment, courts — in the limited
context of speech by government employees — have
effectively established a sliding scale for how much weight
to give to a statement of “public concern” when balancing
the employee’s and the government’s competing interests.
B. Moser spoke as a private citizen, not a public
employee.
Second, the parties do not dispute that Moser made his
Facebook comment as a private citizen. See Eng, 552 F.3d
at 1071. “Statements are made in the speaker’s capacity as
citizen if the speaker had no official duty to make the
questioned statements, or if the speech was not the product
of performing the tasks the employee was paid to perform.”
Id. (quotation marks and citations omitted). Moser was
home and off duty using his personal Facebook account.
C. Metro transferred Moser because of his speech.
Third, the parties again do not dispute that Metro
demoted Moser because of his Facebook comment. See id.Moser’s supervisors believed that his Facebook comment
revealed “that Moser had grown callous to killing.”
D. Metro cannot prevail under the Pickering
balancing test because there are material factual
disputes precluding summary judgment.
Because Moser established the prima facie case, the
burden then shifts to Metro to show that “under the balancing
test established by Pickering, [Metro’s] legitimate
administrative interests outweigh the employee’s First
12 MOSER V. LVMPD
Amendment rights.” Id. (quotation marks, alterations, and
citation omitted). 2 This balancing test asks whether Metro
was justified in treating Moser differently from the public by
balancing “the interests of [Moser], as a citizen, in
commenting upon matters of public concern and the interests
of [Metro], as an employer in promoting the efficiency of the
public services it performs through its employees.”
Pickering, 391 U.S. at 568.
Put another way, the Pickering balancing test recognizes
that a government employer has “broader discretion to
restrict speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that has
some potential to affect the entity’s operations.” Eng,
552 F.3d at 1071 (quotation marks and citation omitted).
1. Moser’s First Amendment interest: There is a
factual dispute about the meaning of Moser’s
Facebook comment.
While the parties agree that Moser’s Facebook comment
touched upon an issue of “public concern,” that does not end
our inquiry into the content of his speech. Even though the
government generally cannot consider the content of the
speech under the First Amendment, courts have carved a
narrow exception for speech by government employees. In
the limited context of the Pickering balancing test, courts
may consider the content of that speech to determine how
much weight to give the government employee’s First
Amendment interests. See Connick, 461 U.S. at 146–47.
2
Metro does not try to meet its burden under the fifth Pickering
factor (i.e., it would have taken the adverse employment action absent
the speech) because it concedes that it demoted Moser because of his
Facebook comment.
MOSER V. LVMPD 13
Courts have thus implicitly applied a sliding scale in which
the “state’s burden in justifying a particular discharge [or
adverse employment action] varies depending upon the
nature of the employee’s expression.” Id. at 150.
At the apex of the First Amendment rests speech
addressing problems at the government agency where the
employee works. See, e.g., McKinley v. City of Eloy,
705 F.2d 1110, 1114 (9th Cir. 1983) (holding that speech
criticizing police officer pay “substantially involved matters
of public concern and was thus entitled to the highest level
of protection”); Robinson v. York, 566 F.3d 817, 824 (9th
Cir. 2009) (recognizing plaintiff’s strong First Amendment
interest in speaking out about illegal conduct by public
officials); Kinney v. Weaver, 367 F.3d 337, 361–62 (5th Cir.
2004) (holding that law enforcement trainers had a
“particularly weighty” and “extremely strong” First
Amendment interest in testifying about excessive force in a
police shooting case).
On the other hand, at least one court has suggested that
racially charged comments that have no connection to the
government employee’s workplace arguably receive less
First Amendment protection under the Pickering balancing
test for government employees. See, e.g., Grutzmacher v.
Howard Cty., 851 F.3d 332 (4th Cir. 2017) (holding that a
firefighter’s racially charged comment is not “of the same
ilk” as speech by government employees about public policy
problems in their workplace).
We thus need to analyze Moser’s speech in weighing his
First Amendment rights against the government’s interest in
efficiency. See Connick, 461 U.S. at 146–48. The parties do
not, however, agree on the objective meaning of Moser’s
statement. Metro believes that Moser’s comment advocated
unlawful use of deadly force: Moser wished that the officers
14 MOSER V. LVMPD
who captured the suspect would have shot him in retaliation
for his earlier shooting of a police officer.
The district court appeared to accept Metro’s
interpretation of Moser’s comment. The district court
admitted that it is “difficult to discern what message Moser
was attempting to convey,” but ultimately concluded that
“Moser’s post conveyed that he wanted his fellow officers to
shoot (and possibly kill) the suspect, regardless of whether
the use of deadly force (or any force) was necessary.” Not
surprisingly, a comment advocating unlawful violence by
law enforcement would not be at the high end of the “public
concern” scale. The district court thus held that Moser’s
comment was not at the “core” of First Amendment
protection.
Moser, however, offered a different take on his
statement. At his interview with internal affairs
investigators, he said that he was implying that the police
officer who had been ambushed by the suspect — not the
police officer who ultimately arrested the suspect — should
have fired defensive shots. His statement then takes on a
different meaning: He did not advocate unlawful violence,
but rather expressed frustration — in an admittedly
hyperbolic and inappropriate manner — at the perils of
police officers being struck down in the line of duty. Put
another way, Moser’s comment touches on an important
public policy issue that falls within his personal experience. 3
3
The FBI reported that in the past decade there have been over
20,000 assaults with firearms against law enforcement officials. See
2019 Law Enforcement Officers Killed & Assaulted, Federal Bureau of
Investigation, https://ucr.fbi.gov/leoka/2019/topic-pages/tables/table-
85.xls (last visited on October 20, 2020).
MOSER V. LVMPD 15
While Moser’s comment remains inflammatory even
under his interpretation, the Supreme Court has held that the
“inappropriate or controversial character of a statement is
irrelevant to the question whether it deals with a matter of
public concern.” Rankin v. McPherson, 483 U.S. 378, 387
(1987). In Rankin, an employee at the constable’s office
who opposed President Reagan’s policies said, “[I]f they go
for him again, I hope they get him” upon learning of John
Hinckley, Jr.’s attempted assassination of the President. Id.
at 381. The Supreme Court held that the First Amendment
protected the government employee’s statement because it
related to a public concern (President Reagan’s policies),
despite the incendiary nature of that comment. Id. at 386–
87. Here, too, Moser’s statement — when viewed in the
light most favorable to him under the summary judgment
standard — could be objectively interpreted as a provocative
political statement against police officers being shot in the
line of duty. 4
In short, a factual dispute exists over the objective
meaning of Moser’s statement. Under Metro’s reading,
Moser advocated unlawful violence against suspects, which
would not be in the “core” First Amendment zone (as the
district court found). But under Moser’s interpretation, his
statement falls within the “core” First Amendment zone
because it highlights the perils faced by police officers and
the government’s failure to protect them. The district court,
4
Metro argues that Moser’s explanation conflicts with the “plain
meaning” of his Facebook post. But Moser’s message is objectively
ambiguous, as the district court itself noted that it is “difficult to discern”
the meaning of the comment. The dissent suggests that we are
considering Moser’s subjective interpretation of his Facebook comment.
We are not; rather, we are holding that Moser’s comment is objectively
ambiguous, and that his interpretation of it may be a plausible and
objective reading of it.
16 MOSER V. LVMPD
however, did not resolve this factual dispute over the
objective meaning of Moser’s statement and instead adopted
Metro’s reading of it. That was error. 5
2. Metro’s interest in government efficiency:
There is a factual dispute whether the
government provided any evidence of
predicted disruption to Metro.
On the other side of the Pickering scale, the court
considers the strength of Metro’s interest in efficiency and
employee discipline. Courts do not approach this issue in
“abstract terms,” but look “to how the speech at issue affects
the government’s interest in providing services efficiently.”
Kinney, 367 F.3d at 362. The Supreme Court has recognized
several factors in evaluating the impact of an employee’s
speech on the government agency’s operation:
whether the statement impairs discipline by
superiors or harmony among co-workers, has
5
The dissent argues that Moser waived the issue of the meaning of
his Facebook comment. While Moser did state to the district court that
the comment’s meaning was irrelevant as a legal matter, he repeatedly
provided evidence from the record that supported his interpretation of
the comment. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026,
1031 (9th Cir. 2001) (“[T]he district court may determine whether there
is a genuine issue of fact, on summary judgment, based on the papers
submitted on the motion and such other papers as may be on file and
specifically referred to and facts therein set forth in the motion papers.”)
(emphasis added). Such evidence gave rise to a factual dispute regarding
the parties’ interpretations of the comment. The district court clearly
considered this dispute, as it analyzed the comment’s objective meaning
in applying the Pickering balancing test. Thus, the issue of the
comment’s meaning is not waived. See Cmty House, Inc. v. City of
Boise, 490 F.3d 1041, 1054 (9th Cir. 2007) (“[E]ven if a party fails to
raise an issue in the district court, we generally will not deem the issue
waived if the district court actually considered it.”).
MOSER V. LVMPD 17
a detrimental impact on close working
relationships for which personal loyalty and
confidence are necessary, or impedes the
performance of the speaker’s duties or
interferes with the regular operation of the
enterprise.
Rankin, 483 U.S. at 388 (citing Pickering, 391 U.S. at 570–
73). The Supreme Court has also acknowledged that police
departments have heightened interests in “discipline esprit
de corps, and uniformity.” Kelley v. Johnson, 425 U.S. 238,
246 (1976). And the Ninth Circuit has recognized the
special need for police departments to avoid disruption to
provide public safety. See Byrd v. Gain, 558 F.2d 553, 554
(9th Cir. 1977).
The government can meet its burden by showing a
“reasonable prediction[] of disruption.” Brewster v. Bd. of
Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 979 (9th
Cir. 1998) (quotation marks and citation omitted). But the
government cannot rely on mere speculation that an
employee’s speech will cause disruption. Nichols v. Dancer,
657 F.3d 929, 933–34 (9th Cir. 2011). 6
Courts give the government employer’s reasonable
prediction of disruption greater deference than the
justifications used to restrict the public’s speech. Waters v.
6
The dissent notes that the government can appropriately consider
whether Moser’s comment reflects on his fitness for his job. But Moser’s
fitness for his job depends on the objective meaning of his comment. If
he encouraged unlawful violence, it certainly reflects poorly on his
ability to serve as a SWAT officer. But if his comment was merely a
hyperbolic statement on a public matter, then it may not. And as noted,
we hold that the objective meaning of Moser’s Facebook comment is
ambiguous.
18 MOSER V. LVMPD
Churchill, 511 U.S. 661, 673 (1994). But “[v]igilance is
necessary to ensure that public employers do not use
authority over employees to silence discourse, not because it
hampers public functions but simply because superiors
disagree with the content of the employees’ speech.”
Rankin, 483 U.S. at 384. Thus, “bare assertions of future
conflict are insufficient to carry the day at the summary
judgment stage.” Nichols, 657 F.3d at 935 (citing Lindsey v.
City of Orrick, Mo., 491 F.3d 892, 900 (8th Cir. 2007),
Kinney, 367 F.3d at 363, and Andersen v. McCotter, 100
F.3d 723, 729 (10th Cir. 1996)); see also Berger v. Battaglia,
779 F.2d 992, 1001 (4th Cir. 1985) (“[T]hreatened
disruption by others reacting to public employee speech
simply may not be allowed to serve as justification for public
employer disciplinary action directed at that speech.”).
It follows that an employer must provide some evidence
for the court to evaluate whether the government’s claims of
disruption appear reasonable. See Nichols, 657 F.3d at 934;
see also Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d
1110, 1119 (7th Cir. 2013) (“[A]n employer’s assessment of
the possible interference caused by the speech must be
reasonable—the predictions must be supported with an
evidentiary foundation and be more than mere speculation.”
(quotation marks and citation omitted)).
Courts have accepted a government employer’s
predictions of disruption when it provided evidence that the
community it serves discovered the speech or would
inevitably discover it. See, e.g., Locurto v. Giuliani,
447 F.3d 159, 183 (2d Cir. 2006) (government lawfully fired
police officers who participated in a parade with racist
lampooning amid local media coverage of it); McMullen v.
Carson, 754 F.2d 936, 936–37 (11th Cir. 1985) (city
lawfully dismissed a clerical employee who publicly
MOSER V. LVMPD 19
identified himself as a sheriff’s office employee who also
moonlights as a KKK recruiter); Munroe v. Cent. Bucks Sch.
Dist., 805 F.3d 454, 473–74 (3d Cir. 2015) (city had grounds
to dismiss schoolteacher whose blog criticizing her students
caused outrage among parents once it was reported in the
press); Melzer v. Bd. of Educ. of City Sch. Dist. of City of
N.Y., 336 F.3d 185, 190–91, 200 (2d Cir. 2003) (city
lawfully fired schoolteacher who advocated legalizing
pedophilia after being identified in a TV news report about
teachers who are members of NAMBLA); Craig, 736 F.3d
at 1119 (school counselor wrote a hypersexualized advice
book for women and dedicated it to his students, leading to
complaints from parents).
Courts also are more likely to accept a government
employer’s prediction of future disruption if some disruption
has already occurred. See, e.g., Munroe, 805 F.3d at 477–78
(relying on over 100 complaints from parents whose children
were criticized in the teacher’s blog with demands for their
children to be placed in a different classroom); Lumpkin v.
Brown, 109 F.3d 1498, 1501 (9th Cir. 1997) (citing evidence
that plaintiff’s statements about homosexuality had attracted
media attention and “ignited a public outcry”).
In contrast, the government cannot prevail if it does not
provide enough evidence to support the prediction of future
disruption. See, e.g., Andersen, 100 F.3d at 729 (ruling that
the government employer failed to “provide evidence
sufficient to assess the character and weight of [its]
interests”). For example, a court may discount the
government employer’s fears of disruption if there is little
evidence that the offending speech has been or will be
discovered. In Rankin, the court found the law enforcement
agency’s interests in maintaining efficiency were not
threatened, in part because only two fellow employees heard
20 MOSER V. LVMPD
the plaintiff make the inappropriate comment about
President Reagan’s assassination attempt. 483 U.S. at 389.
Even where the employer provides evidence of a
negative reaction to speech, courts require evidence that it
will disrupt the workplace. In Lindsey, a city public works
director was fired after speaking at public meetings and
accusing the city council of violating the law. 491 F.3d
at 901. The defendants provided evidence that the plaintiff’s
speech had caused arguments and made people dislike him,
but the court found this insufficient to grant summary
judgment, finding no evidence that the speech impaired his
working relationship with his fellow employees. Id.The question thus is not whether Metro has an abstract
interest in avoiding disruption and litigation, but whether, on
this record, Metro could reasonably think Moser’s speech
threatened those interests. See Kinney, 367 F.3d at 362–63.
The record here does not support the government’s
contention that Moser’s Facebook comment would have
caused disruption. Typically, courts credit the government’s
claim where the challenged speech is widely known or
reported by the press. Here, there was no media coverage of
Moser’s comment. In fact, the record shows no evidence
that anyone other than the anonymous tipster even saw
Moser’s Facebook comment. Nor would most people have
even known that Moser served as a SWAT sniper because
nothing in his Facebook profile confirmed his employment.7
7
The district court found that the public could have deduced
Moser’s position as a SWAT sniper because (1) a local news article had
previously discussed his role in shooting a suspect, and (2) his Facebook
profile picture featured an “angry sniper” cartoon. But the fact that an
inquisitive person could have theoretically searched Moser’s name on an
Internet search engine does not mean that the public would do so. And
MOSER V. LVMPD 21
And importantly, the chance that the public would have seen
the Facebook comment remained low because Moser deleted
that December 2015 comment by February 2016. 8
Moser’s Facebook comment is like that of the plaintiff in
Rankin, who wished that a future assassin would succeed
against President Reagan because she opposed his policies.
483 U.S. at 389. Both inflammatory statements touched
upon a public issue. In both cases, the public did not see or
hear the offending comment, which lessens the potential
impact on the agency’s reputation or mission.
Metro also has provided no evidence to support its claim
that Moser’s comment will expose Metro to future legal
liability. Metro speculates that if Moser shoots someone in
the future, the shooting will lead to a lawsuit, that Moser’s
deleted Facebook comment would be discovered, that the
trial judge would admit that Facebook comment as evidence,
and that the jury would rely on the Facebook comment to
find Metro liable. But Metro has cited no case in which such
a long chain of speculative inferences tipped the Pickering
balancing test in the government’s favor. Cf. Nichols,
657 F.3d at 934 (citing Kinney, 367 F.3d at 363 for the
Moser’s use of a cartoon image of an angry sniper hardly reveals his
identity. Many people use avatars unrelated to their profession as their
profile pictures, and some may have assumed he was in the military
(indeed, Moser was a former Navy SEAL).
8
This does not mean that the government must wait until the media
or a critical mass of people notices the challenged speech. Some
statements may be so patently offensive (e.g., racial slurs) that the
government can reasonably predict they would cause workforce
disruption and erode public trust. But because Moser’s statement is
ambiguous, it is not clear cut whether it would have caused disruption,
and the government had to provide some evidence to support its
prediction.
22 MOSER V. LVMPD
proposition that “engaging in Pickering balancing is not like
performing rational basis review, where we uphold
government action as long as there is some imaginable
legitimate basis for it”).
In sum, material questions of fact remain as to whether
Moser’s comment would likely disrupt Metro’s workforce
or its reputation. See Robinson, 566 F.3d at 825 (denying
summary judgment where there was a factual dispute about
whether there was disruption in the police force). Put
differently, Metro has produced no evidence to establish that
its interests in workplace efficiency outweigh Moser’s First
Amendment interests.
Metro’s cited cases are not to the contrary. In Dible v.
City of Chandler, the public had discovered the police
officer’s sex website, and multiple officers testified that the
website had interfered with the department’s operations.
515 F.3d 918, 923 (9th Cir. 2008). Metro also relies on
Grutzmacher, but that case is distinguishable because
multiple coworkers told plaintiff’s supervisors that they did
not want to work with plaintiff after seeing his racially
charged posts. 851 F.3d at 346. Those conversations led to
concerns about the plaintiff’s ability to act as a supervisor
and role model. Id. Here, Metro has provided no evidence
of actual or potential disruption in the workplace or to the
department’s mission.
* * * * *
As noted, the Pickering balancing test is a legal question,
but its resolution often entails underlying factual disputes
that need to be resolved by a fact-finder. See Eng, 552 F.3d
at 1071. Perhaps the jury may answer a special jury verdict
form that addresses these Pickering factual disputes, and the
court can potentially decide the case as a matter of law based
MOSER V. LVMPD 23
on the responses. We, however, leave it to the district court’s
discretion in fashioning the most efficient way to resolve
these factual disputes.
CONCLUSION
We have entrusted law enforcement with the solemn
duty of using lawful force if necessary, and police officers
thus must behave beyond reproach. We are also mindful that
our society is in a self-reflective moment about excessive
force and abuse of power by those who have taken an oath
to protect all citizens equally and uphold the Constitution.
But we also live in a time when a careless comment can ruin
reputations and crater careers that have been built over a
lifetime because of the demand for swift justice, especially
on social media. For private employers, it is their
prerogative to take action against an intemperate tweet or a
foolish Facebook comment. But when the government is the
employer, it must abide by the First Amendment. In this
case, we hold that the district court did not adequately
address the objective meaning of Moser’s Facebook
comment in its Pickering analysis to weigh Moser’s First
Amendment right against the government’s interest in
workforce discipline. And because of the disputed facts
here, the district court erred in granting summary judgment
for Metro. The district court’s decision granting summary
judgment for Metro is REVERSED and the case is
REMANDED.
24 MOSER V. LVMPD
BERZON, Circuit Judge, dissenting:
I respectfully dissent.
The majority identifies two factual disputes, both related
to the meaning of Charles Moser’s Facebook comment,
which it believes should have prevented the district court
from granting summary judgment. Specifically, the majority
holds that the meaning of Moser’s statement is ambiguous
and that, as a result, Metro needed to provide some evidence
of disruption to the workplace. But Moser conceded to the
district court, more than once, that there was no genuine
issue of material fact about the meaning of his comment.
Further, the majority does not explain how, regardless of
waiver, evidence of Moser’s private, subjective meaning
alone can make his public statement objectively ambiguous.
Nor does it properly address whether Metro’s interpretation
of Moser’s comment, ambiguous or not, was reasonable, the
touchstone of the Pickering balancing test. Because Moser
waived any argument about the meaning of his Facebook
comment and because Metro’s interpretation of Moser’s
statement was by far more reasonable than Moser’s
proffered alternative, I would affirm the district court’s
judgment.
I
The majority takes up Moser’s argument on appeal that,
“[i]n conducting the Pickering balancing test,” the district
court’s conclusion that the police department’s interests as
an employer outweighed Moser’s First Amendment interests
as a citizen was “based upon an erroneous assumption”
about the intended meaning of his Facebook comment and
“ignored the evidence in the record.” Specifically, the
district court wrote as part of the Pickering balancing test
that “Moser’s post conveyed that he wanted his fellow
MOSER V. LVMPD 25
officers to shoot (and possibly kill) the suspect, regardless of
whether the use of deadly force (or any force) was
necessary.” Sabatini v. Las Vegas Metro. Police Dep’t,
369 F. Supp. 3d. 1066, 1092 (D. Nev. 2019). Moser does not
on appeal contest the reasonableness of this understanding
of what he said. Instead, Moser asserts that his Facebook
comment, although “inappropriate,” was actually meant to
express “his regret that the ambushed officer did not get off
any defensive shots.” As evidence of this alternative
meaning, Moser points to his interview with Metro’s internal
affairs department regarding his Facebook comment.
In response, Metro and the individual defendants argue
that “[t]o the extent Moser claims that a genuine issue of
material fact [regarding the meaning of his Facebook
comment] exists and precludes summary judgment, Moser
failed to raise this argument below and, thus, has waived his
ability to assert it for the first time on appeal.” That
contention is correct and should be dispositive of this appeal.
In his motion for summary judgment, Moser set forth the
relevant facts, which included the finding in Metro’s
administrative Adjudication of Complaint that Moser’s
Facebook comment “would . . . tend to negatively impact the
Department’s ability to serve the public, would impede the
performance of [Moser’s] duties in SWAT, and thus, has
made [him] ineffective in [his] current assignment.”
Importantly, Moser did not advance his alternative
interpretation of his Facebook comment in his statement of
undisputed facts filed with his summary judgment motion.
And, when discussing the merits of his motion, he wrote the
following:
The Defendants actually misunderstood
Moser’s comment. The statement that it was
“too bad” that the assailant did not have
26 MOSER V. LVMPD
“holes in him” was a reference to the fact that
the Officer who was shot did not get off any
defensive shots in connection with his being
ambushed. However, for purposes of the
First Amendment the Defendant’s
misunderstanding is irrelevant.”
(Emphasis added and citation omitted.) Rather than argue
that there was a disputed issue of material fact about the
meaning of his Facebook comment, Moser argued that there
was an “absence of actual disruption.”
Similarly, in his opposition to the defendants’ motion for
summary judgment, Moser reiterated that “[t]he relevant
undisputed material facts . . . are contained within Moser’s
Motion for Partial Summary Judgment,” and that the
different meanings attributed to his Facebook comment did
not matter:
As set forth by the citation to the record in
Footnote 5 to Moser’s Motion for Partial
Summary Judgment (Doc. #38), the
Defendants actually misunderstood Moser’s
statement. His comment regarding the
suspect not having any “holes” was a
statement regretting the fact that the
ambushed officer did not get off any
defensive shots. However, the
misunderstanding by the Defendants is
irrelevant to the First Amendment analysis.
(Emphasis added.)
Finally, in his motion for reconsideration by the district
court, Moser did not raise the meaning of his Facebook
comment as a disputed factual issue. Instead, Moser argued
MOSER V. LVMPD 27
that the district court overlooked a different factual dispute,
concerning whether Facebook readers could discern that
Moser was a police officer for Metro.
The majority acknowledges in a footnote that “Moser did
state to the district court that the comment’s meaning was
irrelevant as a legal matter,” but nonetheless holds that “the
issue of the comment’s meaning is not waived” because
Moser “provided evidence from the record that supported his
interpretation of the comment.” Opinion at 16 n.5. But this
reasoning fails to recognize the importance of Moser’s
concession and allows him to have it both ways—to both tell
the district court that a dispute is legally irrelevant, so that
Metro had no reason to put forth evidence concerning the
statement’s meaning, but to also preserve the issue for appeal
in case the district court ruled against him.
Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026 (9th
Cir. 2001), demonstrates why reversing the district court’s
grant of summary judgement on the basis that multiple
meanings could be attributed to the Facebook comment is
inappropriate. In Carmen, the plaintiff-appellant argued on
appeal that the district court’s grant of summary judgment
should be reversed because evidence not referenced in the
summary judgment papers in the district court revealed a
genuine issue of material fact. The panel held that, in such a
situation, “[t]he district court need not examine the entire file
for evidence establishing a genuine issue of fact, where the
evidence is not set forth in the opposing papers with
adequate references so that it could conveniently be found.”
Id. at 1031. The panel gave two reasons for its decision:
First, to hold otherwise would place an unmanageable
burden on the district court. See id. Second, to hold
otherwise would be “profoundly unfair to the movant,” who
28 MOSER V. LVMPD
would be “denied a fair opportunity to address the matter in
the reply papers.” Id.In this case, Moser not only failed to identify the
meaning of his Facebook comment as a disputed issue of
material fact but told the district court up front that, despite
the parties’ different interpretations of his comment, that
issue was legally irrelevant. As a result, the district court had
no reason to determine whether the meaning of the Facebook
comment presented a genuine dispute of fact material to the
Pickering balancing test. And the defendants-appellees had
no reason either to submit evidence as to how the Facebook
comment was most likely to be understood, including its
context and objective meaning, or to argue that Moser’s
professed intended meaning in making the comment was
irrelevant.
The majority overlooks these consequences of Moser’s
waiver when it explains that “because Moser’s statement is
ambiguous . . . the government had to provide some
evidence to support its prediction.” Opinion at 21 n.8. As I
shall explain shortly, the notion that the statement was
ambiguous is far-fetched, and, more importantly, under our
precedent, the relevant question is not whether the statement
is conceivably ambiguous but whether Metro reasonably
determined how it would be understood by others. In any
event, in this circumstance, where no exceptional
circumstances explain why the issue was not raised to the
district court, “appellants may not upset an adverse summary
judgment by raising an issue of fact on appeal that was not
plainly disclosed as a genuine issue before the trial court.”
Int’l Union of Bricklayers & Allied Craftsman Local Union
No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1404
(9th Cir. 1985).
MOSER V. LVMPD 29
II
Moser was quite correct, for two intertwined reasons,
when he twice informed the district court that the parties’
disagreement over the meaning of his Facebook comment
was irrelevant to the outcome of the Pickering balancing test.
First, under settled precedent, the police department
could rely when deciding whether to retain Moser in his
SWAT position on what it understood Moser to have meant
or what he would be understood by others to have meant,
provided that such interpretations were reasonable. In
conducting the Pickering balancing test, “courts must give
government employers ‘wide discretion and control over the
management of [their] personnel and internal affairs. This
includes the prerogative to remove employees whose
conduct hinders efficient operation and to do so with
dispatch.’” Brewster v. Bd. of Educ. of Lynwood Unified Sch.
Dist., 149 F.3d 971, 979 (9th Cir. 1998) (alteration in
original) (quoting Connick v. Myers, 461 U.S. 138, 151
(1983)).
Consistently with these precepts, courts conducting
Pickering balancing are to “give[] substantial weight to
government employers’ reasonable predictions of
disruption, even when the speech involved is on a matter of
public concern.” Waters v. Churchill, 511 U.S. 661, 673
(1994) (emphasis added). Waters explained this
reasonableness standard by contrasting Connick v. Myers,
461 U.S. 138 (1983), which held that “[t]he limited First
Amendment interest involved here does not require that [the
public employer] tolerate action which he reasonably
believed would disrupt the office, undermine his authority,
and destroy close working relationships,” id. at 154(emphasis added), with Texas v. Johnson, 491 U.S. 397(1989), which held that “[n]o reasonable onlooker would
30 MOSER V. LVMPD
have regarded [the individual’s] generalized expression of
dissatisfaction with the policies of the Federal Government
as a direct personal insult or an invitation to exchange
fisticuffs,” id. at 409 (emphasis added). As these examples
demonstrate, the pertinent consideration determining the
strength of an employer’s interest for purposes of Pickering
balancing is what message the government reasonably
concluded was conveyed.
The majority holds Moser’s statement objectively
ambiguous, but does not—and could not—declare Metro’s
much more sensible interpretation unreasonable. Instead, the
majority simply cites Moser’s asserted subjective
interpretation, as to what he meant, for this conclusion. As
the majority explains, “[t]he parties . . . do not agree on the
objective meaning of Moser’s statement. Metro believes that
Moser’s comment advocated unlawful use of deadly force:
Moser wished that the officers who captured the suspect
would have shot him in retaliation for his earlier shooting of
a police officer.” Opinion at 13–14. “Moser . . . offered a
different take on his statement.” Opinion at 14. But Moser’s
asserted “take” is hardly grounds for finding objective
ambiguity in what he actually said. The majority nonetheless
indulges Moser’s professed alternative meaning of his
comment, explaining that Moser may have been
“express[ing] frustration . . . at the perils of police officers
being struck down in the line of duty;” that his comment, so
interpreted, “touches on an important public policy issue that
falls within his personal experience;” and that—for reasons
that are not explained—it not only “highlights the perils
faced by police officers,” but also highlights “the
government’s failure to protect them.” Opinion at 14–15.
An objectively reasonable understanding of the
comments, their tone, and their context supports as more
MOSER V. LVMPD 31
than just reasonable the police department’s and the district
court’s interpretation of the meaning Moser’s statement
actually conveyed, whatever he meant to say, and whether
or not a modicum of ambiguity lurks in the statement (which
I do not think it does). First, as the majority recognizes,
Moser himself characterized his comments as “completely
inappropriate;” expressing the wish that the ambushed
officer had been able to defend himself would not be
“completely inappropriate.” Second, Moser’s post-hoc
explanation is entirely implausible. Moser’s comment
concerned the arrest of the suspect—“Thanks to a Former
Action Guy (FAG) and his team we caught that asshole. . .
It’s a shame he didn’t have any holes in him.” (Ellipsis in
original and emphasis added.) Moser’s post-hoc
explanation, in context, focuses on the earlier incident, in
which the suspect shot a different officer from the one who
captured him. Moser’s comment was most reasonably
understood as a vivid portrayal of a desire for revenge at the
point of capture, not as a way of saying that he wished the
injured officer had earlier been able to pull out a gun in self-
defense. Finally, as the district court recognized, “because
Moser posted his comment in response to a third party’s
Facebook post—as opposed to on a personal profile with
privacy restrictions—he spoke in a public setting,” where
other people with Facebook accounts could view his
comment. Thus, the majority is assuredly wrong that “the
chance that the public would have seen the Facebook
comment remained low,” Opinion at 21, and so wrong in
concluding that Moser’s professed private, idiosyncratic
meaning matters.
For each of these reasons, Moser’s manufactured factual
dispute about the meaning of his statement should not be the
basis for reversing the district court.
32 MOSER V. LVMPD
Second, and relatedly, the police department could
properly consider Moser’s fitness for his job based on its
reasonable interpretation of his statement, whether or not the
statement would generate disruption in the workplace.
For the bulk of its opinion, the majority treats plausible
workplace disruption, in the sense of inter-employee
disruption or dysfunction, as the only employer interest
relevant in the Pickering balance, and maintains that the
summary judgment record is insufficient to support a
prediction of disruption in that sense. But that disruption
focus is entirely too narrow.
Pickering itself, the seminal case protecting government
employees from discipline for their speech in some
circumstances, made clear other management interests than
workplace disruption implicated by the objectively
reasonable meaning of an employee’s communication are
pertinent. In Pickering, one reason that the teacher’s
dismissal was improper was because his statements were
“neither shown nor . . . presumed to have in any way . . .
impeded the . . . proper performance of his daily duties in
the classroom.” Pickering v. Bd. of Ed. of Twp. High Sch.
Dist. 205, Will Cty., Illinois, 391 U.S. 563, 572–73 (1968)
(emphasis added). Similarly, Rankin v. McPherson, 483 U.S.
378 (1987), explained that in Pickering cases courts should
look at, among other things, “whether the statement . . .
impedes the performance of the speaker’s duties.” Id. at 388(emphasis added). This court, drawing on Pickering and its
progeny, has specifically recognized that it is “relevant to the
Pickering determination that an employee’s speech
interferes with the fulfillment of his own office duties.”
Brewster, 149 F.3d at 981 (citing Rankin, 483 U.S. at 388)).
Here, Metro had a valid interest in continually evaluating
Moser’s qualifications as a sniper. Those qualifications
MOSER V. LVMPD 33
assuredly include good judgment as to when to use force and
also good judgment as to both public perception and
perception by fellow officers concerning one’s calibration of
when the use of force is justified. Viewing Moser’s
statement as reasonably understood to sanction the use of
unnecessary force, Metro had good reason to conclude that
harboring and communicating that view was a serious
impediment to performance of the duties of a SWAT officer.
The majority resists this evaluation of Metro’s interests
as Moser’s employer, insisting that “Moser’s Facebook
comment is like that of [Ardith McPherson,] the plaintiff in
Rankin,” Opinion at 21, and so may not give rise to employer
interests beyond those held inadequate in Rankin. But to the
degree the statements triggering the employees’ discharge or
transfer in the two cases are similar, the relevant employer
concerns are to a much greater degree distinct. Moser’s
SWAT force position is not at all like the clerical job held by
the plaintiff in Rankin, and his statement directly concerned
the type of activity he carried out as a SWAT officer.
In Rankin, Ardith McPherson worked for the constable
in a “purely clerical” position. 483 U.S. at 392. She was not
a commissioned peace officer, and she served “no
confidential, policymaking, or public contact role.” Id. at
391–92. Nor was McPherson’s discharge “based on any
assessment . . . that her remark demonstrated a character trait
that made respondent unfit to perform her work.” Id. at 389.
Rankin repeatedly emphasized this point, instructing that in
the Pickering balance “[t]he burden of caution employees
bear with respect to the words they speak will vary with the
extent of authority and public accountability the employee’s
role entails,” id. at 390, and concluding that “[g]iven the
function of the agency, McPherson’s position in the office,
and the nature of her statement, we are not persuaded that
34 MOSER V. LVMPD
Rankin’s interest in discharging her outweighed her rights
under the First Amendment,” id. at 392.
In this case, the district court on summary judgment
noted as an undisputed fact that “Moser’s comment led his
superiors to question his judgment and therefore fitness to
serve as a SWAT sniper,” citing the Department’s Labor
Board decision and the deposition of the Director of Labor
Relations. Sabatini, 369 F. Supp. at 1093. When conveying
the meaning of Moser’s Facebook comment, the district
court allowed that “[e]ven if Moser wasn’t sincere, this
cavalier and callous comment conveyed a lack of awareness
for the degree of trust placed in SWAT officers,” citing the
same evidence. Id. at 1092–93. The Labor Board decision
found that Moser’s comment demonstrated a “serious lack
of judgment” and that “they expect more of the critical
positions in the Department, such as SWAT.” And the
deposition of the Director of Labor Relations discussed the
Adjudication of Complaint, which similarly stated that
Moser’s comment “would . . . tend to negatively impact the
department’s ability to serve the public, would impede the
performance of [his] studies in SWAT, and thus, ha[d] made
[him] ineffective in [his] current assignment.” When asked
the basis for the Adjudication of Complaint, the Director of
Labor Relations explained that “it appears from this
comment that he’s become a little callus [sic] to killing
someone. And someone who’s in SWAT who particularly
has to shoot a lot, we want them taking that position very
seriously . . . . And writing a comment like this shows that
you might not take this as seriously anymore.”
All of these evaluations concern Moser’s qualifications
for his particular position in light of a reasonable
understanding of the comments that led to his removal as a
SWAT officer.
MOSER V. LVMPD 35
III
In sum, although the majority holds that the district court
erred in granting summary judgment for Metro because of
factual disputes related to the meaning of Moser’s Facebook
statement, Moser professed before the district court,
correctly, that any such dispute was not relevant to the First
Amendment issues in this case. As Moser waived that
asserted dispute, he cannot rely on it on appeal. Further,
Metro’s interpretation of Moser’s statement is not only
reasonable, but considerably more so than what Moser says
he meant. Metro could properly consider whether Moser
was fit for his job duties as a sniper in light of its reasonable
interpretation.
Stepping back, what the majority holds is that a police
department may have to retain on its SWAT squad an officer
who appears to support the unnecessary use of force in the
capture of a suspect in a police shooting. I do not for a minute
doubt that protecting the First Amendment right of public
employees to contribute to the public dialogue on issues of
public importance is of critical importance to our ongoing
experiment in self-government. But we are living in a time
when, driven by public concern, police departments
nationwide are engaged in self-examination concerning how
best to curb the use of excessive force by police officers as
they carry out law enforcement’s critical role. Tying the
hands of those departments in making personnel decisions
based on reasonable evaluations of those officers’ ability to
make measured judgments about the use of force—
especially where, as here, the decision concerns an elite
officer entrusted with high-caliber weapons and particularly
dangerous assignments—can only stand in the way of these
efforts.
36 MOSER V. LVMPD
I would therefore affirm the district court’s grant of
summary judgment, and so dissent.