First Amendment Civil Liability Against Law Enforcement Supervisors for Violating Their Subordinates' Rights to Engage in Overt Political Expression

• NCJ Number: 171255
• Journal: Policing Volume: 20 Issue: 2 Dated: (1997) Pages: 270-291
• Author(s): M S Vaughn
• Date Published: 1997
• Length: 22 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United Kingdom
• Note: *This document is currently unavailable from NCJRS. Earlier version of article presented at the 1996 meeting of the Academy of Criminal Justice Sciences, Las Vegas

Annotation

This article explores the issue of civil liability against police supervisors who infringe on the first amendment political rights of subordinates; the author reviews relevant U.S. Supreme Court precedents, develops a legal framework to analyze lower court cases, outlines situations in which employees may be disciplined for overt political expression, and examines how the first amendment protects employees against adverse employment practices motivated by political animus.

Abstract

The U.S. Supreme Court has held unconstitutional employment practices that unduly restrict political speech and overt political activities. Lower court cases show that the first amendment gives employees the fundamental right to engage in overt political expression and that employees cannot be subject to adverse employment action motivated by constitutionally protected political expression. Four major defenses have been successfully used by police supervisors sued for violating first amendment rights of subordinates to engage in overt political expression: (1) failing to show employee political expression is protected under the first amendment; (2) showing employer interest in efficient and effective service delivery outweighs employee interest in commenting on matters of public concern; (3) failing to show protected political expression is a substantial or motivating factor in police conduct; and (4) showing the police supervisor would respond in the same way in the absence of protected political expression. The author concludes law enforcement supervisors frequently hold political views in conflict with those of their subordinates, more information is needed about potential police civil liability for first amendment violations, and police supervisors need to be educated about liability risks of retaliating against subordinates who engage in protected political speech. 118 references, 21 notes, and 1 figure