September 1, 2018
Article, ABA GP Solo eReport, September 2018
Before doing something incendiary, it is a good idea to think about the legal consequences. Supreme Court Justice Oliver Wendell Holmes Jr. said: “A employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” Put another way, protestors can potentially be fired from their jobs or denied admission to school, and police officers are often immune from punishment for their actions during chaotic situations.
What behavior may likely constitute a violation of civil and criminal laws and how does one avoid crossing the line from lawful to unlawful conduct?
When a protester is intentionally breaking the law (which is what civil disobedience is all about), the cards are stacked against them in any subsequent legal proceeding.
In civil lawsuits (as opposed to criminal cases), police officers’ liability is decided by a legal doctrine called qualified immunity (QI), which is a legal defense that allows government actors to make reasonable mistakes because of the dangerous and difficult nature of their jobs. It makes sense, for example, that police officers need to make quick decisions with limited information for public safety.
In practice, however, QI is applied too often when mistakes are not reasonable. This defense extends to everything from excessive force, to wrongful search and seizure, to false arrest and malicious prosecution cases. See my previous article on this topic for a more thorough discussion. Here are some examples:
Uses of force range from Tasers to batons, handcuffs, police dogs, tear gas, and firearms (deadly force). The propriety of each depends on every unique situation. In a civil lawsuit, the critical question will be whether an officer used just enough force to keep people safe or whether the officer doled out punishment, which is never allowed.
Think about it this way: in a crowded and chaotic situation, where a person admits he or she intended to break the law through civil disobedience, police officers are going to argue they needed to use force to gain control. Conversely, a protestor will successfully argue that the police acted for some reason other than to keep people safe. I often tell juries that even rapists and murders have a constitutional right not to be subjected excessive force. It is not the police’s role to act as a judge, jury, and executioner.
Just as with excessive force, a false arrest needs to be objectively unreasonable in order to win a civil rights lawsuit. A lot of headlines focus on whether “stop and frisk” practices go too far, but police commonly win these arguments in court by explaining that they were under “exigent circumstances.” An emergency situation such as chaotic protests gives police the leeway to do more than would be allowed on a calm city street.
Police officers do not need to prove guilt beyond a reasonable doubt to lawfully detain someone. Despite my vigorous and aggressive representation of people who had been in prison for years before their criminal charges were dismissed, courts have found that if police had any reasonable suspicion whatsoever that my clients committed a crime (even if later found to be totally untrue), the police officers had no civil liability.
In a protest situation, just standing near other people who are committing crimes might be enough to create probable cause to justify an arrest. With a valid search warrant, police can lawfully detain and search anyone at the premises without any justification. It’s the same as going to the airport and going through the TSA security line.
Freedom of speech
This comes in many forms, and the law continues to evolve with technology. A recent case in the Third Circuit (where I practice) established the right to record police activity on cell phones. The court held that the First Amendment right of access to information encompasses the right to record police officers’ conducting official police activity in public. Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017).
Unfortunately, the Third Circuit also found that the right to record police was so unknown by most police officers that the officers in Fields were entitled to immunity and not liable for preventing people from recording police activity.
What are the potential impacts on current employment?
Federal laws such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and analogous state laws protect people from workplace discrimination based on things such as race, national origin, gender, age, and disability. Political viewpoints, however, are usually not protected.
If a person enters into an employment contract with a private employer, the company has the right to take adverse action for conduct they feel is detrimental to the business. A good example was the recent suspension by ESPN of its employee, Jemele Hill. Another example is former NFL quarterback, Colin Kaepernick. In both instances it was not unlawful for the employers to make business decisions about what they felt was best for the organization.
Some states do have laws that protect “off-duty” conduct. These states include California, Colorado, Illinois, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Tennessee, and Wisconsin. The laws in each state are different and do not provide blanket protections, so it’s safest to assume that if you do something controversial, there could be job implications.
Are union activities protected?
Union activities are an exception to a private employer’s broad power to make employment decisions. If an employer takes action because an employee files a union grievance, that is considered unlawful retaliation under the First Amendment. Justice v. Danberg, 571 F. Supp. 2d 602, 611 (D. Del. 2008). See Thomas v. Collins, 323 U.S. 516, 532 (1945) (“Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society”); United Federation of Postal Clerks v. Blount, 325 F.Supp. 879, 883 (D.D.C. 1971), aff’d per curiam, 404 U.S. 802 (1971) (“The right [of public employees] to organize collectively and to select representatives for the purposes of engaging in collective bargaining is . . . a fundamental right”); Labov v. Lalley, 809 F.2d 220, 222–23 (3d Cir. 1987).
Can activism affect applications for employment?
Many states prevent employers from considering arrests when making hiring decisions. The idea is that someone should not be penalized if their arrest results in a dismissal or not-guilty verdict. Not all states prevent employers from considering convictions and a criminal record.
Further, about a quarter of the workforce in the United States have a license or certificate. Licensing boards commonly require disclosure of a criminal record. A criminal record in and of itself does not necessarily prevent certification. Boards typically have discretion depending on the severity of an infraction. Failing to disclose a criminal record can be more serious than the record itself.
What are the potential impacts for school and college?
As discussed above, failing to disclose is often a bigger issue than the conviction itself. While schools and colleges do have the right to ask about criminal records, that usually does not automatically disqualify applicants. Importantly, criminal records can also prevent financial aid, including federal loans.
Can civil servants in government refuse to obey the law they are charged with enforcing?
Recently, Kim Davis made news as a local government clerk in Kentucky who would not issue marriage licenses to same-sex couples. Davis was found in contempt of court and jailed. Interestingly, Davis eventually returned to work and issued licenses without adding her name to the license. Perhaps the lesson is that instead of outright refusal to comply (which could land you in jail), civil servants can find a way to obey the law without violating their core values.
When counseling clients who may engage in civil disobedience, the thorough attorney will focus on: (1) employment issues, (2) police interactions, and (3) the broad ramifications of a criminal record. While not foolproof, chances of adverse consequences will be greatly lessened.
Have you had a similar experience? Please share your thoughts: firstname.lastname@example.org.
Civil rights attorney David Berlin helps people who have had their constitutional rights violated. He can be reached email@example.com or 484/432-1073.