As of Thursday, December 5, 2013
Portland PORTLAND — A federal appeals court has ruled that a police officer who complained about his department’s safety standards is not entitled to First Amendment protection of his speech.
Former Eugene officer Brian Hagen complained about four incidents in which Eugene police SWAT team members accidentally fired their weapons and, in two of those incidents, shot and injured another officer.
Hagen complained to a superior numerous times and was transferred as a result. He sued, challenging the transfer as retaliation against his whistleblowing, and won $250,000 in a federal jury trial in March 2012.
Eugene police appealed, arguing that Hagen was not entitled to First Amendment protection because he made his remarks as part of his job duties as a public employee. This week, the U.S. Court of Appeals for the Ninth Circuit agreed with the police department and reversed the verdict.
“Hagen’s concerns,” wrote Judge Arthur L. Alarcon, “contain all the hallmarks of traditionally internal workplace complaints one would typically expect an officer to communicate to his superiors.”
It’s a break with another opinion written by Alarcon in 2009, in which he said Baltimore, Md., police commanders violated the First Amendment rights of an officer who leaked an internal memo to The Sun newspaper in Baltimore. The difference is that Hagen didn’t bring his concerns outside the department, while the Baltimore officer did, thus entitling him to First Amendment protections as a private citizen.
David Fidanque, executive director of ACLU Oregon, said the ruling reemphasizes the problematic situation in which public employees find themselves, especially when they follow the chain of command.
“My gut feeling is that it’s a difficult standard to meet the First Amendment claim for a public employee,” Fidanque said, “particularly one who does what an employee would be expected to do, which is raise the complaint to their supervisors.”
The problems at the Eugene Police Department date back to at least the late 1990s, when SWAT members began to accidentally fire their weapons. Sometimes they hit their own, like in 2001, when a police sniper accidentally shot a sergeant during a SWAT operation.
Hagen joined the department in 2004 and, a year later, a SWAT officer attempting to pull the pin on a flash-bang grenade accidentally pulled the trigger on his rifle. It was aimed at the ground and no one was hurt.
Hagen, who worked with the department’s police dogs, and two other department dog handlers complained to their supervisor. Two years later, in January 2007, a SWAT officer again accidentally fired his rifle while climbing a fence and, this time, hit another officer.
Hagen and the other dog handlers again complained to their supervisor. When they pressed, the sergeant “became irritated and expressed frustration that the issue was being raised again.”
Again in April 2007, a SWAT officer accidentally fired his weapon during a search warrant in a residential neighborhood. Hagen sent an email to sergeants with the dog and SWAT teams, asking for a meeting to discuss the safety issues. Three days after the email, the department’s police chief suspended SWAT operations for about three weeks.
The SWAT sergeant, Tom Eichhorn, attempted to transfer Hagen for “passive insubordination” and, when that failed, began to write him up for job performance concerns that Eichhorn admitted in court “he had previously regarded positively or neutrally.”
Hagen stopped reporting safety concerns to Eichhorn and was transferred in May 2009. He sued the department in April 2010.
Reach reporter Nigel Duara on Twitter at http://www.twitter.com/nigelduara