Principles for Public Safety Employment

about the K9 program that reasonably could be expected to disrupt NHP’s operations and speech that plainly would not.” The breadth of the rule prohibited officers from speaking in their capacity as citizens. Likewise, the Court found that the prohibition was “not tailored to prevent the release of factual information or official records that would jeopardize ongoing or future investigations”; nor was it “targeted only at messages conveyed in an officer’s official capacity.” Finally, the agency did not show any past disruption sufficient to justify the policy; he also did not satisfy the baseline requirement for regulating speech based on an anticipated harm: that is, it failed to demonstrate that the recited harms were real, not merely conjectural, and that the regulation would alleviate the harms in a direct and material way. In 2021, the Ninth Circuit in Moser v. Las Vegas Metropolitan Police Department illustrated the applicability of the existing First Amendment doctrine on agency’s ability to discipline a law enforcement officer for social media posts. 237 In Moser , an individual shot a police officer with the Las Vegas Metropolitan Police Department (Department). Department officers later found and arrested that suspect. Upon seeing news of the suspect’s capture, Charles Moser, a SWAT sniper with the Department, while off-duty and at home commented ] on a friend’s Facebook post about the shooting: “It’s a shame he [the suspect] didn’t have a few holes in him[.]”Moser was transferred out of SWAT and placed on patrol out of concerns that his comment showed he became “a little callous to killing”. The Court applied the above tests, but held that summary judgment was improperly granted because more proof was needed as to the meaning of Moser’s comment and the disruption or potential disruption to the Department. 4. D ETERMINING THE S EVERITY OF D ISCIPLINE The POBR and FBOR do not impose any restrictions upon an agency’s decision regarding what level of discipline to impose. The disciplinary authority should be familiar with local requirements, e.g., requirements in a municipal code, personnel rules, or a memorandum of understanding, regarding what level of discipline may be imposed.

Ideally, the investigator will not make recommendations regarding what discipline should be imposed. The disciplinary authority should exercise his or her discretion unhampered by formal recommendations by the investigator or lower ranking personnel.

LCW Practice Advisor

Traditionally, disciplinary actions range from informal conversations to formal discharge. An effective, reasonable system of disciplinary action is founded on the premise that the actions are to be corrective rather than punitive; the actions are progressively more severe; and the actions fit the nature of the problem. Nonetheless, the response to certain first-time serious offenses may not be the action usually prescribed as an initial step in the normal progressive discipline process. For example, misconduct involving moral turpitude — a gross and intentional violation of standards of moral conduct — may result in termination on first offense. The disciplinary authority should be able to articulate clearly the basis for its decision.

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 80